Appearing on TVW’s The Impact earlier this month, Washington Federation of State Employees (WFSE) president Greg Devereux indicated his union was weathering Janus v. AFSCME — the June U.S. Supreme Court decision that struck down mandatory union dues for public employees — just fine.
“Post-Janus, we really haven’t had that many [membership] drops,” Devereux stated.
Government data sources, however, tell a different story. Since Janus, WFSE has lost nearly 20 percent of its general government (state agency) membership, due in large part to the Freedom Foundation’s work assisting state workers in understanding and exercising their rights.
Prior to Janus, state employees could either join WFSE as members and have full dues — 1.5 percent of wages — withheld from their paychecks, or refrain from formally joining the union and pay a state-mandated “agency fee” — 1.17 percent of wages — instead. State employees who refused to financially support the union would be terminated.
However, the union knew its ability to continue mandating financial support from state workers rested on a shaky legal foundation. Just last year, at WFSE’s annual convention, Lee Saunders, president of the American Federation of State, County and Municipal Employees (AFSCME) — WFSE’s parent union — admitted there was a “very good chance” his union would lose Janus.
The U.S. Supreme Court had come close to striking down compelled union payment for government workers in 2016 in Friedrichs v. California Teachers Association. However, the unexpected death of Justice Antonin Scalia left the court deadlocked 4-4, effectively granting mandatory agency fees — and the unions that relied on them — two years’ reprieve.
Annual financial statements WFSE and many other unions must file with the U.S. Department of Labor suggest the union worked to convert agency fee payers into full-dues members in anticipation of Friedrichs.
However, beginning in 2017 and continuing up until the Janus decision, the Freedom Foundation began sending state employees information via email and postal mail about their ability to pay the reduced agency fee.
By the time Janus was decided on June 27, 2018, WFSE represented 6,997 agency fee payers, a nearly 18 percent increase since July 2016, according to its most recent LM-2 for the fiscal year ending June 30, 2018.
Measuring what happened after Janus requires a different data source, since the LM-2 forms are only filed once per year.
Thankfully, state payroll data obtained by the Freedom Foundation from the Office of Financial Management (OFM) provide an even more detailed picture.
Before going any further, it’s important to note that, while the LM-2 data reflects the totality of the union’s membership and finances, the OFM data only encompasses WFSE members who work in state government agencies. About a quarter of WFSE’s membership works for state community colleges, which are not included in the OFM data.
At the time Janus was decided, about 4,200 state employees (13 percent of those represented by WFSE) were nonmember agency fee payers. In accordance with Janus, the state ceased withholding agency fees from employees’ checks on July 10.
But WFSE hasn’t just lost agency fee payers. In the months since, increasing numbers of state employees have resigned their WFSE membership. As of September, nearly 20 percent of WFSE-represented state agency workers (almost 6,500 people) were no longer financially supporting the union, costing WFSE an estimated $400,000 per month in lost dues/fees.
Even this does not tell the full story.
To help stem its losses after Janus, WFSE in 2017 inserted an irrevocability provision into its membership forms and began a campaign to get as many state employees as possible to sign up or renew their memberships using the new forms.
At WFSE’s 2017 convention, Saunders praised WFSE for launching an “aggressive maintenance of membership card campaign,” explaining,
“The headwinds we face are strong. But we have a plan. A smart plan to build pride and power at the grassroots. To once again become a member-driven union. At the national union we call it ‘AFSCME Strong’ — you call it ‘100 Percent Union’—we are sticking with this plan, we are sticking with this program, we’re going to be as powerful if not more powerful even if they do (inaudible) right-to-work on us.”
In his remarks, WFSE president Greg Devereux similarly claimed, “We don’t need to lose members because of Janus.” WFSE’s website notes that, to avoid losing members after Janus, the union intends to “sign up members on the new 100% Union card.”
The terms of the revised membership forms authorize the state to withhold dues from the signer’s pay and limit their ability to cancel the dues deductions to an arbitrary, 10-day annual window period between 10 and 20 days prior to the annual anniversary of the day the employee first signed the form. The form also specifies that dues cancellations must be submitted in writing to both the employer and the union during the window to be processed. Since the union is the only entity with a copy of the form, employees have a difficult time ascertaining their resignation window.
Many state workers have reported to the Freedom Foundation being tricked or coerced into signing the new forms. For instance, in a recent email, one state employee wrote:
“If your foundation ever sues WFSE and State of Washington for deceptive practices, please count me in.
I’ve worked for the state for six years but when I started a new position, the WFSE representative had me sign a new card, which I thought was strange. She told us ‘We just have to have everyone sign, even if you’re already a union member. If you sign now and change your mind, you can opt out at any time later.’ …
I tried to opt out but was told the new form I signed had fine print that roped me in financially for life (as long as I’m in a union represented position) unless I opted out during a small 10-day window each and every year. I’ve requested a copy of my form for the past month and WFSE says it’s too busy right now to find it…
I’m furious and no longer support the union. I also strongly believe new employees should be fully informed. The way the union representative presented the option of leaving the union is totally deceptive and dishonest.”
To help put an end to such tactics, the Freedom Foundation in August filed a class-action lawsuit in federal court on behalf of WFSE-represented state workers who had their post-Janus resignation requests rejected by the union — the first such lawsuit in the country. The suit contends WFSE’s membership forms are not legally sufficient to justify seizing union dues from employees’ wages.
One plaintiff in the suit described WFSE as “totally unethical,” while another told Fox News, “WFSE doesn’t share my views or my values. I don’t want my money being used to support an organization I disagree with.”
The number of WFSE-represented state employees who have been prevented from resigning due to an “irrevocable” membership form is not known, but the number of people reporting such a situation to the Freedom Foundation suggests it is substantial.
In short, though Janus represented a major step forward for public employees’ rights, it did not automatically change the reality on the ground for state workers. As Freedom Foundation continues to help state employers understand their rights and overcome the various barriers to resigning WFSE has created, a more accurate picture of WFSE’s true level support among state employees will eventually emerge.
It’s just a matter of time.