Janus v. AFSCME: United States Supreme Court declares “fair share fee” unconstitutional

On Wednesday, June 27, 2018, the United States Supreme Court issued the long-awaited decision in Janus v. AFSMCE, declaring that agency fees, more commonly known in Ohio as fair share fees, are unconstitutional. What does this mean for public employers?

At the outset, it is important to understand that, as the exclusive bargaining representative, the union is required to represent ALL individuals holding positions identified in the recognition clause of the applicable collective bargaining agreement. This is true regardless of whether the individual is a full dues-paying “member” or an individual who paid only fair share fees (a percentage of union dues), and this remains true after Janus. There is no change in the existing exclusive bargaining representative(s) for your employees.

Key takeaways from Janus

• Forcing public employees to pay fair share fees, which compels them to subsidize private speech on matters of substantial public concern, violates the First Amendment.
• Public employers and public-sector unions may no longer collect fair share fees from nonconsenting employees.
• Public employers must stop collecting fair share fees and religious objector contributions (and maybe regular dues) immediately.
• Before collecting any form of payment for a public-sector union, the employee must affirmatively consent.  Consent cannot be presumed and must be documented with clear and compelling evidence.
• The Supreme Court stated that its prior ruling, 41 years ago in Abood, is expressly overruled, due to its “poor reasoning,” which led to practical problems and abuse.
  • The fear of conflict and disruption if employees are represented by more than one union is unfounded.
  • Avoiding the “risk of free-riders” (those who enjoy the benefit of the union without sharing the cost), as identified in Abood, is not a compelling state interest.
  • Abood failed to understand “the inherently political nature of public-sector bargaining.”
  • Distinguishing between “chargeable” and “non-chargeable” expenses with precision is impossible.
• The Supreme Court did not state whether the Janus decision would apply retroactively in relation to fair share fees collected prior to its decision.

Next steps

Payroll

• Identify employees for whom you withhold fair share fees.
• Notify affected employees and unions that you will immediately suspend withholdings for fair share fee payers ***OR*** if payroll is mid-process or already processed, you will reimburse fair share fees on a pro-rated basis (based on the date of the U.S. Supreme Court Decision) depending on when payroll was submitted.
• For current, regular, dues-paying members, determine whether you have evidence of affirmative consent.  This includes consulting with the union to obtain any evidence it has.  If there is no evidence of affirmative consent, immediately stop withholding dues.
• For religious objectors (who are not union members based upon religious beliefs and who pay charitable contributions instead of union dues) immediately stop withholding contributions.

Bargaining

• For public employers that do not have fair share fees in their collective bargaining agreements, Janus has relatively minor implications.
• For public employers that have fair share fees in their collective bargaining agreements:
  • Mid-term bargaining and Memoranda of Understanding may be necessary or advisable.
  • The union may request “effects bargaining.”
  • Updates will likely need to be made during regular negotiations.
• Consider talking with the union about and including requirements for obtaining “affirmative consent.”
• Consider changing union membership declaration periods.
• Consider proactively addressing allegations of coercion of and discrimination against non-members.
• Consider whether CBA language should allow employees to stop dues deduction at any time. 
• Consider what should happen if an employee separates from employment and “quits” the union.  Some CBA language allows for collection of the remainder of dues.
• Consider the validity of indemnification provisions.

Employer communication post-Janus

• Be cautious to avoid an unfair labor practice charge, including allegations of “direct dealing.”  Any communication to employees about withholdings should be copied to the union.
• If/when you communicate, state only factual information - no opinions.
• Notify employees of the steps you are taking or requiring them to take.
• Remain neutral regarding opinions and benefits related to joining the union.
• Union discussion of labor matters with employees should be conducted during non-work time, unless otherwise authorized by the collective bargaining agreement.
• Do not provide assistance to employees wanting to withdraw from the union.
• Do not provide assistance to employees wanting to decertify the union.  Direct employees to union leadership, field representatives or the State Employment Relations Board (SERB).

Issues to expect and prepare for

• Field representatives at your door.  Many union field representatives have been busy hand-delivering letters notifying Treasurers to stop deducting fair share fees.  You should not sign anything without consulting board counsel.  However, you should immediately stop deducting fair share fees.
• Employee discussion and third-party activities regarding union membership – either to join the union or withdraw from the union.
  • Rely on existing board policies and CBA provisions regarding union activity during work time.
  • Rely on your acceptable use policy
• Public records requests for employee, union member and/or non-member information.
• Possible internal union issues – allegations of coercion and intimidation to join the union.
• Litigation.  At least two federal lawsuits have been filed in Ohio naming the union and school district as defendants over the deduction of fair share fees.  Class certification has been requested for one lawsuit.  If you receive notice of a lawsuit, contact your board counsel and insurance provider. 
• Familiarize yourself with board policies on harassment in the event employees complain of harassment and intimidation by co-workers related to union membership.  Employees should also be directed to SERB for assistance.
• Legislation to address Ohio law referencing fair share fees.  House Bill 53 already contains language regarding related labor issues.  

This article was reprinted from the “Bricker Bullet” that went out to BASA (Buckeye Association of School Administrators) members. Bricker Bullets are provided to BASA members as an informational service courtesy of the law firm of Bricker & Eckler LLP, a BASA Premier Partner. They are not intended to serve as legal opinion with respect to any specific person or factual situation.