The Supreme Court issued its 5-4 ruling this morning in Janus v. the American Federation of State, County and Municipal Employees Council 31. Justice Samuel Alito wrote for the majority, “states and public-sector unions may no longer extract agency fees from non-consenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them.” Further, “[w]e conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
This ruling affects 22 states that mandate dues, or “agency fees,” from all union members. New Jersey is one of those states. What does this mean for Garden State unions, particularly its most powerful one, NJEA?
No one was surprised that SCOTUS would side with Mark Janus, an Illinois member of AFSCME, and overturn the 1977 case called Abood v. Detroit Board of Education. In that case, the Court ruled that public employees could be forced to pay for expenses associated with collective bargaining and other related activities. But NJEA is most likely surprised by the breadth of today’s ruling. First, let’s take a quick look at the ruling itself.
The Court based its reasoning on the First Amendment. As the New York Times notes, “requiring payments to unions that negotiate with the government forces workers to endorse political messages that may be at odds with their beliefs.”
From the ruling:
Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.
Forcing members to pay fees,the Court decrees, “violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”
Public unions, which typically engage in political lobbying, cannot force members to financially support views with which they may not concur. One recent example is NJEA’s $4.5 million campaign to defeat Senate President Steve Sweeney by backing a Trump-supporting councilman named Fran Grenier. This position was offensive to many NJEA members who would have preferred their money spent differently.
Now we come to a surprise in the ruling that is of particular relevance to New Jersey. Not only did the Court overturn Abood and invalidate involuntary dues to public unions but it went a step further and ruled that unions must not restrict ways for members to disenroll.
Just this past April 12th, in anticipation of the Janus ruling, the NJ State Legislature passed a law called the Workplace Democracy Enhancement Act. (See here and here for earlier coverage.) Governor Murphy signed it on May 18th. From the bill:
Employees who have authorized the payroll deduction of fees to employee organizations may revoke such authorization by providing written notice to their public employer during the 10 days following each anniversary date of their employment. Within five days of receipt of notice from an employee of revocation of authorization for the payroll deduction of fees, the public employer shall provide notice to the employee organization of an employee’s revocation of such authorization. An employee’s notice of revocation of authorization for the payroll deduction of employee organization fees shall be effective on the 30th day after the anniversary date of employment.
NJEA, in a celebration of the bill, explains it this way:
It modifies the procedures for an employee to withdraw authorization for payroll deduction of fees to employee organizations. The bill provides that an employee do so by providing written notice to their public employer during the 10 days following each anniversary date of the employee’s employment, and the public employer is then required to inform the employee organization of the withdrawal. A withdrawal would take effect on the 30th day after the anniversary date.
In other words, this fast-tracked law mandates that NJ union members must explicitly opt out of the union in order to not pay union dues and have only a 10-day window to do so that differs from employee to employee.
But the Janus ruling appears to invalidate the NJ law.
Now, there was another case pending brought by eight teacher in California — Ryan Yohn v. California Teachers Association — that claimed that limiting opt-out procedures was overly burdensome and unconstitutional. “The opt-in/opt-out issue is just as much a First Amendment issue as the compulsory dues issue,” Yohn said. But does today’s Janus ruling render that case moot? Has SCOTUS already issued its opinion that unions cannot limit a teacher’s right to opt out of paying dues at any time? Does an extrapolation of Janus render the new NJ law unconstitutional?
We’ll wait to see how long it takes for a NJ teacher to challenge the Workplace Democracy Enhancement Act. But a fast reading appears to undermine the constitutional premise of the bill.
One final note: the public — union households included — supports today’s decision.