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Collective headaches
Public unions adjust to Supreme Court ruling

09/13/18



 By Scott Murphy

smurphy@hippopress.com 
 
As the dust settles following a consequential Supreme Court decision, public unions in New Hampshire are continuing to work with their members to plan for the future. Those conversations mostly revolve around money, as the court’s decision struck down a policy on membership fees that could cost Granite State unions over $1 million annually.
 
An age-old issue
The case — Janus v. American Federation of State, County, and Municipal Employees, Council 31 — pitted Illinois state worker Mark Janus against the union’s policy of collecting “agency fees.” James Reidy, chair of the labor and employment group at Sheehan Phinney Bass & Green in Manchester, said states with these policies allowed public employee unions with 50 percent employee membership to collect fees from non-union members, since these employees still receive the benefits negotiated by unions. 
“If the scope of the bargaining agreement included the position you’re in, and you decided not to be a member, it was settled law that since you’re getting collateral benefit, you have to pay something,” said Reidy. “It’s an age-old issue. The individuals that sued in Janus said they weren’t consenting to this deduction, and they argued that the union was using this money to advance a political agenda they didn’t agree with. The union’s argument was that [non-union members] can’t receive the same benefits and expect not to pay.”
In its 5-4 decision delivered this past June, the Supreme Court sided with Janus, upholding the argument that “the State’s extraction of agency fees from non-consenting public sector employees violates the First Amendment.” After the decision was delivered, Gov. Chris Sununu wrote in a statement that he was “pleased by the Court’s ruling,” adding that the state “would work to determine necessary next steps to ensure that New Hampshire statutes and policies are fully compliant with constitutional requirements.”
Unions like the Teamsters Local 633 in Manchester have pushed back against the First Amendment argument since the beginning. Since 1934, the local chapter has grown to over 4,700 members in a variety of fields, including Anheuser-Busch brewery workers, correctional officers, school principals, truck drivers and more.
“[The court’s decision] requires unions to represent people who don’t want to pay for the benefit of that representation — it’s that simple,” said Jeffrey Padellaro, secretary treasurer and principal officer for the union. “No other public or private sector entity in the U.S. is mandated to provide services for free.”
 
Local impact
According to the Economic Policy Institute, 5.1 percent of private sector employees and 59 percent of state and local government employees were represented by unions in New Hampshire last year. Since 1989, those numbers have shifted from 8.1 percent and 48.5 percent, respectively. 
Public unions in New Hampshire could potentially face a steep financial cost due to the decision. The Josiah Bartlett Center For Public Policy in Concord compiled data for a report from a right-to-know request, finding that the state previously collected agency fees from 2,161 non-union employees for a total of $37,913.60 per paycheck period. If all these employees choose to remain non-union members, the State Employees’ Association of New Hampshire in Concord and the Teamsters Union could lose about $1.01 million annually. 
“New Hampshire state employees [had] their First Amendment rights at long last protected by the Janus ruling. … From now on, public-sector unions will no longer get to take that money without the employee’s consent,” center president Andrew Cline wrote in a statement. “To claim it, they will have to convince state employees of the value of union services.”
Neither the center nor Cline responded to interview requests. 
 
Proving their value
The State Employees’ Association represents about 10,000 workers in the public and private sectors, though just around 8,000 are paying members. Union president Rich Gulla said they prepared for the decision and similar cases by adopting “very fiscally conservative” budgets and holding membership drives. He added that these efforts have led to a slight uptick in membership over the last few years. 
Other public unions in New Hampshire have also made the value of their services the focus of conversations with members. Megan Tuttle, president of the New Hampshire chapter of the National Education Association, said the union took a preemptive approach and planned for “worst case scenario.” 
“We looked at the makeup of the [Supreme Court], and it didn’t look great,” said Tuttle. “Even if Janus had gone the other way, there were about 20 similar cases behind it.”
Tuttle said NEA-NH has been talking with members to find out what was important to them about their membership. The union represents about 14,000 teachers and 3,000 “education support professionals,” including custodians, bus drivers, nurses and other school employees.
Though Tuttle didn’t share specific numbers, she said the union didn’t have a large number of members that paid agency fees. Regardless, she said, these conversations were beneficial and have helped members to stay. 
“We’re working through trying to get those [non-union] members to join, but that’s something we’ve been working on no matter what,” she said. “We’ve been here for more than 150 years, and one case like this isn’t going to make us go away.”
For the Teamsters Local 633, Padellaro estimated that “under 1 percent” of the employees the union represents are non-members. Union leaders approached agency fee members and told them what their rights and options were. Since then, Padellaro said membership has been largely unaffected by the Janus decision.  
“We haven’t seen the needle move at all in terms of people abandoning ship under the auspices of Janus,” he said. “I have my faith placed in our membership, and hopefully it’s not an issue we’ll have to deal with.”
However, Padellaro added that the union is in the process of drafting legislation that would allow unions to negotiate “members only” contracts. He anticipated the union would propose the bill to the New Hampshire General Court during next year’s legislative session.
Preparing for the future
Though Gulla is confident in the union’s membership, he said it’s “too early to tell” when asked about the long-term impact of Janus, and whether the group of 2,000 non-paying employees represented by the union will grow moving forward. He said the union believes education is the key, and they regularly engage in conversations with new and old employees at various meetings and trainings throughout the year.
“New state employees need to understand why they should contribute to the benefits that come from hard-fought contract wins,” said Gulla. “If someone chooses not to contribute to the benefits they enjoy and passed the cost off to their coworkers, that’s the wrong approach to protecting their pay and benefits.”
National trends for union membership indicate that unions have their work cut out for them in terms of reaching younger workers. In 2015, the U.S. Bureau of Labor Statistics reported that nearly half of all union members were between 45 and 64 years old. Workers ages 16 to 24 had the lowest union membership rate at 4.4 percent, and there was a smaller share of union members than nonunion workers in this age range. 
“With the evolution of workplace protection laws and the advent of benefits for heath care and otherwise, we’re potentially seeing a changing mindset among younger workers with regard to the perceived benefit of bargaining as a collective,” said Reidy of Sheehan Phinney. “Employers are always focused on understanding the market and labor pool and adjusting their benefits, and likewise, unions have to do the same thing.”
Tuttle of NEA-NH admitted that the union has struggled with these perceptions among its younger members. She said they don’t always know the history of collective bargaining among educators.  
“Working conditions are connected directly to learning conditions for students,” said Tuttle. “In some respects working conditions have improved in areas like technology, but there’s so many places were budgets have been cut.”
Though the long-term effects of Janus are still unraveling, Reidy believes workers will continue to share unions’ positive view of the benefits and protections of collective bargaining. However, he said there’s no doubt the decision had an immediate impact on public sector unions. And while the Janus ruling narrowly covers public sector unions, Reidy said it’s entirely possible for a case to come down the line focusing on agency fees for private unions using the same arguments. 





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