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Limited effect

The Janus decision puts public employee unions in a tough, but not impossible, position

When the U.S. Supreme Court issued its landmark June 2018 ruling in Janus v. AFCME, 40 years of precedent were upended as public employees were freed from the obligation to pay union dues, even if they enjoy the benefits of union-negotiated contracts. Some observers predicted it was a death knell for unions and, potentially, their political war chests. But nearly a year later the effect in New Jersey is still being debated.

Merrill

“I believe Janus has already had a major impact on New Jersey unions,” said Michael Merrill, a Rutgers University professor of professional practice and director of the Labor Education Action Research Network (LEARN) at the Rutgers School of Management and Labor Relations, who co-wrote a report on the state of labor in New Jersey. “It has been a wake-up call for them, to which they have responded by re-energizing their organizing and membership outreach efforts.”

Still, it’s “not clear what impact the decision will have on their total membership,” he added. “Wage earners generally join unions because they want to and not because they have to. The current political and economic climate is creating a lot of incentive for wage earners to sign up for the employment protections and social support that unions provide. Janus does not change that fundamental fact.”

A heavy union presence

Nearly 16 percent of New Jersey’s workers are union members, placing the state No. 6 in the nation, according to the report, which was issued in January. Of the state’s 665,000 union members, 371,000 are in the public sector and 294,000 are in the private sector.

The raw numbers may be within spitting distance of each other, but drilling down into the LEARN report makes it clear that there’s actually a wide gap between union activity in the public sector and the private sector: 61 percent of New Jersey’s public sector workers belong to a union (compared to 34 percent nationally), while only 8 percent of private-sector workers in the state are organized (versus 6.5 percent nationally). Between 1988 and 2018, public-sector union membership in New Jersey grew by 25 percent, according to the report, while private-sector union membership fell 43 percent.

Givan

Merrill isn’t the only Rutgers scholar who seems sanguine about the impact of Janus. “Unions in New Jersey and nationwide were preparing for many years ahead of the Janus decision,” according to Rebecca Kolins Givan, an associate professor at the Rutgers School of Management and Labor Relations. “Most public sector unions reoriented their resources to ensure they were connecting with their members in the workplace. The [state’s] Workplace Democracy Enhancement Act (WDEA) also assures New Jersey’s public sector unions have access to workers as soon as they start their jobs.”

Are unions bad for small businesses?

The unsurprising answer: It depends. “Tennis players get better when they compete against other tennis players, especially those as good or better than they are,” said Michael Mer-rill, a Rutgers professor of professional practice and director of the university’s Labor Education Action Research Network. “Managers, too, get better when they have to negotiate with their employees in a structured, unionized setting. They are forced to work harder and think more. It raises their game.”
But he warned there’s a caveat. “Of course, this is only true if the union is, in fact, the legitimate and recognized representative of the workforce,” Merrill said. “If it is an illegitimate, unrecognized representative, then the competition between the managers and the union over what best serves the interest of workers will also be illegitimate and probably fake.”
Jennifer Roselle, counsel at Genova Burns LLC and member of the law firm’s Employment Law & Litigation and Labor Law Practice groups, had a different take. “Good versus bad isn’t the right benchmark,” she said. “Ultimately, the goal is to create a workplace that is based in respect, communication and fairness, which leads to better business.”
As she sees it, the question is “what helps balance employer needs for operations and employee rights. In some instances, and probably in larger operations, employers may pre-fer a union dynamic because it creates a fairly level playing field. There is limited employer discretion and employees know what to expect. In other situations, and probably in smaller businesses, flexibility is integral to operation.”

If unions continue to focus on reaching workers and maintaining strong relationships, “they can avoid any significant loss of members,” she added, noting that some conditions are favorable for union activity. “In terms of trends, there have been several key changes in New Jersey. The transition from the Christie administration to the Murphy administration has meant that public employees are no longer painted as the enemy by political leaders in the state.”

The second side of Janus

Jennifer Roselle, counsel at Genova Burns LLC and member of the law firm’s Employment Law & Litigation and Labor Law Practice groups, said she sees some potential challenges for unions. But she said they do not face an existential threat.

Roselle

“Janus’ impact for a New Jersey public union is not insignificant,” noted Roselle. “Janus did not relieve those unions of their duties to the unit members, whether they pay dues or accept the benefits without payment. It, does, however take away financial support that assists the unions in performing their duties.”

She said the court ruling suggests that “public unions may charge for certain services, like representation in discipline or grievance matters, but that’s only a small portion of what the unions do for public employees. From a financial standpoint, it’s expected that the unions are looking for ways to meet their obligations with potentially significantly less resources available.”

In New Jersey at least, “Recent legislation has given the unions, in many instances, more access to employees to perform their duties than previously enjoyed,” Roselle added. “The WDEA guarantees public unions rights to meet with employees, attend orientation programs and obtain information from employers on a regular basis about the bargaining unit composition.”

The closely watched Janus decision may have been a game-changer in the legal community, but for unions in New Jersey at least, it seems to be a warm bath instead of a cold shower.

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