The U.S. Supreme Court delivered a harsh, but not unexpected blow to public-sector unions yeterday, when it ruled that nonunion members cannot be forced to pay fees to them. New Jersey’s public unions, however, are expected to find it somewhat easier to recover, given the enactment last month of the Workplace Democracy Enhancement Act.
The new law guarantees unions broader rights to meet with members and potential members, including at the workplace and in some cases during the workday, and to communicate with them via email.
Assembly Speaker Craig Coughlin (D-Middlesex) and a co-sponsor of that law, decried the U.S. Supreme Court decision as “a major setback for the labor movement” and said the WDEA is more crucial now as a result.
“Unions are in a better position to advocate for all workers when they have the resources to do it,” Coughlin said in a statement. “That is why I sponsored the Workplace Democracy Enhancement Act to help unions carry out their duties by improving communication with the workers they represent. We should be working to make unions more effective, not less.”
No surprise from Supreme Court
The much-anticipated resolution of the Janus v. AFSCME case was not surprising, given the 5-4 conservative majority on the Supreme Court, but union leaders and others still were disappointed. In its decision, the majority overturned a 41-year-old ruling and agreed with plaintiff Mark Janus that the requirement that he pay an agency or “fair share” fee to the American Federation of State, County and Municipal Employees union in Illinois, where he is a public worker, violates his First Amendment rights under the Constitution.
A 1977 Supreme Court ruling allowed unions to assess fair-share fees to cover the costs of collective bargaining, though not other purposes like political advocacy, on workers who declined to join a union, because they still benefited from union contracts.
Susan Schurman, a professor of labor studies and employment relations at Rutgers University’s School of Management and Labor Relations, said the court effectively made all those terms that unions want to bargain over — including class sizes for teachers and patient loads for nurses — First Amendment-protected free speech.
“That reasoning is nuts,” she said. “I’m appalled at this decision. I think it’s wrong-headed, but there’s no question these unions will adapt.”
A dark day for American dream
Calling it a “dark day” for organized labor, Gov. Phil Murphy said the decision is an “impediment to organize and undermines the ability to organize, which is at the very core of the middle-class notion of the American dream and of this state, a state that was built on the back of union labor and will be rebuilt on the back of union labor.”
Unionstats.com estimates New Jersey’s public-union membership at close to 342,000 last year, or about 60 percent of all public workers in the state. Another 17,000 workers were paying fair-share fees.
Even before the court ruling, union membership had been declining nationally and in New Jersey. An analysis of Unionstats data shows the number of people in public-worker unions dropped by almost 20 percent in the state between 2007 and 2017, largely because the overall number of public-sector workers (union and nonunion) dipped by 14 percent. At the same time, the percentage of public workers represented by a union declined by 3.7 percent.
A recent study by the Illinois Economic Policy Institute estimates New Jersey public unions could lose 50,000 members, or 15 percent, post-Janus, the third-largest loss in the nation, behind California and New York. It also projects that diminishing union power could lead to a 3.7 percent cut in the average worker wage, or $2,234 a year per employee.
“Those who choose to give themselves a marginal increase by quitting their union will discover it is the most expensive ‘raise’ they ever get,” said Deepa Kumar, president of the AAUP-AFT at Rutgers University, which represents 8,000 faculty, graduate employees, and counselors. “Since 1970, our union has fought and won workload limits, paid sabbaticals, annual raises, due process in employment disputes, greater equity for faculty of color and women, and so much more. We resolve to stand our ground in a post-Janus environment because our best defense in the face of attacks on tenure, academic freedom, and public higher education is a united academic workforce.”
Both state Attorney General Gurbir Grewal, who had filed an amicus brief in the case in support of AFSCME, and Labor Commissioner Rob Asaro-Angelo pledged to use their powers to enforce state laws that protect workers’ rights, including the right to organize and engage in collective bargaining.
Protecting unions with the law
The Workplace Democracy Enhancement Act that Murphy signed last month is one of those laws that could help public-sector unions. It gives them:
Schurman said there is no doubt that the decision will have a major impact, but termed it more of a “body blow” than a death knell, particularly in a state like New Jersey.
“They are going to take a hit,” Schurman said, adding some have predicted that between 10 percent and 30 percent of fair-share payers are likely to stop paying their unions. “They will adjust. They will recover … Our unions in New Jersey started several years ago to reconnect with the rank and file. They are going to redouble their efforts.”
That is important, Schurman said, because as unions grew, they added more professional staff to oversee negotiations, grievances, and other work — creating distance between leaders and the rank and file.
Reaching out and organizing
Donna M. Chiera, president of the New Jersey AFT, said the union is working to comply with the ruling but also reaching out to members and working to organize new unions. In January, adjunct faculty at Brookdale Community College joined the AFT and Princeton University graduate students are organizing an AFT union on their campus.
“This decision is a momentary triumph for the wealthy special interests who backed this lawsuit,” said Chiera, a retired Perth Amboy teacher whose union represents 30,000 faculty and staff in the state’s public colleges, community colleges, and five school districts. “But the voices of working people will not go unheard … We’re not going anywhere.”
Reaction from union leaders, politicians, and advocates across the state was mostly one of outrage.
“Every American benefits from the contracts negotiated by unions, whether we are union members or not, as they set the standards for fair working conditions for workers everywhere,” said Phyllis Salowe-Kaye, executive director of New Jersey Citizen Action. “We know from decades of bitter experience that management can’t always be trusted to act in their employees’ interests, especially when those employees are women or people of color.”
“We will not be cowed and will help organize and build a new labor movement with our union brothers and sisters,”she added.
Marie Blistan, president of the New Jersey Education Association, said the decision will not stop the union from fighting for the rights of its members.
“The court’s attempt today to stifle labor’s collective voice will fail, because we refuse to be silenced,” she said in a statement.
In a joint statement, New Jersey Democratic State Committee Chairman John Currie and Vice Chair Lizette Delgado-Polanco blamed conservatives for the decision and said it is another reason why voters need to support Democrats, who have a good chance of taking two or three of the congressional seats currently held by Republicans in New Jersey.
U.S. Rep. Bill Pascrell (D-9th) said politics played a major role in the decision.
“This decision, part of corporate interests’ decades-long war to destroy organized labor, was delivered courtesy of a stolen Supreme Court seat and a presidential campaign built on lies,” Pascrell said in a statement. “A recent study from the National Bureau of Economic Research found that anti-union, so-called right-to-work legislation passed at the state level has long been aimed at buoying Republicans and attacking Democrats. So there can be no mistaking it: This decision is about politics, not workers; about servitude, not freedom.”
Republicans, meanwhile, praised the decision. Sen. Declan O’Scanlon (Monmouth) even noted that a website, MyPayMySay.com, has already posted a quick way for workers to opt out of their unions.
“The cycle of public employee unions using dues to finance the campaigns of politicians who then reward them with taxpayer dollars may finally be coming to an end,” he said in a statement. “In New Jersey, the millions unions have funneled into campaigns has led to expensive government driven by the highest taxes in the nation. This ruling is a victory for workers as well as for even-handed political debate. Public union money frequently, purposefully overwhelmed any potential for legitimate, fair, and open public discourse.”