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Teachers and supporters strike in Pueblo, Colorado, earlier this year. Pueblo is one of the few Colorado teachers unions that collects fees similar to those at issue in the Janus case. (Photo by RJ Sangosti/The Denver Post)

Teachers and supporters strike in Pueblo, Colorado, earlier this year. Pueblo is one of the few Colorado teachers unions that collects fees similar to those at issue in the Janus case. (Photo by RJ Sangosti/The Denver Post)

Colorado teachers unions will feel a limited impact from the Supreme Court’s Janus decision

Colorado’s teachers unions have been living in a post-Janus world for decades.

The U.S. Supreme Court’s 5-4 ruling in Janus v. AFSCME Council 31 is being widely interpreted on the left and the right as a blow to public sector unions, including teachers unions. The decision means that states and school districts will no longer be able to require their employees to pay negotiating fees to the unions that bargain on their behalf.

Nationally, this could mean fewer teachers joining unions and paying dues, leading to a loss of political power for organizations that have traditionally supported Democratic candidates. The National Education Association and American Federation of Teachers are preparing for budget and staff reductions. But with the exception of a few districts, teachers unions in Colorado don’t collect these fees.

Teacher unions exist in a legal middle ground in Colorado, with collective bargaining and the right to strike but without a formal recognition process or the ability to require non-members to pay fees that some private-sector unions have. For the most part, teachers either join the union and pay their dues or don’t join and don’t pay anything. That has limited the power of teachers unions in Colorado, but it also means the Janus decision has limited impact here.

Amie Baca-Oehlert, president-elect of the Colorado Education Association, the state’s largest teachers union, looks for the positive angle behind these limitations.

“I think it has made us stronger as a state because we have to go out to individual educators and explain to them the benefits of belonging,” she said. “Explaining the strength of that solidarity has been powerful for us.”

The Colorado Education Association has roughly 35,000 members, the large majority of them classroom teachers. They represent about 64 percent of the teachers in the state.

That silver lining doesn’t mean union leaders are happy with the decision. State and local unions can expect less support from their national organizations going forward, including in key electoral contests. The decision also undoes decades of precedent that bolstered the position of public sector unions, who now make up half of all unionized workers in America.

“Our biggest concern is not the financial side of things but the ideological side of things, that this is an attack on workers and workers’ families and workers’ ability to come together and have a collective voice,” Baca-Oehlert said.

Joseph Slater, a professor at the University of Toledo’s College of Law, said the positive spin that some are trying to put on the decision – that it will force unions to become more responsive to their members and more democratic in their governance, to their long-term benefit – isn’t borne out in states that haven’t required such fees. It’s not uncommon in some states for a majority of workers to vote to unionize but for only a minority to agree to pay dues, he said.

“I’m all in favor of those things, but I’m skeptical because we have examples of states becoming right-to-work states, and we haven’t seen a significant revitalization of the labor movement,” he said. “This is going to hurt the labor movement.”

Today’s court ruling could have the most impact in Pueblo, a traditional union stronghold in Colorado, a state with a history of bloody mining strikes. Membership in the teachers union is high, and the contracts there include fees similar to the ones at stake in the Janus case.

In May, teachers in Pueblo went out on strike – the first time Colorado teachers have done so since 1994 – and secured a 2 percent raise for part of the 2017-18 school year and another 2.5 percent increase for 2018-19, among other concessions.

Suzanne Ethredge, president of the Pueblo Education Association, said 75 percent of teachers belong to the union, and while that’s down from 80 percent a few years ago, new members joined during the strike as they saw the union forcing the school board to the bargaining table.

Pueblo 60, which serves the city, and Pueblo 70, which serves the surrounding county, are among a handful of Colorado districts where the contracts include “representation fees,” a fee that’s analogous to the agency fees at issue in the Janus case.

A 1977 Supreme Court decision found that workers cannot be forced to join a union, but they can be forced to pay a fee to cover the cost of reaching collective bargaining agreements from which they benefit. Unions say this prevents a free-rider problem, while critics, including Mark Janus, a child support specialist for the state of Illinois who is the plaintiff in the case, say it impinges on their free speech because such negotiations are inherently political.

The representation fees collected in the Pueblo school districts have been part of the contracts for decades and exist for a similar purpose. Teachers can opt out of paying the fees during a window at the beginning of each school year, and some do.

Ethredge said she’s been advised that the representation fees are probably unconstitutional now, and that going forward, workers will have to opt in and will be able to join or leave the union at any point in the school year. But she anticipates a “bookkeeping nightmare” rather than a large drop in membership. The fees probably do contribute to the high rate of membership, she said, but they’re just one factor.

“We have that culture built into Pueblo, and as an association, we’ve been able to build a culture that belonging is important,” she said. “It gives you somewhere to go when something goes wrong. We’re like homeowner’s insurance. You hope you never need us, but we’re here if you do.”

She worries about the impact of the decision on the national union, which provided logistical and moral support during the strike, as well as a $15,000 grant to support the community school model, which offers a range of programming and services for families, at one district middle school.

The Pueblo strike energized teachers, but the Janus decision comes in a year when Colorado’s teachers unions have seen mixed results from their political efforts. Last November, union-backed candidates won majorities on several local school boards and made inroads on others, but the union’s preferred gubernatorial candidate in the Democratic primary, former state Treasurer Cary Kennedy, came in a distant second.

This spring, riding a wave of national activism, red-shirted union members – along with some non-unionized teachers – flexed their muscle in large rallies at the Capitol to call for more school funding, better pay, and the protection of retirement benefits. But the pension compromise adopted in the final hour of the legislative session, which raised the retirement age from 58 to 64 for new teachers, dealt the union a painful blow.

Ethredge makes no bones about it. If unions are to maintain their influence, teachers need to join – and pay their dues.

“Membership is power,” she said. “There is no getting around that.”