Public employee unions on Wednesday warned of the impact of a Supreme Court decision that says government workers cannot be forced to contribute to unions that represent them in collective bargaining.
The high court’s 5-4 decision could shake the foundations of public-sector union power across the nation — including union-heavy New York. It scrapped a 41-year-old decision that had allowed states to require public employees to pay some fees to unions that represent them, even if the workers choose not to join.
“This procedure violates the First Amendment and cannot continue,” the decision stated. “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.”
The decision fulfilled a longtime wish of conservatives to get rid of the so-called “fair share” fees that non-members pay to unions in roughly two dozen states.
New York’s public sector unions such as New York State United Teachers, the Civil Service Employees Association and the Public Employees Federation as well as its Democratic political establishment quickly condemned the court’s action, while business groups cheered it.
“The Supreme Court’s Janus decision delivers a victory to extreme conservatives and billionaires intent on diminishing the power of organized labor,” Gov. Andrew Cuomo said. “This case was a long-sought goal in their ongoing war to weaken the voice of working men and women across the country.”
“Conservative Republicans today and those behind the Janus case want to demonize labor as an enemy to economic progress and a relic of the past,” he added. “Nothing could be further from the truth. From 1940 to 1970, when unions were at their peak, inequality fell while the economy grew.”
Not so, said Heather C. Bricetti, president and CEO of the state Business Council. “Today’s decision … is a welcome victory for employee choice and freedom of speech,” she said.
“For too long dissenting public employees have been forced to fund public employee unions that they do not agree with,” added Karen Harned, Executive Director of the National Federation of Independent Business’s Small Business Legal Center. “In the past, armed with a guaranteed stream of revenue, public employee unions grew in influence and power, shutting out other voices, including that of small business who cannot afford increased taxes, more red tape, and onerous regulations.”
The decision will only impact public sector unions. The reasoning is that such unions play a role in setting policy and the unions are thus “speaking” for fee payers. That makes it a freedom of speech issue.
The impact of the decision will vary from state to state. In New York, which has the nation’s highest concentration of public sector union membership (1.2 million), it won’t likely mean an immediate decimation — but it will pose long-term membership challenges.
State lawmakers along with Cuomo earlier this year made moves to help protect membership numbers.
A provision in the most recent state budget, for instance, narrows the scope of what public sector unions would have to do regarding representation of “free riders,” or members who don’t pay dues but who are still covered under union contracts. Public sector unions will, for example, no longer have to represent non-members in disciplinary or grievance procedures.
There is also language thats make it a bit more difficult to leave unions, such as setting specific time periods in which members can opt out. Members of NYSUT, for example, can only leave the union during the month of August.
In a press conference Wednesday afternoon, Cuomo said he would issue an executive order to ensure that public sector employees’ personal information such as their addresses and phone numbers would be protected from release under state Freedom of Information Law, so as to shield them from people trying to get them to leave unions.
The order will have virtually no impact, as addresses and phone numbers have previously been withheld from release. But the symbolism of Cuomo’s announcement was clear: He was flanked by AFL-CIO leader Mario Cilento and United Federation of Teachers President Michael Mulgrew; CSEA’s Danny Donohue, seated next to the governor, likened President Donald J. Trump to fascists such as Adolf Hitler.
Unions have anticipated the decision, especially since Trump appointed Neil Gorsuch to fill the Supreme Court seat that became vacant with the death of Justice Antonin Scalia in early 2016. Senate Republicans refused to consider President Barack Obama’s nominee for that slot.
The high court had been deadlocked 4-4 in a similar case, Friederichs v. California Teachers Association, involving a California teacher who had battled her union, during the period when Scalia’s seat was vacant.
CSEA has been sending representatives to various work sites, informing members of the benefits they get from union representation. And PEF, with the affiliated American Federation of Teachers, launched a engagement “blitz” talking to members one-on-one.
NYSUT President Andy Pallotta on Wednesday said union leaders have been knocking on members’ doors and meeting with them in the workplace to talk up the advantages of union membership.
“We’ve been preparing for years. We’ve been in the schools, in the institutions making sure our folks know what they get from the union,” he said.
NYSUT has also handed out cards in which members can recommit to membership, he said.
“There’s nothing like that face-to-face conversation,” Pallotta said during an interview with Susan Arbetter on WCNY’s “Capitol Pressroom” radio show.
“I believe an overwhelming majority of our union stick with the union,” Pallotta said.
Regardless of how many stay or leave, public sector union membership adds up to a lot of money.
Ken Girardin, policy analyst for the fiscally conservative Empire Center for Public Policy, said New York’s public sector unions collect an estimated $860 million in dues and fees from members each year. Of that, about $112 million pay “agency fees,” or the payments in lieu of dues from non-members that the ruling now says are no longer mandatory. The Janus decision, he said, could cost unions roughly $100 million.
Other states where agency fees have earlier been voided have seen membership declines in varying degrees depending on the union, he said.
Michigan essentially did away with mandatory fees in 2012, and their teachers union lost about 20 percent of its membership, said Girardin. But federal statistics show union membership overall in Michigan was up 1.2 percent last year.
Unions that represent police and corrections officers have in other states lost fewer members, said Girardin. That could be driven by the fact that those in law enforcement roles often worry about facing disciplinary actions, which unions defend.
Pallotta also referenced that, noting that NYSUT can provide legal assistance to union members —something they would no longer have to do to non-union workers.
The Janus decision appears to have an impact on electoral politics in New York.
CSEA endorsed Cuomo earlier this month in his re-election bid. Donohue — who famously called Cuomo a “monkey” and a “moron” during a 2014 rally — cited Cuomo’s moves to protect unions against the Janus decision.
NYSUT didn’t make an endorsement in the 2014 governor’s race. He made no endorsements on Wednesday, but Pallotta said the union planned to be highly involved in upcoming elections.
“This is a very interesting time for NYSUT, but we also know … there has been a very big change in the Capitol, in the governor’s narrative toward teachers,” he said.

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