Report: Unions pursue law changes to boost membership
by Christen Smith, The Center Square, September 5, 2024
(The Center Square) – Unions see a clear path through the legislature to boost membership after several legal challenges saw workers leave in droves.
This, according to a new report released Wednesday that grades public sector labor laws across the nation. The data was compiled by the Commonwealth Foundation, a policy group that focuses on fiscal conservancy.
David Osborne, senior fellow for labor policy at the foundation, said during a media briefing that government privatization, changing demographics and a 2018 Supreme Court decision, Janus v. AFSCME Council 31, have caused membership rates across the nation’s four largest public sector unions to fall more than 320,000 over the last five years.
The decline represents $106.8 million in annual dues and fees, according to the report.
“The overarching theme is that the unions have really responded to the membership losses since JANUS to drive up union membership,” Osborne said.
In the JANUS decision, courts held that unions could no longer collect “fair share” dues from non-members who benefit from collective bargaining agreements. Follow-up litigation has challenged the cumbersome process many former members had to overcome to leave the union and recoup dues improperly withheld.
In the report, states known as union “strongholds” scored lower than others that have enacted collective bargaining reforms.
Illinois, Michigan and Maryland stood out for unprecedented reforms that, in some cases, have constitutionally rooted union protections and tipped the scales in favor of executives, according to the report.
Illinois, for example, enshrined collective bargaining rights into the state constitution, which extended unionizing rights to every workplace, including those once considered inappropriate. Osborne said the “experiment could have really disastrous implications,” such as raising taxes to fund “outrageous” union demands.
He pointed to recent collective bargaining negotiations with Chicago Public Schools, during which leadership asked for abortion care access, affordable housing, homeless shelters in schools and all-electric bus fleets.
“The legislature wouldn’t have any opportunity to overrule that behavior,” Osborne said. “It would take a constitutional amendment to correct that balance.”
California, Pennsylvania and Vermont have considered similar amendments – the latter two more seriously, he added.
In Michigan, which slipped from a “B” to a “D” over the last two years, lawmakers repealed the“paycheck protection” law – which prevents public payroll systems from deducting union dues and political contributions – as was the state’s Right to Work provision. The state also gives unions access to employees’ personal information.
Some 13 other states give unions the same data collection power. In Hawaii, unions even store Social Security numbers to verify workers’ identities. The report says the practice leaves information vulnerable to ransomware attacks – like one that happened earlier this year in California.
Maryland, Delaware and California also offer tax incentives for union membership as way to boost recruits. While Delaware’s labor laws earned a "D" in the report, Maryland and California – along with Illinois, Oregon and Washington – earned an “F” grading.
The nation’s four largest public sector unions – the American Federation of Teachers; the American Federation of State, County and Municipal Employees; the National Education Association; and the Service Employees International Union – collectively represent 6.6 million workers.
AFSCME, according to records submitted to the U.S. Department of Labor, has lost 7.5% of its members since 2017, outpacing the other three unions between 2.8 percentage points and 4 percentage points.
“I do think JANUS is playing a big role in this,” said Andrew Holman, a policy analyst at the Commonwealth Foundation. “And I think after the decision, people are becoming more and more aware of what their dollars are being put toward and are saying, 'I don’t want to be a part of this.'”
Osborne said 60% of union political spending, albeit funneled through outside organizations, come from membership dues. Even though members may be aligned ideologically, many feel “uncomfortable” with resolutions that take positions on issues like the war in Gaza or abortion rights.
Unions have refuted this claim in the past, such as the Pennsylvania State Education Association, which is under review by several state agencies for alleged funneling of union dues to support Gov. Josh Shapiro's 2022 campaign. The state's labor laws scored a "D" in the report.
“None of the issues seem to relate to what it is to be a teacher, for instance, so many of the members come home feeling like my union has really taken a stance on these political matters that have divided the workplace rather than united it,” Osborne said.
Of the highest-ranking states, Florida “sets a new gold standard,” according to the foundation. The most impactful reform, Osborne said, requires unions to run for “recertification” once membership drops below 60%. This means workers can decide whether to keep representation.
“We’ve seen a bunch of unions fail to file for reelection because they know they’ll lose,” Osborne said. “This ends up removing a union that never had majority support to begin with.”
Wisconsin and Iowa also require recertification. Unions in other states – like Pennsylvania, Illinois, New York and California – have never run for “reelection” since organizing in the 1970s.
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REPORT: 50-State-Public-Sector-Labor-Laws-Sept2024.pdf
HAWAII D-
from pg 31-32 of report
Hawaii is one of several states that includes collective bargaining as an individual right in the state constitution (Haw. Const. art. XIII, § 2). However, according to the Hawaii Supreme Court, the state legislature retains “broad discretion in setting the parameters for collective bargaining” as long as it does not limit negotiation over “core subjects of collective bargaining, that is, wages, hours, and other conditions of employment” (Malahoff v. Saito, 140 P.3d 401, 419 (Haw. 2006)).
Hawaii’s statutory scheme, the Hawaii Public Employment Relations Act (PERA),3 permits unions to organize government employees and, along the way, grants considerable power to union officials (Haw. Rev. Stat. §§ 89-1 – 89-23). For example, Hawaii is one of the few states that has statutorily authorized a release time arrangement in which the state pays union officials to bargain against itself; Hawaii law provides that “[e]mployee participation in the collective bargaining process conducted by the exclusive representative of the appropriate bargaining unit shall be permitted during regular working hours without loss of regular salary or wages” (Haw. Rev. Stat. 89-8(c)). Under this provision, at least five public employees—and an additional one for every 500 bargaining unit members over 2,500—are given leave and a full salary to work for the union during contract negotiations (Haw. Rev. Stat. § 89-8(c)). According to a 2020 study by the Goldwater Institute, Hawaii does not track release time hours (Flatten 2020).
At the same time, under a 1997 Hawaii Supreme Court decision, state and local government officials face enormous barriers contracting union-performed government work to private entities (Konno v. Cnty. of Hawaii, 937 P.2d 397 (Haw. 1997)). In order to privatize a service traditionally performed by civil servants, the government must be able to point to specific, enabling legislation.
Interestingly, Hawaii’s PERA may require the government to front dues money for union members who have declined to pay themselves. See Haw. Rev. Stat. § 89-4(a). Under PERA, government employers are required to pay the union an amount equivalent to full dues for every union member in a bargaining unit, and although the government may recover those payments by collecting dues by payroll deduction, the statute prohibits the government from making payroll deductions where the individual employee has not authorized it (Haw. Rev. Stat. § 89-4(a), (b)).
PERA also boosts union officials’ efforts to recruit and retain members by entitling them to incredibly detailed information on each employee. For instance, Hawaii unions may request all employees’ names, social security numbers, mailing addresses, work information, and leave history (Haw. Rev. Stat. § 89-16.6(a)).
Despite the privileges it has given to union executives, Hawaii has accorded some important protections to unionized public employees. For example, every dues-paying employee is statutorily entitled to receive an annual financial report certified by a certified public accountant. Haw. Rev. Stat. § 89-15. Additionally, the state supreme court has determined that unions are prohibited by the State Ethics Code from posting campaign materials endorsing candidates for public office on the union’s workplace bulletin board. In re Haw. Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO, 170 P.3d 324 (Haw. 2007). Finally, the federal district court for Hawaii has determined that a union can be considered a state actor for purposes of certain First Amendment claims, at least where the government is making payroll deductions for the union. See Grossman v. Haw. Gov’t Emps. Ass’n/AFSCME Local 152, 611 F. Supp. 3d 1033, 1044 n.10 (D. Haw. 2020), aff’d sub nom. Grossman v. Haw. Gov’t Emps.’ Ass’n, 854 F. App’x 911 (9th Cir. 2021).
3 PERA purports to preempt all conflicting state and local governmental law (Haw. Rev. Stat. § 89-19).
Thanks to the Grassroot Institute of Hawaii for its contributions to this piece.