precedent, in particular the Abood decision, conclusively had
determined that agency-fee statutes enacted by a state are constitutional and do not violate an individual’s federal First
Amendment rights.
When the U.S. Supreme Court agreed to hear the Friedrichs
case, it made clear its intention was to “reconsider” its decision
in Abood which upheld state agency-fee statutes. The Court
heard oral argument on Jan. 11, 2016. Most observers expected
that the Court would overturn Abood and rule 5-4 that agency
fees are unconstitutional, even if they only covered the costs of
activities related to collective bargaining. One of those
expected to be in the majority was Justice Antonin Scalia.
Under normal circumstances, we would have expected a decision by June. If the Court were to reverse its Abood decision,
state laws, like those in New Jersey which allow the collection
of agency fees, would be invalidated and then public sector
unions, including the PBA, could not collect agency fees from
non-members.
There is no question now that Justice Scalia’s recent death
changed the calculus. The Supreme Court’s 4-4 decision in
Friedrichs resulted in upholding the lower court ruling in favor
of agency fees and reaffirming that Abood is still good law. Justice Scalia’s death appears to be the reason why public sector
unions dodged the bullet of a declaration that agency-fee laws,
including New Jersey’s, are unconstitutional and
unenforceable, at least until the next attack. And there is no
doubt that there will be another attack. In fact, there are cases
working their way through the legal pipeline now which raise
the same and similar issues as the case in Friedrichs.
Strong labor organizations like the New Jersey State PBA
probably do not need agency fees to encourage officers to
remain members of the organization. Most PBA Locals do not
have officers who decline to become members and instead pay
agency fees. The PBA’s programs, such as the Legal Protection
Plan, and record of accomplishment are generally sufficient to
avoid resorting to agency-fee collections. PBA Locals which
collect agency fees from non-members will be able to continue
to do so. However, experience in other states has demonstrated
that where an agency fee is abolished, there can be a significant
impact on membership. In Wisconsin, for example, the elimination of the right to collect agency fees, as well as other limitations on public-sector bargaining, resulted in a 44-percent
drop in public sector union membership. Of course, that is the
point of these lawsuits – to reduce membership and resources,
thus weakening public sector unions and diminishing their
voices.
So this is a public service message to all law enforcement
officers that bears repeating: As we know all too well in New
Jersey, the benefits which public employees currently enjoy are
under assault; they are not automatic. They can be changed in
most cases by state legislatures, and by the courts as well. So
while it has been a very difficult time for public employees and
public sector unions in New Jersey during the past few years,
we know from the experience in other states that it could be
much worse. This is just another reason why law enforcement
officers should be actively engaged with the NJ State PBA in
making their voices heard in Trenton and in Washington, D.C.
For now, the ability of public sector union