Hawaii’s powerful public-sector unions are bracing for a U.S. Supreme Court decision that could weaken their collective bargaining efforts for tens of thousands of local workers and, ultimately, their sway on the islands’ political landscape.
On Monday, the nation’s highest court heard arguments in Janus v. American Federation of State, County and Municipal Employees, Council 31 — a case that many legal observers expect will upend 40 years of labor law now that conservative Justice Neil Gorsuch has joined the court.
The court’s decision isn’t expected to arrive for another few months, but observers think a majority of the justices will give the nation’s public employees the right to completely forgo their union dues on grounds that requiring those payments violates their free-speech rights.
Currently, public-sector employees who don’t want to join a union or participate in its political activities must still pay what’s known as “fair share” fees to cover the collective bargaining that sets their benefits and wages.
If the Supreme Court reverses that requirement, however, nearly 60,000 state and county Hawaii employees across 14 local collective bargaining units could withhold their union dues if they saw fit.
The public sector unions that represent them, meanwhile, such as the Hawaii Government Employees Association and the Hawaii State Teachers Association, would have to find ways to continue to represent their membership with diminished staff and resources.
Without those fees, they say, their ability to pursue grievances and enforce contracts on behalf of their members becomes more limited.
The islands’ public unions are already playing defense ahead of the Janus decision. Their leaders have launched outreach campaigns to convince members that it’s still in their best interest to pay union dues even if they become voluntary.
“The argument is on our side. I think that people understand that not paying dues is going to hurt” their wages and benefits, HSTA President Corey Rosenlee said Tuesday.
The union has 13,700 active members, representing more than 98 percent of Hawaii’s public school teachers, he said.
HSTA’s internal polling has found that 90 percent of teachers would continue to pay dues if they become voluntary, he added.
“When we talk to our members … the hope is we can get more than 90 percent to say ‘yes,'” Rosenlee said.
The looming Janus decision could erode at least some union clout in a deep blue Democratic state with a strong history of labor organizing and political fundraising. About 20 percent of Hawaii’s workforce is part of a public- or private-sector labor union, which is twice the national average, according to the Bureau of Labor Statistics.
In the last 12 years, HSTA has contributed more than $375,000 to state and county political candidates, according to state campaign spending commission data. HGEA has given more than $340,000 to campaigns and the United Public Workers gave at least $210,000 in the same time frame, the data shows.
The University of Hawaii Professional Assembly, which represents some 3,700 UH faculty members, gave at least $168,000 in the same period.
Those totals don’t include the thousands of dollars in political advertisements the unions’ political action committees spend on candidates, or their contributions to candidates seeking federal office.
The ability of unions to mobilize their members to wave signs for a candidate or cause makes them an even more formidable force in Hawaii, Rosenlee said.
On the mainland, labor unions’ influence has dwindled in recent decades. Twenty-eight states and Guam have enacted “right to work” laws that allow private-sector employees to work at a union shop without joining or paying dues.
Those states have seen a 60 percent to 75 percent loss in their paid union membership, according to William Puette, director of the Center for Labor Education & Research at the University of Hawaii West Oahu.
Local unions leaders say they expect outside groups, such as the conservative Heritage Foundation and the National Right to Work Legal Foundation, which challenge fair-share fees, to come to Hawaii and try to convince their members to drop their dues if the Janus case makes them voluntary.
“It will require us to be a lot more vigilant in terms of when there is turnover” among membership, said HGEA Executive Director Randy Perreira.
The largest public union in the state, representing 29,000 members, also represents about 1,000 non-member employees who pay fair-share fees, he said. HGEA hasn’t polled internally to see what kind of drop-off it would face should dues become optional, Perreira said, but he was confident its membership would stay robust.
“Here in Hawaii we’ve enjoyed a long positive history of union involvement,” Perreira said Friday. “By and large we are more of an inclusive society … our people here in Hawaii have proven to be more on the liberal side than conservative. And that … likely will be very different in other states.”
Hawaii, with its labor-friendly Legislature and governor, does not face the same right-to-work laws that have passed in many parts of the country. Those laws generally affect public- and private-sector union membership, while the Janus decision will only affect public unions.
UHPA Executive Director Kristeen Hanselman declined to say how many non-member employees pay fair-share fees to that union. But like Perreira, she said she’s confident their outreach efforts would prevent a precipitous drop in membership.
The Janus decision could wind up being narrowly defined so that it doesn’t affect Hawaii public unions as severely, she added.
But retired UH law professor Randy Roth, a UHPA beneficiary, said it’s “very unlikely” the Supreme Court will deliver a narrow decision. The case is teed up “in such a way, and in such a time, as to go to the core issue” of how unions work, he said.
The Supreme Court justices remain highly polarized on the issue.
One of the court’s liberal members, Justice Sonia Sotomayor, argued Monday that those arguing against the compulsary fees aim to “do away with unions.”
But Justice Anthony M. Kennedy called mandatory union fees “compelled subsidization of a private party, a private party that expresses political views constantly.”
”I don’t recall a case in my experience where the divide was as deep and wide and as passionate as in this case,” Roth said Tuesday. “I think this case has huge implications for the country.”