“May You Live In Interesting Times …” The Janus Decision of the United States Supreme Court
By John M. Sedor of Sedor, Wendlandt, Evans & Filippi, LLC
Part five of a five-part series on union issues in schools.
The U.S. Supreme Court overturning one of its long-time precedents is as unique as finding a yeti out in the Bristol Bay area or, for at least some parts of South Central this summer, finding a king salmon! And yet, it happens.
On June 26, 2018, the U.S. Supreme Court overturned a 40+ year precedent (its 1977 decision in Abood) that allowed unions and public employers to agree to “agency fees,” fees paid by unit members who did not join the union and who did not authorize the deduction. The decision, which is worth reading, can be found at the following link:
The Court held that requiring or coercing a public employee to contribute to an organization with which he/she may not agree is a violation of the protections of the First Amendment (Free Speech) made applicable to the States by the Fourteenth Amendment. The case was decided on the slimmest of margins: 5-4. [NOTE: Justice Kennedy was part of the majority, which is of keen interest since he announced his resignation following the delivery of the decision.] The Court reasoned that public employees have a First Amendment right of association or … non-association and, therefore, cannot be compelled to contribute any of their pay to an entity (the union).
The Court concluded with this pronouncement:
[Non-consensual agency fees violate] the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by clear and compelling evidence. Unless employees clearly and affirmatively consent before money is taken from them, this standard cannot be met.
[Citations and internal quotes omitted].
The Janus decision, contrary to what you may hear from various union interests, is NOT about union membership. It is about the type and sufficiency of the evidence a public employer must have in order to deduct money from an employee’s paycheck for transmittal to the union. If the relationship between a union, an employee, and a district is like a three-legged stool, Janus primarily addresses the employee and district legs.
The Janus decision is significant and affects millions of public employees (it does not affect private sector employers/employees). The “weight” of Janus will be felt in expected and likely unexpected ways as it settles into its role as binding precedent across the Nation. While this process occurs, here are some practical steps to consider:
1. Review your Collective Bargaining Agreements to determine whether your district has an “Agency Fee” (also known as “Fair Share”) provision that requires unit employees who do not join the union to pay an amount to the union.
2. If, and only if, you have an “Agency Fee” provision, review your Collective Bargaining Agreements to determine whether it addresses what should occur if a provision is contrary to law and what process is to be followed. (This is often called “Conformity to Law.”) Many CBA provisions require the parties to meet within ‘x’ days to negotiate a replacement provision.
3. Effective immediately, do not deduct Agency Fees from unit employees’ (employees covered by a Collective Bargaining Agreement) pay unless the District has “clear and compelling evidence” that the employee has consented to the deduction. This is consistent with Alaska Wage and Hour regulation 8 AAC 15.160(a). [NOTE: The Janus decision did not say that Agency Fees were unconstitutional. It held that an Agency Fee taken from an employee’s pay without voluntary consent is unconstitutional. To date, NEA-Alaska has decided not to offer an agency fee option going forward. This, of course, could change.]
4. Do not transmit Agency Fee deductions to a union until you confirm number 3 above.
5. The Janus decision does not impact membership dues deductions from unit employees who have (1) joined the union or association and (2) have voluntarily authorized deductions from their pay for union membership dues. These membership dues can (and must under AS 23.40.220) continue to be deducted and transmitted to the Association/Union pursuant to existing Collective Bargaining Agreement provisions. [Depending on your documentation supporting dues deductions, it may be necessary to confirm that you have “clear and compelling evidence” of an employee’s authorization. Thus, depending on your District’s strategy and goals, you may need to determine if pre-Janus membership authorizations should be recognized by the District.]
6. Districts may have current union members ask not to have their pay deducted for union dues. These situations should be dealt with on a case-by-case basis and depend, in part, on what written authorization the district has to deduct their dues in the first place. That being said, in a letter from NEA-Alaska dated May 24, 2018 (prior to the Janus decision), NEA-Alaska stated that a “union member … is required to send written notice to the local president if they would like to drop their membership.” Without having reviewed the membership agreement between the employee and the union, it is not possible to comment on this statement. However, the Janus decision is quite clear that unless the District has an employee’s freely given, clear and compelling consent to wage deductions for the benefit of the union, the district cannot take money from the pay of the employee. (Thus, while a union may have a claim against an employee who breaches a membership agreement, such claim is/may be independent of the district’s constitutional obligation to require sufficient evidence to deduct from wages.)
7. Employees will likely have questions. While no action comes without risk, a District could consider providing notice to employees of the existence of the Janus decision and the District’s intent. An example notice, for discussion only, might be: “On June 27, 2018, the United States Supreme Court issued its decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31. This decision addressed whether and when a public employer, such as the District, may deduct an agency fee from an employee who is not a member of the union. The Supreme Court held: “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment unless the employee affirmatively consents to pay.” Slip Opinion at pg. 48. The Supreme Court went on to state that “the waiver [the employee’s consent to waive his/her First Amendment rights] must be freely given and shown by ‘clear and compelling’ evidence.” Id. Thus, effective immediately, the District will not deduct agency fees from any employee unless the above standard is met. The District will continue to deduct membership fees from employees who have authorized deduction of membership fees.” Because an employer must be careful about communicating directly with employees, any such communication, and potential risks, should be reviewed with your school attorney.
8. Contact your school district attorney if you have questions specific to your district.
This will not likely be the last you hear about the Janus case. The analytical basis of the decision and the dissent will be discussed in the future no doubt. But, I do think one footnote the majority decision dropped is worth mentioning and is worth further discussion. In discussing the “free-rider” problem (non-members getting the benefit of union representation), the Court’s majority noted that “non-members could be required to pay for [union services].” This menu-pricing approach to union representation may be the next trend in public-sector labor relations (APEA, a state union, has already issued communications foreshadowing pay for use union services for non-members).
Needless to say, we will have interesting times in our future!
Read the entire series on Union Issues in Schools
Part one: “Do I really have to allow a union representative to be present when I talk to a school district employee about a $2.00 lunch?”
By Clint Campion
Part two: “I Support What??” – Union Membership, Compelled Speech, and the First Amendment
By John Sedor
Part three: What Does Bargaining in Good Faith Really Mean?
By Allen Clendaniel
Part four: Board Policy, Unilateral Change, and Mandatory Subjects of Bargaining
By Lea Filippi
More from Sedor, Wendlandt, Evans & Filippi, LLC:
Four-part review of the Freedom of Expression in Schools
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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.