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Janus v. AFSCME and SB 866 Compliance – DWK’s New and Expanded Responses to Frequently Asked Questions (FAQ’s)

  • Vol. 2018, No. 7
  • July 09, 2018

Vol. 2018,No. 7 | July 09, 2018

On June 27, 2018, the Supreme Court of the United States ruled that mandatory agency fees paid to public sector unions by non-union members violate employees’ First Amendment rights. The Supreme Court’s decision is final, took effect June 27, 2018, and controls over contrary state law including the Educational Employment Relations Act (“EERA”). Accordingly, agency fees may no longer be deducted from non-union members’ paychecks. The Supreme Court also ruled that before a union may collect any fee from a non-union member, the non-union member must first freely and affirmatively consent to pay the union, i.e., opt-in to authorize payment to the union. Absent an express and affirmative opt-in, the non-union member does not have to pay any fee to the union.

Also on June 27, 2018, Governor Brown signed the State Budget Act and several trailer bills, including Senate Bill 866 (“SB 866”). SB 866 addresses the handling of union dues authorizations, membership revocations and changes, mass communications regarding employees’ rights to join or refrain from joining the union, and confidentiality regarding new employee orientations. SB 866 is now law and applies to school districts, community college districts, and county offices of education.

IMMEDIATE IMPACTS OF JANUS DECISION

Q: Which employees are immediately impacted by the Janus decision?

A: Janus impacts those employees who chose not to join the union and were formerly paying agency or “fair share” fees to the union. Agency fees were the “chargeable expenses” paid by non-union members to the union in exchange for collective bargaining services, such as cost of negotiations, contract administration (e.g., grievances), and other union activities related to collective bargaining.

Practically speaking, payroll for June 2018 has already been finalized, agency fees deducted from non-union members’ paychecks, and remitted to the unions. Districts should inform the unions that it is their responsibility to reimburse the non-union members for the portion of their agency fees that were deducted from June 27, 2018 through the end of the June 2018 pay period. Commencing July 1, 2018, districts should cease deducting agency fees for those employees who have been confirmed by the unions as non-union members.

Q: Are union members impacted by the Janus decision?

A: No. Janus addressed agency fee payers (non-union members) and a system that compelled payment to the union by non-union members or agency fee payers. Current union members voluntarily choose to pay union dues by joining the union. Accordingly, union members will continue to pay union dues, and districts should continue such dues deductions from their paychecks, as long as they choose to remain members of the union.

Q: Are religious objectors impacted by the Janus decision?

A: The Janus decision did not address religious objectors (i.e., bargaining unit employees who neither join the union nor financially support the union due to their religious beliefs). Religious objectors pay an amount equivalent to agency fees to a charitable organization. Districts may contact religious objectors to ask if they wish to continue their charitable contributions. If no, consult with legal counsel to honor that request.

Q: Does the union represent employees who do not join or pay fees to the union?

A: Yes. State law requires the union to represent all employees in the bargaining unit regardless of whether they have joined the union. The union must represent its bargaining unit employees regarding collective bargaining matters, such as contract negotiations, grievances, and other union representation matters (e.g., Weingarten rights). All bargaining unit employees are covered by the applicable collective bargaining agreement, regardless of whether the employee joins the union or not. The union is not required to represent bargaining unit employees in extra-contractual matters (e.g., disciplinary proceedings governed by statute or board policy, criminal matters, or teacher credentialing issues).

REVOCATIONS OF UNION DUES AUTHORIZATIONS

Q: When may union members withdraw from membership and stop paying dues?

A: Janus does not address when union members may withdraw, but SB 866 does address this issue (see FAQ below). EERA provides that the timing of when a union member may withdraw from membership depends on whether the collective bargaining agreement contains a maintenance of membership (“MOM”) provision that has not expired.

We do not believe that the Janus decision impacts the validity or enforceability of a MOM provision, and such MOM provision remains in effect until and unless the union informs the district it no longer wishes to enforce the MOM provision. If the union and district agree not to enforce MOM provisions as set forth in the collective bargaining agreement, then this should be memorialized in a memorandum of understanding or other document.

Q: Does SB 866 address when union members may withdraw from membership?

A: SB 866 provides that employees may revoke their written authorization for union dues deductions according to the terms of their signed authorization. The employee’s revocation must be in writing and is effective pursuant to the terms of the written authorization. Post SB 866, unions are updating their written authorizations to require employees to maintain union membership for a one-year or other specified term. SB 866 provides that employees who have signed written authorizations may revoke membership after the specified term.

Q: Who is responsible for processing employees’ dues revocation requests?

A: Per SB 866, the district must direct requests to modify or revoke dues deductions to the union. The union is responsible for processing all such requests, and the district must rely on the information provided by the union regarding whether dues deductions were properly canceled or changed. The union must indemnify the district for any employee claims regarding employer deductions made in reliance on information from the union.

Q: What if the revocation request is inconsistent with the MOM provision?

A: If the union asks the district to revoke an employee’s dues authorization at a time that seems inconsistent with an existing MOM provision, then the district should consult legal counsel and consider the following steps: inform the union of the inconsistency; have the union confirm in writing that it nonetheless intends for the district to revoke the employee’s dues deductions at that time; have the union confirm whether it wishes to invalidate the MOM provision due to the inconsistent written authorization; and if so, execute a memorandum of understanding or other document to invalidate the MOM provision.

WRITTEN UNION DUES AUTHORIZATIONS

Q: Who is responsible for processing employees’ dues authorization requests?

A: This depends on current practice and whether the union certifies (post June 27) that it will handle such authorizations moving forward. Districts should review their collective bargaining agreements to ascertain whether any contract provisions govern the processing of employees’ union dues authorization. If such a provision (or binding past practice) exists, districts should continue following this process unless addressed with the union.

Due to the changes in the law, unions are modifying their union dues authorization forms. Some unions have provided modified written authorizations to districts for distribution. Districts should check with their unions to determine if the unions intend for the districts to handle employees’ written authorizations for dues deductions, or instead, the unions intend to handle such authorizations moving forward. If the latter, districts should obtain the unions’ written certifications that they will maintain employees’ dues deduction authorizations. The unions will be responsible for notifying the district about which employees will have dues deducted from their paychecks and the amounts of such deductions, which the district must honor.

Q: What if there is a “dispute” concerning dues authorizations?

A: If the district is aware of a dispute concerning the existence or terms of the employee’s authorization for dues deduction, then the district may ask the union to see a copy of the written authorization. The term “dispute” is not defined in SB 866. Districts should tread carefully when disputes arise between the union and employees regarding dues authorizations. The law intends to hold unions responsible and accountable (e.g., the union must indemnify the employer for employee claims regarding deductions). SB 866 allows the employer to see a copy of an employee’s written authorization in the event of a dispute, but we recommend that districts either refer employees to the union for resolution or work closely with legal counsel.

EMPLOYER MASS COMMUNICATIONS

Q: Are districts now required to meet and confer with the union regarding any Janus-related communication to its employees?

A: No. SB 866’s new meet and confer requirement regarding an employer’s mass communication to public employees (or applicants) is limited to specific kinds of communications about employees’ right to join or support (or to refrain from joining or supporting) a union. If the district chooses to disseminate this kind of mass communication, the district must first meet and confer with the union about the content. SB 866 defines “mass communication” as a written document, or script for an oral or recorded message or presentation, that is intended for delivery to multiple public employees.

Districts may answer questions from employees regarding payroll issues so long as they are factually accurate and do not solicit withdrawal from union membership, promise benefits, or threaten reprisal regarding union membership. Districts are not required to meet and confer with the union prior to answering such questions from employees.

Q: What if the district and union do not agree on the mass communication content?

A: SB 866 sets forth the “remedy” if the parties cannot agree on the content of the mass communication, and if the district still wants to send out the mass communication, the district may send out the district’s mass communication, but it must also, at the same time, send out the union’s mass communication of reasonable length. The union must provide the district with adequate copies of its own mass communication for distribution.

Q: What happens if the union delays or refuses to meet with the district, or the union does not timely provide the district with its mass communication?

A: If districts encounter such difficulties, consult with legal counsel and consider: document efforts to meet and confer with the union and the union’s refusal to meet; provide the union with a draft of the district’s mass communication and a reasonable amount of time for the union to review and respond with edits; if still no response from the union, inform the union of the date when the district will be sending out its mass communication; and inform the union to timely provide its mass communication of comparable length to the district. As explained above, because SB 866 dictates a “remedy” when the parties cannot agree to the content of the mass communication, we do not believe the “meet and confer” requirement in SB 866 would be subject to EERA’s impasse and factfinding proceedings.

CONFIDENTIALITY OF AB 119 NEW EMPLOYEE ORIENTATION INFORMATION

Q: What information is now confidential?

A: SB 866 provides that the date, time, and place of new employee orientations shall not be disclosed to anyone other than the employees, the union, or a vendor that is contracted to provide a service for purposes of the orientation. This includes maintaining such information confidential in response to a Public Records Act request. If the date, time and place of new employee orientation(s) are posted online, we recommend revising those online postings.

OBLIGATION TO NEGOTIATE REGARDING JANUS AND SB 866 IMPACTS

Q: Are districts required to negotiate/meet with unions regarding the changes in law from the Janus decision and SB 866?

A: Because agency fees are now unconstitutional, the district and the union may be obligated to meet and negotiate depending on the savings provisions and other language in the applicable collective bargaining agreement. Districts should contact their legal counsel in this regard, but provisions to review include the collective bargaining agreement’s “organizational security” and “savings” articles, which typically address what happens in the event any article or section in a collective bargaining agreement is held to be unlawful. Also, as discussed above, certain collective bargaining agreement provisions may be inconsistent with SB 866 (e.g., timing and processing of unions dues authorizations, revocations, and changes). Districts should review such provisions with legal counsel to determine whether it is necessary to meet and negotiate with the union regarding inconsistencies.

REMINDERS AND PRACTICAL TIPS

Q: What should districts do now to comply with Janus, SB 866, and existing laws?

A: With assistance from legal counsel, districts should consider the following:

  • Carefully review collective bargaining agreements, including but not limited to savings, maintenance of membership, and organizational security provisions to ascertain whether negotiations are required with the union to comply with recent changes to the law;
  • Remain neutral regarding matters between unions and their employees, including union membership and dues authorizations;
  • Comply with applicable law regarding employer communications to employees – be factual, do not interfere with employees’ rights, and do not attempt to deter or discourage employees from becoming or remaining members of an employee organization. As appropriate, direct employees to their union or the Public Employment Relations Board (“PERB”) regarding questions relating to membership and dues authorizations, revocations, and cancellations;
  • Do not make any unilateral changes relating to matters within the scope of representation; and
  • Work with employee groups and other stakeholders to insure a smooth transition. Full and timely compliance with the law and neutrality regarding union membership issues should guide districts’ efforts.

If you have questions about SB 866 or Janus-related compliance issues, please do not hesitate to contact a member of DWK’s Labor, Employment and Personnel Group.

PRACTICE AREAS
  • Labor, Employment and Personnel

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