In an early test of the U.S. Supreme Court’s recent ruling on public-sector union dues, New Jersey faces a challenge to a state statute limiting when government employees can leave their labor union.
Three building inspectors for the township of Lakewood filed a lawsuit in federal court on Oct. 3 that seeks to overturn state-imposed restrictions on their ability to resign from their union and to stop paying dues. They claim the Supreme Court’s June 27 ruling in Janus v. AFSCME Council 31 is contradicted by a New Jersey law adopted May 18, the Workplace Democracy Enhancement Act. That act says union members may resign from the bargaining unit only during the 10-day period after the anniversary date of their employment.
The suit, Thulen v. American Federation of State, County and Municipal Employees, seeks a declaration that the 10-day limit within the act is void, and requests an injunction against its enforcement.
The court’s ruling in Janus allows an employee to leave the union at any time, not just for 10 days each year, according to the suit, which was brought by the Mackinac Center for Public Policy.
Patrick Wright of the Mackinac Center filed the suit along with Bridgewater attorney Matthew Moensch. The website for the Mackinac Center says the group, headquartered in Midland, Michigan, supports free markets and limited government.
In Janus, the court said the First Amendment prohibits public employers from taking automatic deductions of union fees from the wages of nonmembers.
“The Supreme Court’s Janus decision reaffirmed public workers’ First Amendment rights of free speech and association. The purpose of the New Jersey law is to stifle these rights even before they can be exercised,” Wright, the vice president for legal affairs at the Mackinac Center, said in a statement.
The suit names Gov. Phil Murphy, Attorney General Gurbir Grewal and the members of the Public Employee Relations Commission as defendants. Also named as defendants are Lakewood and the American Federation of State, County and Municipal Employees, New Jersey Council 63.
The suit seeks a declaration that, under Janus, union dues cannot be collected without a clear and knowing waiver from an employee, acknowledging that they are freely giving up their First Amendment rights. The waiver must post-date Janus, the suit says.
The complaint in Thulen cites a “potentially related case,” Smith v. New Jersey Education Association. That case is a putative class action on behalf of schoolteachers, and the union defendant is the New Jersey Education Association.
Smith was filed June 11 with its sole named plaintiff, a teacher at Clearview Regional High School in Gloucester County who does not belong to the teacher’s union and objects to paying union dues. Smith is assigned to U.S. District Judge Renee Bumb, in Camden, who is the same judge the Thulen case was assigned to.
Wright of the Mackinac Center said in a phone interview that he’s aware of about 25 cases pending in courts nationwide that test the impact of Janus. Most, he said, fall into two categories.
Some, like the Thulen case, take issue with legislation passed in response to Janus in New York, California and elsewhere. Some of those have been settled or were dismissed, he said. Other cases, like Smith, are what Wright calls “clawback” cases, class actions that seek to recoup funds deducted from workers’ paychecks on the premise that their labor unions failed to comply with Janus.
Austin, Texas, lawyer Jonathan Mitchell, who filed the Smith case in New Jersey, has about 15 similar cases pending against labor unions for school district and government workers nationwide. He declined to comment on the cases.
The Mackinac Center said it has teamed up with another group, the Americans for Prosperity Foundation of New Jersey, to inform New Jersey’s public employees of their rights under Janus. The groups’ campaign is called “My Pay My Say.”
Lee Moore, a spokesman for the attorney general, declined to comment.
Steve Tully, executive director of AFSCME NJ, said in a statement, “We respect and support the Workplace Democracy Enhancement Act and appreciate Governor Murphy’s support for labor union members in New Jersey. AFSCME members provide valuable services to the people of New Jersey every day and they deserve legislation that protects their rights.”