A Few Words on Janus


I’ve always thought the free speech aspect of the Janus case was purely nonsense. Eugene Volokh argued that Abood was wrongly decided in granting that free speech objection in the first place, observing that “compelled subsidy of others’ speech happens all the time”.   How many state-  or CDC-funded ads do we have to sit through, watching people smoke through their breathing tubes?  Or the various “join the military” ads?

I’m not a big fan of unions,although teachers unions come in for a lot of undeserved criticism. But my dislike of unions is professional–totally unrelated to the bizarro conservative hate-on which, I guess, has to do with the unions shoveling millions of easily collected dollars straight into Democrat coffers.

Still, I’m amazed, as always, at the utter cluelessness of the post-Janus gloating–which, typically, focuses almost exclusively on teacher employment, as if there’s no other public employee. I don’t think anyone’s focused on Janus’s impact on cops, for example–unsurprising, really, since the GOP likes cops and doesn’t want to fuss them.

But I’ll go with the flow and talk teachers, since that’s what I know.

First, left or right,  anyone who thinks education reform’s failure has anything to do with unions is kidding themselves. As I’ve written many times, education reform got everything it wanted for sixteen years–and as a result support for charters has plummeted,  support for unions and tenure has increased, and the ESSA deliberately and specifically targeted all the reform “advances” and ripped them into shreds.

So whatever changes Janus brings, I’d bet against Bill Bennett and Fordham Foundation.

We are in the middle of a teacher shortage, so good luck with cutting salaries, raising credential cut scores, or ending tenure. And has often been noted, the recent teacher walkouts have been in weak union states: Oklahoma, West Virginia, Kentucky. Colorado’s governor refused to sign a law that would fire striking teachers.

You know how conservatives and others say look, we don’t hate teachers, we just hate unions. Well, specific union objectives, unlike their political spending, are pretty much in line with what teachers want. In a scarce labor market, killing unions won’t make it any easier to push teachers around.

I’m likewise unconvinced that the billions of dollars the unions send to the Dems has anything to do with Democrat political success. Lordy, did you all learn nothing from Trump? Dave Brat? Alexandria Ocasio-Cortez?

So sure, Janus will lead to less money for unions. But dream on if you think Dems are crippled or the public will suddenly sign on for teacher merit pay.

Moreover, the idea that “millions of public employees” are being forced–yea, forced!–into paying to receive union-negotiated salaries just strikes me as bogus. I don’t like my dollars going to progressive causes, and as an immigration restrictionist, I get really annoyed at union shills wailing about family separations or the travel ban. But when Republican-leaning public employees growl about unions, they are, like me, unhappy about the waste of dollars sent to left-leaning organizations. How many public workers are actively opposed to the fundamentals of public employment? I’m skeptical. If  millions of public employees were outraged by job protections and pensions, conservatives wouldn’t have had to wait so long for the odd ball public employee to hang their case on. It took them years to find Friedrichs and then Janus out on the fringes to make the case.

But why should unions be required to negotiate contracts and protect employees who don’t pay for their services? The Supreme Court waved off the “free rider” problem, but who’s to say there will be paying riders? What’s stopping all teachers from saving hundreds of dollars a year, if the unions will work the contracts no matter what?

Considering that the state laws requiring unions to represent non-members have just been declared unconstitutional by the Supreme Court, the unions have a logical next step.

Unions should refuse to work for free. They won’t  provide any service to non-members.

Some services can be easily split between members and non-members. Job protections and other benefits, for example, are easily managed. Non-members who oppose job protections can just live with a greater risk of termination, while members can still ask for union representation.

But contract and salary negotiations apply to all employees, members or not. So unions should refuse to engage in these activities for any salary schedule that has less than 100% membership. Neither members nor non-members will get new salary schedules until someone else steps up to that task–and that someone else will want to be paid.

I can envision many ways out of the chaos that ensues, but certain truths seem obvious. Salary negotiation for millions of teachers, firefighters, police officers, DMV workers, prison guards and the rest is a labor (heh) intensive task. Right now, public employees pay for that task through their union representation. If unions refuse to do this, then how will public employees get raises? Fond fantasies aside, at some point the government is going to have to figure out how to replace that service.

While conservatives dream of a world in which government employees negotiate their salaries individually, absorbing the cost at a unit level, their dreams probably don’t include the onslaught of lawsuits that would follow in a world where local government officials decided salaries on merit. That’s why most charter and private schools use salary schedules, despite their ostensible freedom from these one-size-fits-all charts.

If unions just flatly ended all contract negotiations, the pressure for a Janus-fix would be immediate, particularly for teachers and cops. But wait! unions say–at least, this is what I think they should say. We’re not here to be obstructionist.  We’ll offer membership “tiers”.

Tier 1: Contract and salary negotiations only. Price: a couple hundred at most.
Tier 2: Tier 1 plus performance issues representation. Price: five hundred at most.
Tier 3: Tier 2 plus the cool bennies, political spending, other perks. Price: one thousand at most.

All employees on a given salary schedule must be at least a Tier 1 union member. No 100% membership, no contract and salary negotiations.

Some districts might not be able to get 100% membership. They could then contract to bring the union in for salary negotiations. Still other district employees might decide to do without unions entirely. Maybe they’ll figure out another means of negotiating salaries. Or maybe they’ll realize that union salaries are higher than non-union salaries for a reason.

Unions should not put the cost of their contract negotiations solely on their members. They should demand compensation for the services they perform that benefit all employees. If the employees don’t pay, then no union negotiations.

At the same time, unions could stop charging so much money, accept that they can’t use all teachers’ dues as a piggy bank for their political spending, and be more focused on offering services that all members can benefit from.

Those states with laws requiring unions to represent non-members are welcome to take them to court. However, I like to think that the same conservative jurists who hate unions also think it reasonable that unions get paid if they provide a service.

I’d be shocked, although pleased, if unions took this approach–with adjustments, of course, because I have no idea how much unions costs in other parts of the country, much less all of their many activities.  If they don’t, though, I’m ending my membership entirely. I’ve always refused to do the paperwork for agency fees–too much work for too little money. But I’ve paid nine years of union dues that went to political goals I not only don’t share but actively opposed. That’s enough to cover my next six years to retirement.



About educationrealist

24 responses to “A Few Words on Janus

  • Curtis

    It’s more complicated than just salary. Some people find union “benefits” to be anything but. After our kids entered school, my wife took a non-teaching job at a university. She did not join the union but paid 2% of her salary for dues while the union did nothing but hurt her.

    She wanted flexibility in order to pick up the kids after school. The union said could not work late or skip lunch on certain days in order to leave early on others. She was reprimanded for using her email to answer questions during non-business hours (almost a necessity because she worked with people overseas.) When her boss wanted to promote her to a non-union position (higher salary, better benefits, more flexibility), the union fought this promotion.

    When she finally got the promotion, she kept paying union dues for two months before realizing it. The (union) HR representative said too bad. The union had the right to take her money for no reason and it was my wife’s responsibility to tell HR to stop giving her money to the union for a non-union position.

    • educationrealist

      Unions can’t reprimand anyone. Nor can the union allow you to work late or leave early. Are you saying her boss wouldn’t allow her to do that because the union banned it?

      I have enough horror stories about employers keeping money to be blase about unions keeping 2 months of dues.

      • Curtis

        Stealing is stealing whether it is the union or the company. When a group authorizes theft, it is an indication of their lack of moral values. When a union regularly steals from its former members (or involuntary dues payers), it speaks volumes.

        I am not sure of the details of the reprimand.

        When she was hired, she was told directly by a union official that she could not work through lunch in order to leave early even though her bosses were fine with it. Her supervisor were not willing to go against union wishes officially but were fine with my wife leaving early when she needed to. Once she was promoted out of the union, her work hours because flexible.

        My wife works in contracts and she often gets questions about why someone did not get paid. The bureaucrats typically respond (after hours of battle) that we will pay them double next month with absolutely no concern about people’s ability to pay their rent. This is not strictly a union issue but it the attitude of union members who raises are unrelated to performance.

      • educationrealist

        I can’t conceive of union officials ever having that sort of authority. Could the union official fire your wife? Why did she obey?

        “Stealing is stealing whether it is the union or the company. When a group authorizes theft, it is an indication of their lack of moral values. When a union regularly steals from its former members (or involuntary dues payers), it speaks volumes.”

        I think you underestimate the ability of simple administrative bullshit to clog up the works. If unions were more powerful than paperwork, Janus wouldn’t have won.

        When I had corporate clients pay me late, not giving a damn about my rent, I started charging them massive service fees. It has nothign to do with unions.

      • Mike Powers

        “Unions can’t reprimand anyone.”

        No, but they can file a grievance and threaten to strike over it.

        And they can decide to ride so hard for work-to-rule that employees no longer have flexible work hours–and back up the work-to-rule with lawsuits and, again, the threat of strikes.

      • educationrealist

        They can, but they usually don’t.

    • educationrealist

      And of course it’s more complicated than just salary. I made that clear. I’m only referring to salary.

      • Curtis

        I could continue my rant against this particular union but it would not be productive.

        My greater point is that many people do not like the thing unions do for/to them. In their opinion, post Janus, they will not be “free riders” but “freed from paying an union that involuntarily rides them.” They will still be ridden but at least they don’t have to pay for the privilege.

        I agree with the idea of unions but they (and often management) like to put workers in square holes and discourage people who are other shaped pegs. Irregular pegs do not like being in unions.

  • Mark Roulo

    Ed: “If unions just flatly ended all contract negotiations, the pressure for a Janus-fix would be immediate, particularly for teachers and cops.”

    Can you (or someone else …) explain to us who work in industries that are NOT unionized why the unions ending contract negotiations is a big deal? I think that lots of people who have never had union representation (like me) don’t understand why this matters and it would be nice if we understood it. It really isn’t obvious …

    • educationrealist

      Well, you are in private industry. How do you get raises? Back when I was employed (which was nearly 30 years ago and times have changed), you had a review, a rating, and then you got a raise. Most people had salary ranges, so Programmer I would have four quartiles, and as you got to the top you got smaller raises so you needed to get promoted.

      Today, I imagine big companies do something similar, although startups don’t. Is that true or not?

      • Mark Roulo

        Pretty much what you just described.

        The total raise package for the year might be $0 if things are going poorly (my company often forgoes raises when it is holding layoffs) and you get promoted every so often. But … yep.

      • educationrealist

        OK. So each one of those reviews takes time. And in a usual company, a manager might do 4 or 5 reviews a year. Because there are lots of managers, so the workload is spread out. And private company salaries aren’t a matter of public record–in fact, I remember a time when companies tried to make it a firing offense to discuss your salary, to avoid comparisons.

        Now, a school. The “manager” is the principal. So he has to review every one every year–that’s 60 or so teachers for a high school, not sure how many for elementary school. Even if you split it up between administrators, its’ 10-15 per each.

        Moreover, this is a government job. Salaries are highly scrutinized. So if administrator A is overly generous and gives a 10% raise and administrator B gives a 7% raise while finding both teachers meeting expectations, that’s going to start to add up and show real discrepancies. No doubt there will be other distressing patterns.

        Besides, managers with their 4 or 5 people are in constant contact with them, seeing their work all year. Principals rarely see their teachers work. They only know the exceptional stuff–usually bad, sometimes good. A single observation is what we get now–but that’s because raises aren’t linked to observations. Observations are linked only to terminations.

        Teachers also aren’t promoted–at least not in most states.

        So what happens with teacher reviews is that once we get tenure, we are reviewed every other year–if we’re really wonderful, every five years. But every year, we move down one row. And if we get education, we move over one column.

        So evaluations and pay are completely disconnected. The evaluations are done at a manageable level by administrators. And pay is negotiated by unions, collectively.

        So teachers move down rows and over columns and if the rows and columns have more money, we’ll get more money. If they don’t, we won’t. So many salary schedules have a “freeze” period at 10-15 years, to encourage teachers to move along the ladders. So new teachers get raises every year, and teachers that are all the way over on the right (maxed out on education) get raises every year. But once you hit ten years, for about a five year period you’ll be stalled at the same pay unless you add enough credits to move over a row.

        Yearly, the unions negotiate the values that go in the schedules. So the unions might negotiate a 3% pay raise, which would bump every value in every cell by 3%.

        So what I’m suggesting is that the unions threaten to stop negotiating those new salary schedules unless they get 100% membership. If the negotiation doesn’t happen, the teachers will continue on the same salary schedule for years and years, with no hope of getting more.

      • Mark Roulo

        “So what I’m suggesting is that the unions threaten to stop negotiating those new salary schedules unless they get 100% membership. If the negotiation doesn’t happen, the teachers will continue on the same salary schedule for years and years, with no hope of getting more.”

        Why can’t the school just unilaterally adjust the pay schedule? By, say, the 3% you used as an example?

        Again, from the private sector, there are lots of examples of companies who move pay grades up over time without a union.

        I’m sure that the school administration would rather keep the money things other than salaries, but so would private sector management.

        Is the difference that teachers can’t quit without resetting their pay to “year one”?

      • educationrealist

        Trust me, those companies don’t just randomly move pay grades up over time. They pay for HR departments and consultants to justify their pay grades, both for their shareholders and potential lawsuits–to say nothing of retaining personnel.

        My point is that state governments have offloaded a *lot* of that cost to the personnel themselves. We cover a lot of the costs of that research with our dues.

        So sure, districts and police departments and the like can pay for that research. But it will cost a lot of money, and remember, they’re not paying any of this now. Even in weak union states, the unions play a “consulting role” for free in setting salary.

        So if unions refuse to negotiate salaries, it’s not ok, let’s give everyone 3% more. It’s shit, let’s go spend a ton of time and money figuring out how to pay people, and then getting the voters or legislatures to approve those raises, and right now, all of that cost is covered by the government employees themselves. No more.

        And if they don’t give us enough of a raise, then wouldn’t we go back to unions? And now unions would have the “everyone has to pay in order for us to negotiate salary” requirement.

      • Mark Roulo

        Ed: “Trust me, those companies don’t just randomly move pay grades up over time. They pay for HR departments and consultants to justify their pay grades …”

        Oh, I trust you! Part of the excitement my employer is experiencing right now is that we are competing with Google, Facebook, et.al. for talent. HR know what salaries are competitive with those folks — and we probably have to pay *MORE* because what we do is less s*xy. [And, unrelated, if we pay that it isn’t clear that we can stay profitable enough to make doing this worthwhile … not a good place to be.]

        So my summary of this is that the unions perform tasks that are often performed by HR at private, non-union companies. If the unions go away, then these tasks still need to be done and someone has to do them and get paid for doing them.

        Is this a reasonable summary?

        Your example (though I’m assuming that there are other activities, too) is in setting a pay scale. A non-union company might have someone in HR doing the necessary industry research to know what makes sense to retain/attract talent, etc. In a union shop, this (mostly) gets replaced with union negotiations.

      • educationrealist

        Yes. With the added reminder that government salaries are a matter of public record. So as Nat Malkus just confirmed to me on Twitter, governments and districts will *absolutely* want a single negotiator and a single pay scale. And they are going to be prone to lawsuits, which is something that union negotiations protects them from.

        That’s why I suggest that unions mandate membership but make it tiered. If all you want to pay for is salary negotiations, a really low number. Because if you don’t get 100% membership, unions don’t negotiate, no raises happen. that will get bad fast.

        I don’t understand why they aren’t already doing this in Wisconsin–well, correction. I do understand. I think they’ve been flush, and funding that work with pro-union states. But I think they’re going to bleed money in CA and other blue states. But I think it’s utterly stupid for them to agree to negotiate salaries without full membership, and I think they should reconsider.

  • Janet

    Surely, a union which refused to negotiate with an employer, even on behalf of its members… isn’t a union anymore. That’s the whole purpose of a union, what it does. I can’t imagine that any “union” which wouldn’t negotiate with an employer, could possibly stay certified as a union at all. It would become something between a social club, and a private political pressure organization, I guess. But a private group can’t just flip the “represent workers” switch on and off whenever they want to. You walk out, and you don’t get to come back after your snit is over.

    Addressing what Mark Ruolo said: the only government job I’ve had was the Army. But somehow, we managed to work out pay raises, benefits, and so on. My current job doesn’t have unions, and we somehow work it out. (We’ve got around 8,000 employees here.) Many contractors for government work, don’t have unions, and they work it out too. Ditto private school teachers. And apparently, mandatory union fees for non-members is only the law in 22 states, so somehow the other states have been working it out; and again, according to the BLS, only about 35% of government workers are unionized, and somehow the remaining 65% have been working it out.

    The unions only have themselves to blame for this. If they had merely stuck to their knitting, representing the workers on work-related issues and giving good value to their members, this would never have come up. According to AFSCME (the union Mark Janus was forced to pay), only 35% of its members have committed to dues if they aren’t mandatory– which tells me he’s far from the only one who doesn’t like what the union is doing. As do you. If they can’t convince even you, for even the short period of time you’ve got left– then indeed, they shouldn’t get a penny from anybody.

    • educationrealist

      “Surely, a union which refused to negotiate with an employer, even on behalf of its members”

      But a union can’t negotiate for salary only on behalf of its members. That’s entirely the point.

      ” But somehow, we managed to work out pay raises, benefits, and so on. ”

      Um. The Army keeps you locked in for years at a time. That’s how they avoid that particular cost. The Army also offers HUGE incentives to stay in if they want you, and that’s an extremely expensive proposition that wouldn’t work for the number of government of employees we have. Moreover, the Army has a clearly defined promotion schedule–and if you don’t qualify for that promotion schedule, you’re expected to leave.

      None of these apply to most government jobs.

      “My current job doesn’t have unions, and we somehow work it out. (We’ve got around 8,000 employees here.)”

      Maybe Mark is right. Maybe lots of people are too ignorant to understand the difference. Do those 8000 people have one manager?

      ” Many contractors for government work, don’t have unions, and they work it out too. ”

      They negotiate their fees directly, or there’s a pay schedule set by the government.

      “Ditto private school teachers. ”

      Most private schools have a pay schedule, and they have teacher shortage problems that make the existing public school teacher shortage problem look like a small paper cut compared to an artery-level gash.

      “And apparently, mandatory union fees for non-members is only the law in 22 states, so somehow the other states have been working it out;”

      No, the union is basically representing them–and the unions in weak union states are being paid by fees from the unionized states.

      In general, you don’t understand the point of this piece. Here’s a hint: I’m not arguing that unions are indispensable, or that pay can’t be achieved in other ways. Merely that unions are saving the states a lot of grief and that unions should stop working one particular service for free. Anyone who understands how government pay works would understand why that would be a problem for states.

  • mbsrrs

    Here is my answer to your post at MR

    Hopefully, you are really interested.

    While there is extensive (and detailed) information on YouTube, as well as on the Kahn Academy website (recommended), a very simplified description of a major achievement has been (and is) the cooperative effort with specific (diverse) **public ** schools in CA., that have replaced collective *objective* “teaching systems” of public education systems with individualized subjective “learning systems” over a wide variety of topics (math, biology, sciences, etc.) at the several levels (and age levels). This methodology also provides instructors with real-time information on individual student learning; pinpointing learning difficulties (or “slacking”) [rather than waiting for “group” averages to assume results].

    These steps are possibly only the beginning of a new basis for classroom and **personal** learning.

    Do take a look at what they are doing.


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