Soapbox

The Janus ruling doesn’t have to be fatal for public sector unions. Here’s how.

From left, plaintiff Mark Janus, Illinois Gov. Bruce Rauner, and Liberty Justice Center founder and chairman John Tillman walk out of the the Supreme Court after a ruling issued Wednesday dealt a setback for organized labor.
From left, plaintiff Mark Janus, Illinois Gov. Bruce Rauner, and Liberty Justice Center founder and chairman John Tillman walk out of the the Supreme Court after a ruling issued Wednesday dealt a setback for organized labor. AP

More than 7 million public sector union members in America are asking the same question now that the U.S. Supreme Court has forbidden their unions to collect mandatory fees: Is this the end of public employee unions?

Not in the least. Pro-labor states can undo the Janus ruling by adopting a simple legislative workaround.

 
Opinion

Before Wednesday’s decision, pro-labor state governments financed their public sector unions indirectly by paying wages to workers and then deducting mandatory fees from all worker paychecks to send to unions for their bargaining-related costs. In the Janus ruling, a 5-4 majority on the court said this violates the First Amendment rights of objecting workers.

So here’s the fix: Government employers can just reimburse unions directly for the exact same bargaining-related costs. Doing so would eliminate any compulsion on anti-union workers to give financial support to an objectionable cause. Direct reimbursement would also increase take-home pay for public sector workers.

Single workers making $50,000 a year would get roughly $200 more each year under the reimbursement approach because the removal of union fees from their paychecks would reduce their federal tax burden.

Aaron Tang

At the same time, direct reimbursement would provide unions the same level of financial security as before, while public employers can offset reimbursement payments during future wage and benefit negotiations. The result would be a win-win-win: more money for workers, the same resources for unions and no negative impact on state and local budgets.

There is, however, one major objection to direct union reimbursement: A public sector union cannot advocate zealously on behalf of its members if it is reliant on their employer for its financial security. Or as the state of California put it in a brief in the Janus case, unions cannot be “funded by the employer or the State and retain the credibility and independence needed to make the system work.”

At first blush, it’s a forceful argument. But the key is to recognize that there are different ways to design a system in which a government reimburses a union for its bargaining-related expenses. Some ways would be

Bad; for example, if public employers were allowed to reduce reimbursements in retaliation for a union’s wage or benefit demands.

But what if public employers were required to reimburse unions for all bargaining-related expenses? And what if disputes over certain expenses were resolved by independent labor law experts? That would eliminate the employer’s ability to pressure a union into sacrificing worker interests.

Would it be difficult to create these independent panels? No. Public employment relations boards already exist in the pro-labor states affected by Janus, including California, New York and Illinois. In fact, these same boards have heard challenges to union fees brought by objecting workers for decades.

The bottom line, then, is that there is nothing particularly fatal about Janus. Pro-labor states can drive the decision to irrelevance simply by amending their labor laws to authorize direct union reimbursement.

Aaron Tang is an acting professor at the University of California, Davis, School of Law. He can be contacted at aatang@ucdavis.edu.

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