The state’s two largest public sector labor unions have voted for a two-year contract that will eliminate the requirement that all employees pay union fees even if they’re not members.
The vote, tallied Wednesday night, has been billed as a big political win for Gov. Paul LePage because it could weaken the political might of the Maine State Employees Association and the American Federation of State, County and Municipal Employees if future contracts contain the same provision.
However, so-called fair share provisions like the one the two unions gave up could soon be outlawed if the U.S. Supreme Court takes up a case out of the 7th U.S. Circuit Court of Appeals.
David Heidrich, a spokesman for the Department of Administrative and Financial Services, confirmed in an email on Thursday that the MSEA and AFSME unions voted to accept the tentative agreements with the state.
The new contract provides a 3 percent pay increase in 2018 and 2019. In exchange, the two bargaining units will eliminate a service fee that is charged to nonunion members. That fee, known as a fair share provision, goes to the union for costs associated with representing all employees in collective bargaining agreements.
Under Maine law, unions must represent all employees in contract negotiations or labor disputes, whether or not those employees are full-paying members or fair share employees.
The LePage administration has repeatedly tried to eliminate the fair share provision through the Legislature, but those efforts have been blocked by Democratic lawmakers amid pressure from organized labor groups.
MSEA represents more than 9,000 state employees, while AFSME represents roughly 800 corrections employees and mental health workers.
In the past, the MSEA and AFSME have rejected eliminating fair share over fears that it would dramatically cut revenue over time. While fair share dues are collected only for purposes of defraying costs associated with contract bargaining, union leaders have previously worried that eliminating fair share could erode full-paying membership, too.
Over 7,000 MSEA employees voluntarily pay union dues.
The two bargaining units are also politically active, supporting candidates and issues typically aligned with the Democratic party.
A future governor could reinstate the fair share provision in the next labor contract. But doing so may prove difficult now that the two unions have accepted LePage’s offer.
Efforts to reach union leaders were not immediately successful.
Previously, Rod Hiltz, the director of the MSEA-SEIU local 1989, said the union accepted the contract after six months of difficult negotiations. He said state negotiators offered increases of just 1 percent over two years if the union kept the fair share provision.
The fair share provision has been included in state employee contracts since 2003.
Nationally, fair share laws face a looming legal challenge that could land in the U.S. Supreme Court. Last year the court deadlocked on a case that could have stricken down fair share provisions in the 20 or so states that have them. That deadlock came at a time when the court was evenly divided between four conservative justices and four liberals.
President Donald Trump's recent appointment of Judge Neil Gorsuch, a staunch conservative, could tip the balance in favor of eliminating fair share provisions. Another case challenging fair share awaits in the 7th U.S. Circuit Court of Appeals. The high court has not yet agreed to hear the case, but University of Toledo law professor Joseph Slater believes it will.
"One anticipates — and most people think it's a very strong possibility — that fair share agreements will all be illegal as a matter of constitutional law soon anyway. Then you might as well trade off what you can't really have for very long for something more concrete, like a pay raise," he said. "That would strike me as very logical explanation for what they've done, because unions usually don't like to give up fair share agreements."
In other words, Slater says negotiators for Maine's public sector unions may have been anticipating the constitutional defeat of fair share fees and then used them as a bargaining chip to get employees a pay raise -- while they still could.
This story was originally published on August 31, 2017 at 11:00 AM. It has been updated at 8:16 AM on September 1, 2017.
