A Catalog of California’s Anti-Janus Legislation    

School union protestNo state in America is as firmly in the grip of public sector unions as California. For nearly 20 years, they have exercised nearly absolute power in the state Legislature. Over the past few years, as they have slipped in and out of having a two-thirds majority, and often with the help of a few Republican legislators, they have been able to pass legislation at will, sometimes within days.

Government union power in California derives from their ability to automatically collect over $1 billion per year in dues from payroll departments of state and local agencies, combined with their ability to compel well over 1 million state and local government employees working within any of their over 6,000 bargaining units to pay these union dues.

While it is legally possible for these government employees to opt out of formal union membership and only pay so-called “agency fees,” the process to opt-out is deliberately rendered tedious and intimidating, and in any case agency fees usually are around 80% of the total dues.

The Janus vs. AFSCME case threatens public sector union power in California and dozens of other states, because, depending on the ruling, it may permit public employees to opt-out of paying any dues at all, including agency fees. But if unions made it difficult and intimidating for government employees to opt-out of paying the full union dues, i.e., if they made it difficult for these employees to get a 20% discount, imagine how difficult they’re going to make it for employees to get a 100% discount.

What the unions can do in Sacramento changes every day. But insofar as a Janus ruling could come down from the U.S. Supreme Court any day, it is appropriate to delve into a bit of wonkiness, and list every recently enacted and pending law, backed by unions, that California’s legislature is compliantly handing down in order to thwart the intent of the Janus plaintiffs.

CALIFORNIA’S ENACTED ANTI-JANUS LEGISLATION

AB-83 Collective bargaining: Judicial Council – enacted

This bill permits unionization of Judicial Council staff, something previously off-limits. Here’s what they do, quoted from their website: “The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff implements the council’s policies (italics added).” Unionized judicial council staff – what could possibly go wrong?

SB-201 Higher Education Employer-Employee Relations Act: employees – enacted

This bill permits students who have jobs at the schools they attend to unionize. This will, of course, allow the unions to collect their cut from yet another category of public payroll, but it will also offer them another avenue to indoctrinate students, since they aren’t already getting enough indoctrination from our public schools and universities.

SB-285 Public employers: union organizing – enacted

This goes straight at the heart of Janus. Layering on top of existing federal law but making it even more explicit and restrictive, this bill would prohibit a public employer from deterring or discouraging public employees from becoming or remaining members of an employee organization. Employers are already forced to be extremely careful how they communicate the pros and cons of unionization, but now they’ll be even more hamstrung, while the unions have full access to employees to argue and advocate their position. Worse, this bill would grant the Public Employment Relations Board jurisdiction over alleged violations of its provisions instead of the courts. This board, PERB for short (see footnotes; “PERB Board”), is stacked with labor activists and is very unlikely to ever rule in favor of a public employer vs. a union.

SB-550 Public school employment: meeting and negotiating: legal actions: settlement offer: attorney’s fees – enacted

In this law, from now on, if a union makes an offer to settle a dispute alleging an employer’s failure to provide wages, benefits, or working conditions, and if the employer does not accept the offer and fails to obtain a more favorable judgment, the employer must pay the union’s attorney’s fees and expenses incurred after the offer was made. Note this “loser pays” provision only applies to the employer, not the union. This legislation puts tremendous pressure on agencies to agree to union demands in order to avoid court, especially those smaller agencies, cities and counties that don’t have deep pockets like the unions.

CALIFORNIA’S PENDING ANTI-JANUS LEGISLATION

AB-1937 Public employment: payroll deductions – passed Assembly

This bill appears to be designed to prevent local jurisdictions from enacting measures that might expedite an individual employee’s decision to stop paying union dues. Reading through the introductory text of the bill, here is a key excerpt: “…the bill would authorize employee organizations and bona fide associations to request payroll deductions and would require public employers to honor these requests. The bill would authorize public employers to make rules and regulations for the administration of specified payroll deductions, subject to meeting and conferring with the applicable employee organizations.” Notice that it is the union, not the employee, who will notify the employer to start dues deductions, and notice that any rules the employer may wish to apply to the administration of union dues deductions has to be cleared (meet and confer) with the union.

AB-2017 Public employers: employee organizations – passed Assembly

Similar to SB 285, This bill broadens the definition of employer to “those employers of excluded supervisory employees and judicial council employees.” It then “prohibits a public employer from deterring or discouraging prospective public employees, as defined, from becoming or remaining members of an employee organization.” The operative words are discourage and deter, which can be quite broadly interpreted. For example, even an employer stating that an employee does not have to join a union might “deter” them from doing so. The intent of this bill is to deter employers from saying anything to employees about unionization, with no such restrictions on the unions.

AB-2049 Classified school and community college employees: payroll deductions for employee organization dues – passed Assembly

Similar to AB 1937, but even more explicit, “this bill would authorize school districts and community colleges to rely on labor unions when determining whether a request to discontinue payroll deductions for union dues is in conformity with the requirements established in the initial payroll deduction authorization.” The intent is to make it harder to get out of paying union dues by adding layers of union bureaucracy to the process.

Concurrent with ensuring the union, and not the agency, has the final say in suspending dues withholding, the unions are revising these “initial payroll deduction authorizations.”

Take a look at this photo of a union contract (below). Note how it states “this authorization shall renew annually, irrespective of my membership status,” and “a revocation must be mailed… postmarked between 75 days and 45 days before such annual renewal date.” There are at least two gotchas here. First, automatic renewal of payroll deductions “irrespective of membership status” means that someone wanting to stop paying union dues has to opt out every year. Second, if they neglect to opt-out, via mail within the exact window of time and in advance of the automatic renewal, they will have to pay dues for another year.

No wonder the unions want themselves, and not the agency, to have the ability to say whether dues will stop being withheld. In any city or county with local elected officials willing to stand up to their unions (admittedly a rare occasion), ordinances could be passed allowing an employee to simply inform their payroll department that they don’t want to pay union dues. That will be impossible under these laws.

The Hotel California Contract – You Can Check In, But Checking Out…

AB-2886 Public Employee Relations Board: Orange County Transportation Authority: San Joaquin Regional Transit District – passed Assembly

Because the above named agencies were not previously required to resolve labor disputes using the Public Employment Relations Board (PERB), this bill changes that so they will have to use PERB. By moving the dispute resolution process out of the courts and instead putting them under the jurisdiction of PERB, the unions improve the probability of winning these disputes.

AB-3034 Public transit employer-employee relations: San Francisco Bay Area Rapid Transit District – passed Assembly

This bill, similar in concept to AB 83 and SB 201, allows the unions to collect their cut from yet another category of public payroll, in this case BART supervisors, by allowing them to unionize.

SUMMARY OF ANTI-JANUS LEGISLATION

So in response to Janus, California’s unions representing public servants are doing the following:

1 – Expanding the pool of public employees eligible to join unions – AB 83, SB 201, and AB 3034

2 – Making it difficult, if not impossible, for employers to discuss the pros and cons of unionization with employees – SB 285 and AB-2017

3 – Precluding local governments from unilaterally honoring employee requests to stop paying union dues – AB 1937 and AB-2049

4 – Making employers pay union legal fees if they lose in litigation but not making unions pay employer costs if the unions lose – SB 550

5 – Moving the venue for dispute resolution from the courts to PERB, which is stacked with pro-union board members – SB 284 and AB 2886

This catalog of countermeasures to Janus is undoubtedly incomplete. A few enacted in 2017 have probably slipped under our radar, and there will be many more crafted in the coming months and years, especially if there is a strong ruling in favor of the plaintiff. But California’s unions have been doing this for years. Whether it’s charter schools, “release time,” transparency in government, charter cities, public education reform, budget and tax issues, project labor agreements, or pension reform, the agenda of the union always comes first in Sacramento.

When it comes to protecting the government union agenda in California, pro-union legislation is fast and furious, belying the more common political reality of gridlock.

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FOOTNOTES

California’s Public Employment Relations Board – 2018, at least 3-2 stacked for unions 

The three:

  • Arthur A. Krantz “represented unions, employees and nonprofits in litigation, arbitration and administrative cases, and he worked on law reform, organizing, negotiation, and strategic campaigns to effect social change. Krantz did this work as an associate and partner at Leonard Carder, LLP.” San Francisco based Leonard Carder, LLP‘s home page states: “As one of the oldest and most renowned law firms representing labor unions and employees, Leonard Carder’s focus is to provide top-flight legal representation to the labor movement.”
  • Priscilla Winslow‘s “career in public sector labor law spans over 30 years, during which time she served for 15 years as Assistant Chief Counsel for the California Teachers Association where she litigated and advised on a variety of labor, education, and constitutional law issues.”
  • Eric Banks “served in multiple positions at the Service Employees International Union, Local 221 from 2001 to 2013, including Advisor to the President, President, and Director of Government and Community Relations.”

The other two:

  • Erich Shiners: “Prior to his service on the Board, Erich Shiners represented and advised public agency employers in labor and employment matters, including many cases before PERB. Most recently he was Senior Counsel at Liebert Cassidy Whitmore.” Liebert Cassidy Whitmore represents itself as California’s preeminent public management employment law firm with over 80 attorneys in five offices.
  • Mark C. Gregersen‘s “career in public sector labor relations spans over 35 years. Prior to his appointment to the California Public Employment Relations Board, he has served as director of labor and work force strategy for the City of Sacramento and director of human resources for a number of California cities and counties.”

REFERENCES

Funding the Post-Janus Fight Against Government Unions, May 2018

Janus vs AFSCME Ruling Imminent – What will Change?, May 2018

A Post-Janus Agenda for California’s Public Sector Unions, February 2018

After Janus, Will Union Grassroots Members Assert their Political Voice?, December 2017

How Can Local Officials Prepare for the Upcoming Janus vs AFSCME Ruling?, October 2017

In Sacramento, Democrats are run by the unions

Unions2June 6 marks the 40th anniversary of voters’ overwhelming approval of Proposition 13, which has been protecting all California taxpayers ever since.

Some people mistakenly think Prop. 13 protects only homeowners, because it cut the property tax rate statewide to 1 percent and put a stop to uncontrolled increases in assessed value. But it did something else, too. It required voter approval of local tax increases and set the threshold for approval of special taxes at a two-thirds vote.

For 40 years, big-spending politicians have been looking for loopholes.

Take parcel taxes, for example. A parcel tax sounds like a tax on UPS deliveries, but it isn’t. It’s a tax on real estate parcels. Under Prop. 13, politicians can’t raise property taxes that are based on the value of property, but they figured out that they could add a flat tax to property tax bills if it wasn’t based on value.

Under Prop. 13, two-thirds of voters have to be convinced to approve parcel taxes.

Politicians figured out that the two-thirds threshold would be easier to reach if they exempted a lot of people from having to pay the tax. Certainly people who won’t have to pay a tax are more likely to vote for it. And politicians who vote for the exemptions can say they voted for a tax break, even though they were raising taxes at the time.

An example of this was the Legislature’s action in 2008 to exempt people on Social Security Disability from paying education parcel taxes. HJTA opposed this bill because it undermined the two-thirds vote requirement for parcel taxes established under Prop. 13. The more classes of people who are exempted, the more the two-thirds vote will be watered down, and the easier it is to raise taxes.

Taxpayers are hit twice by the exemption trick. Taxes are raised more often, but the exemptions mean the government receives less revenue. So the likelihood of other taxes being raised to make up the difference in the future is that much greater.

But when something is working for the politicians, it tends to stick around.

Politicians love picking winners and losers.  It means power over the lives of others and provides a great source of campaign contributions.

The “progressive” legislators who control California’s government favor government employee union organizations — the most powerful force in Sacramento. Every favor granted to public sector unions is a transfer of wealth from taxpayers and the private sector to government employees and the public sector.

Right now, the Legislature is considering a bill that would exempt teachers and education support staff from paying education parcel taxes. Senate Bill 958, which has passed the Senate and is now in the Assembly, was initially a statewide proposal but has been narrowed to target only the Davis Joint Unified School District in Yolo County.

For now. …

Jon Coupal is president of the Howard Jarvis Taxpayers Association.

Click here to read the full article from the Orange County Register

Janus vs AFSCME Ruling Imminent – What Will Change?

Supreme CourtIn February 2018, the U.S. Supreme Court heard arguments in Janus vs. AFSCME, a case that challenges the ability of public sector unions to compel public employees to pay agency fees. While public sector employees currently have the ability to opt-out of paying that portion of union dues that are used for political activities, they still have to pay agency fees. This is based on the presumption that all members of a bargaining unit benefit from union negotiations with management, therefore all of them should pay those costs.

The Janus case argues that in the public sector, even these negotiations are inherently political and therefore it would be a violation of the right to free speech to compel any employee to help pay for them. The Supreme Court appears likely to agree. In an unrelated case also affecting unions, this week the U.S. Supreme Court just ruled in favor of employers, affirming that “employers have the right to insist that labor disputes get resolved individually, rather than allowing workers to join together in class-action lawsuits.” The majority opinion was written by newly appointed Justice Gorsuch, reinforcing hopes that he will rule for the plaintiffs in the Janus case.

But will making agency fees optional result in dramatic change?

The potential is there for dramatic change, because as of 2017, 7.2 million government workers belong to a union. Their total membership nearly equals the total membership of private sector unions, 7.6 million, despite federal, state and local government workers only comprising about 17% of the U.S. workforce. In California, state and local government unions are estimated to collect and spend over $1.0 billion every year.

Clearly, a ruling for the plaintiffs in the Janus case will cause a reduction in public sector union dues revenue. If public employees are no longer compelled to pay agency fees, some of them will stop paying them. But how many will stop paying?

study released this month by the Illinois Economic Policy Institute (IEPI) – which based on the composition of its board of directors appears to be sympathetic to unions – estimates that 726,000 public sector union members will no longer pay dues, a drop of around 10%. IEPI’s study also estimates that in California, public sector union membership will decline by 189,000, dropping from an estimated 1,235,000 members in 2017 down to 1,046,000 members. But will California’s public sector union membership really drop by 18%, taking nearly $200 million out of their annual collections?

Other data does support the 18% figure, even indicating it could be higher. A 2018 national survey released by the center-left organization Educators for Excellence posed several questions to teachers on the topic of union membership. For example, when asked “If you were not automatically enrolled into your union membership, how likely would you be in the coming year to actively opt in?” there were only 60% who were “very likely” to opt-in, and only another 22% who were “somewhat likely.”

The survey also asked non-union members – those members who have opted out of paying the political portion of their dues, but still pay agency fees – “If you could, how likely would you be to opt-out of paying agency fees to a union” there were 36% who were “very likely” to opt-out, and another 25% who were “somewhat likely.” How do these responses translate into lost revenue?

According to UnionStats.com, only about 6% of California’s public sector employees who are part of collective bargaining units have opted to become non-members, i.e., only paying the agency fees. Crunching these variables is problematic. Are the e4e national survey results representative of California? Are the responses by teachers in the e4e survey representative of public employees in other sectors? Nonetheless, the e4e survey results do suggest the revenue loss to public sector unions could be greater than the amount predicted by the IEPI study.

For example, if you assume that all of California’s public sector members who were “very likely” to opt out of union membership did so, and half of those who were “somewhat likely” to opt out did so, and if you made a similar set of assumptions based on the survey responses of the non-union members who were employed within collective bargaining units, you would see a public sector union membership in California decline by 320,000, a decline of 26%, from an estimated 1,235,000 members to 915,000 members.

The biggest unknown is the details of the upcoming Supreme Court ruling. While all indications so far are that the ruling will be in favor of Janus, what remedies will result? A huge variable will be which party will have to take the initiative. That is, will employees have to approach the unions and request to opt-out of membership, or will the unions have to approach the employees and request them to opt-in to membership? Another huge variable will be how often the opportunity to change membership status be offered. No matter whether union membership is based on employees getting to opt-in or having to opt-out, when will they do that? Once per year, within narrowly specified dates, or perpetually at any time? It is likely the ruling will leave many of these details up to the individual states to decide.

Which brings us back to California, with a state legislature that is a wholly owned subsidiary of public sector unions. As noted in detail (with links to the relevant legislation) in the CLEO policy brief “How Local Officials Can Prepare for the Janus Ruling,” California’s state legislature has been working overtime to circumvent the anticipated Janus decision. In summary:

“So how are the unions preparing for the Janus ruling? By (1) making sure the union operatives get to new employees as soon as they begin working, (2) by preventing agency employers from saying anything to deter new employees from joining the unions, and (3) by preventing anyone else from getting the official agency emails for new employees in order to inform them of their rights to not join a union.”

Public sector employees face a difficult choice. They can accept union representation, knowing that in most cases this results in their receiving over-market pay and benefits, or they can reject union representation, knowing that the agenda of public sector unions is almost always in opposition to the public interest. That’s not easy.

What must be easy, however, is for public employees to have access to whatever information is needed to withdraw from public sector union membership. This way, those who wish to stay true to the ideals of public service can put the interests of the public in front of their personal interests, by knowing how to jump through through whatever bureaucratic hoops the unions and the state legislature may put in their way.

This case constitutes a new challenge for those who oppose public sector unions. Making sure that to whatever extent the Janus ruling liberates public sector employees from the grip of public sector unions, those public employees will know how to realize their freedom, quitting those unions, putting the citizens they serve in front of themselves.

The Janus decision is expected by June 30th, if not sooner.

Edward Ring co-founded the California Policy Center in 2010 and served as its president through 2016. 

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REFERENCES

UnionStats.com – Ref. “Union Membership, Coverage, Density, and Employment by State and Sector, 1983-2017”

California’s Government Unions Collect $1.0 Billion Per Year – CPC Analysis, May 2015

Understanding the Financial Disclosure Requirements of Public Sector Unions– CPC Study, June 2012

How Local Officials Can Prepare for the Janus Ruling – CLEO Policy Brief, October 2018

Unions defend recent strikes — but voters should make up their own minds

Teachers unionIn a USA Today op-ed last month, American Federation of Teachers president Randi Weingarten defended the teachers’ strikes in West Virginia, Oklahoma, Kentucky, Arizona, and Colorado, by sketching a familiar hero-villain scenario. “Teachers are standing up for their students and themselves against largely red states with weak labor laws and where governors and legislators have opted for tax cuts for the wealthy instead of investments for children,” she wrote. Pointing to the Janus v. AFSCME Supreme Court case, which she portrayed as a right-wing ploy to “get public sector unions out of politics,” Weingarten proclaimed, “Teachers’ voices — and their votes — are powerful, and educators have parents and communities supporting them.”

Some voters may be persuaded by the argument that teachers are picketing for more money “for children,” but they would be better off looking at some basic facts. While teachers in some cases are underpaid and certain school districts underfunded, teachers on the whole, according to researcher James Agresti, get paid much better than commonly acknowledged. For the 2016–2017 school year, the average salary of full-time public school teachers was $58,950. That figure excludes benefits such as health insurance, paid leave, and pensions, which, according to the U.S. Department of Labor, make up an average of 33 percent of total compensation for public school teachers. When benefits get added in, teachers’ average annual compensation jumps to $87,854. And even that amount doesn’t include unfunded pension liabilities and certain post-employment benefits like health insurance, not measured by the Labor Department. Private-industry employees work an average of 37 percent more hours per year than public school teachers, including the time that teachers spend for lesson preparation, grading, and other activities. “Unlike less rigorous studies, this data from the DOL is based on detailed records of work hours instead of subjective estimates about how long people think they work,” Agresti adds.

Teachers aren’t just well compensated; they’re also more numerous than ever before, especially in proportion to their students. Researcher and economics professor Benjamin Scafidi found that, between 1950 and 2015, the number of teachers increased about 2.5 times faster than the number of students, and hiring of other education employees—administrators, teacher aides, counselors, social workers—rose more than seven times faster than the increase in students. Despite the staffing surge, students’ academic achievement has stagnated or fallen during that time. Scafidi suggests that, had non-teaching personnel growth been in line with student population growth, and the teaching force risen “only” 1.5 times as fast as student growth, U.S. schools would have had an additional $37.2 billion to spend annually. With that windfall, he suggests, we could have raised every public school teacher’s salary by more than $11,700 per year, given poor families more than $2,600 in cash per child to attend private schools of their parents’ choice, and more than doubled taxpayer funding for early-childhood education.

It’s no secret that lavish teacher pensions are eating up money that should be spent on students. Robert Costrell, a finance expert at the University of Arkansas, found that 10.6 percent of all education spending goes toward teacher-retirement benefits—more than double the proportion spent on pensions in 2004. “As a percentage of their total compensation package, teacher retirement benefits eat up twice as much as other workers,” Bellwether Education Partners policy analyst Chad Alderman explains. Teachers—including bad teachers—have a powerful incentive to stay on in their jobs, since they automatically earn more just by showing up each fall, regardless of how effective they are. Pension benefits start accruing later in a teacher’s career, so younger teachers are helping to prop up pensions for lifers, with little to show for it; if a teacher leaves the field early, he gets no pension at all.

States typically administer teacher pensions, but health-care benefits frequently vary according to the local school district. While some districts cut teachers’ health benefits off when Medicare kicks in, others, such as the Los Angeles Unified School District, are much more generous. LAUSD provides the same expansive health coverage for retirees (and their spouses) as it does for current employees; neither group pays a premium for its insurance. The district recently announced that the unfunded liability for retiree health benefits has risen to $15.2 billion, up from a reported $13.5 billion in 2016, which translates to a cost of $525 per student.

Come November, the teachers’ unions and their unhappy members will be taking their case to the voters. Taxpayers need to look at the facts underneath the teachers-as-victims rhetoric and vote for fiscal sanity.

Government Unions: A little perspective is in order

Unions2As one who has closely followed the Janus v AFSCME case, I am amazed at the hyperbolic ranting about it from certain quarters that bombards us on a daily basis. If successful, the suit would allow government workers in 22 states the right to be employed without being forced to pay money to a union. Period.

But various interested parties have gone bonkers over Janus. An American Federation of Teachers press release claims that the case is a “blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people.” (Actually Janus will unrig the rules by replacing the 41 year-old Abood decision and give workers complete freedom of choice.

Are Teachers’ Unions on the Brink of Demise?” screamed the headline in the Feb. 13 issue of Education Week. As things stand now, the ruling will affect 22 forced union states. The other 28 states already protect worker freedom, and all of them maintain teachers’ and other public employee unions.

California Senate President pro Tem Kevin de León claims the case will “cripple unions” and political commentator Arthur Schaper wrote of the teachers unions’ looming “political demise.”

Nonsense. These types of comments may move the adrenaline needle into the red zone for some, but really are quite off-target. Here is what we can count on:

The unions will not go gently into the night. Many unions are attempting to re-rig the game in their favor. California’s AB 119, for example, gives government unions access to all workers’ personal contact information and requires rookies to attend a mandatory union “orientation” meeting, during which a union huckster tries his best to convince a captive audience about the glories of union membership.

The unions have also gone to great lengths to trap workers. For example, the state teachers union in Minnesota has come out with a form that forces teachers to reject union membership on a yearly basis and within a narrow time frame. Unions in New York and California have cooked up similar schemes. It is possible, however, that should SCOTUS decide in favor in Janus, the ruling could include wording that would free any worker from a union contract immediately and permanently, thus rendering this kind of union trickery null and void.

With an assist from Supreme Court Justice Sonia Sotomayor, legislatures in blue states could help the unions financially. During the Friedrichscase, Sotomayor opined that the California Teachers Association “under California law is a State entity.” Of course, the teachers union is not in any way a state entity, but rather a private corporate concern with government rendered perks – like not paying a penny in income tax. No matter. Hawaii has picked up on Sotomayor’s comment, and its state legislature is considering a resolution which would ensure union solvency by dinging taxpayers for any money the union comes up short, should forced dues payments become a thing of the past. It’s safe to say that other blue states will be watching the progress of this resolution closely.

How many teachers will stop paying the union? Very hard to say. When Michigan went right-to-work in 2012, the Michigan Education Association lost 25 percent of its teachers. Mike Antonucci, using information from a National Education Association leadership meeting in March, suggests that the union quit-rate nationally could be as low as 11 percent in newly freed states. Under the worst case scenario, the union could lose about 36 percent of its members.

Additionally, with greater worker freedom, more unions could disaffiliate. There is a subset of teachers who like their local union but see no reason why they have to also pay money to a state and national affiliate, which are little more than progressive political organizations. And there is major financial incentive to do so. In California, for example, CTA skims $677 and NEA $189 from each of its members every year. Local dues vary, but usually are about $200 a year. If a local decides to disaffiliate, it would appeal to many workers for financial and ideological reasons. A case in point is Clark County, Nevada, where, due to “quarrels over lobbying priorities, endorsements in the Democratic gubernatorial primary and ongoing lawsuits,” the 18,700 member union just said good bye to its state and national branches.

What will the political fallout be? The most prudent answer here would be “somewhat to considerable.” It’s no secret that teacher union political spending goes almost entirely to leftist candidates and causes. Reflecting this fact, AFT’s director of field programs for educational issues Rob Weil said that the progressive movement “will lose resources (both $$ and people) which will lessen their impact. Some social partners may, unfortunately, no longer exist.” In Michigan, after its 25 percent drop off in membership, the union cut its political spending by 49 percent. For those of us who are not of the progressive persuasion, this is indeed heartening.

Heartening. That’s about as good as it gets for now. Mike Antonucci suggests that while the unions will alter their M.O., Janus is not a game changer. Unions and school districts will still wrangle over pay, work rules, etc. and that strikes will still occur. In other words, “peace is not at hand.” 

I pretty much agree with Antonucci. But while the sun will still rise in the east with a decision for the plaintiff, it could be the first important step in a process that would truly level the playing field. More on this soon.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

California should copy New Jersey’s union fund takeover, but with one caveat

UnionYes, unions should be free to control their own destiny. Their members are dependent on these defined-benefit pensions, so union officials ought to decide how the money is invested. Union leaders should select the expected rates of return. They should manage the assets, decide on cost-of-living adjustments and control every cent within the fund. They and their members deserve to reap the benefits, of course, but here’s the caveat: taxpayers no longer should have to foot the bill for their miscalculations. They simply need to remove the liability from taxpayers.

New Jersey’s pension fund is so mired in debt and so underfunded that it almost makes California’s system – long viewed as the national poster child for pension dysfunction – seem like a model of fiscal probity. Instead of coming up with a plan to address the root causes of the crisis, New Jersey’s politicians overwhelmingly approved the above-mentioned plan (without my caveat, of course). In all seriousness, it could plunge the state’s pension system into a death spiral. You should never give a special interest unchecked control over the public purse.

Most experts view a 50-percent funding level as the point of no return for pension funds. California Sen. John Moorlach, R-Costa Mesa, compiled per-capita unfunded liability figures for all 50 states and found that California residents are each on the hook for $4,287 in pension debts (using a fairly conservative estimate). That’s bad – 42nd in the nation. But New Jersey’s per-capita pension debt is even worse at $15,208. It gets the 50th spot.

The California Public Employees’ Retirement System (CalPERS), which is the nation’s largest state-based pension system, is funded at 68 percent, which means it only has slightly above two-thirds of the money it needs to fulfill all of its pension promises. The California State Teachers’ Retirement System (CalSTRS) is funded at 64 percent. These are dangerously low numbers, especially coming after a year of fabulous investment returns. But, as they say in Jersey, forgettaboutit. The New Jersey situation is on a different plane altogether. New Jersey’s system is funded at 31 percent.

Instead of dealing with the real source of the pension liabilities (excessive pay and benefit packages for public employees, unrealistically high assumed rates of return, decisions made by politicians rather than actuaries), lawmakers in Trenton chose to shift control of the Police and Firemen’s Retirement System (PFRS) from the state and its investment council to the police and firefighter unions whose members benefit from the fund. Former Republican Gov. Chris Christie had vetoed a similar measure, but it’s unclear whether Democratic Gov. Phil Murphy’s will sign it.

Police and fire union officials understandably are frustrated at the pension fund’s poor performance and note that police and fire pensions are funded at a higher percentage (65 percent) than pensions for other New Jersey public employees. Extricating the police and fire portion would create an obvious fiscal problem by removing a better-funded portion of the pooled resources, and could therefore lower the funding levels even further (is that even possible?) for the remainder of the fund.

“The massive shortfalls in public pension funds are the single biggest financial challenge for American states and cities,” reported Bloomberg News last month. “So allowing government workers to determine their own benefits – as New Jersey may soon do – seems a clear recipe for disaster.” As news reports suggest, the new board of trustees would have a majority of union members and would have the power to adjust contribution rate and increase cost-of-living benefits for retirees.

“We want to control our own destiny,” said one New Jersey union official, quoted in that Bloomberg column. But the legislation doesn’t really do that. Perhaps unions should be free to control their own destiny, but that means that they and their members – not the taxpayers – have to pay the price if they make bad decisions or the economy doesn’t perform as expected. That’s the only real way to have control over one’s destiny.

Sadly, the New Jersey bill echoes the current system there and here, but puts it on steroids. For instance, the CalPERS Board of Directors is dominated by retirees, union members and Democratic state officials who are elected with the support of public-employee unions. However, at some level state officials have to deal with fiscal reality. They are accountable to voters. If the unions gain direct control over pension funds, then there’s nothing to stop their spending sprees.

“What’s wrong with letting the unions manage their own pension funds?” asked Asbury Park Press columnist Randy Bergmann in a rhetorical way. “First most of the money … comes from taxpayers.” And “the unions can reap all the rewards while the taxpayers absorb all the risk.” His critique is exactly right. That’s where my idea comes in. Let unions benefit from their good decisions, but make them pay the price for their bad ones. If they blow it, then union retirees should be the ones to suffer.

This idea shouldn’t even be that controversial. After all, CalPERS officials argue that the pension fund is in solid shape because investment returns, taken over long-enough periods, always cover the payments. That sounds like a tacit admission that they don’t really need the taxpayer backing anyway. Yes, unions in New Jersey, California and everywhere deserve to control their own destiny. Agreed. And we, the taxpayers, deserve to control ours, too.

Steven Greenhut is contributing editor for the California Policy Center. He is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

This article was originally published by the CA Policy Center

What Janus v. AFSCME could mean for California

Supreme CourtOn Monday, the United States Supreme Court heard the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. For California taxpayers, the potential impact is huge.

The issue is straightforward: Does public-sector unionism violate the First Amendment rights of workers who do not want to join a union?

The lawsuit was brought by Mark Janus, a resident of Illinois and an employee of the state as a child-support specialist. Because Illinois is not a right-to-work state, he was required to pay agency fees to the local chapter of the American Federation of State, County, and Municipal Employees. In short, he was forced to associate with an organization with which he disagreed. A fundamental part of the First Amendment’s right of association is the right not to associate. As Thomas Jefferson noted, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.”

No one is watching the case more closely than Rebecca Friedrichs, the California teacher who brought a similar right-to-work challenge here in California. Her case also went the United States Supreme Court where it was widely believed she would prevail. Regrettably, the untimely death of Justice Antonin Scalia left the high court deadlocked in a 4-4 tie. With the arrival of Scalia’s replacement, constitutionalist Justice Neil Gorsuch, the days of forced unionism for public employees may be numbered.

The Janus case presents the identical issue as the Friedrichs case and, even though it involves a public employee from Illinois, there is no dispute that a ruling in Mark Janus’s favor would have the same binding effect in California as if Rebecca Friedrichs had prevailed in her action against the California Teachers Association.

If the court rules for the plaintiffs in Janus, state and local government employees in the 22 states that are not right-to-work jurisdictions will no longer be forced to subsidize unions as a condition of their employment. Rather, they will be free to join the organizations of their choice or not to join at all. The same applies to their contributions of money. In short, Janus may very well resurrect employees’ rights to free speech and association, as well as restore political balance by preventing public-employee unions from spending money collected from workers who may be opposed to the union’s political agenda.

And that latter point is key.

In California, public sector unions are without question the dominant political force. With their ability to extract hundreds of millions of dollars annually from their members, they are able to set the political agenda (which usually includes big employee compensation packages) and are able to defeat even modest reforms in education, welfare and criminal justice. Moreover, their prodigious campaign spending allows them to rent politicians who will make sure that the collective bargaining agreements that are executed with the unions favor the unions to the detriment of taxpayers who must pay for all this largess. The business community and taxpayer interests in California enter every political battle at a disadvantage from the start.

It doesn’t take a seer to predict what will happen in California if the plaintiffs in Janus prevail. The experience in other states which have opted for right-to-work status has been dramatic. When union membership is optional, union membership — and forced union dues — decrease. It is very likely that the political strength of California’s public sector unions will diminish if public employees no longer have to pay dues. At that point, interests that favor lower taxation and a positive business climate might finally be able to have their voices heard.

Jon Coupal is president of the Howard Jarvis Taxpayers Association.

This article was originally published by the Southern California News Group

Court Case Could Free Public Employees from Unions

Supreme CourtThe U.S. Supreme Court will hear arguments in the Janus v AFSCME case on February 26, with a decision scheduled to be announced in June. If successful, it would free public employees in 22 states from having to pay any money to a union as a condition of employment.

Many union leaders are beside themselves with the thought that their days of collecting forced dues payments may well be numbered. And in an attempt to convince anyone who will listen to them, the lies and whines are flowing like raw sewage. Perhaps Numero Uno on the BS meter is Mr. Eric Heins, president of the California Teachers Association. In the current issue of California Educator, the union’s magazine, Heins spews some whoppers that would make Richard Nixon and Bill Clinton blush.

“They want to use the Supreme Court to take away the freedom of working people to join in strong unions.” Blatant crock. The case is about giving working people a choice to be a part of a union.

“A decision in Janus to strip public employees of their collective bargaining rights in the workplace moves us further in the wrong direction.” Uh, nice bait and switch. The case has nothing to do with collective bargaining; it’s about the Constitutionally-guaranteed freedom of association for workers.

“No other organization exists to protect California’s children the way CTA does – in the classroom and beyond.” Okay, technically not a lie, but it’s a distinction without a difference. In his opinion, CTA, which has burdened the Golden State with tenure, seniority and dismissal statutes so onerous that firing a pedophile is almost impossible, is “protecting children.” No, the union is there to preserve teachers’ jobs at any cost…whether they deserve preservation or not. The children you pay lip service to – not to mention taxpayers you profess to champion – are hardly “protected” by your union.

Other unions have also ramped up their rhetoric as the oral argument date nears. The American Federation of Teachers, stressing precedent, is invoking the 1977 Abood ruling, which allows for forced dues. Using the stare decisis argument, the union adopted a resolution “urging the court to reaffirm its long-standing position rather than imposing a national ‘right to work’ landscape.” Surely the union would admit that using a prior ruling as the basis to justify a law is not always the right and just thing to do. For example, AFT wouldn’t have been caught dead using stare decisis to support Plessy v Ferguson, which advanced the “separate but equal” doctrine for public facilities, including schools, when  Brown v. Board of Education, which claimed that separate educational facilities are inherently unequal, challenged the 58 year old ruling in 1954.

In the “whine” category, one meme that keeps popping up is the unions’ insistence that they will become insolvent without compelled dues. AFSCME President Lee Saunders called Janus a political attack against union finances. To be sure the unions will take a financial hit, but if it doesn’t have anything to offer to a worker, it should lose business or even fold up. Think Edsel.

In the “misdirection” department, Slate writer Mark Joseph Stern deserves to be singled out for chutzpah. He asserts that the claim made by Janus that the First Amendment flatly prohibits the government from compelling Americans to subsidize speech with which they disagree is bogus. He writes, “… this happens all the time: Tax revenue, for instance, is frequently used to promote messages that a taxpayer does not endorse, yet nobody seriously believes that taxes are unconstitutional.”

What Stern conveniently omits is that the union is not a government entity, but rather a private corporation. For better or worse, making people pay for services they neither asked for nor want is a “privilege” we reserve for government. In other words, while I must pay state and federal taxes, I don’t have to pay the Auto Club a fee because they say they provide certain necessary services. I am not forced to fork over money to the NRA because the pro-Second Amendment group advocates for me. AAA and NRA are private entities but, unlike unions, are not allowed to coerce money from unwilling individuals.

Given the originalist majority on the Supreme Court, Mark Janus should be successful in his attempt to continue in his job as a child support specialist at the Illinois Department of Healthcare and Family Services without being made to pay one red cent to any union to keep his job. And a union will then have to convince him (and several million other government employees) that it’s in his best interest to join up. What a concept.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

After Janus, Will Union Grassroots Members Assert their Political Voice?    

School union protestThe looming Janus vs. AFSCME decision, expected by Spring 2018, is probably going to validate the contention that ALL public sector union activity is inherently political. Once this landmark case is decided, members will not only have the right, already existing, to opt-out of paying political dues. After Janus, they may also have the right to opt-out of paying ALL dues, including “agency fees.”

The scope of this ruling is uncertain, but it’s reasonable to assume that public sector unions are going to become more accountable to their membership than ever before. How will members respond? Will they put California first, or continue to condone the destructive policies their unions promote as long as they benefit?

There are already resources available for unionized government workers and contractors who want to opt-out of paying dues that are used for politics, even though they still have to pay “agency fees.” Resources for most of California’s public employees, including teachers, can be found here. Resources for home health care workers can be found here. After the Janus ruling, those resources will be strengthened and expanded in scope.

But what sort of platforms will emerge for government workers who wish to remain union members, but want to challenge the political agenda of their unions? Will these dissidents, who often constitute a majority of the membership, have a way to influence the political agenda of their biased leadership? In the wake of Janus, innovative ways to facilitate this internal revolution within government unions should be a priority for anyone trying to bring real reform to California politics.

For decades, public sector unions have been the quiet, gargantuan impetus behind the growth of government at all levels, especially at the state and local level where 60% of all taxes are collected and spent. There are obvious consequences of a political agenda that wants to expand government without any regard to the cost or benefits, such as relentlessly increasing taxes at the same time as services are diminished. But there are two even more profound consequences that elude casual scrutiny. Both are extremely expensive for ordinary Californians.

The first is California’s status as a magnet state for welfare recipients and destitute, unskilled immigrants. Many of these immigrants come from cultures that devalue education, accept corruption as normal, and are hostile to American values and traditions. Apart from the staggering cost to taxpayers to provide these newcomers direct benefits, this policy necessarily requires more police, more prisons, more translators, more multi-lingual educators, more public housing and subsidized housing, more subsidized health care, more welfare and government aid of all types. Other indirect costs must include more public university majors in identity politics so less qualified students can get a “degree,” more quotas in hiring and college admissions so less qualified applicants can avoid being victims of “discrimination,” and more bureaucrats, social workers and college “administrators.” A gold mine for government unions.

The second is California’s embrace of an extreme environmentalist agenda. These policies create artificial scarcity not only for public services, but more significantly, for housing, water and energy. While ordinary private citizens suffer, and unionized public employees get cost-of-living recompense, demand driven asset bubbles inflate investment portfolios, most particularly the $1.0+ trillion in California’s state and local public employee pension fund assets. Artificial scarcity also requires expensive, expanded enforcement apparatus – more code inspectors, mass transit workers, higher fees for any sort of construction. And of course, artificial scarcity creates a housing price bubble that translates directly into massive increases in property tax revenue. Again, for government unions, extreme environmentalism is the gift that keeps on giving.

California’s government unions control the state legislature and nearly every city and county. Their policy is to invite in millions of dependent people, costing taxpayers hundreds of billions, while at the same time making it unaffordable for middle class taxpayers to live here through policy-driven artificial scarcity. This is more than just self-serving madness, it is oppression.

Public servants have hard choices to make. They may consider the following:

(1) As public servants your loyalty is to California’s citizens first.

(2) If you are public safety employees, your sworn duty is to keep California’s citizens safe.

(3) As union members, your priority should be the welfare of all of California’s workers, not just government workers.

What should public servants do? When the Janus ruling forces government unions to be more accountable, how will their members raise their collective voice? Will they understand that their unions should be fighting for policies that (1) welcome skilled workers who are encouraged to assimilate, and (2) support enactment of sensible environmentalist laws?

The hard fact is this: The more cultural upheaval there is, and the higher the cost-of-living gets, the more government expands and the more government unions benefit. And the more government expands to address these self-inflicted problems, the less government resources are left to complete infrastructure projects and provide other basic services to taxpayers. This is why there is an inherent conflict between the interests of public sector unions and the public interest. This is why public sector unions should be outlawed.

But so long as public sector unions exist, to condone their destructive political agenda in exchange for personal gain, even via sins of omission, is unforgivable.

Jerry Brown, with nothing to lose, defies unions on pensions

Photo courtesy Steve Rhodes, flickr

Photo courtesy Steve Rhodes, flickr

“Freedom’s just another word for nothin’ left to lose,” singer-songwriter Kris Kristofferson philosophized in his classic blues song, “Me and Bobby McGee,” a half-century ago.

Kristofferson’s tune would be an apt anthem for Gov. Jerry Brown as he winds down his own half-century-long career in politics – especially so since Kristofferson once campaigned for him.

Unless something very unusual happens, Brown will never face voters again. Therefore, with nothing politically to lose, he has the freedom to do whatever he wants.

Brown emitted a very strong clue to his unfettered status last week when he filed a brief with the state Supreme Court in a case affecting public employee pensions, in effect asking the justices to make it easier for state and local governments to reduce benefits.

Brown is supporting appellate court rulings that upheld two provisions of the modest pension reform bill he and the Legislature enacted in 2012, one ending “pension spiking” and the other repealing the ability of public employees to purchase additional retirement credits called “airtime.”

However, Brown appears to go even further, suggesting that the court set aside, or at least severely modify, the so-called “California rule.”

That rule, based on a 1955 state Supreme Court decision, is an assumption that public employee pension benefits, once granted, can never be modified, even for future work.

It is a bedrock issue for public employee unions and the union-controlled California Public Employees Retirement System, as demonstrated when they successfully pressured bankrupt cities not to reduce pension obligations, even though a federal bankruptcy judge said they could do so.

Not surprisingly, any Democratic politician who questions the rule’s legal validity or financial sustainability risks union wrath.

It explains why former Attorney General (now U.S. Senator) Kamala Harris and her successor, Brown appointee Xavier Becerra, have been reluctant to buck the unions by vigorously defending Brown’s pension reform and why the governor, with nothing to lose, decided to do it himself.

A key phrase in one of the appellate court rulings, reinterpreting the 1955 Supreme Court decision, frames the issue that the Supreme Court must decide.

“While a public employee does have a ‘vested right’ to a pension,” Associate Justice James Richman wrote, “that right is only to a ‘reasonable’ pension’ – not an immutable entitlement to the most optimal formula of calculating the pension.”

Were the Supreme Court to agree with Brown and uphold the appellate court rulings that seemingly repeal the California rule, it would be a huge setback for the unions – and a black eye for the local unions that opened the legal door by challenging the pension reform’s abolition of much-abused pension spiking and airtime.

A “reasonable pension” ruling would also be an avenue for local governments, which are now struggling to pay fast-rising “contributions” to CalPERS, to reduce the bite by guaranteeing current benefits for work already performed but reducing them for future work.

Conversely, were the Supreme Court to defy Brown and overturn the appellate courts, the California rule would be enshrined, even mild reforms would be thwarted and the state’s unsustainable pension system could either become insolvent itself or force many local governments into bankruptcy.

Obviously, these are big stakes.

This article was originally published by CALmatters