In one of its most important labor law decisions, the U.S. Supreme Court declared on June 27 that mandatory payment of “agency fees” to public sector unions is unconstitutional. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the court ruled that it is a violation of the First Amendment for a public employee who is a non-union member to be required to financially support the union that negotiates with his or her employer.

An “agency fee” is often referred to as a “service fee” and is roughly equal to regular union dues less any reduction of monies attributable to union political activity. Until now, employees who fell within the contours of a bargaining unit but who chose not to join the union were required to pay an agency fee, and school districts have made payroll deductions to cover these fees as was required by state law.

As a result of the Janus decision, employees now have the option of paying nothing, although the union will remain their representative in negotiations with their employer. It remains possible for individuals to pay agency fees on a voluntary basis, which would entitle them to receive all union services except lobbying or other political activities. Or, a nonmember could pay a fee to the union for specific services, such as representing him or her in a disciplinary action.

Furthermore, school districts could be named as parties in litigation relating to the implementation of Janus, especially lawsuits seeking to reconcile differences between collective bargaining agreements and federal and/or state law. In light of Janus, new legal questions may arise, particularly with regard to a union’s duty of fair representation to nonmembers. Both Janus and recent amendments to New York’s Taylor Law explicitly define – and limit – the duty of fair representation owed to a nonmember in the bargaining unit. For instance, New York law now states that it shall not be an improper practice for employee organizations to decline to represent non-members during questioning by the employer or disciplinary proceedings.

For nonmembers, a union’s duty is now limited to “negotiation and enforcement” of the terms of the collective bargaining agreement. However, what if the labor contract guarantees unit members due process hearing rights in disciplinary matters? How will the duty of fair representation requiring the enforcement of all contract provisions including a guarantee of disciplinary due process be squared with the right of a union to refuse representation in disciplinary matters?

Also, districts may be embroiled in litigation brought by anti-union groups. For instance, one week prior to the Janus decision, teachers from the Northport and Union Endicott school districts challenged the constitutionality of recent amendments to New York’s Taylor Law by commencing litigation against New York State United Teachers while also naming defendants including the Northport school district and the governor. The case, Pelligrino et al v. New York State United Teachers, is pending in the U.S. District Court for Eastern District of New York.

Make no mistake – the Janus decision will not relieve school districts of the need to spend considerable time and energy engaging with unions. Districts still must comply with the Taylor Law. While union strength may diminish as some employees drop their union membership to avoid paying union dues, management now will have to cope with potentially significant differences in the union’s role with respect to union members and nonmembers, including the possible loss of assistance of experienced union representatives in settling disputes involving nonmembers.

Key findings in Janus
The Janus case addressed the question of whether union agency fees violate the First Amendment rights of employees. The Supreme Court held in a 5-4 decision that requiring public employees to financially support a union that they have chosen not to join, and whose views in collective bargaining they do not support, violates the U.S. Constitution by compelling speech.

The decision was a striking departure from the reasoning the Supreme Court used more than 40 years ago in Abood v. Detroit Board of Education (1977). In Abood, the court reasoned that all employees positioned within a bargaining unit benefit from union representation in negotiations. Therefore, it was permissible for unions to require payment of fees that represented costs of representing the employee, devoid of any monies used for union “political” activities.

In a majority opinion written by Justice Samuel Alito, the court reasoned in Janus that when a public-sector union bargains with a public employer over wages, staffing and other subjects, the government is being petitioned on “policy.” In the same way that a public employee has a right not to financially support union lobbying that person disagrees with, the court found an employee has the right not to financially support collective bargaining positions that person disagrees with.

Accordingly, the majority deemed it unconstitutional to make it mandatory for public employees who are part of a bargaining unit to pay any amount to the union. In New York State, this could affect local units of New York State United Teachers and CSEA, as well as any other affiliated or independent unions representing school district employees. Some employees, particularly lower paid non-instructional employees, may want to “save” the cost of union dues.

The decision raises the question of what services a union is obligated to provide to nonmembers who decline to pay agency fees. In the majority decision, Justice Alito focused on the union’s role in negotiating labor agreements on behalf of all bargaining unit members – even if they are not union members – and its role in ensuring the employer honors the provisions of collective bargaining agreements for all employees covered by it. Notably, the court did not see an obligation of the union to represent bargaining unit members who are not part of the union in disciplinary matters or evaluations. The court specifically ruled that “Individual nonmembers could be required to pay for that service or could be denied union representation altogether.”

This decision supersedes the provision of New York’s Taylor Law that mandates the collection of agency fees from non-member public sector employees within a negotiating unit. While many collective bargaining agreements echo this Taylor Law provision, again, the Janus decision controls. Contract provisions requiring agency fee deductions are fully unenforceable and, while not immediately problematic, they should be removed in future negotiations.

The Janus decision allows public employers to continue to deduct union dues from payroll for employees who choose to remain union members, as required by New York’s Taylor Law (see story, page 14). As previously mentioned, although the court declared the compulsory deduction of agency fees as unconstitutional, it did not ban agency fees altogether. Employers may deduct union agency fees from an employee’s paycheck with the consent of the employee.

The New York Legislature’s preemptive response to Janus
In anticipation of the Janus decision, the New York State Legislature and Gov. Andrew Cuomo added provisions to the last state budget bill to amend sections of the Taylor Law. Clearly intended to protect the financial well-being of New York public sector unions, the amendments have many implications for school districts and other public employers.

Among other things, the amendments seek to clarify the duty a union owes to a bargaining unit member who has not joined the union. The amended law states that the union’s duty is limited to “negotiation and enforcement” of the terms of the collective bargaining agreement. The amendment provides that a union is not required to provide representation to a nonmember:

1. During disciplinary questioning by the employer.
2. In statutory or administrative proceedings or to enforce a statutory or regulatory right (e.g., 3020-a hearings, Section 75 discharge/dismissal proceedings).
3. In any stage of grievance, arbitration or other contractual process concerning the evaluation or discipline of an employee where the nonmember is permitted by the labor contract to proceed without the employee organization and be represented by his or her own advocate.

The Taylor Law continues to require dues deduction by public employers of union dues from its employees who choose to remain union members. This right remains undisturbed by the Janus decision, but fulfilling the employer’s role may become more complicated; it is now incumbent on school district offices to keep track of which employees are union members, which are nonmembers who have consented to pay agency fees or other fees to the union, and which are nonunion members who have not authorized any deductions. As part of its due diligence, the school district should work with union leadership to obtain an up-to-date list of members and reconcile that list with correspondence from employees who have advised the school district of their decision to opt out of the union.

The amended Taylor Law also grants new rights to unions. Within 30 days of a new employee being hired, promoted, or transferred into a bargaining unit, the school district must notify the union and provide the union with the employee’s name, address, job title, employing agency, department or other operating unit and work location. School districts must also allow union representatives to meet with new employees during working hours within 30 days of providing such notice. Presumably, these meetings will be used to explain the value of union membership to the new employees so they can make decisions regarding whether to join the union.

At the bargaining table, public employers probably will be faced with demands from their unions to negotiate details of how the district implements these enhanced union rights.

Exclusive representation
It is important to note that the Janus case did not involve a challenge to the status of a recognized union as the exclusive representative of bargaining unit members. The plaintiffs in Janus did not argue that forcing a nonmember to be “represented” by a union in collective bargaining violates the First Amendment right to free speech and association. In fact, Justice Alito emphasized in the majority opinion that Janus preserved – at least for the time being – the right of an elected union to exclusively represent the bargaining unit foreclosing challenges by other unions.

As a result, “exclusivity” continues – the non-union member remains part of the bargaining unit and is covered by the collective bargaining agreement. Unions continue to bargain for and represent employees who do not financially contribute to their representation. Non-union member employees will continue to obtain the benefits of union bargained labor contracts without having to pay any fees for that service.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by John H. Gross and Rose A. Nankervis of Ingerman Smith, LLP. Gross Nankervis

New York State School Boards Association | www.nyssba.org
14 • On Board LEGAL AGENDA July 23, 2018
Questions and answers on payroll deductions
for union dues in light of the Janus decision
By the New York State
Association of School Attorneys
State law requires school districts and other employers
to make payroll deductions for union dues and agency
fees (union dues minus the cost of lobbying or other political
representation). This obligation will be significantly
affected by the U.S. Supreme Court’s decision in Janus
v. American Federation of State, County, and Municipal
Employees, Council 31 and its interplay with New York
State’s “Taylor Law.”
Under Janus, agency fees are no longer compulsory
for non-union members who fall within the parameters of
a bargaining unit, but may continue to be paid on a voluntary
basis upon affirmative consent by the employee.
In anticipation of the Janus decision, the Taylor
Law was amended this year to tighten the timeframe for
making and transmitting union dues deductions from
consenting union employees. Specifically, dues must be
deducted no later than 30 days after receiving proof of a
signed dues deduction authorization card, and they must
be transmitted to the union within 30 days.
The amendment further authorizes the employer to
accept an “electronically signed authorization card” as
opposed to the traditional, hand-signed card.
Finally, the employer is obligated to notify the union
within 30 days of an employee being hired or rehired,
promoted, or transferred into a bargaining unit, and provide
a “reasonable amount of time” for the union to meet
with the employee.
The following questions and answers provide some
guidance regarding payroll deductions for union dues and
agency fees:
Q: Is an employee required to “opt in” to the payment
of agency fees or union dues?
A: Yes. The Janus decision makes it clear that in order
to make a payroll deduction for union purposes on
behalf of an employee, the employee must affirmatively
consent or “opt-in” for the deduction to take
place. The employee must now affirmatively consent
to such withholdings, as there is no longer automatic
withholding.
Q: Should our school district or BOCES require
all union members to re-sign and submit dues
deduction authorization cards because of the
Janus decision?
A: No. If an employer already has dues deduction
authorization cards on file for employees, no further
information from these employees is needed and dues
deductions should continue uninterrupted.
Q: Can our school district or BOCES rely on union
lists regarding who is or is not a member of the
union for the purposes of payroll deductions?
A: No. In New York, the collection of union dues is governed
by the Taylor Law, which requires dues deductions
to be made “upon presentation of dues deduction
authorization cards signed by individual employees.”
Recent amendments to this section provide that signed
dues deduction authorization cards can take the form
of an electronically signed authorization card as well
as the traditional, hand-signed card.
Q: What should we tell our employees and union
representatives to make our post-Janus payroll
process as smooth as possible?
A: It would be prudent for employers to send correspondence
to all of their unions, with a copy to individual
members and non-members, explaining the following:
(a) if the employer has a dues deduction authorization
card or other written/electronic authorization from the
employee on file, the employee’s union dues deductions
will continue uninterrupted; (b) if there is no card or
other sufficient written or electronic authorization on
file, in order to comply with Janus and the Taylor Law,
the district will require proof of an executed card or
other sufficient written/electronic authorization, and,
shall cease dues deductions if the employee/union does
not provide a sufficient written/electronic authorization
after a reasonable opportunity to do so; and (c)
if the employee previously paid an agency fee, such
deductions will cease immediately unless the employee
provides written or electronic consent to continue the
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July 23, 2018 On Board • 15
New York State School Boards Association | www.nyssba.org
LEGAL AGENDA
agency fee deduction or elects to join the union and
consents to full union dues deduction.
Q: Suppose our district business office checks its records
before running its next payroll and can’t find
a dues deduction authorization card on file for an
employee. What form of authorization is sufficient
under these circumstances?
A: School districts should consult with their attorneys
if such a situation arises, as this is an unresolved
area of law. Ideally, the employee will promptly
provide a card or other form of written/electronic
authorization indicating their affirmative consent to
a payroll deduction, because the Taylor Law requires
a signed paper or electronic authorization card. The
Janus decision, on the other hand, only addresses the
constitutional requirement for some form of affirmative
consent for withholdings by an employee. In the
event an employee (or a union) insists on submitting
a document electronically signed by the employee,
such as an email, it is likely such document would
satisfy the constitutional mandate expressed in the
Janus decision. However, school officials would be
well-advised to consult counsel regarding whether a
district could lawfully reject such documentation as
falling short of what is required by the newly amended
Taylor Law. Regardless, absent some form of
written or electronic authorization, the district should
cease deduction of dues.
Q: Suppose an employee leaves the district for less
than a year due to maternity leave or other reason.
Does the employee have to file a new dues deduction
authorization card upon returning to work?
A: If an employee who has authorized a dues deduction
is removed from payroll or otherwise placed on an involuntary
or voluntary leave of absence, whether paid
or unpaid, the employee’s membership in the union is
automatically continued once the employee is placed
back on payroll or restored to active duty following
the leave. The employee does not have to fill out a new
authorization card. For any employee who has given
an authorization card, the dues deduction remains in
effect until the employee either revokes union membership,
in writing, or is no longer employed. If an
employee leaves the employ of the school district and
returns within one year, he or she does not have to fill
out a new authorization card.
The landscape of the law in this area will likely
be changing for the foreseeable future. Employers
and unions are waiting to see how the state Public
Employment Relations Board and state courts resolve
disputes in light of both the Janus decision and the
amendments to the Taylor Law. It is more important than
ever that school boards consult with their labor counsel
on specific questions as they arise.
Members of the New
York State Association of
School Attorneys represent
school boards and school
districts. This article was
written by John P. Sheahan
of Guercio & Guercio, LLP
nd Rose A. Nankervis of
Ingerman Smith, LLP.
How will union locals react to the Janus decision?
By the New York State
Association of School Attorneys
In 2016, 23.6 percent of New York’s wage and salary
workers were union members. Currently, more than 95
percent of the teachers in New York’s public schools are
unionized. But that could change as a result of the Janus
decision by the U.S. Supreme Court in Janus v. American
Federation of State, County, and Municipal Employees,
Council 31.
When given the opportunity in the past, many teacher
union members in New York State dropped their union
membership to save the cost of their dues. For example,
this occurred during the 1970s, when many teacher unions
in New York State engaged in illegal strikes. In some
districts, the Public Employment Relations Board (PERB)
ordered the penalty of loss of employer automatic dues deduction
for lengthy periods of time. This put union locals
in severe financial distress.
Districts should expect unions to exhibit new vigor in
explaining their value to employees. Certainly, one selling
point is that unions provide free legal representation if a
member faces disciplinary charges under both Education
Law Section 3020-a and/or Section 75 of the Civil Service
Law. However, many current union members are not entitled
to disciplinary statutory protection under the law, such
as teacher aides and other non-instructional employees.
These lower paid, non-instructional employees may want
to “save” the cost of union dues.
How union representatives interact with the district
may vary depending on the union membership status
of employees in a bargaining unit. Because unions may
already refuse to proceed with a grievance or go to arbitration,
refusal to process contract “enforcement” grievances
of non-dues paying members may occur. Or, the
amount of time or energy that union officials devote to the
processing of grievances may vary among employees with
different membership status.
Union bargaining representatives can be expected
to present negotiation proposals to soften the impact
of Janus. Here are four possibilities and recommended
responses:
1. A proposal providing that all new employees on their
first date of employment will be directed to meet with
a union representative for 30 minutes.
Locals can be expected to seek to negotiate procedures
and protocols in connection with changes to New
York’s Taylor Law that say the employer must, within
30 days of a new employee being hired, promoted, or
transferred into a bargaining unit, notify the union and
provide the union with the employee’s name, address, job
title, employing agency, department or other operating unit
and work location. The changes to the Taylor Law also
state that within 30 days of such notice the union president
or his or her designee must be given the opportunity to
meet with the employee for a reasonable amount of time –
during working hours and without charge to leave credits.
These amendments will require the public employer
to establish implementation – without question it can be
expected that unions will seek negotiation of the most
advantageous access to new employees.
2. Contractual language that a new employee would
automatically be a union member unless they
affirmatively opted out, in writing, when they were
hired or during a 10-day window agreed to by the
parties.
Such a proposal, if made by unions, would likely be
unconstitutional. A similar provision in a contract was
rejected by the U.S. Supreme Court in Knox v. SEIU Local
1000 (2012). The plaintiffs in Knox argued that the union’s
procedure, which required employees to “opt out” on
an annual basis, was unconstitutional. They specifically
argued that: (1) an “opt-out” requirement is an unconstitutional
burden on the non-union employee because the
nonmember must affirmatively disapprove the fee – essentially
presuming consent to the non-chargeable portion of
the fee; (2) an “opt-out” system fails to serve a compelling
interest of the state; and (3) even if the union had a
legitimate interest in burdening First Amendment rights,
an “opt-out” regime is broader than necessary to serve that
interest. The court ultimately held that an annual “optout”
notice was insufficient when special fees were being
collected by the union, and that a notice should be sent
to union members providing them the option to “opt in”
to special fees. In view of Janus, it is likely this “opt out”
will be found to be unconstitutional. Therefore, districts
should insist on an “opt in” approach.
3. A demand that the district agrees to pay to the
union the equivalent of 50 percent, or any percentage,
of the regular union dues paid by members of
the union for any individual covered by the contract
but who opts out of the union.
In essence, this would create an agency fee payable
by the school district rather than the employee/non-member.
Such proposal must be rejected, as it would represent
an unconstitutional gift of public funds, in violation of
Article VIII, Section 1 of the New York State Constitution.
PERB and the state’s highest court, the Court of Appeals,
have declared provisions to be against public policy and
therefore non-mandatory subjects of collective bargaining
– or unenforceable as violating the New York State
Constitution. (See Bd. of Ed., Great Neck Union Free Sch.
Dist. v. Areman, 1977.) If school districts were to pay
union dues for nonmembers they would be financially aiding
private organizations, which is against public policy.
4. Language that the district will deny any
“anti-union” organization access to its employees.
Organizations opposed to unionization have already
begun proselytizing employees by informing them they do
not have to join the union, nor pay agency fees or union
dues. These messages have been swamping email systems
in some school districts.
However, a school district may not be able to lawfully
screen out such messages. If a school district permits certain
organizations such as textbook companies to access
employees via district email systems, then that may be
considered a limited public forum. (See M.B. ex rel. Martin
v. Liverpool Cent. Sch. Dist., a 2007 ruling by the U.S.
District Court for the Northern District of New York.)
School districts may establish policies placing limitations
on speech in a limited public forum but such policies
must be reasonable and viewpoint neutral.
If a school district decides to “block” emails from
organizations that have been proselytizing against unions
and/or other political speech, they may be subject to First
Amendment challenges. Similarly, communication from a
rival union may not be blocked.
Members of the New
York State Association of
School Attorneys represent
school boards and school
districts. This article was
written by John H. Gross
and Rose A. Nankervis of
Gross Ingerman Smith, LLP. Nankervis