13th Aug 2018
As you are aware, Governor Phil Murphy recently enacted the Workplace Democracy Enhancement Act (“Act”), P.L. 2018 c. 15, which significantly expands the rights of unions in the public sector. However, on June 27, 2018 the United States Supreme Court issued its long-anticipated decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U. S. ____ (2018). The decision in Janus overturned forty (40) years of precedent and held that public sector employees who do not choose to become union members cannot be required to pay “agency” fees to unions that represent them in collective negotiations without affirmatively consenting to such fees. As a result of the decision in Janus, many questions have arisen regarding its impact on the Act. Below, please find our legal advice regarding many frequently asked questions on the impact of Janus on the Act.
- What was the holding of Janus?
In Janus, the Supreme Court held that public sector, involuntary “agency fee” arrangements violate the First Amendment rights of nonmembers and are therefore legally impermissible.
- How should the employer handle non-members who currently have “agency fees” deducted from their payroll?
Payroll deductions for these employees should cease immediately. Deductions to a non-member’s paycheck for “agency fees” cannot resume unless the employee clearly and affirmatively consents to payment of “agency fees.”
- Does the union still have a duty of fair representation to employees who do not pay “agency fees”?
The duty of fair representation requires unions to represent all persons in the collective bargaining unit, whether or not they are members of the union. The decision in Janus does not disturb the union’s duty to fairly represent both members and non-members of the union. See Janus, Slip Opinion, at 15 (“What this duty entails, in simple terms, is an obligation not to “act solely in the interests of [the union’s] own members.”). The Court explained:
[The duty of fair representation] is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. As explained, designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers’ rights. Protection of their interests is placed in the hands of the union, and if the union were free to disregard or even work against those interests, these employees would be wholly unprotected. That is why we said many years ago that serious “constitutional questions [would] arise” if the union were not subject to the duty to represent all employees fairly.” See Slip Opinion, at 17-18 (internal citations omitted).
Accordingly, both members and non-members of a union “must be treated fairly and evenly particularly with respect to employment of procedures established [in a collective bargaining agreement]”, including, but not limited to, grievance procedures and disciplinary matters. See Woodbridge Township Federation of Teachers, 6 NJPER ¶ 11237 (1980); PBA Local 136, 32 NJPER ¶ 103 (2008).
- Does the decision in Janus impact employees who have already opted-in to the Union?
The decision in Janus does not impact employees who have chosen to be members of the union and have full union dues deducted from their paychecks. Accordingly, the Janus decision does not impact union members who have already consented to full membership.
- Did Janus overturn any of the Act’s provisions?
Janus did not expressly overturn any provisions of the Act. However, when the Act was signed into law, Governor Murphy acknowledged that some of its provisions may need to be revised as result of the Janus decision. Our office will monitor whether any changes are made to the Act and will provide guidance regarding same in the event any revisions occur.
- What should an employer do if a union member requests to opt-out of the union?
The Act provides that an employee may revoke his or her membership by providing written notice to the employer during the ten (10) days following each anniversary date of their employment, and the employer then has five (5) days to provide notice to the union. Such revocation is effective on the 30th day following the anniversary date of employment.
If an employee is exercising his or her right to opt-out during the ten (10) day opt-out period, the employer should provide written notification to the union within five (5) days. The employee’s revocation will become effective thirty (30) days after his or her employment anniversary date. In the event the employee is not exercising this right within the ten (10) day opt-out period, it is our recommendation that you advise the employee that pursuant to the Act, he or she may only opt-out of the union during the ten (10) days following his or her anniversary date, and any additional questions should be directed to the union.
- Should the employer provide information to employees about their rights under the Act?
Our office recommends that if an employee seeks information from the employer regarding the Act, the employee should be directed to consult with his or her union representative.
The Act provides that “[a] public employer shall not encourage negotiations unit members to resign or relinquish membership in an exclusive representative employee organization and shall not encourage negotiations unit members to revoke authorization of the deduction of fees to an exclusive representative employee organization.” Any violation of this section is regarded as an unfair labor practice, and as remedy the employer will be ordered “to make whole the exclusive representative employee organization for any losses suffered by the organization as a result of the public employer’s unlawful conduct and any other remedial relief deemed appropriate.”
Because the provisions of the Act have not yet been interpreted by the courts or by the Public Employment Relations Commission, our office recommends that the employer refrain from providing employees with information regarding the Act, as the union will likely argue that providing such information is being done to encourage employees to resign or relinquish membership from the union in violation of the Act. If an employee requests information regarding the Act’s provisions, our office recommends that the employee be directed to consult with the union for more information.
Should you require any additional assistance regarding the impact of the Supreme Court’s decision in Janus or the Act, please do not hesitate to contact our office.