Gottfried's Janus workaround reopens labor debate

When information leaked to the Empire Center, a fiscally conservative think tank, that Assemblyman Richard Gottfried, a Democrat from Manhattan, was planning to sponsor legislation that would reverse the effects of the Supreme Court’s recent Janus decision limiting the power of public sector unions, it swiftly attacked the bill as unconstitutional.

The Janus ruling on June 27 held that public sector unions cannot force employees covered by collective bargaining agreements to pay membership dues. Five days later, Gottfried circulated a memo to members of the Assembly summarizing his proposal, which would allow unions to collect reimbursement for the costs of collective bargaining from the state rather than from employees who opt out through agency fees.

Absent an intervention like Gottfried’s, the Janus decision will start draining funds from unions. Last week, it was reported that the National Education Association, the nation's largest teachers union, announced it will cut its budget by $28 million.

The Supreme Court’s 5-4 decision, which was split along the usual conservative-liberal dividing line, ruled that the government cannot compel employees to support collective bargaining because to do so infringes on the free speech rights of anti-union workers.

Conservatives argue that Gottfried’s bill would also be ruled unconstitutional by the Supreme Court’s conservative majority because they believe it to fall under compelled speech. “The money is still being intercepted away from the worker’s pockets,” said Empire Center policy analyst Ken Girardin.

University of California, Davis law professor Aaron Tang, whom Gottfried credited with originating the idea of the bill, denied that it would violate the First Amendment. “What this law would do is to say New York believes that public sector bargaining is important. The government can't force individuals to fund it – we understand that after Janus – but the government thinks it's important enough to fund itself,” said Tang.

Tang argued that there is a whole separate line of Supreme Court cases that allow the government to spend money on political speech, the landmark case being Walker v. Texas Division, Sons of Confederate Veterans, a 2015 decision which concluded that political viewpoints can be a valid form of government speech. In that case, the Court ruled the Texas Department of Motor Vehicles could refuse to issue specialty license plates that contained a Confederate flag on the grounds that it was offensive.

However, Tang did not claim that the policy is free from controversy. Though he supports Gottfried’s bill, he made clear that a government subsidy of public sector unions needs the right conditions in order to be effective. His paper, “Life After Janus,” examines whether collective bargaining reimbursement could undermine the independence of public sector unions. Some union advocates fear that workers would distrust a union that is dependent on a public employer for its financial security.

Tang argues that Gottfried’s bill eliminates this risk by allowing unions to calculate their own bargaining-related costs. The bill would require government employers to reimburse unions the same amount that unions charged non-union workers for fair share fees before Janus. “The whole goal of this project is to make things as much like it was before Janus, so unions can get back to the sort of day-to-day advocacy on behalf of workers that they're used to doing,” said Tang.

This system avoids union dependence on management because the union calculates its own budget for collective bargaining. Under Gottfried’s bill, the state would merely reduce salaries across the board by the cost of union dues and send that money directly to the union, bypassing worker paychecks altogether and, advocates say, eliminating the constitutional issues. (The state could challenge a requested bargaining expense through judicial review procedures if it thinks part of the cost doesn’t have a legitimate connection to the bargaining process.)

Gottfried’s bill also leaves it up to the union leadership to decide whether to institute the new policy, so unions are not forced to adopt it if they believe it would make them look compromised in the eyes of their membership. While this does not affect the constitutionality, it could make the bill more politically appealing.

Even so, the bill’s future is still uncertain. If it passes through the Assembly, it will need to secure approval of the Republican-controlled state Senate. That someone leaked Gottfried’s memo to the Empire Center suggests there will be opposition on the GOP side of the aisle.