Blue states strike first against awaited anti-union court ruling

Protesters are pictured. | AP Photo

Blue state lawmakers are waging a preemptive strike against an anticipated U.S. Supreme Court decision that could decimate the power of public-sector unions across the nation.

New York and New Jersey officials are pursuing an end-run around Janus v. AFSCME, a case that could give government workers across all states the option of declining to pay union fees even if they benefit from that union‘s contract negotiations. Pro- and anti-union partisans alike anticipate the court is likely to rule against the unions — a decision that labor leaders fear will shrink their bank accounts and, in turn, their power.

The play by these states is pretty simple: Beef up public-employee union’s ability to recruit and retain members in an effort to counteract the chunk of revenue loss these unions expect. New York passed a provision in NY A9509 (17R) that makes it harder for people to opt out of paying union dues by letting unions set the terms for refusals and allows union representatives to recruit new employees during the workday. New Jersey just enacted a similar measure through legislation.

The states’ laws make it easier for public-employee unions to recruit workers by giving them access to employees’ contact information and allowing them to recruit during the workday.

At a time when half of all states have enacted right-to-work laws, New York and New Jersey are clear outliers trying to preserve, rather than cripple, union power. And with Trenton unified under Democratic control for the first time in eight years, Garden State Democrats are seizing the opportunity to show other blue states how to fight back.

Unions have been on the decline over the past 30 years, due to globalization and various government policies, including the the spread of right-to-work laws. In 2015, just 11 percent of all workers were in unions, less than half of what membership was in 1983. But government unions have remained a bastion of union power, with the Bureau of Labor Statistics estimating rates of public-sector union membership were five times higher than that of private-sector workers last year.

Steve Rosenthal, a former national political director of the AFL-CIO, said the blue state efforts may mark a turning point at which unions and their supporters could begin to effectively counter the Koch-bankrolled right-to-work movement.

“The same way we’ve seen the right use right-to-work laws and efforts to eliminate collective bargaining in state law, you may well see it’s time for progressives to use those same levers of government to protect workers,” said Rosenthal, now president of The Organizing Group, a progressive political consultancy.

At issue in the Janus case is whether public-sector unions should be allowed to collect fees from nonmembers. Plaintiff Mark Janus, an Illinois state worker who declined to join the American Federation of State, County and Municipal Employees, argues in his lawsuit that the payments he’s compelled to pay the union violate his First Amendment rights. Unions that represent government employees argue this money is necessary to cover collective bargaining costs that benefit all employees.

But unions are expected to lose much more than nonmembers‘ fees if Janus prevails. Unions must represent all workers within a collective-bargaining unit, not just those paying dues. Therefore if workers can quit the union but still benefit from collective bargaining, opting out of paying for membership and still reaping the benefits will be much more attractive.

The Supreme Court is expected to rule by June.

The case also carries political implications. According to a POLITICO analysis of federal election records, public-sector unions spent about $189 million on the 2016 election cycle, accounting for a full 6 percent of Democratic and liberal organization spending. And although the full extent of Janus will not be clear until after the Supreme Court issues a ruling, a 2014 CRS report found that private-sector union membership in right-to-work states was about a third less than in other states. Democratic candidates and causes rely on public-employee unions for more than $100 million in contributions every election cycle and for members who volunteer on their behalf.

Fair-share fees paid by public employees who decline union membership are already barred from being spent on political campaigns, so an adverse ruling wouldn’t affect the unions’ campaign spending directly. But by creating a strong financial incentive for public employees to quit their unions and enjoy the benefits of collective bargaining free of charge, a ruling for the plaintiffs in Janus would risk shrinking membership and, consequently, the amount of money public employee unions have to spend on political campaigns.

As New York Gov. Andrew Cuomo announced details of the budget in late March, he spoke proudly about how it included an “anti-Janus” provision, and that he was eager to protect the most heavily unionized state in the nation.

“The federal government is anti-union, they’ve made that clear,” said Cuomo, who is positioning himself for a possible 2020 presidential bid and this year faces a Democratic challenger in the gubernatorial primary. “We’ve passed a bill that helps protect unions in this state. I am, personally, 100 percent for working men and women.”

The New Jersey measure, just signed into law Friday, is is similar to New York’s. New Jersey Gov. Phil Murphy signed into law the “Workplace Democracy Enhancement” Act, NJ S2137 (18R), which gives public-employee unions the right to meet with members and recruit in the workplace.

“In New Jersey, we are making it a priority to protect working men and women,” Murphy said in a statement. “This legislation will simply ensure that unions can operate in an environment that treats them fairly and eliminates unnecessary hurdles to organizing.”

New Jersey’s top lawmakers described it as a measure that is absolutely critical. Senate President Steve Sweeney, a Democrat and longtime member of the ironworkers union, says unions will definitely lose members due to the anticipated court ruling and this bill will simply ensure that workers aren’t being walled off from union representatives. And Assembly Speaker Craig Coughlin, also a Democrat, says this proposal gives unions a “fair shake” at recruitment.

“We have an opportunity to get this done before there would be any gap or uncertainty,” Coughlin said in an interview.

The bill also requires that government employers hand over an employee’s personal contact information to unions — a move that representatives for towns and counties have decried as a violation of individual privacy rights.

“If you’re joining the Elks Club, or AAA or any organization, you’re choosing your handing over a certain amount of access,” said Mike Cerra, assistant executive director for the New Jersey League of Municipalities. “But here it’s prescribed by statute as a condition of employment.”

But Hetty Rosenstein, state director for the New Jersey Communications Workers of America, said the action is a necessary step in ensuring that unions are not destroyed by political forces.

“The point here is to make sure that at the work in the public sector people have an opportunity to learn about the labor movement and not be accosted by political factors,” she said.

Labor leaders also say that this is just one piece in preparing for the Janus decision.

Henry Garrido, the head of AFSCME’s branch in New York City, said his union officials are actively speaking to members about the value of being in a union and have already communicated with the vast majority of its 125,000 members in the city. They are also bracing their budget for a significant loss in revenue.

“We’re looking at every penny, where we need to cut, and redirect or double down our strength,” he said. “So we’ll be prepared for this case — whatever the decision will be.”

Bill Mahoney contributed to this report.