Unions fight back after Supreme Court defeat

New York's large public-sector labor organizations could lose millions in fees

| The Daily Gazette

New York’s large public employee union community calls a U.S. Supreme Court ruling an assault on organized labor but is optimistic it won’t have a huge impact here.

The 5-4 decision announced Wednesday allows government employees who are not members of a union to not pay agency fees assessed by the union in return for negotiating the terms of their employment.

The ruling in Janus vs. AFSCME overturns a 1977 ruling that allowed agency fees to be assessed, provided the fees were used for collective bargaining and not political activity such as lobbying.

The Janus case, brought by a non-union Illinois civil servant, became a rallying point for U.S. organized labor, which is greatly reduced in size and power in the private sector from its heyday in the mid-20th century but maintains considerable influence in the public sector, especially in union-friendly states such as New York.

The ruling was hailed Wednesday by business groups and conservatives as a victory for individual rights and freedom of speech. (Public-sector employers are subject to the freedom of speech provisions of the First Amendment of the U.S. Constitution but private-sector employers are not, which is why their workers’ unions are not affected by the Janus ruling.)

The labor movement condemned it as the latest assault by big business and wealthy interests. But they had expected it, given the ideological makeup of the Supreme Court, and had been reaching out to employees to strengthen their support for the union and reduce the chance they’ll opt out … if not for ideology then simply to save some money.

Organizers with New York State United Teachers, at 600,000 members the state’s largest union, last week knocked on the 100,000th front door in the outreach campaign, spokesman Carl Korn said.

“Our members are telling us that they’re sticking with their union,” he told The Daily Gazette on Wednesday.

Juliet Benaquisto, president of the Schenectady Federation of Teachers, said her bargaining unit and its 1,300 members have a good relationship with the city school district’s administration and aren’t expecting it to attempt to undermine the union in the wake of Janus.

Nonetheless, she said, “People can no longer take things for granted. This decision shows there has been a change.”

MONEY, SO THEY SAY

All sides on the issue see money at the heart of it, although in different ways:

  • “It is hard to estimate how many billions of dollars have been taken from non-members and transferred to public-sector unions in violation of the First Amendment,” Justice Samuel Alito wrote for the court majority in the Janus ruling.
  • Billionaires want to undercut unions so they can pay workers less, labor organizers said.
  • “Big loss for the coffers of the Democrats!” President Trump tweeted.
  • Janus will save taxpayers millions of dollars, the Empire Center think tank said.

“The unions had said the loss of agency fees would diminish their political power,” the Empire Center’s Ken Girardin explained. “Reducing their power would put them on a level playing field” with government officials while negotiating, perhaps yielding less-lucrative contracts.

“These are their own words,” Girardin said. “Right now, government unions have out-sized influence over public policy in New York. Part of the reason is that they’ve been able to make members pay them, whether they want to or not.”

Money isn’t an issue so much at the bargaining table as away from it, Girardin added: It gives unions the “ability to muscle elected officials away from the table,” to help get friends elected and foes voted out of office.

Mary Sullivan, executive vice president of the 300,000-member Civil Service Employees Association, said the argument that public officials are under CSEA control is a “crock.”

She said CSEA does try to influence public policy, just as pro-business or anti-union interests do, and CSEA does not try to hide this.

“Yes, we have influence with politicians, but so do other people,” Sullivan said. “We all have our agendas.”

The difference, she said, is that CSEA’s agenda serves working people while the other side’s agenda serves billionaires.

Sullivan also is president of the Capital District Area Labor Federation, a coalition of 60 public- and private-sector unions with 100,000 members in the Capital Region. The worry, she said, is Janus could indirectly impact the struggling private-sector unions, but organized labor as a whole will work to prevent that.

“I think they’ve awakened a sleeping giant,” Sullivan said.

LIMITED SPILLOVER

Albany labor attorney Nicholas D’Ambrosio Jr. of Bond Schoeneck & King said the direct impact of Janus on private-sector unions is only psychological, if that. But there could be an indirect impact, he cautioned.

“Sometimes the developments in one sector influence developments in others,” said D’Ambrosio, who has represented private employers in negotiations with unions for 38 years, the last 33 of them in the Capital Region.

A good example was President Reagan firing air traffic controllers and decertifying their union after they went on strike in 1981, he said: Private-sector unions say their employers subsequently took a tougher stance in negotiations.

D’Ambrosio said Janus is more likely to have an impact in states without a strong labor tradition, such as Texas or the Carolinas.

New York state policies, by contrast, are strongly pro-labor, and it is the most heavily unionized state in the nation, at nearly 1 in 4 workers.

Among the copious evidence of this is a provision tucked into the 2018-2019 state budget (while the Janus ruling was pending) that amends civil service law to make it harder for state employees to opt out of agency fees. Federal law trumps state law, so that provision may be ripe for a legal challenge.

“It will be very interesting to see if they are challenged,” D’Ambrosio said.

EXECUTIVE ORDER

Gov. Andrew Cuomo had spoken out in favor of organized labor as Janus was before the Supreme Court, and on Wednesday he decried the ruling as an attempt to destroy organized labor.

Sitting with three prominent union leaders, he announced an executive order that would prevent the names and personal information of state employees from being released through the Freedom Of Information Law process so as to prevent anti-union organizations from doing what the unions have been doing for more than a year: Attempting to influence workers’ thinking on union membership.

Cuomo said this has devolved into harassment across the country and he wasn’t going to allow government employees to be harassed by labor foes here.

He said he would propose legislation that would extend this protection to all government employees in New York, because his executive order applies only to state employees, not local government employees.

The state is taking a very different approach with public-sector unions, meanwhile: The amendment recently inserted to state civil service law requires public-sector employers to provide each employee’s name, job title, work location, etc. to the appropriate union within 30 days of hire, promotion or transfer.

NEW PRECEDENT

The Janus ruling took the rare step of overturning a precedent set in a previous Supreme Court ruling: Abood v. Detroit Board of Education, in 1977.

“Abood was poorly reasoned,” Alito wrote. “It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions.”

Alito, Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch formed the majority, while Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor dissented.

Kagan wrote in dissent that the Janus ruling creates negative precedents beyond the case at hand:

“It prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

She also criticized the decision to overrule a previous decision.

“Don’t like a decision?” Kagan wrote. “Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as ‘special justifications’ ” for overruling a precedent.

“The majority,” she wrote, “has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.”