These organizations also immediately got to work attempting to convince public sector union members their time had come to drop their membership. Some, like the conservative Mackinac Center for Public Policy, set up a drop-your-dues hotline. The Freedom Foundation, part of the State Policy Network of corporate-funded conservative groups, and other anti-union groups, engaged in an intense campaign to convince public sector union members to drop their membership and become free riders, including mailings, canvassing, door knocking, and worksite visits.
The “drop campaigns” failed to make a significant dent in public sector union membership numbers. As the American Federation of State, County and Municipal Employees (AFSCME) President Lee Saunders has noted, “anyone writing [union’s] obituary is going to be sorely disappointed.” The numbers reported by the U.S. Bureau of Labor Statistics (BLS) demonstrate just how weak the Janus impact has been. For example, from 2018 when Janus was decided to the following year 2019, local (cities, counties, and other local jurisdictions) public sector union membership went down about 1 percent from 40.3 percent to 39.4 percent. For state government workers, however, the percentage went up from 28.6 percent to 29.4 percent—hardly the death knell hoped for by the anti-union entities. Overall, the decline in the union membership rate in the public sector from 2018 to 2019 was a paltry .3 percent (about 100,000 members), about on par with the private sector decline at .2 percent. The slight decline also correlates to the decline in the total number of public sector jobs available.
Those in favor of the Janus decision were forced to admit the lack of the decision’s reach. The Freedom Foundation noted only a slight decline in public sector union membership in 2018. An April 2022 report from the Manhattan Institute, another conservative organization, reported largely flat membership rates from 2018 to 2022. Per the BLS year-end 2022 report, public sector union membership declined by only .8 percent from 2021. And according to internal union reports, the rate of fair share fee payers becoming full-fledged dues-paying members outpaces those dropping membership at a rate of five to one.
The reason for the lack of severe membership losses in the wake of the Janus decision may be that unions prepared for and reacted to the decision in several proactive ways. AFSCME, for example, beginning after the Harris and Friedrichs decisions, implemented an internal organizing program called “AFSCME Strong,” which prioritized one-on-one communications, member-to-member engagement, new computer technology to aid organizing and sign-up, and more political engagement to pass laws allowing for better access to worksites and potential members. Other public sector unions made similar efforts, and by inoculating and organizing, the drop campaigns failed to resonate with workers. By convincing existing members of the value of their union, persuading some nonmembers to join, and recruiting new hires into the union, these unions softened the blow. Unions reminded workers that public sector union members make 11 to 14 percent more than nonunion members similarly situated and are more likely to have health insurance, paid sick days, paid vacation days and holidays, and retirement benefits.
Meanwhile, the right-wing organization’s litigation strategy post-Janus has widely failed. Anti-union groups have filed close to 200 lawsuits in state and federal courts. To date, not a single court has ruled in their favor, although a handful are pending certiorari at the Supreme Court. These lawsuits have unsuccessfully advanced numerous theories to recoup past dues payments, end exclusive representation in the public sector, challenge maintenance of membership language on membership cards, and allege similar First Amendment arguments made in the Janus case.
Moreover, the overall climate and public opinion about unions have changed since 2018. Since Janus, the excitement level about unions and collective action in the workplace is at historically high levels. A widely reported 2021 Gallup poll showed the union approval rate at 68 percent, the highest since 1965. Workers in the public and private sectors are engaging in more workplace actions, more strikes, and more organizing campaigns in their workplaces. With this developing culture of union support and approval, perhaps public sector union members also viewed the Janus decision as a naked political attack on their unions, one that damaged the Supreme Court’s reputation and legitimacy, which continues to this day.
The observation from the Abood opinion back in the 1970s that prohibiting fair share fees could lead to less labor peace has proven to be correct. Without stable collective bargaining regimes within workplaces, workers and their unions will engage in more disruptive strategies and tactics to allow workers to have a voice within their workplaces. October 2021 was nicknamed Strike-tober. Large-scale strikes or other work stoppages sparked at John Deere, Kellogg’s, and other large employers. Fifteen-thousand hotel workers in Southern California were on strike in late June into July 2023. Writers and actors are on strike. High-profile union victories after work actions have been seen at Amazon, Starbucks, and UPS. Perhaps Janus was a labor movement wake-up call, not a termination notice.