U.S. Supreme Court deals big blow to public employee unions with ruling on dues

Updated 10:48 AM; Posted 10:28 AM

By Jonathan D. Salant and Samantha Marcus

NJ Advance Media for NJ.com

 

WASHINGTON — The five Republican-nominated members of the U.S. Supreme Court on Friday overturned 40 years of precedent and dealt a blow to public employee unions in New Jersey and elsewhere, which primarily support Democrats.

The Supreme Court ruled, 5-4, that public unions could not collect fees from employees who choose not to pay dues, even though the unions still must represent them and the workers still benefit from the wages and benefits obtained in negotiations.

“We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern,” Justice Samuel Alito wrote for the court.

The ruling will likely reverberate through New Jersey, which has one of the highest rates of union membership. Along with 20 other states, it requires that workers join their union or participate in fair-share arrangements, where they pay only the portion of annual dues that supports the union’s nonpartisan activities.

AFL-CIO New Jersey President Charles Wowkanech said Wednesday the ruling will weaken the U.S. labor movement and “deprive workers from having a voice at work through their unions.”

In anticipation of the decision, Gov. Phil Murphy last month signed the Workplace Democracy Enhancement Act, which gave the state’s public employee unions greater access to members and penalized employers that encouraged people to leave their bargaining units.

Justices ruled in 1977 in Abood vs. Detroit Board of Education that unions could charge employees so-called “agency fees” to cover the costs of representation, but not require them to pay full dues since some of that money could go to back political candidates that a particular worker might not support.

Unions have to represent everyone under their jurisdiction, including non-members. Agency fees, which cannot exceed 85 percent of dues, go for nonpolitical activities such as contract negotiations or grievance hearings. 

The decision came as no surprise; justices appeared to be ready to overturn Abood before the 2016 death of Justice Antonin Scalia created a 4-4 split on the court.

 

Groups trying to weaken the political power of organized labor found their latest case when Mark Janus, who works at the Illinois Department of Healthcare and Family Services, claimed that paying agency fees violated his First Amendment rightsbecause there was no way to separate the political and non-political activities of unions.

Public sector unions spent almost $65 million on the 2016 campaign, 90 percent in support of Democrats, according to the Center for Responsive Politics, a Washington-based research group.

Northjersey.com

Supreme Court deals blow to NJ’s public unions, setting up battle with conservative groups

Nicholas Pugliese,

 

 

June 27, 2018

The U.S. Supreme Court dealt a blow to organized labor Wednesday when it reversed a 41-year-old precedent allowing unions representing government employees to collect fees from workers who choose not to join.

The long-awaited ruling in Janus v. AFSCME threatens a key source of support that has bolstered public-sector unions politically and financially in more than 20 states, including New Jersey, even as union membership in the private sector has fallen to historic lows.

Just how much public-sector unions in New Jersey see their strength diminished, however, depends on their success in selling themselves to workers and neutralizing the message of conservative activists who are poised to launch an aggressive direct-marketing campaign to urge workers to leave, as they did two years ago in Morris County.

It also depends to some extent on the actions of policymakers in Trenton. Anticipating the Supreme Court’s decision, Democratic Gov. Phil Murphy signed a law last month making it easier for public-sector unions to retain and recruit members.

“I think the impact will be gradual and a lot will depend on how public employees respond,” said Rebecca Givan, an associate professor of labor studies and employment relations at Rutgers. 

“They will lose some money from those fees immediately, probably on day one,” she said. “But this won’t destroy public sector unions in New Jersey.”

No more ‘fair share fees’

Public unions are some of the most potent political forces in New Jersey, which is among the states with the highest proportion of public employees represented by unions — 63 percent, or nearly twice the national average. They spend millions each year on lobbying and campaign contributions while negotiating contracts and benefits on behalf of roughly 359,000 covered workers.

For the last four decades, under a 1977 Supreme Court decision in Abood vs. Detroit Board of Education, those unions could charge mandatory “agency fees” or “fair share fees” to employees who declined to join but still benefited from the deals they bargained. Those fees could be as high as 85 percent of the cost of full membership and could not be used for overtly political activities like donations to candidates.

Defenders of the fees said they solved the “free rider” problem, where workers get the union’s benefits but refuse to pay anything toward the bargaining efforts that won them. Under federal law, unions have to represent members and non-members alike.

In the Janus case, however, lawyers for Illinois public worker Mark Janus successfully argued that forcing him to pay agency fees violated his First Amendment rights. Everything a public-sector union does — including bargaining over wages and working conditions — is inherently political, they argued, because it involves the use of taxpayer money.

And because Janus and other government workers may disagree with the positions taken by their unions, the fees amount to unconstitutional compelled speech, they said.

The decision was split 5-4 with the more conservative justices in the majority. It will affect labor laws in 23 states plus the District of Columbia and Puerto Rico, Justice Elena Kagan said during oral arguments in February.

Many other states already had so-called “right-to-work” laws that banned agency fees.

With Wednesday’s decision, all states effectively become right-to-work states. Unions fear many members will now act in their economic self-interest and become “free riders,” shrinking the unions’ coffers and influence.

Bad Timing for Democrats

From the start, the case had been viewed through a partisan lens. Not only has it been bankrolled by conservative donors — the same donors who have helped fund a years-long campaign against public union membership — but it also threatens to disproportionately harm Democratic candidates and causes.

That could spell trouble for Democratic fundraising and get-out-the-vote efforts heading into the hotly contested 2018 midterms and beyond.

President Trump, a Republican, tweeted about the case shortly after Wednesday’s decision.

“Big loss for the coffers of the Democrats!” he said.

A January working paper published by the nonprofit National Bureau of Economic Research shows what’s at stake. The enactment of right-to-work laws in other states, the study found, reduced the share of Democratic presidential votes by 3.5 percent, with a similar effect on other federal and state races.

That’s because “labor unions play a central role in the Democratic party coalition, providing candidates with voters, volunteers, and contributions, as well as lobbying policymakers,” according to the authors.

So, to the extent that right-to-work laws weaken the unions, so, too, may it weaken the Democratic Party.

Blood in the water

Aware of this dynamic and anticipating a Supreme Court decision favorable to them, conservative groups have organized campaigns across the countryto persuade public-sector workers to leave their unions or reduce their dues.

Until now, the push in New Jersey has been relatively passive, with apparently little more than a “My Pay My Say” website launched by the Michigan-based Mackinac Center for Public Policy, a conservative think tank, providing information about the rights of public employees.

But those efforts could now kick into high gear, with workers receiving letters, phone calls or even activists at their front door offering savings, insurance alternatives and legal representation should they wish to leave their union.

That’s like what happened on a small scale in 2016, when the conservative advocacy group American for Prosperity took aim at teachers in the Parsippany-Troy Hills Township school district, launching a targeted social media campaign and sending them letters with step-by-step instructions on how to become an agency fee payer.

Union leaders, however, say they have been preparing for a Supreme Court decision against agency fees for years and have taken steps to remind workers about the benefits of membership. Currently in New Jersey, more than 95 percent of public workers covered by a collective bargaining agreement are full union members.

“It is a hit, but it’s not a hard hit,” Rex Reid, political and legislative representative for AFSCME New Jersey, which represents about 30,000 state, county and municipal employees, said earlier this month about a potential ruling against the unions. “We’ve done the internal organizing trying to keep that from being a hammer on us.”

The unions will also be aided by Murphy signing the so-called Workplace Democracy Enhancement Act last month. It gives the unions greater authority to meet with workers, including new hires, and penalizes public employers that encourage workers to drop their union membership.

It also limits the period when employees can leave a union to 10 days after the anniversary of the date they were hired.

What the teacher strikes tell us

It will take months, if not years, to tease out the full effects of Wednesday’s ruling. 

Will union leaders be less likely to make concessions or take controversial negotiating positions for fear of driving away members? Will they become distracted and less ambitious, constantly preoccupied with members dropping out?

Or, perhaps, will they adapt and become more relevant for workers? That’s the hope of Michael Thulen Jr., a building inspector in Lakewood and president of AFSCME Local 3790, who said in a phone call earlier this month that he hoped Janus would win as a way to force unions to recommit themselves to their members.

Thulen said he had grown increasingly frustrated with mismanagement and a lack of accountability among his higher-ups.

“I’m happy now that if Janus does come out in our favor, at least we can put some of the brakes on the purse strings so that we can actually get a voice … before they take our money and run with it,” he said.

Either way, Givan, the Rutgers professor, said New Jersey’s unions will retain a key source of power: the ability to mobilize workers, as was on display during the high-profile teacher strikes this year in West Virginia, Oklahoma and other states.

“At times, unions may use some influence in turning out the vote in elections or in lobbying and advocacy, but the real impact is something we’ve seen in, for example, the teacher walkouts, which is the ability to mobilize people around issues that matter and have workers speak with one voice collectively,” she said. “That doesn’t go away.”

MCCEA Legislative Update   Click Here: Tell your State Senator to vote NO! on S-979!   Bill that would limit collective bargaining posted in Senate. Tell you Senator to vote NO! In March, the Senate Budget and Appropriations Committee released S-979 from committee. This bill, sponsored by Senators Loretta Weinberg (D-37) and Tom Kean, Jr. (R-21), infringes upon public employees’ right to collectively bargain. The bill, as amended in committee, caps the amount eligible employees can receive for waiving benefits if they choose to be covered under their spouse’s benefits outside of a state plan. In addition, it would eliminate coordination of benefits for married public employees whose coverage is outside the state plans. Those affected would either have to select coverage together under one plan, or each have their own. NJEA OPPOSES THIS BILL because it interferes with the collective bargaining process! S-979 is scheduled for a floor vote by the Senate this Thursday, Oct. 20.  Write to your Senator and ask him or her to vote NO on S-979.

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