The Supreme Court’s 5-4 decision in Janus v. AFSCME was a stunning blow to over 40 years of public-sector union monopoly power. Union leaders for their part are pushing back. They have plenty of allies in state governments, and perhaps no state is as vociferous as New York. Indeed, on June 27, the day of the ruling, Governor Andrew Cuomo signed an executive order to protect union members from outside intimidation – ironic, given the pressure unions often use to collect dues. The State of New York also has begun deducting dues from the pay of government workers without even checking to see if they are members. And now a prominent lawmaker wants taxpayers to reimburse unions for foregone dues.
State and local officials across the country, especially in non-Right to Work states, are helping to lead a popular resistance to Trump administration policies and court appointees. That such opposition may involve defying statutes or court decisions matters little to them. As these officials see it, rule of law must not interfere with the realization of economic goals. This especially has been the case in the months since the Supreme Court ruled in Janus v. AFSCME Council 31. The majority opinion, written by Justice Samuel Alito, made clear that if a worker does not wish to join a public-sector union, or pay fair-share partial dues (“agency fees”) in lieu of joining, the union does not have the authority to deduct dues from worker wages or salaries without explicit worker consent. Nor can a government agency serve as a third-party collection agent for unions. Alito wrote: “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 [public] employee affirmatively consents to pay…Unless [public] employees clearly and affirmatively consent before any money is taken from them, this standard [of a waiver of First Amendment rights] cannot be met.”
The State of New York rejects the principle of affirmative consent. Indeed, it already had done so before the ruling. On April 12, anticipating a Supreme Court ruling in favor of plaintiff Mark Janus, a dissenting nonunion Illinois state employee, New York Democratic Governor Andrew Cuomo signed a bill requiring public employers to provide unions with lists of all new hires so as to allow the unions the opportunity to meet with such employees within 30 days. Anyone familiar with union organizing tactics knows that they are one-sided, aggressive, and on due occasion, illegal. The measure also authorized unions under contract to deny certain services to nonmembers who opt out of paying agency fees, which typically are set around 80 percent to 90 percent of full member dues.
Come the day of the Janus ruling, June 27, Governor Cuomo was at it again. He signed an executive order requiring all state agencies to keep their employees’ personal information (e.g., home addresses, email addresses, phone numbers) private so as to insulate them from anti-union campaigns. This was a straw man. First, New York State law already provides such privacy protections. Second, the idea of protecting union workers from nonunion activists is at minimum a case of the pot calling the kettle black. Union violations of nonunion worker privacy, especially during card check organizing campaigns, are notoriously common. But to Governor Cuomo, the threat to privacy comes from anti-union forces. “The Janus decision is an attempt to break unions,” he said in his Manhattan office during a press conference on the day of the ruling. “Here in New York we believe the exact opposite. We support the labor movement.”
And how. Union-friendly officials in the Empire State now are deducting dues from worker paychecks, thus saving unions the trouble of doing that task themselves. According to Daniel DiSalvo, a political scientist at City College of New York and a senior fellow at the Manhattan Institute, the State of New York’s Labor Department has begun to classify certain government workers as “union members” and then take union dues off the top of their wages and salaries, despite the fact that the unions to whom these dues are routed have been unable (or more accurately, unwilling) to confirm membership. In other words, the mere appearance of a worker’s name on a membership list constitutes “affirmative consent.” As DiSalvo puts it: “Whoever the union says is a member is a member.”
The worst may lie ahead. New York State Assemblyman Dick Gottfried (D-Manhattan) has developed legislation to circumvent – he calls it a “workaround” – Janus. The measure, leaked to certain news sources, hasn’t been formally introduced. But on July 2, just five days after the ruling, Gottfried circulated a memo to fellow Assembly members summarizing the proposal. The measure, in essence, would authorize unions to bill the state rather than reluctant workers to cover the costs of collective bargaining and other core functions. “I think this is about fundamental fairness,” said Gottfried. One would be hard-pressed to see how it is “fair” to conscript taxpayers into funding public-sector unionism whose effect will be to raise taxes. Gottfried’s coercive and unconstitutional measure may face obstacles in the Senate, where Republicans hold a slender 32-31 majority (an edge owing to a Democrat who caucuses with the Republicans). But if a bill materializes and passes both houses, Governor Cuomo almost certainly will sign it.
Andrew Cuomo, now completing his second term as governor and seeking a third, has been closing ranks with unions. Despite periodic disputes over contract demands – the kinds of demands that have locked the state into potentially unsustainable employee benefit commitments – he and labor leaders remain on good terms, especially with the general election looming next month. “It is the union movement that drives the Democratic Party,” he declared during primary season, which culminated in his triumph over dark horse far-Left challenger Cynthia Nixon by 64 percent to 36 percent. Cuomo’s campaign press secretary, Abbey Collins, echoes her boss’ gratitude. “The labor movement knows they can count on Governor Cuomo to have their backs just as they have stood by the governor,” she recently said. “And this strong partnership will have a central role during the general election as we fight to move our middle class forward.” Cuomo knows who his benefactors are. Thus far, private- and public-sector unions have made more than $1 million in direct contributions to his campaign, a figure not even including indirect contributions such as radio and TV ads, robocalls, mass mailings and call center canvassing. Those donations are a way of saying “good work” to the governor. Cuomo during his second term repeatedly has delivered the goods for organized labor, including $15 per hour minimum wage legislation (2016) and the New York Buy American Act (2017) requiring state agencies to purchase American-made structural steel and iron for road and bridge projects.
It isn’t that difficult to see why unions in New York are preparing for battle. There are about 2.5 million private- and public-sector workers in the state who belong to AFL-CIO-affiliated unions. That represents around one in seven workers in the entire nation covered by a union contract. About 300,000 public-sector workers are members of New York’s Civil Service Employees Association, a figure not including other unionized state and local government workers. If covered public employees exercise their right under Janus to withhold all dues, unions in New York alone could lose more than $100 million a year in potential revenues. Union leaders know all too well what is at stake. In the larger context, however, that’s a small price to pay to protect the rights of dissenting workers and the general public.