A conservative organization is challenging a new state law in federal court, contending New Jersey’s restriction on when a person can leave a union or stop paying dues is unconstitutional.
One New Jersey union official charged the lawsuit is part of a concerted effort by the Michigan-based Mackinac Center for Public Policy and other conservative groups to try to further weaken unions across the country; the center previously was successful in ending the payment of agency fees by public non-union workers.
Filed Wednesday on behalf of three Lakewood AFSCME union members, the Mackinac lawsuit seeks to enforce the freedom given to public employees by the U.S. Supreme Court’s June decision in the case known as Janus, in which the court ruled public workers cannot be forced to pay a “fair share” or agency fee to a union they have chosen not to join.
“The Workplace Democracy Enhancement Act unconstitutionally interferes with public employees’ First Amendment right to resign from and end financial support to a union at any time,” contends the suit, which is just seven pages long.
It charges that the law, signed by Gov. Phil Murphy about six weeks before the Supreme Court handed down the Janus decision, “likely was passed in anticipation of Janus” as a way to try to counteract that ruling, which had been expected given the court’s conservative majority. Many have said the decision will seriously hurt unions’ power as the organizations lose the ability to automatically collect a portion of dues from those who choose not to join. The new state law gives New Jersey 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.
Murphy: ‘…so proud that we took anticipatory action’
Spokesmen for Murphy and the leaders of both houses of the Legislature, who had sponsored the law, declined to comment, as did Attorney General Gurbir Grewal, also named in the suit. But Murphy, an unabashed union supporter, boasted of the importance of the new law in an address last July to the AFSCME International conference in Boston.
“In New Jersey, we were ready for the Janus decision,” Murphy said. “I am so proud that we took anticipatory action and that I signed our Workplace Democracy Enhancement Act. Now, the rights of workers to organize and form a union, and for unions to communicate with their members, are protected in New Jersey even as they are being weakened in other states … My state is not Wisconsin. We’re not Oklahoma. We’re New Jersey — and the trend of ripping the heart out of collective bargaining will come to a full stop at our state line.”
The Mackinac suit is only challenging a provision in the law that limits the time a public worker has for withdrawing from the union or stop paying dues to the 10 days following the anniversary of his employment each year.
“Constitutional rights apply all year, not just during New Jersey’s 10 day window, which is arbitrary and restrictive,” said Patrick Wright, Mackinac’s vice president for legal affairs. “The Supreme Court’s Janus decision reaffirmed public workers’ First Amendment rights of free speech and association. The purpose of the New Jersey law is to stifle these rights even before they can be exercised.”
Mackinac contends the Janus decision states that “unless the employee affirmatively consents to pay” he cannot be forced to pay dues or an agency fee.
‘They are filing lawsuits all over the country’
But Hetty Rosenstein, area director of the 50,000-member Communications Workers of America’s New Jersey office, said this suit is just another effort by Mackinac and other conservative organizations — and the corporations and businessmen who fund them — to undermine unions.
“They are filing these lawsuits all over the country, like throwing spaghetti against a wall,” Rosenstein said. “They know at some point or another there will be differences in rulings between federal districts and then they will appeal right back to (Justice) Samuel Alito, the author of the Janus ruling.”
Rosenstein defended the new state law, saying that getting one’s union card is like signing a contract. “It is legitimate to have a drop out period,” she said.
New Jersey already took action to carry out the decision as it affects non-union members and “ceased collecting agency fees from all agency dues-paying members of the executive and judicial branch with the pay period that began July 7, 2018,” said Jennifer Sciortino, a spokeswoman for the state treasurer. She said she did not know how many people are no longer paying fair-share fees today, compared with the period before the ruling.
The plaintiffs in the suit are local union workers: Terence Gaudlip, Michael Porter, and Michael Thulen Jr., all inspectors in Lakewood. Thulen is the former president of AFSCME Local 3790 and a council member in Point Pleasant who has had a stormy relationship with union leadership. According to Thulen, he and the other officers were “put under administratorship” seven months ago, meaning all official actions must go through an AFSCME staff member. He said they had asked the township to put their union dues in escrow until the state union agreed to provide them with an audit of the financial situation at the state level.
Plaintiff: not anti-union but wants right to leave
Thulen is not anti-union and agrees that the history of union actions and the protections they have won for workers is positive. But he wants the right to be able to leave the union or switch to a different union, at any time. Specifically, he would like an alternative to AFSCME.
“I thought Janus was going to level the playing field,” he said. “If a person is not happy with the services a union is providing, they should be able to leave … Everyone should have the option of getting out at any time.”
Mackinac is working with the Americans for Prosperity Foundation of New Jersey on the center’s My Pay My Say campaign, which gives workers information about the Janus decision and a form to fill out and present to an employer to withdraw from a union. Kim McIntyre, a Mackinac spokeswoman, said the center has “had opt outs in the thousands in NJ and of all 50 states on the My Pay My Say platform” and the percentage of New Jersey’s public employee workforce opting out is the highest in the nation.
However, both the state CWA and AFSCME unions say few people have decided to end their membership and the number of new members they have brought in more than exceeds those who have left. A spokesman for the New Jersey Education Association previously said only a very small number of its members have chosen to resign from the state’s largest teachers union.
“It’s bad stuff, but we were prepared for it,” Rosenstein said. “Our members are not just dropping out. You don’t go through eight years of Chris Christie as governor and not understand the need to be in a union.”
“Since Janus came down we’ve had only about 30-40 opt-outs,” said Jocelyn Alcox, spokeswoman for AFSCME NJ, which has 20,000 active members. “We’ve actually had significantly more employees who were eager to be full members of the union post-Janus and are happy to say we’ve gained more than we’ve lost.”
AFSCME NJ executive director Steve Tully defended the new law and praised Murphy for his support of labor.
“AFSCME members provide valuable services to the people of New Jersey every day,” he said. “They deserve legislation that protects their rights.”