In Response to Janus, Governor Brown Signs SB 866 which Bolsters Union Dues Deductions

 In the wake of the landmark decision of Janus v. AFSCME (readMastagni Law Blog Post RE: Janus v. AFSCME), Governor Brown signed SB 866 into law. The legislation was incorporated into the recently enacted state budget. The new law authorizes employee organizations to request payroll deductions and requires public employers to honor such request. Significantly, the new law requires agencies to honor the organization's dues deductions request based on the organization's certification of individual employee authorizations and to direct employee requests to cancel or change deductions for employee organizations to the employee organization, rather than to the public employer.   SB 866 applies to the vast majority of employers covered by PERB.

Specifically, the SB 866 makes several changes to the union dues deduction process including:

1.                  Employers must allow for payroll deductions for union dues;

2.                  Any request to begin dues deductions or cancel dues deductions must be made to the union, and not the employer;

3.                  The union is responsible for letting the employer know the amount of dues deductions for employees;

4.                  The employer must accept the information provided by the union on dues deductions for employees;

5.                  If a union states it has written authorization for begin deductions, it is not required to provide the employer a copy of the individual authorization unless a dispute arises about the existence or terms of the authorization;

6.                  The union must indemnify the employer for any claims made by employees as a result of the payroll deductions;

7.                  If an employer “chooses to disseminate mass communications to public employees or applicants to be public employees concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization, it shall meet and confer with the exclusive representative concerning the content of the mass communication;”

8.                  If the parties cannot reach agreement and the employer decides to go ahead with its proposed mass communication, it must also distribute a communication of reasonable length provided by the union.

SB 866 became effective immediately after Governor Brown signed it into law on June 27, 2018.

Supreme Court Rules in Favor of Free-Riders: Union Drop-Outs Don’t Have to Pay Fair Share Fees, Not Entitled to Non-Core Union Benefits

Today, the Supreme Court ruled that unions cannot collect fair share fees from employees who do not opt in to union membership.  While the decision means some unions will face a significant in drop in revenue, public safety unions are not expected to be as heavily affected.  This court decision was widely expected given the makeup of the Supreme Court and some recent cases.  California recently passed laws giving unions opportunities to reduce the impacts of the decision.

The case is about agency shop agreements.  In an agency shop, employees can chose to be full members of the union or decline union membership.  But non-members still have to pay part of the cost of supporting the union.  In some labor unions, non-members make up a big percentage of the employees covered by a contract.  In most public safety unions, non-members are already a very small share.  However, all unions should redouble efforts to provide high value to members and communicate with members about the benefits of union membership.

In Janus v. AFSCME, Mark Janus argued that his $45 monthly fee to the American Federation of State, County, and Municipal Employees (“AFSCME”) was unconstitutional and infringed on his first amendment rights. Specifically, he argued that as a public employee his contract negotiations are with the government, hence those fees were a form of political advocacy.

Based on long-standing precedent in Abood v. Detroit Board of Education, all covered employees must pay a fee to account for the benefits of collective bargaining that unions offer. Those fees cover collective bargaining costs, such as contract negotiations, but not political advocacy.

However, Janus claimed such a fee requirement violated his right to free speech, because those fees went to change government policy on salary, benefits, and pensions. Accordingly, his fees were a direct form of speech.

On the other side, the union strongly advocated that Janus’s agency fees simply prevented “free-riding” from employees who benefit from the union's negotiations. AFSCME argued that, because it was obligated by law to represent the interests of both union and non-union members, the fees were a way for employees to pay their fair share for contact negotiations for which they clearly benefited from.

In a 5-4 decision, the Supreme Court agreed with Mark Janus’s position. Justice Alito wrote:  "Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned," Avoiding free riders, Alito wrote: "is not a compelling interest."

Today’s ruling is a clear indication public sector unions must double their efforts to obtain full membership from their fair share bargaining unit members.  Unions should clearly communicate about the many benefits of union membership, including the right to vote on a contract, lawyers for legal defense and the ability to vote in union elections.  Other member-only benefits will vary from union to union.

Non-members are not entitled to many of the benefits unions provide to their members.  For example, non-members do not have a right to vote on a contract (though they must be given some avenue to express their views), they do not have a right to have an attorney represent them in a discipline case or critical incident, they do not get to attend union meetings, and they do not have a right to other benefits a union may provide like access to the union hall, free or reduced cost classes for educational incentive credit or CPR, or special life and disability insurance.

Unions should also be aware of new state laws designed to protect their rights.  The Legislature passed Senate Bill 866 on June 18, 2018 and it is currently awaiting Governor Brown’s signature.  The bill requires payroll deductions for union dues and makes the union, not management, responsible for determining member consent to union membership.  This prevents anti-union employers from using Janus as an excuse to drop members from the rolls, but it also requires unions to be actively engaged.  Senate Bill 285 prohibits employers from discouraging employees to join the union or trying to get members to drop their membership.  Again, it require vigilance from union to enforce the law.  Assembly Bill 119 gives unions the right to access new employee orientations and get contact information for new hires.  To get the benefit of this law, unions must request to bargain over new member access.  Since many unions, particularly in public safety, already have established policies and practices for new member orientations, this law sets the floor, not the ceiling for access.   A number of other bills mitigate the immediate impacts of Janus and unions should develop a plan to maximize use of these tools and member outreach to retain and grow membership.

AB 2154 Provides Minimum Paid “Release Time” for Union Activities

On February 12, 2018, Assembly Member Rob Bonta introduced AB 2154. The proposed legislation standardizes and expands “release time” for employees engaging in union activities without loss of compensation. AB 2154 mandates that that an employer provide a “reasonable” number of employees paid time off in order to conduct union activities including: 1) investigating potential or existing grievances; 2) meeting and conferring on matters within the scope of representation; and 3) testifying before public agencies.

Gov. Brown Signed A.B. 119 Providing California Public Employee Unions Enhanced Access to New Employees

On June 27, 2017, Governor Brown signed Assembly Bill 119 mandating that public employers within PERB's jurisdiction provide recognized labor representatives expanded access to newly-hired employees.  This enhanced access is accomplished by mandating that an employer shall provide the union representative access to new employee orientations and to employee contact information.

Agencies must provide the union notice of any new employee orientation with at least 10 days advance notice.  The employer must also provide the name, job title, department, work location, work, home, personal cellular telephone number, personal email address, and home address of any new employee within 30 days of hire or by the first pay period of the month following hire and a list of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are negotiated between the parties.

The disclosure of contact information is expressly modeled after our Supreme Court's holding in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 90, that the privacy clause of state constitution did not excuse the county from disclosing represented employees' contact information to the union.  The statute also adopts the privacy protections set forth in County of Los Angeles.

The legislation also establishes important bargaining obligations that unions should understand. Government Code Section 3557 provides that upon the request of either party, "the parties shall negotiate regarding the structure, time, and manner of the access of the exclusive representative to a new employee orientation. The failure to reach agreement on the structure, time, and manner of the access shall be subject to compulsory interest arbitration pursuant to this section."  Either party can request arbitration over unresolved access issues within 45 days after the first meeting between the parties or 60 days from the first request to negotiate.  

This legislation was enacted in anticipation of potential changes to or elimination of fair share procedures should the Supreme Court decide to hear another challenge to fair share. In Friedrichs v. California Teachers Association, the Court deadlocked 4-4, leaving in place a Ninth Circuit ruling upholding fair share procedures. Regardless of the fate of fair share, this new law provides labor organizations important new tools to increase their voluntary membership ranks and will equally benefit unions that do not have fair share procedures in place.