Supreme Court deals blow to NJ's public unions, setting up battle with conservatives

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 members 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 v. 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 such as 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.

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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.

Speaking at an unrelated event Wednesday morning, Democratic Gov. Phil Murphy said it was “a dark day” for organized labor.

“In so many respects, folks in this state and this country walk through union doors into the middle class,” he said. “It’s sort of the essence and the core of the American dream, and this undermines it.”

U.S. Sens. Bob Menendez and Cory Booker, as well as U.S. Rep. Bill Pascrell Jr. and other New Jersey Democrats, joined Murphy in condemning the decision, while New Jersey’s largest unions issued defiant statements.

“The court’s attempt today to stifle labor’s collective voice will fail, because we refuse to be silenced," said Marie Blistan, president of the New Jersey Education Association, the state's largest teachers union with about 200,000 members.

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 Donald Trump, a Republican, tweeted about the case shortly after Wednesday's decision.

"Big loss for the coffers of the Democrats!" he said.

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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 country to 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 Americans 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.

"Today is a game-changer for New Jersey and the trajectory of the country," Erica Jedynak, Americans for Prosperity's state director, said in a Wednesday statement announcing a new "outreach" campaign. "Janus is our lightning in a bottle to turnaround failing labor policies and expand right-to-work protections to all."

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.

Lesson of the teacher walkouts

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.

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“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.”

Email: pugliese@northjersey.com