On June 27, 2018, the U.S. Supreme Court issued a decision in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___ (2018), finding that the extraction of agency fees, also known as “fair share fees,” from nonconsenting public-sector employees is unconstitutional. Fair share fees are dues that non-members of a union are required to pay to cover union expenditures attributable to those activities germane to the union’s collective bargaining activities. Most public school districts in the State of Ohio have been automatically deducting “fair share fees” from non-union member paychecks for decades, pursuant to the terms of their applicable collective bargaining agreements. With the Supreme Court’s decision in Janus, that practice must be discontinued. However, a close reading of Janus reveals that fair share fees have not been categorically prohibited.
Writing for the majority of the Court, Justice Alito held that: “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 waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence.” (Emphasis added.) Thus, if a non-union member affirmatively consents to pay fair share fees, a school district may still deduct and transfer those fees from the non-member’s paychecks to the union. Such an “affirmative consent” would presumably be provided in the form of a written request, signed by the non-union member and submitted to the school district. It is likely that public sector unions throughout the state will develop standardized affirmative consent forms and provide those forms to non-union members, in the hope that they will continue to pay fair share fees. However, in light of Janus, non-union members will not be heavily incentivized to provide their affirmative consent to pay fair share fees, considering that they will continue to receive the same collective bargaining benefits as union members regardless of whether they pay a fair share fee or not.
As a result of this dilemma, public sector unions are likely to focus their efforts on retaining their current membership. Common ways of achieving that objective are by negotiating a shorter window of time during which a union member may withdraw from the union, and by making the withdrawal procedure more complex and burdensome. For instance, a union may try to limit the withdrawal period set forth in the collective bargaining agreement to only a few weeks per year, or it may try to require that withdrawals be made only in writing and only by certified mail. See, e.g., Ohlendorf v. United Food & Commercial Workers Int’l Union, Local 876, No. 1:16-CV-1439, 2017 WL 4535713, at *4 (W.D. Mich. June 30, 2017), aff’d, 883 F.3d 636 (6th Cir. 2018); see also N.L.R.B. v. U.S. Postal Service, 833 F.2d 1195, (C.A.6, 1987). District administrators should familiarize themselves with the withdrawal provisions within their own collective bargaining agreements, particularly if heading into negotiations this coming year.
Finally, district administrators should be prepared for questions from union members about how to withdraw from their union. The U.S. Court of Appeals for the Sixth Circuit, which encompasses Ohio, has held that “an employer may bring to the attention of its employees their right to resign from a union and to revoke dues checkoff authorizations so long as the communication is free from any threat or coercion.” Landmark Int’l Trucks, Inc. v. NLRB, 699 F.2d 815, 821 (6th Cir. 1983), affirmed 272 NLRB 675 (1984), enforcement denied 775 F.2d 148 (6th Cir. 1985). Similarly, the National Labor Relations Board has held that an employer may lawfully “provide neutral information to employees regarding their right to withdraw their union support, provided that the employer offers no assistance, makes no attempt to monitor whether employees do so, and does not create an atmosphere ‘wherein employees would tend to feel peril in refraining from [withdrawing].’” Space Needle, LLC & Unite Here! Local 8 & Julia Dube, 362 NLRB No. 11, at *2 (Jan. 30, 2015) (internal citations omitted). Ohio’s own State Employment Relations Board has not yet expressly addressed this issue.
The safest method of informing union members about their withdrawal rights is to have a written statement prepared which sets forth the applicable withdrawal terms from the collective bargaining agreement, and to provide such information only when solicited by a union member. Districts are advised to consult with their legal counsel when preparing such a statement.
