On June 27, the United States Supreme Court issued its much-anticipated decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31. As was expected, the court ruled, by a 5-4 margin, that compelling public employees who do not belong to a union to pay agency fees, also known as fair share fees, to the union is a violation of their First Amendment rights. This decision by the court overturned its 1977 ruling in Abood v. Detroit Board of Education.

The Abood decision had given public employees represented by a union the right to choose not to pay full dues, but upheld the legality of requiring them to pay an agency fee. That fee was calculated to cover the cost of union representation relating to the collective bargaining process and contract administration. It does not include the costs of a union’s political activities.

The plaintiff in the Janus case argued successfully that union activity is inherently political, and, therefore, employees should not be required to pay any fees to the union.

Since then, there have been many questions about the decision’s meaning and impact.

There are also several outstanding questions about the decision’s interaction with New Jersey law, specifically the recently enacted “Workplace Democracy Enhancement Act.” That law, signed by Gov. Phil Murphy on May 17, was designed to ensure New Jersey’s public sector unions have sufficient access to the employees they represent. Under that law, access includes:

  • The right to meet with individual employees on the premises of the public employer during the work day to investigate and discuss grievances, workplace-related complaints, and other workplace issues;
  • The right to conduct worksite meetings during lunch and other non-work breaks, and before and after the workday, on the employer’s premises to discuss workplace issues, collective negotiations, the administration of collective negotiations agreements, other matters related to the duties of an exclusive representative employee organization, and internal union matters involving the governance or business of the exclusive representative employee organization; and
  • The right to meet with newly-hired employees, without charge to the pay or leave time of the employees, for a minimum of 30 and a maximum of 120 minutes, within 30 calendar days from the date of hire, during new employee orientations, or at individual or group meetings.
  • Severely limits the time frame in which a union member can opt-out of the union to the 10 days following each anniversary date of their employment.

NJSBA’s analysis of the effects of the Janus decision and its interplay with the Workplace Democracy Enhancement Act will continue. In the meantime, the Association is providing the following information, based on what is known to date about this historic decision.

What exactly did the Supreme Court say? The U.S. Supreme Court held “[n]either an agency fee nor any other payment to the union may be deducted from a non-member’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 such fees, 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 any money is taken from them, this standard cannot be met.” In short, employees must opt in to being union members, and not be forced to opt out.

What was the Supreme Court’s basis for its decision? The court based its decision on the First Amendment of the United States Constitution. The court specifically reasoned that the “First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”

Must all employees be members of the union? No. The Janus decision makes clear that an employee cannot be compelled to be a member of a union.

Must non-union members pay the union to represent them? No, employees cannot be forced to pay mandatory union dues or “agency shop” or “fair share” fees. Under the “agency shop” or “fair share” fee concept, an employee who decides not to join the union was still responsible for paying the majority of union dues (85 percent in New Jersey) to cover over collective bargaining and other non-political activities. However, the U.S. Supreme Court declared these fees illegal.

Is there still an obligation to engage in collective bargaining? Yes, the United States Supreme Court’s decision did not eradicate the obligation of public employers to negotiate in good faith. The requirements of the New Jersey Public Employer-Employee Relations Act essentially remain unchanged.

Must the board negotiate only with the union, or can it negotiate with the individual employees? Public employers are still obligated to negotiate with the recognized majority representative of a group, or unit, of employees. In fact, the board can only negotiate with the majority representative, and no other entity.

Is a non-dues paying employee a member of the bargaining unit? Yes. Just because someone is not a member of the union does not mean he or she is not a member of the bargaining unit. Indeed, the person is a member of the bargaining unit based upon the title of the employment position, not membership in the union.

Are non-member employees covered by the terms of the collective negotiations agreement? Yes, if the title of the employee’s position is one recognized as being within the bargaining unit, the employee is still governed by the terms and conditions set forth in the collective negotiations agreement, even if the employee does not want to be. The non-union member employee cannot receive greater (or lesser) benefits than those who are a part of the union.

Must the union represent non-member employees in grievances? Yes. If the employee’s job is one recognized as being within the bargaining unit, the employee is still governed by the terms and conditions of the contract, and the union cannot discriminate against the employee based upon union membership or non-membership. As such, the union must be involved with grievances filed by non-member employees regarding contractual provisions, even though the employee is not obligated to pay any fee.

Must the union represent a non-member employee in disciplinary matters? The U.S. Supreme Court left open the question of whether a union must represent the employee in disciplinary proceedings. However, New Jersey’s Employer-Employee Relations Act requires that disciplinary review procedures be included in the collective negotiations agreement. Based upon this statutory requirement, arguably the union would be required to provide disciplinary representation to the non-member who is a part of the bargaining unit.

How does Janus affect our district’s current collective bargaining agreement? The decision would only impact the contract’s “agency shop” provision. Such a provision, if it does exist in your district’s collective bargaining agreement, would not be enforceable. All other provisions of the contract remain unchanged.

What should school districts be doing now to be in compliance with the law? School districts should immediately cease deduction of agency fees if they have not done so already.

Does the Janus decision impact New Jersey’s recently enacted Workplace Democracy Enhancement Act? Possibly, but the interplay of the Janus decision and the act is not fully known at this time. The Workplace Democracy Enhancement Act provides that employees must advise in writing of their desire to have deductions made from their salary be paid to the union. However, once this authorization is provided, the employee “may revoke such authorization by providing written notice to their public employer during the 10 days following each anniversary date of their employment.” In short, if an employee was hired on July 1, 2005, and has given written authorization to deduct money from salary to be paid to the union, the employee can only revoke this authorization, in writing, between July 2 and July 11 every year. Therefore, if the written renouncement were made on July 12, it would be too late.

What is the short-term impact of the Janus decision? In the short term, the Janus decision prohibits the continued collection of “agency shop” or “fair share” fees. Thus, as of 10 a.m. on June 27, 2018, no public employer, including a board of education, could continue to collect “agency shop” or “fair share” fees and transmit them to the union.

What is the long-term impact of the Janus decision? The long-term impact is unknown at this time. We do know that some full-dues-paying members of bargaining units have requested to cease union membership. However, the number of employees requesting to leave the union is unknown. Further, the union still has a tremendous amount of power, influence and resources, which should not be discounted post-Janus. Indeed, according to its website, the NJEA represents over 200,000 active and retired school employees, as well as students preparing for careers in education. If it lost 25percent of its membership, which would be significant, the NJEA would still have 150,000 members.

Simply put, Janus does not eliminate unions, or their role in employer-employee relations. In fact, there is a strong belief among many experience labor professionals that Janus will result in a more energized and formidable union that will double its efforts to protect what it sees as the members’ interests. As such, boards must still prepare thoroughly for negotiations, which includes training for board members, having contracts analyzed, and developing a cohesive bargaining strategy and proposals.

Robert Greitz is a consultant/negotiator in NJSBA’s Legal and Labor Relations Department.