Janus v. AFSCME Has Substantially Slowed Down Big Labor’s Gravy Train


But Full Financial Impact of Landmark 2018 Supreme Court Decision Barring Exaction of Forced Union Dues and Fees From Public Servants Won’t Be Felt Until Several Years From Now

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Roughly three-and-a-half years ago, the U.S. Supreme Court decided that government employers across the country may not cut deals with Big Labor officials to fire civil servants for refusing to pay dues or fees to a union they don’t want and never asked for.

The ruling that government-sector forced union dues and fees violate the First and Fourteenth Amendments came in Janus v. American Federation of State, County, and Municipal Employees Council 31,[1] a case argued and won on behalf of independent-minded Illinois civil servant Mark Janus by National Right to Work Legal Defense Foundation attorney Bill Messenger.

At the time Janus was announced, the labor laws of 21 states explicitly authorized the extraction of forced payments from a wide range of public employees as a condition of working for the taxpayer.[2]

Even before the Supreme Court released its opinion, some organized labor observers recognized that a pro-free speech decision in Janus could potentially mean an ongoing annual loss of hundreds of millions or even billions of dollars in coerced union dues and fees for government union bosses.[3]

To avoid major financial setbacks, Big Labor knew it would have to persuade, by hook or by crook, vast numbers of workers to support unions voluntarily who, before Janus, were only forking over union dues or fees because they had to in order to keep their jobs.

Bureau of Labor Statistics Data Suggest 416,000 Government Employees Stopped Bankrolling Unions

But a quick analysis of the 2017 and 2020 state union membership statistics posted on the Union Membership and Coverage Data Base, a website [4] launched and maintained by labor economists Barry Hirsch and David Macpherson, indicates that Big Labor has failed to convert conscripted dues and fee payers into voluntary members post-Janus.

The Hirsch-Macpherson data, which are compiled from estimates furnished by the U.S. Labor Department’s Current Population Survey (CPS), show that, in the 21 states that statutorily authorized and promoted forced financial support for all or nearly all government unions pre-Janus, there were 5.45 million unionized civil servants in 2017.  Under the state laws governing them at the time, these employees had to pay dues or fees to the union wielding monopoly-bargaining privileges in their workplace, or be fired.

Union bosses and their allied politicians in many jurisdictions have been doing everything they can to prevent public servants who were union members against their will prior to Janus from exercising their now-recognized right not to support Big Labor financially.[5]  As a consequence of this obstruction, it is undoubtedly the case that vast numbers of unionized government employees continue to have money siphoned out of their paychecks and directed to union treasuries despite their wishes.

Janus immediately freed civil servants who were already union nonmembers to cease forking over any money to Big Labor.  And by 2020, according to Hirsch-Macpherson data, the number of coerced government union members/fee-payers in the 21 states with wide-ranging public-sector unionism pre-Janus had fallen by 416,000 from its 2017 level.

The bottom line is, in late 2018, 2019 and 2020, government union bosses convinced a net total of zero forced-fee-paying nonmembers in Big Labor stronghold states to become voluntary union members.

Public-sector union membership actually fell, and when the membership decline is combined with nonmembers who can no longer be forced to pay union fees to keep their jobs, it amounts to an 8% decline post-Janus as of 2020.

That figure represents a significant hit for government union bosses in a relatively short period of time.  It is also very likely an underestimate.

Small Sample Sizes, Reliance on Employee Self-Reporting Limit Utility of Hirsch-Macpherson Data on Government Union Membership at the State Level

The Union Membership and Coverage Database is an extremely valuable resource, especially for documenting long-term trends on union membership at the national and state levels.  The National Institute for Labor Relations Research has frequently relied on it over the years.  However, its utility for assessing short term-trends for union membership when broken down by state and sector is limited.

The CPS, from which Hirsch and Macpherson draw their raw data, is a “monthly survey of 60,000 household’s conducted by U.S. Census Bureau staff and published by the Labor Department’s Bureau of Labor Statistics (BLS).  And no more than a quarter of the participants in this national survey are asked one or both of the two questions regarding union participation.[6]

As Maxford Nelsen, director of labor policy for the Olympia, Wash.-based Freedom Foundation has suggested, small sample sizes are probably the principal explanation for Hirsch-Macpherson estimates of government union membership that often swing dramatically up and down from year to year, with no plausible external cause:

[Unionstats.com] calculations suggest the number of union-represented public employees in Washington state declined [nine] percent from 2013 to 2014, from 268,000 to 244,000, while public-sector union membership fell a whopping 15 percent, from 261,000 to 221,000.

[Unionstats.com] numbers also indicate the number of union-represented public employees in Washington subsequently shot up by 22 percent from 241,398 in 2015 to 295,502 in 2016, while union membership in the public sector skyrocketed 24 percent, from 225,949 to 279,836.

The fact is, there is no plausible reason to believe “such wild swings in union representation and membership actually occurred.[7]  Year-to-year variations in the number of government employees paying dues to a union in a particular state as shown by CPS data are often, it seems, primarily if not entirely artifacts of small sample size.

A second important drawback of using CPS data to assess the union membership impact of Janus is that such data can, in some cases at least, dramatically understate, year after year, the share of unionized public employees who choose not to belong to the union.

For example, a November 2020 analysis[8] of union membership trends among California state government employees published in the Sacramento Bee compiled data furnished by the State Controller’s Office for July 2018, February 2020, and August 2020.  The analysis covered state government unions wielding monopoly-bargaining power over a total of between186.8 thousand and 192.0 thousand civil servants during the period in question.

According to the Bee, the number of state public workers having dues deducted from their paychecks to these unions fell from 131.6 thousand in July 2018 to 127.9 thousand in August 2020.

The 71% (July 2018) and 67% (August 2020) government union membership rates for California state employees subject to Big Labor monopoly control reported by the Bee are impossible to reconcile with the 95% (2018) and 93% (2020) membership rates for all Golden State government employees reported by Hirsch and Macpherson.

And, because they come from payroll data submitted to the California controller, rather than a survey of less than 2,000 households in the state, the Bee‘s data are far more trustworthy.

Even as State Government Jobs Held Roughly Steady in Michigan After Right to Work Law’s Implementation, State Employee Union Membership Plummeted

There is a similarly large discrepancy between government union membership data collected by the Michigan State Civil Service Commission over the last decade and CPS survey data.

Between 2012, the last year before Michigan’s Right to Work law took effect, and 2020, the state government’s workforce “remained steady at around 48,000 workers.”  Over the same period, the memberships of three large state government unions “” United Autoworkers (UAW) Local 6000, American Federation of State, County and Municipal Employees (AFSCME) Council 25, and the State Employees Association (AFSCME) “” plummeted by 27%, 34%, and 38%, respectively.[9]

Meanwhile, CPS data as reported by Hirsch-Macpherson show the share of unionized public employees who are dues-paying union members dipping by a far more modest amount, from a sky-high 98% to 92%.

Why would the CPS data furnish misleading estimates of employee participation in unions, year after year?  A plausible explanation is that civil servants who are exercising their Right to Work do not want to make it any easier for Big Labor to bully them.

In post-Right to Work Michigan, officers of the Michigan Education Association (MEA/NEA) teacher union and its local subsidiaries reportedly harassed members who resigned and cut off their financial support by “posting their names in public spaces.”[10]  In 2019, MEA kingpins utilized a collection agency to rake in a total of $483,669 from employees who no longer wished to belong to the union.[11]

After Janus, a number of erstwhile government-sector forced-dues states passed laws at Big Labor’s behest making it easier for union bosses to pursue relentlessly workers who have dropped out of their organizations so they can press them for money.

In December 2019, for example, union-label Illinois Gov. J.B. Pritzker signed into law S.B.1784, a sweeping anti-Janus scheme including a provision requiring public employers to furnish Big Labor bosses with a wide range of information, to be updated on a monthly basis, regarding all employees under their monopoly-bargaining control. 

Under S.B.1784 (now Public Act 101-0620), Illinois state and local government agencies are required to submit to Big Labor officials the names and addresses of all unionized employees, including even employees who are not union members and expressly ask that their privacy not be invaded in this way.  Government agencies are also required to hand over employee job titles, worksite locations, work phone numbers, employee ID numbers, dates of hire, work email addresses, and any home and personal cell phone numbers they have on file.[12]

Payroll Data Reveal How Many Employees Are Subject to ‘Exclusive’ Union Representation, and How Many Are Having Union Dues Withheld From Their Paychecks

Under the circumstances, it is easy to understand why many public employees in Big Labor-dominated states like Illinois whose job terms and conditions are negotiated by a union boss, but do not belong to the union, choose not to advertise that fact when they are surveyed.  This is an important shortcoming of the CPS.  And since the Union Membership and Coverage Database relies on CPS data, this defect limits its utility as well.

Another resource that may be used to ascertain the impact of Janus on government union membership is the LM-2 form. Under the 1959 Landrum-Griffin Act as subsequently amended, private-sector unions wielding monopoly-bargaining power over 250,000 or more employees must file LM-2’s, in which they must disclose, among other things, how many members and forced-fee payers they have.  Large government unions are required to file LM-2’s if they have one or more private-sector units.  This is true of all the major national public-sector unions and some of their state subsidiaries.[13]

Since they are not based on self-reporting by small samples of government employees, LM-2’s may seem to be a viable alternative to CPS data for Janus-related research.  However, LM-2s have their own limitations:

[The] information is only as trustworthy as the union reporting it.  Some unions file obviously inaccurate reports that use rounded or approximated membership numbers.  Others indicate no change in union membership for several consecutive years.

. . . [S]tate or local union affiliates representing only public employees do not have to file forms LM-2, which can make finding accurate union membership numbers for specific unions or states difficult.  [And] when unions do file forms LM-2, it means, by definition, that some private-sector employees are included in the membership totals, which can make it difficult to isolate and identify changes in the union’s public-sector membership rate.[14]

Yet another potential pitfall is that union officials may use inconsistent criteria from year to year regarding who constitutes an “active member” of their organization.  In some years, retirees and affiliated members (whose dues assessments are virtually always far lower than those of unionized employees who are still collecting paychecks) may be counted as “active members.”  In other years, they may not be.[15]

Fortunately, there is a resource that is generally far superior to the CPS and LM-2 forms for assessing the impact of Janus on government union membership.  State and local government payroll departments in all 50 states record how many employees are subject to “exclusive” union representation during any given pay period, and how many are having union dues withheld from their paychecks.

Of course, assembling such data to get a clear picture of what is going on in a particular state or nationally is no easy task.  Public employee payroll records are not published, and may normally only be obtained by filing requests under state government transparency laws.

To date, no comprehensive analysis of what state and local government payroll records show about how many workers have ceased bankrolling unions thanks to Janus has been published.

However, the Midland, Mich.-based Mackinac Center for Public Policy, a “think tank” that submitted two amicus briefs in support of the employee plaintiff in Janus while the case was pending and has defended and publicized the decision since it was issued, reported late last year that it had sent out public records requests to roughly “300 public entities in nearly every state” to calculate an estimate of how many workers had dropped Big Labor since June 2018.

In the Erstwhile Government-Sector Forced-Dues States, Union Bosses Lost 11.5% of Their Dues and Fee Payers in 2018 and Around 4% More in 2019

Mackinac estimates that, in the states “most affected by the court decision,” government union bosses lost “11.5% of their dues and fee payers in year one and around 4% more in year two.”[16]

Because of the superior accuracy and reliability of payroll data, Mackinac’s findings about the post-Janus exodus are very likely closer to the mark than what the Union Membership and Coverage Database seems to show.

But the most important question on this topic isn’t how many employees have exercised their Janus rights by ceasing to bankroll unions so far.  It is how many employees will have cut off their financial support for Big Labor by the time the impact of Janus is fully felt.

While some naïve labor-policy observers predicted government union bosses in Big Labor stronghold states could see their dues-paying ranks shrink by 30% or more within a matter of months after Janus was announced,[17] this was never a plausible scenario.

Transitioning large numbers of civil servants from a compulsory-unionism regime to voluntarism had happened twice before in the U.S. 

In Wisconsin, state and local public employees, with the exceptions of local law enforcement and fire employees and state troopers and inspectors, gained the Right to Work after the Badger State’s Act 10, which was adopted in 2011, withstood an extended legal challenge and took effect.[18]  In Michigan, the Right to Work legislation was signed by then-Gov. Rick Snyder in December 2012, which took effect the following spring, covers private- and public-sector employees, with the exceptions of law enforcement personnel and firefighters.[19]

Prior to the passages of Wisconsin’s Act 10 and the Michigan Right to Work law, mandatory government union dues payments were statutorily authorized and promoted in both states.  In both states, the number of civil servants paying dues/fees to Big Labor steadily fell after their freedom of choice was protected. 

Michigan’s experience is the better augur of the ultimate impact of Janus. since, unlike Act 10, the Michigan Right to Work law does not curtail government union officials™ monopoly power to bargain over public employee pay, benefits, and work rules.  And in the Wolverine State the extended decline of government unionism starting in 2013 was gradual, and at first did not appear to many observers to be all that great.

Michigan Government Union Bosses Used Every Trick in the Book to Stop Educators From Walking Away, With Only Fleeting Success

The declining fortunes of top officials of the MEA and other teacher unions over the past decade is emblematic of what has happened to government union bosses as a class in Michigan.

Then-President Steve Cook and other MEA kingpins did everything they could to make it difficult, if not impossible, for rank-and-file teachers and other school employees to cut off their financial support for the union. 

For example, between December 11, 2012, the day the state Right to Work law was signed, and March 28, 2013, the day it took effect, at least 145 Michigan school districts colluded with the union brass to forge forced dues-perpetuating contracts aiming to make withdrawal of financial support for the MEA machine a firing offense for years to come.[20]

In October 2013, more than six months after the Right to Work law had taken effect, Cook was declaring victory.  Only 1,500 of the MEA’s roughly 118,000 members had “opted out of paying union dues during the August window period” that union bosses had made the only permissible time to quit each year, said Cook.  He went on to acknowledge that roughly 30% of union members couldn’t leave the union that year because of anti-Right to Work deals cut between union bosses and school districts before the law had taken effect![21]

In January 2015, nearly two years after enforcement of the Michigan Right to Work law had begun, MEA officials were still dismissive of the statute’s impact on active union membership.  Nancy Knight, then the union’s director of communications, acknowledged to the Detroit Free Press that the number of employed MEA dues payers had fallen to 110,000 in 2014, roughly 6% below the union’s 2012 membership, but predicted that would be it:

“We feel that all of those members that intended to leave did leave.  We do not anticipate a future decline in membership.”[22]

This turned out to be a startlingly inaccurate prediction.  Since 2015, the number of school employees choosing to bankroll the MEA has continued to decline, year after year.  From 2012 through 2019, the MEA hierarchy lost more than a third of its active members:

The union went from about 118,000 working members down to 78,000, a drop of 40,000. . . . Meanwhile, the “about us” section of the MEA’s web site claims the union is “representing about 120,000 teachers, education support professionals and higher education employees throughout the state. . . .  The 120,000 number includes [roughly 42,000] people who are not actively employed by a public school, such as retirees and college students.

The membership decline came even though Michigan schools employ nearly the same number of employees today as they did when right-to-work took effect here, about 180,000.  In other words, the loss of MEA members is almost entirely due to employees exercising their First Amendment right not to support the MEA, not from fewer people working in schools.[23]

It Will Take Additional Years of Litigation For Right to Work Foundation and Other Pro-Employee Attorneys to Remove Big Labor-Imposed Obstacles to Member Withdrawals

One important reason it took years for the full government union membership impact of Michigan’s Right to Work law to be felt is that clearing away the obstacles to member withdrawals erected by Big Labor bosses and local politicians takes years.

From 2013 through early 2019, National Right to Work Foundation staff attorneys alone litigated more than 100 cases to protect Wolverine State employees’ freedom not to pay dues or fees to a union. Meanwhile, many related Michigan cases were litigated by attorneys employed by other legal charitable organizations. [24]

Were it not for the persistent and determined efforts of pro-Right to Work attorneys, many independent-minded educators would not have been able to exercise their legal right to stop paying union fees without being fired.  For example, in March 2019, the Michigan Court of Appeals sided with Foundation attorneys in a decision affirming that bosses of the MEA’s Ann Arbor subsidiary had violated the rights of plaintiff teachers Jeffrey Finnan and Cory Merante by demanding that they pay fees to the union as a job condition, even though they were not union members.[25]

Three-and-a-half years after Janus, government union kingpins in states like New Jersey, Illinois and California are still circumventing the First Amendment.  A New Jersey statute rammed into law as a retort to Janus by Big Labor state lawmakers, for example, restricts civil servants from cutting off union dues deductions from their paychecks to just 10 days out of 365, or less than 3% of the year.[26]

Until the constitutional issues raised by such anti-employee free speech statutes and backroom deal-making are resolved, the full impact of Janus on the size and power of America’s government unions will not be known.

# # #

Stan Greer is the National Institute for Labor Relations Research’s senior research associate.  He may be reached by e-mail at stg@nrtw.org or by phone at 703-321-9606.   Nothing here is to be construed as an attempt to aid or hinder the passage of any bill before Congress or any state legislature.

[1] 585 U.S. ­___ 138.

[2] Among the 27 state Right to Work laws on the books and in effect in June 2018, 25 prohibited compulsory financial support for all kinds of state and local government unions.  The Right to Work laws in Michigan and Wisconsin protected most kinds of public employees from being fired for refusal to bankroll a union, but made certain exceptions.  In one state lacking Right to Work protections for public employees ““ Colorado ““ forced union dues and fees have long been barred in the public sector. And in one other state that has never had an effective Right to Work law ““ Missouri ““ there was and is no statutory or case law authorizing forced-unionism arrangements in public employment.  The remaining 21 states widely authorized and promoted compulsory government unionism pre-Janus.

[3] See, e.g., Madeline Will, “Are Teachers Unions on the Brink of Demise?” Education Week, February 13, 2018.

[4] Located at https://unionstats.com on the Internet.

[5] See, e.g., Timothy R. Snowball, Government Unions Campaign to Undermine the First Amendment,” Orange County (Calif.) Register, June 27, 2021.

[6] Maxford Nelsen, “Measuring Public-Sector Unionism After Janus,” Freedom Foundation study, June 2019.

[7] Ibid.

[8] West Venteicher, “See tne Numbers: California State Worker Union Membership Dips Amid Pandemic,” Sacramento Bee, November 4, 2020.

[9] Jarrett Skorup, “In the ‘Birthplace of Organized Labor, Union Membership Plummets,” Michigan Capitol Confidential (Mackinac Center), October 31, 2020.

[10] Tom Gantert, “32,000 Flee Teachers Union Under Michigan Right-to-Work Law,” Michigan Capital Confidential, December 14, 2018.

[11] Tom Gantert, “Michigan’s Largest Teacher Union Got Nearly $500k From Collections Agencies,” Michigan Capital Confidential, December 14, 2019.

[12] Jennifer Dunn and Melissa Sobota, “Post-Janus Legislation Weakens Impact of Supreme Court’s Decision and Imposes Heightened Requirements on Public and Education Employers,” Franczek P.C. blog post, December 19, 2019.

[13] See Footnote 6, supra.

[14] Ibid¸ citations omitted.

[15] Ibid.

[16] Jarrett Skorup, The Right to Work Without Being Forced to Pay a Union,” Michigan Capitol Confidential, December 7, 2020.

[17] Tim Pearce, Study: Public Sector Unions Could Lose More Than a Million Members Because of Supreme Court, Daily Caller, August 21, 2018.

[18] See the Wikipedia entry on “2011 Wisconsin Act 10.”

[19] Nathan Edwards, Michigan Gov. Snyder Signs Right-to-Work Bills, WPBN-TV (Traverse City, Mich.), December 11, 2012.

[20] Jack Spencer, Court Update: 145 School Districts Have Deals That Dodge Right-to-Work, Michigan Capital Confidential, May 28, 2013.

[21] See Rick Pluta, Michigan Education Association Retains 99% of Members, WKAR Public Media (East Lansing), October 7, 2013 and Tom Ganter, MEA Says 1 Percent of Teachers Have Left Union, But Claim Is Questionable, Michigan Capital Confidential, October 22, 2013.

[22] Brent Snavely, Michigan Union Membership Falls to 14.5%, Detroit Free Press, January 23. 2013.

[23] Jarrett Skorup, The Collapse in  power of Michigan’s Largest Public Sector Union,” Michigan Capitol Confidential, November 10, 2020.

[24] National Right to Work Legal Defense Foundation, personal communication with the author.

[25] Teachers Win Case at Michigan Court of Appeals Against Union Officials For Violating Right to Work Law,” National Right to Work Legal Defense Foundation press release, March 22, 2019.

[26] Lawsuits Challenging Union Dues Schemes For Illinois, New Jersey Teachers Fully Briefed,” National Right to Work Legal Defense Foundation press release, October 18, 2021.