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SCOTUS watchers: Janus v. AFSCME will jolt labor

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The Supreme Court ruled 5-4 Wednesday on Janus v. AFSCME.
The Supreme Court ruled 5-4 Wednesday on Janus v. AFSCME. - ()

The U.S. Supreme Court ruled Wednesday that labor unions are prohibited from imposing fair share dues on public-sector employees who aren't union members but who are covered by its collective bargaining agreements.

In a 5-4 decision, the Supreme Court issued the ruling in Janus v. AFSCME. It impacts New Jersey and 21 others states where non-union employees used to pay money to unions because they were covered by collective bargaining agreements.

“The court ruled the laws are unconstitutional as they violate the First Amendment protections of coerced speech,” said Michael Merrill, a professor of professional practice in the Rutgers University School of Management and Labor Relations.

“People have been forced to support a position they do not support,” said Merrill, who is also director of the Labor Education Action Research Network. “The agency fees have been ruled unconstitutional. A consistent application of this principle is paying voluntary taxes. The bigger issue is the Supreme Court has made a pattern of making decisions without logic. They wrap sheep’s clothing around whatever wolf they want.

“I am not happy as an American and as a historian of democratic process,” he added. “It says the clash of wills takes precedent over law. It is a debating tactic and it will cost us needless conflict when we could foster dialogue. … One way of arriving at a decision is through power. This decision challenges those practices in the workplace. I think it is a virus that is in the workplace.”

Public-sector workers – including those at Rutgers – represent 12 percent to 15 percent of the workforce in New Jersey, Merrill said.

“This is returning us to the Gilded Age of labor relations, which is not good for employers, employees and society,” he said. “Dealing with the idea of ‘might makes right’ is undermining the Constitution.”

Gov. Phil Murphy and members of his administration expressed disappointment with Wednesday’s ruling.

“This disappointing decision does not in any way diminish our administration’s commitment to protecting the right of public sector employees to organize,” Murphy said in a statement. “We stand firm with our labor unions and labor organizations to advocate and protect members’ rights as we did with the Workplace Democracy Enhancement Act I signed in May. Supporting strong unions is a critical part of making New Jersey’s economy work for everyone.”

Attorney General Gurbir Grewal agreed.

“The very first amicus brief I signed as Attorney General was one in support of workers’ rights in Janus v. AFSCME,” Grewal said. “I was proud to stand with labor on this crucial issue and remain so today. In New Jersey, we’re charting a path to protect workers even as the federal government turns away from them.

“At the Attorney General’s Office, we will use our legal authorities to continue vigorous enforcement of state laws that protect workers’ rights to organize and to engage in collective bargaining,” he continued. “Nothing about today’s decision changes that.”

“This decision is a travesty for working men and women everywhere, particularly here in New Jersey, where workers’ right to organize is protected by our state Constitution,” added Labor Commissioner Rob Asaro-Angelo. “The decision undermines the ability of working people around the country to receive the respect and appreciation they deserve. Despite this ruling, the Department of Labor and Workforce Development is committed to working with our sister government agencies to protect workers' rights, secure their safety, and ensure the dignity that work provides.”

Center for Education Reform senior research fellow Cara Candal hailed the court’s decision as a victory for teachers and families.

“When teachers have power over how and who they support, we reinforce their importance in a student’s life,” Candal said. “Education is no place for politics. Today’s decision will reduce the political activity that the unions have for too long perpetrated on our students and teachers.”

“This frees up teachers to do the work, gives them leverage to engage in their own bargaining,” she said. “We think this will take away the unions’ power. Unions have had a stranglehold on school districts. This is about the rights of those who do not want to be union members without a third party getting in the way.”

Workers United Laundry Distribution and Food Service Joint Board Co-manager Megan Chambers is one of 8,200 members who are affiliated with New Jersey SEIU. She vowed that union members will continue to stand strong for fair wages, decent benefits, fair treatment on the job for public sector workers and all workers in New Jersey.

“We will do what we do: organize people to improve lives, bargain contracts, defend workers’ rights and campaign to improve workers lives across the nation,” Chambers said. “Our members understand this case was brought by anti-union extremists. They want a strong organization to defend them.”

Susan Schurman, a distinguished professor at the Rutgers University School of Management and Labor Relations, likened the Supreme Court ruling as akin to handing public employees a Christmas present in the form of free representation.

“They no longer have to pay if they do not want to,” Schurman said. “The short-term effect is a loss of fair share payers for New Jersey’s public sector unions. My prediction is it will be a relatively short-term effect. I predict unions will adjust, recover [and manage] to persuade union members in the bargaining process to pay dues. … The bottom line is this is part of conservatives’ assault on the public sector. Conservatives want to privative schools, health care and the Turnpike.”

She called eliminating unions an assault on government.

“I predict this is a short-term win for the conservatives who have funded it but it will not succeed,” Schurman said. “This assault by conservatives on unions will not succeed in the long run because for almost 200 years workers have demonstrated they will engage in collective action to improve their conditions.”

David Rapuano, an Archer Law lawyer who specializes in public sector labor employment, said the Supreme Court decision prohibits automatic deductions of money from public sector employees’ paychecks without their consent. Until this ruling, the law required employers to deduct a fee from non-labor union employees that was equivalent to paying 85 percent of dues.

“The implication is the unions really had all the employees locked in to pay dues or almost the equivalent of dues,” Rapuano said. “There was no general rush to opt out of dues. Many employees chose to pay the whole thing if they were only going to save 15 percent.”

“The unions have to give every member of the bargaining union the same representation,” Rapuano said. “This has the real potential to make unions less powerful.”

Rutgers University Professor Paula Voos is a member of New Jersey's Public Employment Relations Commission. She said in a statement that public sector unions are going to have to work harder to build the kind of employee identification with the union that only some now enjoy.

“Unions that represent police officers will not be affected much by this ruling, but large, multi-occupation public sector unions will be challenged,” Voos said. “At least at first, we can expect them to lose membership and the capacity to represent remaining members."

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David Hutter

David Hutter

David Hutter grew up in Darien, Conn., and covers higher education, transportation and manufacturing for NJBIZ. He can be reached at dhutter@njbiz.com.

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