The NJSBA has received a number of inquiries recently regarding what boards can and should do with respect to representation fee articles within the collective bargaining agreement in light of the Janus decision last summer. Often, these questions arise when the board is in the process of negotiating a post-Janus contract and is unclear about the best way to address the existing language.

Prior to the Janus ruling, most contracts required the collection of “representation fees” from the salaries of employees who are not voluntary dues-paying members of the teachers union.

First, as a result of the United States Supreme Court Janus decision, any representation fee provision within a board of education’s contract is unenforceable.  The court made it explicitly clear, absent an affirmative request by an employee, that no deductions from the employee’s pay could be made for payment to the union.  However, almost every collective negotiations agreement in the state has language predating Janus.

When the boards go into post-Janus negotiations, they have a few options to address the language deemed void by Janus.  However, board members are reminded that no changes to the collective negotiations agreement can be made without union agreement. This means that the inapplicable and unenforceable representation fee language cannot be deleted unless the union is willing to do so.

To address the unenforceable language, the board can propose its elimination, and if the union agrees, the language can be stricken. In some cases, the union has rejected proposed elimination and boards are left in a quandary.  While the board can seek assistance from the Public Employment Relations Commission for the removal of the language through a Scope of Negotiations Petition, this action can be costly and there is no guarantee it will be successful.  Indeed, as of the date of this article, the NJSBA is unaware of any decision by PERC striking representation fee language from any public sector contract.

Another way to handle union rejection is to simply withdraw the proposal and proceed with the contract containing the unenforceable language.  As the language is unenforceable, there is no harm to the board by its continued inclusion.

The third option addressing union rejection would be to propose alternative language. Although the proposed language would seek the elimination of the representation fee language, it would also include language the union may find acceptable in its place, namely referencing the obligations under the Workplace Democracy Enhancement Act.  For example, one public employer has replaced unenforceable representation fee language with the following: “The parties acknowledge their obligations set forth in the New Jersey Workplace Democracy Enhancement Act, and agree to comply with those obligations.”

How to address the unenforceable representation fee language post-Janus should not be the issue bogging down negotiations.  Rather, there are alternatives available and boards of education must determine what is best for their specific situation.

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