Teachers unions will have to become more “creatively nimble” in order to keep and recruit new members if the U.S. Supreme Court rules — as many suspect it will — in favor of the plaintiff in Janus v. American Federation of State, County and Municipal Employees, Julia Koppich, a consultant and researcher who studies teachers’ unions, said Wednesday at the annual meeting of the Education Writers Association, held at the University of Southern California in Los Angeles.

In the case, Mark Janus, a child support specialist with the Illinois Department of Healthcare and Family Services, argues that non-union members should not have to pay a fee — called agency or fair share fees — for the union’s work in negotiating a contract that applies to all employees for an organization, a practice that has been in place since the 1970s.

“If the court rules for Janus, it will likely result in significant revenue decline for unions and will hamper their ability to negotiate on behalf of the employees they were elected to represent,” Koppich said.

She suggested that a decision in favor of Janus might also lead to more “fractious” relationships at the local level between union members and non-members who continue to benefit from the collective bargaining process without paying the fees.

While she said she can be as “critical of unions as the next person,” she added that multi-year contracts achieved through collective bargaining provide some stability for districts that “make it possible for teachers to teach.”

Lily Eskelsen García, president of the three million-member National Education Association, the largest union in the nation, said that a decision in favor of Janus would give unions less money to do the same work they are currently doing.

“We’re not going anywhere, but it is going to be difficult,” she said.

She added that right-to-work advocates are not only interested with stopping agency fees — which only about 90,000 of the three million members pay — but that Janus is an effort "to get our members to drop their membership” and “keep the megaphone as small as possible.”

The union, she said, is working harder “to touch the hearts and minds of members and potential members.” She added that there is an effort in every state to have one-on-one conversations with members to communicate what the union does for them.

'A wildfire of job actions'

Garcia also put the case in the larger context of recent teacher walkouts in multiple states, what she called a “wildfire of job actions” and public attention to school finance issues. “They said this is not just about our pay, our pay is a symptom of big problems of underfunding us of de-funding us for a decade,” she said.

At an afternoon session focusing on the teacher walkouts — none of which have been in states where employees pay agency fees — Ed Allen, president of the Oklahoma City American Federation of Teachers, said more teachers are interested in what the unions are doing.

"We’ve seen an increase in membership, and that was not us going out and organizing. That was people coming to us. When you move from powerless to powerful that’s a big deal," he said, adding that those who are pro-Janus might face a "be careful what you wish for" scenario. "That will be another sign to teachers that we have to organize even more because there are forces out there that are working against you."

But on that same panel, Bartlett Cleland, general counsel and chief strategy and innovation officer with the American Legislative Exchange Council — a free market-oriented think tank — said the walkouts showed that teachers depended a lot on social media, not the unions, to organize. "I find that awesome," he said. 

'A few degrees removed'

In the session on the Janus case, William Messenger, a staff attorney for the National Right to Work Legal Defense Foundation, said he doesn’t see a connection between the strikes and the Janus case, which he said only addresses the First Amendment question of whether it is constitutional for employees to “pay union fees to keep their job.”

Other implications, such as whether union membership will drop or how the decision might impact relations at the local level are “a few degrees removed,” he said.

Even if the justices rule in favor of Janus, he said his organization would still be working to ensure that the decision is enforced at the state level. In some states, he said, there have been attempts to “frustrate” the process of eliminating the agency fees by creating “revocation windows” during which members can have the fees removed as well as mandatory orientations in which unions try to get new teachers to join.

Koppich said it will be interesting to see how state and local superintendents respond to a decision in favor of Janus. And she said regardless of the decision, it’s time for a “new chapter” in how unions organize.

“I hope that unions would take a fresh look at what their current members want,” she said, adding that they should find a balance between “bread and butter issues,” such as pay and benefits, and those that are “in the service of improving teaching.”