A Catalog of California’s Anti-Janus Legislation    

June 9, 2018 By Ed Ring 2 Comments

School union protestNo state in America is as firmly in the grip of public sector unions as California. For nearly 20 years, they have exercised nearly absolute power in the state Legislature. Over the past few years, as they have slipped in and out of having a two-thirds majority, and often with the help of a few Republican legislators, they have been able to pass legislation at will, sometimes within days.

Government union power in California derives from their ability to automatically collect over $1 billion per year in dues from payroll departments of state and local agencies, combined with their ability to compel well over 1 million state and local government employees working within any of their over 6,000 bargaining units to pay these union dues.

While it is legally possible for these government employees to opt out of formal union membership and only pay so-called “agency fees,” the process to opt-out is deliberately rendered tedious and intimidating, and in any case agency fees usually are around 80% of the total dues.

The Janus vs. AFSCME case threatens public sector union power in California and dozens of other states, because, depending on the ruling, it may permit public employees to opt-out of paying any dues at all, including agency fees. But if unions made it difficult and intimidating for government employees to opt-out of paying the full union dues, i.e., if they made it difficult for these employees to get a 20% discount, imagine how difficult they’re going to make it for employees to get a 100% discount.

What the unions can do in Sacramento changes every day. But insofar as a Janus ruling could come down from the U.S. Supreme Court any day, it is appropriate to delve into a bit of wonkiness, and list every recently enacted and pending law, backed by unions, that California’s legislature is compliantly handing down in order to thwart the intent of the Janus plaintiffs.

CALIFORNIA’S ENACTED ANTI-JANUS LEGISLATION

AB-83 Collective bargaining: Judicial Council – enacted

This bill permits unionization of Judicial Council staff, something previously off-limits. Here’s what they do, quoted from their website: “The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff implements the council’s policies (italics added).” Unionized judicial council staff – what could possibly go wrong?

SB-201 Higher Education Employer-Employee Relations Act: employees – enacted

This bill permits students who have jobs at the schools they attend to unionize. This will, of course, allow the unions to collect their cut from yet another category of public payroll, but it will also offer them another avenue to indoctrinate students, since they aren’t already getting enough indoctrination from our public schools and universities.

SB-285 Public employers: union organizing – enacted

This goes straight at the heart of Janus. Layering on top of existing federal law but making it even more explicit and restrictive, this bill would prohibit a public employer from deterring or discouraging public employees from becoming or remaining members of an employee organization. Employers are already forced to be extremely careful how they communicate the pros and cons of unionization, but now they’ll be even more hamstrung, while the unions have full access to employees to argue and advocate their position. Worse, this bill would grant the Public Employment Relations Board jurisdiction over alleged violations of its provisions instead of the courts. This board, PERB for short (see footnotes; “PERB Board”), is stacked with labor activists and is very unlikely to ever rule in favor of a public employer vs. a union.

SB-550 Public school employment: meeting and negotiating: legal actions: settlement offer: attorney’s fees – enacted

In this law, from now on, if a union makes an offer to settle a dispute alleging an employer’s failure to provide wages, benefits, or working conditions, and if the employer does not accept the offer and fails to obtain a more favorable judgment, the employer must pay the union’s attorney’s fees and expenses incurred after the offer was made. Note this “loser pays” provision only applies to the employer, not the union. This legislation puts tremendous pressure on agencies to agree to union demands in order to avoid court, especially those smaller agencies, cities and counties that don’t have deep pockets like the unions.

CALIFORNIA’S PENDING ANTI-JANUS LEGISLATION

AB-1937 Public employment: payroll deductions – passed Assembly

This bill appears to be designed to prevent local jurisdictions from enacting measures that might expedite an individual employee’s decision to stop paying union dues. Reading through the introductory text of the bill, here is a key excerpt: “…the bill would authorize employee organizations and bona fide associations to request payroll deductions and would require public employers to honor these requests. The bill would authorize public employers to make rules and regulations for the administration of specified payroll deductions, subject to meeting and conferring with the applicable employee organizations.” Notice that it is the union, not the employee, who will notify the employer to start dues deductions, and notice that any rules the employer may wish to apply to the administration of union dues deductions has to be cleared (meet and confer) with the union.

AB-2017 Public employers: employee organizations – passed Assembly

Similar to SB 285, This bill broadens the definition of employer to “those employers of excluded supervisory employees and judicial council employees.” It then “prohibits a public employer from deterring or discouraging prospective public employees, as defined, from becoming or remaining members of an employee organization.” The operative words are discourage and deter, which can be quite broadly interpreted. For example, even an employer stating that an employee does not have to join a union might “deter” them from doing so. The intent of this bill is to deter employers from saying anything to employees about unionization, with no such restrictions on the unions.

AB-2049 Classified school and community college employees: payroll deductions for employee organization dues – passed Assembly

Similar to AB 1937, but even more explicit, “this bill would authorize school districts and community colleges to rely on labor unions when determining whether a request to discontinue payroll deductions for union dues is in conformity with the requirements established in the initial payroll deduction authorization.” The intent is to make it harder to get out of paying union dues by adding layers of union bureaucracy to the process.

Concurrent with ensuring the union, and not the agency, has the final say in suspending dues withholding, the unions are revising these “initial payroll deduction authorizations.”

Take a look at this photo of a union contract (below). Note how it states “this authorization shall renew annually, irrespective of my membership status,” and “a revocation must be mailed… postmarked between 75 days and 45 days before such annual renewal date.” There are at least two gotchas here. First, automatic renewal of payroll deductions “irrespective of membership status” means that someone wanting to stop paying union dues has to opt out every year. Second, if they neglect to opt-out, via mail within the exact window of time and in advance of the automatic renewal, they will have to pay dues for another year.

No wonder the unions want themselves, and not the agency, to have the ability to say whether dues will stop being withheld. In any city or county with local elected officials willing to stand up to their unions (admittedly a rare occasion), ordinances could be passed allowing an employee to simply inform their payroll department that they don’t want to pay union dues. That will be impossible under these laws.

The Hotel California Contract – You Can Check In, But Checking Out…

AB-2886 Public Employee Relations Board: Orange County Transportation Authority: San Joaquin Regional Transit District – passed Assembly

Because the above named agencies were not previously required to resolve labor disputes using the Public Employment Relations Board (PERB), this bill changes that so they will have to use PERB. By moving the dispute resolution process out of the courts and instead putting them under the jurisdiction of PERB, the unions improve the probability of winning these disputes.

AB-3034 Public transit employer-employee relations: San Francisco Bay Area Rapid Transit District – passed Assembly

This bill, similar in concept to AB 83 and SB 201, allows the unions to collect their cut from yet another category of public payroll, in this case BART supervisors, by allowing them to unionize.

SUMMARY OF ANTI-JANUS LEGISLATION

So in response to Janus, California’s unions representing public servants are doing the following:

1 – Expanding the pool of public employees eligible to join unions – AB 83, SB 201, and AB 3034

2 – Making it difficult, if not impossible, for employers to discuss the pros and cons of unionization with employees – SB 285 and AB-2017

3 – Precluding local governments from unilaterally honoring employee requests to stop paying union dues – AB 1937 and AB-2049

4 – Making employers pay union legal fees if they lose in litigation but not making unions pay employer costs if the unions lose – SB 550

5 – Moving the venue for dispute resolution from the courts to PERB, which is stacked with pro-union board members – SB 284 and AB 2886

This catalog of countermeasures to Janus is undoubtedly incomplete. A few enacted in 2017 have probably slipped under our radar, and there will be many more crafted in the coming months and years, especially if there is a strong ruling in favor of the plaintiff. But California’s unions have been doing this for years. Whether it’s charter schools, “release time,” transparency in government, charter cities, public education reform, budget and tax issues, project labor agreements, or pension reform, the agenda of the union always comes first in Sacramento.

When it comes to protecting the government union agenda in California, pro-union legislation is fast and furious, belying the more common political reality of gridlock.

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FOOTNOTES

California’s Public Employment Relations Board – 2018, at least 3-2 stacked for unions 

The three:

  • Arthur A. Krantz “represented unions, employees and nonprofits in litigation, arbitration and administrative cases, and he worked on law reform, organizing, negotiation, and strategic campaigns to effect social change. Krantz did this work as an associate and partner at Leonard Carder, LLP.” San Francisco based Leonard Carder, LLP‘s home page states: “As one of the oldest and most renowned law firms representing labor unions and employees, Leonard Carder’s focus is to provide top-flight legal representation to the labor movement.”
  • Priscilla Winslow‘s “career in public sector labor law spans over 30 years, during which time she served for 15 years as Assistant Chief Counsel for the California Teachers Association where she litigated and advised on a variety of labor, education, and constitutional law issues.”
  • Eric Banks “served in multiple positions at the Service Employees International Union, Local 221 from 2001 to 2013, including Advisor to the President, President, and Director of Government and Community Relations.”

The other two:

  • Erich Shiners: “Prior to his service on the Board, Erich Shiners represented and advised public agency employers in labor and employment matters, including many cases before PERB. Most recently he was Senior Counsel at Liebert Cassidy Whitmore.” Liebert Cassidy Whitmore represents itself as California’s preeminent public management employment law firm with over 80 attorneys in five offices.
  • Mark C. Gregersen‘s “career in public sector labor relations spans over 35 years. Prior to his appointment to the California Public Employment Relations Board, he has served as director of labor and work force strategy for the City of Sacramento and director of human resources for a number of California cities and counties.”

REFERENCES

Funding the Post-Janus Fight Against Government Unions, May 2018

Janus vs AFSCME Ruling Imminent – What will Change?, May 2018

A Post-Janus Agenda for California’s Public Sector Unions, February 2018

After Janus, Will Union Grassroots Members Assert their Political Voice?, December 2017

How Can Local Officials Prepare for the Upcoming Janus vs AFSCME Ruling?, October 2017

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Janus vs AFSCME Ruling Imminent – What Will Change?

May 31, 2018 By Ed Ring 1 Comment

Supreme CourtIn February 2018, the U.S. Supreme Court heard arguments in Janus vs. AFSCME, a case that challenges the ability of public sector unions to compel public employees to pay agency fees. While public sector employees currently have the ability to opt-out of paying that portion of union dues that are used for political activities, they still have to pay agency fees. This is based on the presumption that all members of a bargaining unit benefit from union negotiations with management, therefore all of them should pay those costs.

The Janus case argues that in the public sector, even these negotiations are inherently political and therefore it would be a violation of the right to free speech to compel any employee to help pay for them. The Supreme Court appears likely to agree. In an unrelated case also affecting unions, this week the U.S. Supreme Court just ruled in favor of employers, affirming that “employers have the right to insist that labor disputes get resolved individually, rather than allowing workers to join together in class-action lawsuits.” The majority opinion was written by newly appointed Justice Gorsuch, reinforcing hopes that he will rule for the plaintiffs in the Janus case.

But will making agency fees optional result in dramatic change?

The potential is there for dramatic change, because as of 2017, 7.2 million government workers belong to a union. Their total membership nearly equals the total membership of private sector unions, 7.6 million, despite federal, state and local government workers only comprising about 17% of the U.S. workforce. In California, state and local government unions are estimated to collect and spend over $1.0 billion every year.

Clearly, a ruling for the plaintiffs in the Janus case will cause a reduction in public sector union dues revenue. If public employees are no longer compelled to pay agency fees, some of them will stop paying them. But how many will stop paying?

A study released this month by the Illinois Economic Policy Institute (IEPI) – which based on the composition of its board of directors appears to be sympathetic to unions – estimates that 726,000 public sector union members will no longer pay dues, a drop of around 10%. IEPI’s study also estimates that in California, public sector union membership will decline by 189,000, dropping from an estimated 1,235,000 members in 2017 down to 1,046,000 members. But will California’s public sector union membership really drop by 18%, taking nearly $200 million out of their annual collections?

Other data does support the 18% figure, even indicating it could be higher. A 2018 national survey released by the center-left organization Educators for Excellence posed several questions to teachers on the topic of union membership. For example, when asked “If you were not automatically enrolled into your union membership, how likely would you be in the coming year to actively opt in?” there were only 60% who were “very likely” to opt-in, and only another 22% who were “somewhat likely.”

The survey also asked non-union members – those members who have opted out of paying the political portion of their dues, but still pay agency fees – “If you could, how likely would you be to opt-out of paying agency fees to a union” there were 36% who were “very likely” to opt-out, and another 25% who were “somewhat likely.” How do these responses translate into lost revenue?

According to UnionStats.com, only about 6% of California’s public sector employees who are part of collective bargaining units have opted to become non-members, i.e., only paying the agency fees. Crunching these variables is problematic. Are the e4e national survey results representative of California? Are the responses by teachers in the e4e survey representative of public employees in other sectors? Nonetheless, the e4e survey results do suggest the revenue loss to public sector unions could be greater than the amount predicted by the IEPI study.

For example, if you assume that all of California’s public sector members who were “very likely” to opt out of union membership did so, and half of those who were “somewhat likely” to opt out did so, and if you made a similar set of assumptions based on the survey responses of the non-union members who were employed within collective bargaining units, you would see a public sector union membership in California decline by 320,000, a decline of 26%, from an estimated 1,235,000 members to 915,000 members.

The biggest unknown is the details of the upcoming Supreme Court ruling. While all indications so far are that the ruling will be in favor of Janus, what remedies will result? A huge variable will be which party will have to take the initiative. That is, will employees have to approach the unions and request to opt-out of membership, or will the unions have to approach the employees and request them to opt-in to membership? Another huge variable will be how often the opportunity to change membership status be offered. No matter whether union membership is based on employees getting to opt-in or having to opt-out, when will they do that? Once per year, within narrowly specified dates, or perpetually at any time? It is likely the ruling will leave many of these details up to the individual states to decide.

Which brings us back to California, with a state legislature that is a wholly owned subsidiary of public sector unions. As noted in detail (with links to the relevant legislation) in the CLEO policy brief “How Local Officials Can Prepare for the Janus Ruling,” California’s state legislature has been working overtime to circumvent the anticipated Janus decision. In summary:

“So how are the unions preparing for the Janus ruling? By (1) making sure the union operatives get to new employees as soon as they begin working, (2) by preventing agency employers from saying anything to deter new employees from joining the unions, and (3) by preventing anyone else from getting the official agency emails for new employees in order to inform them of their rights to not join a union.”

Public sector employees face a difficult choice. They can accept union representation, knowing that in most cases this results in their receiving over-market pay and benefits, or they can reject union representation, knowing that the agenda of public sector unions is almost always in opposition to the public interest. That’s not easy.

What must be easy, however, is for public employees to have access to whatever information is needed to withdraw from public sector union membership. This way, those who wish to stay true to the ideals of public service can put the interests of the public in front of their personal interests, by knowing how to jump through through whatever bureaucratic hoops the unions and the state legislature may put in their way.

This case constitutes a new challenge for those who oppose public sector unions. Making sure that to whatever extent the Janus ruling liberates public sector employees from the grip of public sector unions, those public employees will know how to realize their freedom, quitting those unions, putting the citizens they serve in front of themselves.

The Janus decision is expected by June 30th, if not sooner.

Edward Ring co-founded the California Policy Center in 2010 and served as its president through 2016. 

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REFERENCES

UnionStats.com – Ref. “Union Membership, Coverage, Density, and Employment by State and Sector, 1983-2017”

California’s Government Unions Collect $1.0 Billion Per Year – CPC Analysis, May 2015

Understanding the Financial Disclosure Requirements of Public Sector Unions– CPC Study, June 2012

How Local Officials Can Prepare for the Janus Ruling – CLEO Policy Brief, October 2018

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After Janus, Will Union Grassroots Members Assert their Political Voice?    

December 23, 2017 By Ed Ring 3 Comments

School union protestThe looming Janus vs. AFSCME decision, expected by Spring 2018, is probably going to validate the contention that ALL public sector union activity is inherently political. Once this landmark case is decided, members will not only have the right, already existing, to opt-out of paying political dues. After Janus, they may also have the right to opt-out of paying ALL dues, including “agency fees.”

The scope of this ruling is uncertain, but it’s reasonable to assume that public sector unions are going to become more accountable to their membership than ever before. How will members respond? Will they put California first, or continue to condone the destructive policies their unions promote as long as they benefit?

There are already resources available for unionized government workers and contractors who want to opt-out of paying dues that are used for politics, even though they still have to pay “agency fees.” Resources for most of California’s public employees, including teachers, can be found here. Resources for home health care workers can be found here. After the Janus ruling, those resources will be strengthened and expanded in scope.

But what sort of platforms will emerge for government workers who wish to remain union members, but want to challenge the political agenda of their unions? Will these dissidents, who often constitute a majority of the membership, have a way to influence the political agenda of their biased leadership? In the wake of Janus, innovative ways to facilitate this internal revolution within government unions should be a priority for anyone trying to bring real reform to California politics.

For decades, public sector unions have been the quiet, gargantuan impetus behind the growth of government at all levels, especially at the state and local level where 60% of all taxes are collected and spent. There are obvious consequences of a political agenda that wants to expand government without any regard to the cost or benefits, such as relentlessly increasing taxes at the same time as services are diminished. But there are two even more profound consequences that elude casual scrutiny. Both are extremely expensive for ordinary Californians.

The first is California’s status as a magnet state for welfare recipients and destitute, unskilled immigrants. Many of these immigrants come from cultures that devalue education, accept corruption as normal, and are hostile to American values and traditions. Apart from the staggering cost to taxpayers to provide these newcomers direct benefits, this policy necessarily requires more police, more prisons, more translators, more multi-lingual educators, more public housing and subsidized housing, more subsidized health care, more welfare and government aid of all types. Other indirect costs must include more public university majors in identity politics so less qualified students can get a “degree,” more quotas in hiring and college admissions so less qualified applicants can avoid being victims of “discrimination,” and more bureaucrats, social workers and college “administrators.” A gold mine for government unions.

The second is California’s embrace of an extreme environmentalist agenda. These policies create artificial scarcity not only for public services, but more significantly, for housing, water and energy. While ordinary private citizens suffer, and unionized public employees get cost-of-living recompense, demand driven asset bubbles inflate investment portfolios, most particularly the $1.0+ trillion in California’s state and local public employee pension fund assets. Artificial scarcity also requires expensive, expanded enforcement apparatus – more code inspectors, mass transit workers, higher fees for any sort of construction. And of course, artificial scarcity creates a housing price bubble that translates directly into massive increases in property tax revenue. Again, for government unions, extreme environmentalism is the gift that keeps on giving.

California’s government unions control the state legislature and nearly every city and county. Their policy is to invite in millions of dependent people, costing taxpayers hundreds of billions, while at the same time making it unaffordable for middle class taxpayers to live here through policy-driven artificial scarcity. This is more than just self-serving madness, it is oppression.

Public servants have hard choices to make. They may consider the following:

(1) As public servants your loyalty is to California’s citizens first.

(2) If you are public safety employees, your sworn duty is to keep California’s citizens safe.

(3) As union members, your priority should be the welfare of all of California’s workers, not just government workers.

What should public servants do? When the Janus ruling forces government unions to be more accountable, how will their members raise their collective voice? Will they understand that their unions should be fighting for policies that (1) welcome skilled workers who are encouraged to assimilate, and (2) support enactment of sensible environmentalist laws?

The hard fact is this: The more cultural upheaval there is, and the higher the cost-of-living gets, the more government expands and the more government unions benefit. And the more government expands to address these self-inflicted problems, the less government resources are left to complete infrastructure projects and provide other basic services to taxpayers. This is why there is an inherent conflict between the interests of public sector unions and the public interest. This is why public sector unions should be outlawed.

But so long as public sector unions exist, to condone their destructive political agenda in exchange for personal gain, even via sins of omission, is unforgivable.

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