The U.S. Supreme Court’s Wednesday ruling concerning union membership poses a critical question for government employee unions in Hawaii: Will workers continue to pay union dues when they don’t have to?

The court’s decision in Janus v. American Federation of State, County, and Municipal Employees essentially overturns a 41-year-old decision that said government workers didn’t have to pay dues to cover a union’s political activities, but still had to help cover costs related to contract negotiations between the union and the government employer.

Under Janus, government workers now can enjoy the benefits of union contracts – wages, benefits and the like – without having to pay dues or be a member of the union.

Union leaders and economists are sharply divided on what that will mean over the long run for Hawaii’s powerful government unions, which have tens of thousands of members.

Supreme Court Building Washington DC1. 6 june 2016

The U.S. Supreme Court’s Janus decision poses a challenge for government employee unions in Hawaii.

Cory Lum/Civil Beat

Some economists say the ruling will lead many people to drop out of the unions and quit paying dues. In economic parlance, such people are known as “free riders.” A classic example is someone who tunes in to a listener-supported public radio station without contributing.

“Of course they’re going to free ride. Who wouldn’t?” said Paul Brewbaker, principal of Tropic Zone Economics and the former chief economist for Bank of Hawaii. “You’d have to be living in a cave not to know people are going to free ride after this.”

But local union leaders downplayed the effect in Hawaii.

For one thing, nonunion members who choose not to pay fees won’t receive certain services like representation when filing grievances, said Kristeen Hanselman, executive director of the University of Hawaii Professional Assembly, which represents about 3,400 faculty members.

“All of them will be covered equitably by a collective bargaining agreement, but when it comes to implementation and someone having a problem in the workplace such as a grievance, UHPA will not have to provide services for free,” Hanselman said.

HSTA Teacher march to Hawaii State Capitol in the Rotunda. 13 feb 2017

Hawaii State Teachers Association members rally at the Capitol. The union has trained hundreds of members to tell colleagues about the value of union membership.

Cory Lum/Civil Beat

The Hawaii State Teachers Association, the state’s fourth-largest union, has a 99 percent rate of membership, counting 13,700 individuals, according to president Corey Rosenlee. Slightly more than 100 Department of Education teachers are not members. Before Wednesday’s ruling, all DOE teachers, whether they were HSTA members or not, were required to pay the approximately $800 in annual union fees.

That now changes.

“Before, you were not required to join a union, but you were required to pay a ‘fair share’ for collective bargaining,” Rosenlee said. “Post-Janus, there will be teachers who get the benefit of collective bargaining without paying dues.”

Public employee unions have big memberships and play a prominent role in Hawaii’s economy and politics.

The Hawaii Government Employees Association, which represents a number of government employees, has 42,000 members. The United Public Workers union has 14,300.

In addition to lobbying at the Legislature, the unions make significant contributions to public officials. 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 gave at least $168,000 in the same period.

The unions also represent workers in the courts. For example, last year the statewide union for police officers sued the city and county of Honolulu to prevent the Honolulu Police Department from releasing officer salary information to Civil Beat. (The news organization, which planned to use the information in a database of public employee salaries that it publishes every two years, is now an intervenor in ongoing litigation between the union and the city.)

The issue in Janus was whether supporting unions at all, even in matters that were not overtly political, was a form of speech.

Mark Janus was a child support specialist in Illinois. He was not a member of the American Federation of State, County and Municipal Employees, but he still had to pay the monthly membership dues to the union to cover the costs of collective bargaining, something that he benefited from.

In Wednesday’s ruling, the Supreme Court determined that paying union dues is a form of speech and forcing government employees to do so was essentially forcing them to speak in violation of the First Amendment.

So will workers who support unions keep speaking out for them by paying dues?

“Basically what’s likely to happen is what would happen if the Supreme Court were to decide that you can pay your taxes, but nothing would happen if you don’t pay your taxes,” said Dan Jackson, a San Francisco-based attorney who filed a friend of the court brief supporting the union in the Janus case.

The notion that the ruling won’t cause a decline in union membership or spending is “both false and disingenuous,” Jackson argued in the brief, which was submitted on behalf of  three dozen law and economics professors, including, Alan Blinder, a former vice chairman of the Federal Reserve System; Jeffrey Sachs, who is known for helping former Soviet bloc countries adapt to capitalism; and three Nobel prize-winning economists, Eric Maskin, Oliver Hart, and Angus Stewart Deaton.

The economists argue that even if employees believe in the union’s cause, many simply won’t keep paying dues if they don’t have to.

“This is not only well established in economic theory, it is also confirmed by empirical data,” the economists said.

“Nobody’s saying the unions are going to close tomorrow,” Jackson told Civil Beat. But he added, “This is probably not going to end well. That’s my bottom line.”

Could Hawaii defy the economic theory? Richard Rand, a Hawaii labor lawyer, said Hawaii workers are less likely to quit paying dues because of the role unions have played in the state’s history and culture.

“I don’t think the sky is falling as much as some in the media are saying,” Rand said.

The teachers union agrees.

“What we’re going to do is, we’re planning to have lots of conversation,” Rosenlee said. “We have hundreds of teachers who have been trained on how to talk to our members.”

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