The U.S. Supreme Court will soon issue its opinion in Janus v. AFSCME Council 31, deciding whether the collection of agency or fair-share fees from non-union members is unconstitutional and invalid in public-sector employment. The decision is expected by the end of June.
The impact of Janus will likely be felt among affiliates whether you collect agency fees or not. It is important for all affiliates to continue to engage their members on many levels and make sure you are demonstrating your value to those members every day. There are some additional steps affiliates should take to ensure they are protected.
The IAFF General Counsel and Legal Department have prepared the following guidance to help affiliates prepare for an adverse decision in the event of an unfavorable ruling. Because circumstances and procedures are different among the locals regarding their labor/management agreements, state laws, etc., affiliates should consult with their local attorneys about steps to take in response to the Janus decision.
Guidance for Affiliates:
• Review and make sure your local’s membership list is up to date. It's critical to maintain accurate and complete records. Affiliates are obligated to maintain an accurate membership list and to notify the IAFF Membership Department monthly of any changes in membership.
• Review how members revoke membership and dues-deduction authorizations. Although the Janus case is about agency fee payers, some members may re-evaluate their memberships and dues-deduction authorizations. Treat these as organizing opportunities and explain the benefits of continued union membership. If a member elects to discontinue union membership, be sure the request is handled in accordance with your local’s constitution and by-laws, contracts and state law.
• Consider drafting a joint communication with the employer. Employers, and especially employers that make payroll deductions of agency fees, may be planning to communicate directly with employees before or after an adverse decision. If your local has a good relationship with the employer, consider drafting a joint communication. This may prevent employers from inaccurately, or selectively, advising employees about their membership rights, or otherwise unlawfully discouraging membership in the local. Contacts with the employer should be documented in writing so there is a record of the union’s good faith actions.
• Review state public records laws regarding employees’ privacy rights. Anti-union groups will reach out to public employees in an effort to persuade them to withdraw from their unions. Countering such efforts will be very important. For example, these groups may try to obtain employee information, such as names, addresses and phone numbers, by making public records requests to the employer. If this happens, notify your IAFF District Vice President, and also check with your local’s legal counsel to determine whether information of this sort is protected from disclosure. It is prudent to remind the employer of its legal obligations to protect personnel information. Ask that the employer inform your local of any demands for protected information. Depending on the particular circumstances, legal action may be appropriate to prevent unlawful disclosure to these groups that are seeking to undermine and interfere with the local and its membership.
Guidance for Affiliates that Collect Agency Fees:
Affiliates that collect agency fees will face potential liability for fees collected after an adverse decision, and may face added exposure if their contracts or state law require that they indemnify their employers for liability arising from agency-fee disputes.
• Review and update a separate list of persons (by bargaining unit) who are paying agency fees. It may be necessary to promptly set aside agency fees collected after the date of the ruling and place those fees in a separate, interest-bearing account for the purpose of refunding such fees. Maintaining accurate and complete records is essential.
• If your local receives agency fees through payroll deductions, prepare a letter to the employer. Request immediately that the employer cease deducting and remitting agency fees from non-members, and refund any fees already deducted but not yet remitted to the local. It will likely be unlawful for employers to deduct, and unions to collect, agency fees.
• Segregate any agency fees through payroll deductions in a separate, interest-bearing account for repayment to the affected individuals. If your local receives agency fees through payroll deductions, you may not be able to immediately stop deducting and remitting agency fees, causing lag time between when the employer deducts fees and when it remits them to the local. Be prepared to refund these amounts, with interest, as soon as possible, and to document the refunds with accurate records.
• If agency fees are received directly from employees, prepare to refund them as soon as possible. Be sure to document the refunds.
• Respond to calls from agency fee payers about stopping or refunding their fees. Be ready to explain to callers the steps your local is taking to comply with the Supreme Court’s decision while also asking them to consider becoming members of the local and the IAFF. In some states, it is not unlawful for a person to tape a phone call without informing the other party on the call. With this in mind, be sure your responses to questions are accurate and cordial about the steps the local is taking to comply with the Supreme Court decision. Keep a record of these calls.
• Consult with your local's attorney about all steps you are considering.
Guidance for Affiliates with Agency-Shop Arrangements with Employers, But that Do Not Collect Agency Fees:
• Consult with your local counsel about whether any changes to the collective bargaining agreement or related procedures are necessary. Some affiliates have agency-shop arrangements in their collective bargaining agreements, but do not currently collect agency fees.
We will provide more guidance and education materials on this issue in the coming days and weeks.
If you need additional information or have questions, contact your District Vice President.
________________________________________
Janus v. AFSCME Local 31 is a challenge to a 40-year-old precedent that allows public sector labor unions in non-right to work states to collect agency or fair share fees from individuals who are part of the bargaining unit but not members of the union. It is widely expected that the Supreme Court will overturn that precedent and the agency fee will be eliminated.