NJ Cops | Page 11

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