TO: PA School Board Solicitors Association, Janus Decision
Most of you probably have heard by now that earlier this morning the Supreme Court issued a 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees (No. 16-1466), declaring that involuntary “fair share” fees collected by public employers on behalf of public sector unions from non-member employees are an unconstitutional violation of the non-member employees’ First Amendment rights. The decision overrules the Court’s 1977 decision in Abood v. Detroit Board of Education, in which it had ruled that such compelled non-member agency fees are permissible and do not violate the First Amendment rights of objecting non-member employees. The Janus decision, for which the majority opinion was written by Justice Alito, is available at this link: https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf.
The decision strikes down an Illinois statute that is not identical to Pennsylvania’s Public Employee Fair Share Fee Law but has the same operative characteristics and effect. From a quick read of the Janus decision, it seems to clear that Pennsylvania’s law and provisions of collective bargaining agreements pursuant to it can no longer be implemented lawfully. Here is how the Court’s majority opinion states its bottom line:
“For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required. This procedure violates 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. Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.”
As outlined in earlier PSBA alerts about this case, this means that all collection of the fees from non-members of unions must cease immediately. As further outlined in those alerts, after taking the necessary steps to suspend payroll collections of the fees, school employers should immediately initiate communication with the fee-payers and affected unions to inform them of the employer’s actions and discuss further steps regarding fees collected but not yet turned over to the unions, and the refund of any “front-loaded” fees already collected but attributable to future pay periods.
In addition to noting that the Janus decision affects only unions, employers and employers in the public sector, it will be beneficial to remind public school clients of a few other key points. First, it seems quite clear from the majority opinion that the ruling will operate prospectively only, and I see nothing in it that would support an argument that there is any obligation to refund fair share fees collected and paid over to unions in the past. By the same token, there would not be any reason to pro-rate fees between parts of a pay period that have occurred before today. The plain language of the Janus ruling dictates that collection of fair share fees must no longer occur, and must be stopped immediately.
Second, while the Janus decision theoretically could leave room for purely voluntary payment of fair share fees, neither Pennsylvania’s law nor fair-share fee contract provisions allowed by it are premised on strictly voluntary representation fees, and this likely would need to be renegotiated in order to operate on that basis. Moreover, it is difficult to imagine why an employee who would voluntarily pay such fees would not be willing to pay a little more to become a full member of the union and thus avoid the workplace stigma nonmembers sometimes experience. It is PSBA’s understanding that PSEA will not accept voluntary “fair share” payments, but other unions may have differing reactions.
Third, the Janus decision has no direct impact on the regular dues paid by union members, nor upon the payroll collection of those dues by employers pursuant to dues check-off provisions in collective bargaining agreements. The Janus decision also does not strike down “maintenance of membership” provisions in collective bargaining agreements that require regular union members to continue as such until a 15-day “escape window” prior to contract expiration. Until those escape windows occur, the full impact of Janus on union membership trends may not become apparent. In the meantime, any union members who express a desire to terminate their regular union membership should be instructed to contact their local union leadership about that. Such requests cannot be handled through the employer directly.
Further study of the Janus decision may prompt more thoughts about its long-term ramifications for public sector labor management relations or practical impacts in other respects, but for the short term, the conclusions outlined above seem fairly certain. Nonetheless, as you advise your public school clients in this matter, please do not hesitate to call the PSBA staff attorneys if you need to discuss this further or see room in the Janus ruling for differing analysis.