Trying to Predict the Impact of Janus

The Illinois Economic Policy Institute has released a study on the anticipated impact of Janus v AFSCME, based on the widely-held assumption that the Supreme Court will hold that agency fees are unconstitutional. The report—entitled “After Janus: The Impending effects on Public Sector Workers from a Decision Against Fair Share”—can be found here. The report attempts to predict the impact of Janus by examining the statistical differences in union membership and hourly wages between states with “right-to-work” (RTW) laws and states without RTW laws.

According to the report, as of March 2018, 27 states have RTW laws and 23 states have collective bargaining laws that require “fair share” or “agency” fees.  More than half of all state and local government union members live in just six states: California, New York, New Jersey, Illinois, Ohio, and Pennsylvania. Nationally, California alone accounts for almost 20% of all state and local government union members.

Among the conclusions of the report are:

  • Union membership is expected to decrease by 8.2% nationwide. In California, union membership is expected to decrease by 8.9%.
  • Average hourly pay is expected to decrease by 3.6% both nationally and in California. This translates into a reduction of approximately $2,079 per worker in California.


  1. A Sacramento Bee article discussing this report described the Illinois Economic Policy Institute as a “left-leaning think tank.” So you have to consider the findings in the report in light of that potential bias.
  2. But with respect to the predicted decrease in union membership of 8.9%, that’s lower than the number I had in my head. In California, it’s not at all uncommon for public sector unions to have agency fee payers constitute 25%-50% of a bargaining unit. On top of that, there are undoubtedly some individuals who became union members only because they would have to pay agency fees anyway. Without agency fees, some of these individuals might drop their membership. So if public sector union membership only declines by 8.9% in California, I actually think that’s a better good result for the unions. I think it could be a lot worse than that.
  3. As for the predicted decrease in wages, it’s clear when you read the report that the “decrease” is really a “wage gap” between RTW states and non-RTW states. So it’s not that public employee salaries are going to go down necessarily; rather, salaries won’t go up as much as they would might otherwise without the Janus decision.
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AB 2154: Mandates Paid Release Time for Union Reps

AB 2154 was introduced on February 12, 2018, by Assembly Member Bonta.  AB 2154 provides uniform minimum standards for paid release time for union representatives across all the acts administered by PERB.  Specifically, the bill mandates that an employer provide a “reasonable” number of employee representatives time off without loss of compensation for the following activities: Continue reading

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No Dismissal of Allegation Unless in Warning Letter

Lake Elsinore Unified School District (2018) PERB Decision No. 2548 (Issued on 2/2/18)

This case involved an unfair practice charge that alleged various forms of retaliation. After being amended three times, and a warning letter being issued, the Board agent dismissed the charge. On appeal, the Board reversed the dismissal for further consideration by the Office of the General Counsel. Specifically, the Board held that the warning letter and dismissal did not consider an alternative theory of retaliation advanced by the charging party.

Board held that, Continue reading

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Board: Written Letter Constituted Declaration of Impasse

City of Salinas (2017) PERB Order No. Ad-457-M (Issued on 1/4/18)

One of the triggers for requesting factfinding under the MMBA is a “written notice of a declaration of impasse.” (Gov. Code §3505.4.) The issue in this case was whether a letter from a City stating that it had met its obligations to meet and confer with the union—but never uses the term “impasse”—nevertheless constitutes a written declaration of impasse under the MMBA. The Office of the General Counsel held that such a letter did not constitute a declaration of impasse.  The Board reversed.

The Board held that the meaning of the City’s letter was clear: that the City believed it had fulfilled its obligation to meet and confer because the parties were at a point where continued negotiations would be futile. The Board also noted that the City did not respond to the union’s request for clarification on whether it had declared impasse. The Board conceded that the City’s letter would “undoubtedly be clearer” if it used the term “impasse.” But the Board held that PERB looks at the substance of a party’s words, not their form, to determine their legal effect. Here, under these facts, the Board held that the City’s letter constituted a written declaration of impasse even though it did not use that term.

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Rare Case of PERB Taking Jurisdiction Over a Transit Agency

San Diego Metropolitan Transit System (2018) PERB Order No. Ad-460-M (Issued on 1/23/18)

This case was interesting because most independent transit districts, such as the San Diego Metropolitan Transit System (System), are not subject to PERB’s jurisdiction.  But here, the System’s enabling statutes give the State Mediation and Conciliation Service (SMCS) jurisdiction to investigate and issue determinations concerning representation. These enabling statutes were enacted back when SMCS was under the jurisdiction of the Department of Industrial Relations. But in 2012, SCMS was transferred to PERB. Following the transfer PERB issued regulations governing SMCS’s handling of cases arising under the various public transit statutes.

In this case, the Transit Electromechanics Union’s (TEU) filed a petition for certification to represent certain employees at the System. SMCS denied the petition on the grounds that federal authority did not allow the severing of a smaller unit of employees from an existing bargaining unit. Initially, the Office of Appeals said that it did not have jurisdiction over this matter. However, the Board held that under its regulations, it did have jurisdiction to consider TEU’s appeal.


  1. I thought this case was interesting because it’s rare for an independent transit agency to fall under PERB’s jurisdiction. Here, it’s the very narrow area of dealing with petitions for certification. Under PERB’s regulations, the Board is required to apply the “relevant federal law and administrative practice developed under the Labor Management Relations Act, 1947, as amended” in resolving questions of representation.
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