ing and enforcing the collective negotiations agreement and
allows them to enjoy the benefits achieved through bargaining
without having to pay their fair share for the benefits.
The Court was not sympathetic to the harm this decision
would cause to public-sector union finances. Instead, the ma-
jority wrote, “It is hard to estimate how many billions of dollars
have been taken from non-members and transferred to pub-
lic-sector unions in violation of the First Amendment...Those
unconstitutional exactions cannot be allowed to continue in-
definitely.”
The four dissenting justices criticized the majority for “wea-
ponizing” the First Amendment, noting that the First Amend-
ment was not meant “to undermine but to protect democratic
governance – including over the role of public-sector unions.”
They did not mince any words: “There is no sugarcoating to-
day’s opinion. The majority overthrows a decision entrenched
in this nation’s law – and in its economic life – for over 40 years.”
In short, Janus upends 40 years of history which allowed
public-employee unions like PBAs to require non-members
to pay agency fees. Because the decision is based on the U.S.
Constitution, no state statute can change the conclusion, and
New Jersey’s law, which was passed in the wake of the Abood
decision, is now effectively invalidated. This litigation was a key
part of the efforts of a number of anti-union organizations to
eviscerate the strength of public-sector unions and their mem-
bers. Time will tell how much damage it will do here in New
Jersey – but history in other states is not promising.
So, where do we go from here? First, for any PBAs with
agency-fee payers, any agency fees collected by the PBA must
stop immediately. Second, we anticipate lawsuits from na-
tional anti-union groups to seek retroactive reimbursement
of agency fees previously collected. We are already handling
one such class action lawsuit filed in New Jersey, and more
may follow. Third, even though Janus directly affects the right
to collect agency fees, and not voluntary membership dues,
some current members may seek to withdraw from the PBA
and revoke their dues deduction authorizations. The timing
of such efforts would be controlled by state law, in particular
the recently enacted Workplace Democracy Enhancement Act,
which limits when members may revoke their dues deduction
authorizations. It promises to be messy. We cannot overstate
how important it is that Local PBAs consult with experienced
labor counsel to avoid possible penalties.
The State PBA offers many programs, such as its Legal Pro-
tection Plan, which provide an incentive to become and re-
main members and which will undoubtedly reduce or even
eliminate member defections that other unions without such
benefits may suffer. The best course now is to continue to make
membership in the PBA attractive and desirable. Janus ensures
that imposition of agency fees will no longer serve as an in-
centive for membership. While Janus is undoubtedly a blow to
public-sector unions, however expected it was, we are hope-
ful that the State PBA and its Local, as well as all public-sector
unions, will be able to meet the challenges presented by the
decision. d
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