Preparing for Janus 2: The Value of Membership

On Monday, February 26, the Supreme Court heard oral arguments in Janus v AFSCME, a case that has at its heart not just the union-busting agenda of what In These Times calls “a small group of people working for deep-pocketed corporate interests, conservative think tanks and right-wing foundations,” but also a long-term right-wing strategy to deal “a ‘mortal blow’ to progressive politics in America.” (If you’d like to read a transcript of what was said at the Supreme Court, you can do so here. We will take the time in future posts to unpack this agenda and the strategy behind it. In this post, we’re going to focus on the immediate threat that the Janus case poses not just to us, the NCCFT, but to all other public sector unions in the nation.

One of the things that makes it difficult to know how precisely to respond to Janus is that the case hasn’t been decided yet. So, even though we are reasonably confident that it will be decided against us, we don’t know, and we have no way of predicting, how narrowly or broadly the Supreme Court will rule. One thing we can be certain of, though, is that the ruling will almost certainly involve the elimination of agency fees, about which we wrote in our previous post. There are very few agency-fee payers among NCC’s full-time faculty. Nonetheless, if the Supreme Court makes the elimination of those fees the law of the land, we will be facing a threat to our ability to function effectively as a union such as we have not faced before.

For that reason, it is imperative that every single one of our members signs and returns the union commitment cards your department reps will be presenting you with in the coming weeks.

These cards represent a collective affirmation of our commitment to each other and to the union values that have kept us strong throughout the past 50 years. They are also a necessary, practical, and pre-emptive first step in making sure that an adverse Janus decision has as small an initial impact as possible.

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At the heart of the pro-Janus argument, you’ll recall, is the claim that agency fees represent an egregious violation of the first amendment rights of anyone who chooses not to join a union. These fees, this argument goes, force non-union bargaining-unit members to endorse the political agenda Janus’ supporters insist is implicit in everything a public-sector union does, from negotiating a contract to representing members in grievance procedures. This infringement of non-union members’ first amendment rights, the argument continues, is so serious that it trumps any role agency fees might play in maintaining smooth labor relations, which was the primary reason the fees were instituted in the first place. Therefore, the argument concludes, no one who chooses not to join a union should be forced to pay an agency fee.

If Mark Janus and his supporters prevail, which is the outcome we expect, the Supreme Court will declare agency fees unconstitutional. Once that happens, because of the “duty of fair representation”–the second of the four labor-relations mandates we talked about in our last post–public sector unions will be legally obligated to represent non-union bargaining-unit members for free. What the groups supporting Mark Janus hope is that a significant percentage of current, dues-paying union members will decide to take advantage of that fact and drop their membership. If you can get the benefits of belonging to a union without having to pay for it, Janus’ supporters will say, why pay for it?

These pro-Janus groups are poised to start making that argument with slick, well-financed, and (if you don’t pay close enough attention) persuasive marketing campaigns. In fact, as reported at February’s meeting of the NYSUT Board of Trustees, what is almost certainly a test run of those campaigns has already begun. CSEA members, for example, have been receiving phone calls in which the caller starts out saying how much he or she “loves the work of the union,” but goes on to explain that “you can still get the benefits of the union without paying dues.” (The caller ID in these cases indicated that the calls come from Wahington state.) In Queens, two members reported having theirs doors knocked on by canvasers with the same message; and Suffolk Community College received a FOIL request from the pro-Janus Freedom Foundation for each faculty member’s (presumably work-related) contact information.

We can be sure that NCC’s administration will eventually receive a similar request.

The goal of such campaigns, obviously, is to create the perception that the value a union provides somehow exists independently of its members’ active participation in the union. It is, in other words, a weaponized version of the illogic that led some people to oppose Obamacare because they wanted the government “to keep its hands off” their Medicare and Medicaid, as if those programs did not come from the government in the first place.

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At its most extreme and, from the point of view of organizations like the Freedom Foundation, its most successful, this assault on unions would lead to a reduction in union membership below 50%, which, for the individual unions affected, could lead to decertification. If a union is decertified, its contract becomes null and void and everything in it is up for renegotiation. We don’t anticipate that such a thing will happen at Nassau Community College, but, if the NCCFT’s situation turns out to be consistent with NYSUT’s statewide estimates, 20%–30% of our membership would at least consider leaving if they knew they could get the benefits of union representation without having to pay for them. Even if we were to lose just 10% of our membership, however, the negative impact would be profound.

First, that loss in membership would represent, through lost dues, a significant reduction in our finances. This would make it harder for us to do the work we need to do–on campus, in Nassau County, and in Albany–to protect our contract, our rights under that contract, and the integrity of the jobs we do here at the college. Multiply this hit to our bottom line by all the teachers unions in New York State, and then trace that loss through to NYSUT’s bottom line—and then both the AFT’s and the NEA’s—and you can start to see how large and widespread our potential collective loss of influence will actually be. We will go into more detail about this in a future post.

Second, to return specifically to our situation here at Nassau Community College, a reduction in membership will make it harder for us at the negotiating table. Our ability to take strong positions during contract negotiations is rooted in the knowledge, both ours and the administration’s, that we have the full backing of our entire membership. Once the administration knows that we don’t, they have much less motivation to take our bargaining positions seriously. If you’d like to see a concrete example of how a situation like that could play out, consider what happened in Wisconsin to the Kenosha Education Association’s (KEA) contract when an extreme version of right-to-work became the law of their state and they could no longer collect agency fees. The KEA’s 2007–2009 contract was an 80+ page document covering all aspects of their employment, much as our contract does now. In 2016–2017, however, after Wisconsin became a right-to-work state, this was what their contract looked like in its entirety:

New York may be, in general, a labor-friendly state, but we should not fool ourselves that there aren’t legislators who would love to eviscerate New York State teachers’ contracts in exactly the same way. The elimination of agency fees would open the door for them to do just that.

Third, consider how resentful you would feel towards those colleagues who chose to become free riders by leaving the union. The corrosive impact of that resentment would erode the shared commitment and solidarity that has helped to knit NCC’s full-time faculty into a community to be reckoned with professionally, academically, and at the bargaining table. These hard feelings, the internal strife and dissension they inevitably cause, and the resulting potential for chaos and disorganization among our ranks, are part of what the conservative groups that support Janus are counting on.

Finally, consider as one very specific and personal example of the threat posed by Janus, the possibility that, in a post-Janus world, Nassau County might decide not to help us collect union dues through payroll deduction. If the Supreme Court eliminates agency fees on First Amendment grounds, we anticipate that an argument against collecting dues through payroll deduction will follow soon after. After all, this logic would go, if forcing someone to pay an agency fee is a violation of their First Amendment right against forced association, wouldn’t it be a similar violation to assume, without asking, that any given union member wants to remain in the union year after year? Shouldn’t it be incumbent upon the union to confirm that desire at the start of every year? Wouldn’t an automated form of dues collection run directly counter to that obligation?

Even if the Janus decision doesn’t address this issue directly, we could still face a scenario in which the county decides it’s not worth it to help us collect our dues. Right now, helping us do so is a bureaucratically easy and relatively inexpensive way for the county to cultivate our good will, a direct result of the unity and solidarity we have shown over time. This ease comes from the fact that, as of now, once you’re in the union, you’re in the union, and (with the exception of people who are fired) it’s up to you to tell us you no longer want to be. Once we tell the county that a faculty member has joined the NCCFT, in other words, the county starts deducting dues and continues to do so until we tell them stop–when the person retires or otherwise leaves the college.

Once agency fees are eliminated, the county might argue, the increased likelihood of people leaving the union in any given year makes it prudent for them to confirm with us at the beginning of every year just how many members we actually have. That much more complicated bureaucratic process, coupled with the weakness of either a real reduction in membership or the perception that we can’t consistently count on the solidarity and commitment of our members, might lead the county to conclude they don’t need the good will that helping us collect our dues garnered for them. In fact, they might welcome the internal tension and dissension that forcing us to collect dues face to face, the way it used to be done, could potentially cause.

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As we said at the beginning of this post, we don’t know precisely what our post-Janus world will look like, but we do know that it will be a world in which the meaning and value of union membership itself is under a concerted and well-orchestrated attack. Right now, the best thing we can do to prepare ourselves for what’s coming is to reaffirm that meaning and that value. That’s why your department representatives are asking you to sign new union membership cards. We want to be ready when the Supreme Court eliminates agency fees to hand over to the county cards signed by every single member of this bargaining unit. We don’t want there to be any doubt anywhere of our collective commitment to each other as union members, to the value we bring to this college’s eductional mission because we are a union, and to the contract in which that commitment and that value is embodied.

We did not choose this fight, but we are glad to be fighting it with you.