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How States Are Making It Harder to Leave Unions

Just over two weeks since the Janus ruling, about a third of the affected states have taken actions meant to soften its impact on unions' membership and revenue.

Supreme Court Union Fees
A member of the American Federation of State, County and Municipal Employees holds up a pro-union sign outside of the U.S. Supreme Court in reference to the case Janus v. AFSCME.
(AP/Jacquelyn Martin)
Even before the U.S. Supreme Court dealt a blow to public unions in June, some states were making moves to soften that potential blow. 

In May, New Jersey Gov. Phil Murphy signed a bill that limits the amount of time government employees can withdraw from their union. They now have just 10 days a year -- the ones immediately following their work anniversary -- to make that decision.

The ruling in the case, called Janus v. AFSCME, makes it illegal to require public workers who choose not to join the union to pay so-called agency fees to the unions that represent them in collective bargaining negotiations. It immediately impacts 21 states where the practice was still happening and is expected to cause unions to lose members -- and money -- because there is less incentive to belong to a union if they can get the same benefits without paying a nickel.

Just over two weeks since the decision, about a third of the affected states – most led by Democrats -- have already taken actions meant to make it harder for people to leave unions and harder for anti-union advocates to persuade them to leave.

“There is a menu of different options that states can pursue depending on their appetite for supporting public-sector unions,” says Alexander Hertel-Fernandez, an assistant professor of international and public affairs at Columbia University who studies the politics of organized labor in the United States.

One approach has been to permit unions to stop offering some services to non-members, creating two-tier representation that offers an advantage to membership. 

For example, Rhode Island Gov. Gina Raimondo signed two bills in early July to let police unions stop representing non-members in grievance cases. New York tucked a similar rule -- for all state employees -- into its 2019 budget, which was signed in March.

New York Gov. Andrew Cuomo also signed an executive order -- on the day the justices announced their Janus decision -- to prevent state agencies from releasing employees’ personal data that could be used by anti-union groups to persuade members to pull out. He said he plans to advance follow-up legislation to expand these new rules to local entities as well. 

According to a press release that accompanied the executive order, the new privacy rules stem from reports that “far-right groups are obtaining contact information of public employees through freedom of information policies” to discourage union membership.  

Those efforts are largely targeting educators – a female-dominated profession.

“What’s amazing is that the right wing has set its sights on public-sector unions when at this moment they are disproportionately female and disproportionately people of color,” Randi Weingarten, president of the American Federation of Teachers, recently told Governing.

Some states have passed legislation to help unions make their case for membership to new employees. California, Maryland and Washington state now guarantee unions full access to hiring orientation sessions so they can explain the advantages of membership. California and Washington, as well as New Jersey, also prohibit public employers from discouraging membership. In New Jersey, violating this law comes with a financial penalty: Employers have to reimburse unions for any lost dues that result from their actions. 

Unions’ fears are not unfounded. In states that had already outlawed the collection of union fees from non-members, they have experienced subsequent drops in membership. In Michigan, for example, 14.4 percent of the workforce belonged to a union in 2016 -- down from about 20 percent at the start of the decade, before the state passed a right-to-work law in 2013.

In the summer months, most legislatures are out of session, but ideas are still percolating. Perhaps most appealing to unions is the idea of governments making up for the revenue they lose from having fewer members.

“Public-sector unions would have the same amount as before and public-sector workers would have a little more take-home pay,” says Hertel-Fernandez. “There are proposals for this in New York, Hawaii and California, but they haven’t been passed yet.”

The details on how this would be funded are still uncertain. One proposal by Aaron Tang, a University of California, Davis, law professor who researches labor law, suggests that funding could be worked out in union-management negotiations over wages and benefits. 

But the legislative and executive movement seen in the two weeks since the Janus ruling, says Hertel-Fernandez, is just a start. 

“I imagine we’ll be seeing a lot more action as we move into the next legislative cycle.”

This appears in the Management newsletter. Subscribe for free.

Caroline Cournoyer is GOVERNING's senior web editor.
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