Friday, June 29, 2018

Post-Janus FAQ’s

Last Wednesday, the Supreme Court issued its decision in Janus v. AFSCME, declaring it unconstitutional for public sector labor unions to require payment of fair share fees by non-union members who are in bargaining unit positions. How this affects individual employers on a practical level can vary so we’ve put together five frequently asked questions so far on how to implement the Janus decision.

Q. Does the contract language requiring fair share fee collection supersede the Supreme Court ruling?
A. No. As of Wednesday, the imposition and collection of fair share fees from public employees is prohibited, regardless of whether your current contracts require it. Employers must immediately stop withholding fair share fees and refund any amounts withheld that are still in their possession.

Q. Do employers still have a duty to bargain over the subject of fair share fees if that provision is in their current CBA’s?
A. Since the imposition of fair share fees is now unconstitutional, the subject of whether such fees can be charged or collected is now a prohibited subject of negotiation. A union cannot make this practice lawful by negotiating it. This applies in all cases, whether you are in the process of negotiating a new or successor agreement or whether a CBA is currently in force. Most CBA’s have language, usually titled or referred to as a “severability clause,” that provides that if any portion of the agreement is invalidated by law, it will be severed from the contract. If your CBA’s contain this language then the fair share provision of the agreement is effectively nullified and you have no further obligation during the term of the current CBA regarding fair share.

Some CBA’s, though, also include language that if any provision is declared invalid then the parties will meet to negotiate on the issue. It is important to remember that this language only requires impact or effects bargaining. Even with this type of language in your CBA, you are prohibited from negotiating any type of fair share fee collection or obligation, but you are required to negotiate over alternative language offered by the union. It is equally important to remember that you are under no obligation to agree to any new proposal of the union; you must only bargain in good faith.

Q. What kind of issues or proposals might unions raise during impact or effects bargaining?
A. It is difficult to say for sure how the unions will respond to the Janus decision. We know that AFSCME is already requesting meetings with employers and we anticipate that in part they will propose that employers agree to acknowledge and enforce AFSCME’s new dues deduction card which contains a provision restricting members from withdrawing from the union except on the anniversary date of their signing the dues deduction card itself. We advise against any agreement that incorporates the dues deduction card language or their terms of membership or dues practices in general. It is likely that AFSCME will face a legal challenge to this provision and employers should avoid bolstering the union’s defense of that practice by pointing to their CBA’s with employers.

Q. Are employees who are former fair share fee payers still covered by the CBA? 
A. Yes. Any job title included in the Labor Board’s bargaining unit certification is still covered by the CBA and the union’s obligation to bargain on behalf of all those covered by the certification continues. Actual union membership of individual employees is separate from the union’s obligation to represent all employees included in the bargaining unit certification.

Q. Do employers have an obligation to notify their fair share fee employees that they will no longer have to pay fair share fees?
A. While you are under no obligation by law to notify your fair share employee members of the change in the law, it may be appropriate to do so, especially if you are refunding fair share fees that you were holding in anticipation of forwarding those funds to the union.