State House Watch – States Respond to the Janus Ruling

The Good

In 2018, the Supreme Court issued a 5-4 decision in Janus v. AFSCME Council 31 that ruled a public employee cannot be required to pay dues or fees for the representation the union provides related to collective bargaining and other representational activities. The majority on the Court ruled that Mark Janus, a State of Illinois employee, had his First Amendment rights violated when his union negotiated good wages, benefits and job protections for him and his coworkers. Although Janus claimed the union-negotiated contract violated his rights, he took every single benefit the union bargained for him. This decision, in which the five far-rightwing Justices were in the majority, overturned over 40 years of Supreme Court precedent.

A number of states have taken action to address the new reality under Janus.

The State of New York took action to protect public employees and their unions before the Janus case was even issued. In April, 2018 Governor Andrew Cuomo signed a new law that required unions be notified of new bargaining unit employees and provided contact information and work location; that unions be provided time to meet with new employees within 30 days on work time; and that unions are not required to represent non-members if they are able to represent themselves under the collective bargaining agreement (CBA).

On June 27, 2018 Governor Cuomo issued an Executive Order which prohibited disclosure of public employee addresses, phone numbers and personal email addresses. This action was taken to prevent unscrupulous outsiders from harassing union members at home.

In September 2019, the Massachusetts legislature overrode Governor Charlie Baker’s veto of a key collective bargaining bill which is a comprehensive response to the Janus decision. Under the new law, non-members may be required to pay the reasonable costs and fees, including arbitrator fees and related attorney fees, for grieving a matter arising under a CBA. A non-member’s failure to pay costs and fees related to the grievance or arbitration relieves the union from further responsibility to the non-member regarding the matter.

The Massachusetts law also requires public employers to provide the union access to members at the worksite during the workday to investigate and discuss grievances and workplace related issues; the right to conduct worksite meetings during non-work time on the employer’s premises; and the right to meet with newly hired employees on company time.

The legislature also amended Massachusetts’ Freedom of Information Act (FOIA) to exclude employee home addresses, personal email addresses, home and mobile telephone numbers, dates of birth and communications between unions and their members from being designated as public records.

Additionally, unions have the right to use an email system of a public employer to communicate with bargaining unit members regarding official union-related matters and the right to use government buildings to conduct meetings related to union matters.

Recently, Oregon passed a new law making it an unfair labor practice for employers to discourage employees from joining a union or to encourage employees to revoke their dues authorization. The new law also clarifies how employees can opt out of dues by requiring an employer to use the method specified in their dues authorization agreement. The law also requires employees who wish to opt out of the union to deliver an original signed, written statement of revocation to the union.

Under the new law, public employers must provide the union with contact information about employees in a bargaining unit and allow unions to use an employer’s email system to communicate with employees. The law also requires public employers to allow union representatives to discuss union-related issues during regularly scheduled work hours without loss of pay.

California and Washington have also passed similar laws helpful to public employees and their unions in response to Janus.

The Bad

Not every state has acted in a manner to limit the negative impact of Janus, Alaska’s Governor Mike Dunleavy attempted to pervert the Janus ruling to make it even more dangerous. On September 26, 2019 Dunleavy issued an Administrative Order that claimed the State could not lawfully deduct dues from union members that signed union membership and checkoff authorization cards unless these employees also “opted in” to membership through a State sponsored website. Although the website was not even in place at the time of the order, the State will stop dues deductions once it develops an “opt in” authorization and deduction process until employees complete a new form. This Order is based a deliberate bad faith misreading of the Janus case and violates the CBA language the State had just negotiated with the union.

In November, an Alaskan judge issued a preliminary injunction against enforcing the order ruling that it was a misinterpretation of the Janus case. The litigation is likely to continue.

The UWUA Responds

To assist UWUA locals facing a right-to-work environment, the delegates to the UWUA’s 31st Constitutional Convention adopted an amendment to Article VI, Section 3 of the UWUA Constitution. The amendment waives initiation fees for new members in bargaining units where union security agreements cannot be lawfully negotiated. This amendment eliminates a potential obstacle for retaining and growing the membership of the UWUA.