During the Janus oral arguments Feb. 26, a few Supreme Court Justices expressed concerns that ending the ability of public-employee unions to operate closed shops, where they can require the payment of the equivalent of dues from nonmembers, could have chaotic consequences for the 22 states, Washington D.C. and Puerto Rico where that has been the law for decades.
The U.S. Solicitor General, Noel J. Francisco, arguing against the unions’ position, attempted to allay those concerns by citing the successful existence of Federal Government unions. These unions exist in an “open-shop” environment where they can’t compel employees in their bargaining units to pay dues or agency fees, but are still required to represent everyone.
Cites Postal Union
Mr. Francisco was tapped for his job by President Trump, whose administration chose to reverse the Federal Government’s legal position under President Obama, who supported public unions’ right to collect agency fees that was upheld in a 1977 Supreme Court ruling. In his remarks to the court, Mr. Francisco conflated the unions that represent the U.S. Postal Service employees and the rest of the Federal workforce, which operate under very different guidelines.
“And, in fact, in the Postal Service, according to Bureau of Labor Statistics data, we find that about 94 percent of employees who are subject to collective-bargaining agreements are members of the union even though you don't have agency fees,” he said. “In the Federal Government generally, including the Postal Service, that number is about 80 percent, and if you just take the Postal Service out and look at the Federal Government, it's still north of 80 percent.”
The distinctions between the Federal unions are important, and a review of the actual membership-concentration data for the Federal public unions would appear to contradict the Solicitor General’s representations to the high court.
45% Shoulder Full Load
The American Federation of Government Employees is the nation’s largest Federal union outside of the postal system. It has 320,000 dues-paying members but is responsible for the representation of 700,000 employees, spread out among the scores of agencies AFGE covers. That means that roughly 45 percent of the workers under its banner are paying to support their union.
During the Kennedy administration in the 1960s, Federal workers were permitted to organize into unions but they could not charge compulsory dues and their collective-bargaining rights excluded economic issues. Their pay and pension allowance were considered a function of Congress’s power of the purse. “But we do have those [collective-bargaining] rights when it comes to grievances, scheduling and all the other terms and conditions of Federal employment,” said Jacqueline Simon, the policy director for AFGE. “Management can’t unilaterally make changes.”
Jim Sauber, chief of staff for the National Association of Letter Carriers, said in an email exchange that postal workers are covered under the National Labor Relations Act, have no right to strike, but have full bargaining rights including over economic issues.
100,000 Free Riders
“The postal unions are well organized,” Mr. Sauber wrote. “NALC is very well organized—92 percent of city letter carriers belong.“Even with 80 percent organization, the postal unions do have to represent nearly 100,000 workers who do not pay any dues—not even agency fees, the issue in dispute with Janus. Real conservatives would consider it an unconstitutional ‘takings’ if a business were required to provide service without compensation. Janus is a corporate power grab.”
According to Ms. Simon, the way that AFGE has been able to remain viable, without the power to compel union dues, is to make sure that everyone, no matter how high in the union, is actively engaged in trying to grow its ranks. “We have to be constantly organizing and recruiting,” she said. “We have lunch-and-learns where people hear about what the union is doing for them and what they need to know” about what’s going on with management and Congress.
She said that as the Janus case, and its predecessors, worked their way up through the courts, the AFL-CIO had reached out to AFGE to compare notes. “We have had success in two places where closed-shop unions have not, in the open shop and in the South,” she said.
A Break for Recruiters
The union uses economic incentives to build its ranks. “We also offer a rebate on dues, so if you recruit a new member you get $50 off on your dues and so does the new member,” Ms. Simon said. Dues are a minimum of $40 per month. She said the AFGE also offers a good deal on plans for vision, dental, life and disability insurance, benefits not provided by the Federal Government.
“People join for the right reasons, to make sure they are here to advocate for themselves and their co-workers,” she said. “The reality is a union has no leverage without meaningful rank-and-file engagement.”
Tony Reardon, president of the National Treasury Employee Union, said in a statement that the Supreme Court ruling on Janus would affect all unions, including those that don’t receive agency fees. NTEU represents 150,000 workers in 31 Federal agencies.
“Federal employees do not pay the nonmember union fees that are the subject of Monday’s Supreme Court oral arguments, as the laws governing federal employee unions require employees to voluntarily join labor organizations,” he said. “However, NTEU stands in support of all public-sector unions that are affected by this case. All government employees benefit from the right to collectively bargain and the Janus v. AFSCME case, financed by anti-labor organizations, could weaken unions and result in fewer protections for our nation’s state and local government employees.”
Take Cue From Feds
Paul C. Light, a professor at NYU’s Robert Wagner Graduate School of Public Service who’s an expert on the Federal workforce, said the broader labor movement needs to study the AFGE model.
“If the Supreme Court says you can’t have a closed shop, you will have local and state public unions having to take some lessons from the Federal unions on how to be effective,” he said in a phone interview. “Unions are just as vulnerable as any membership organization like a church, mosque or synagogue. How do you engage your membership? And you have to demonstrate just what do you deliver to them.”
He said younger workers will be a real challenge for the labor movement. “Millennials are not as quick to join automatically as baby boomers. These kids are less likely to marry and to commit. What you are really talking about for unions is succession planning.”