Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, ... United States Constitution because they
Frequently Asked Questions About Janus v. AFSCME Council 31 What are agency or fair share fees? Members of affiliates are required to pay and remain up to date on their dues to be union members in good standing. Currently, in many jurisdictions, non-members may be obligated to pay a reduced share to the local as an agency or fair-share fee to help offset the local’s cost related to collective bargaining, contract administration and the handling of grievances. Typically, such an obligation would be set forth in the collective bargaining agreement. The plaintiff in the Janus case is asking the Supreme Court to rule that, in the public sector, such arrangements are unconstitutional and invalid. Which jurisdictions have laws allowing the agency shop for IAFF locals? The following jurisdictions presently have laws allowing the agency shop for IAFF locals: Alaska, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. What is the legal issue in the Janus case? The legal issue in the Janus case is whether it is constitutional for a public-sector employer, pursuant to an agreement with the union bargaining representative, to require non-union members to pay agency or fair-share fees. The plaintiff in Janus contends that such arrangements violate the constitutional rights to free speech and association under the First Amendment to the United States Constitution because they require non-union members to subsidize the union, an organization whose views they do not support. Why are unions worried about Janus? If the Supreme Court outlaws the collection of agency or fair-share fees, it will effectively make right to work the law of the land for public-sector employees. Public employees who choose not to join their unions and pay dues would have a free ride and be able to enjoy the benefits and protections provided through the union’s efforts without contributing to the significant cost of achieving and maintaining such benefits and rights. Because the case involves constitutional principles, a ruling in the Janus case will be applicable to all public-sector unions. Is the agency shop currently constitutional? Yes. More than 40 years ago, in the case of Abood v. Detroit Board of Education (1977), the Supreme Court unanimously upheld the constitutionality of state agency-shop laws. Since then, the Court has repeatedly reaffirmed Abood, and unions have structured their finances in reliance 1
on this precedent. If the Court overrules Abood, it will uproot decades of constitutional law and disrupt public-sector-union financial arrangements across the country. When is the Supreme Court likely to issue a decision in the Janus case? Most observers expect the Supreme Court to issue its decision by the end of June when the current term of the Court ends. But the ruling could be issued any day; consequently, it is important for locals to take steps as soon as possible in preparation for an adverse ruling. How is the Supreme Court likely to rule? The Supreme Court is likely to rule against the unions and declare that the obligation to pay agency or fair-share fees is unconstitutional and invalid in public-sector employment. The Court heard an essentially identical challenge just two terms ago in the case of Friedrichs v. California Teachers Association (2016). The Court was primed to rule – almost certainly against the unions – but deadlocked in a 4-4 split decision after the death of Justice Antonin Scalia. As a result, agency-shop laws remained legal. Since then, however, President Trump appointed Justice Neil Gorsuch to replace Justice Scalia. This appointment will likely tip the balance on the Supreme Court against the ability of public sector unions to collect such fees, and instead allow non-union members to get a free ride and avoid any responsibility to contribute towards the cost incurred by the local in bargaining for and maintaining the rights and benefits enjoyed by all members of the bargaining unit. If the Supreme Court rules against the unions, how will it impact your local? If the Supreme Court rules as expected against the unions, the various state laws allowing for the collection of agency or fair-share fees – and the contract provisions implementing them – will be unconstitutional and invalid. It will be unlawful for unions to continue collecting agency fees and for employers to continue making payroll deductions of agency fees. If the Supreme Court rules against the unions, how will it affect the International’s ability to collect agency fees? This decision would not directly affect the IAFF itself because the International does not collect agency fees. Nevertheless, many U.S. locals throughout the IAFF do collect agency fees and will be directly impacted by the decision. If the Supreme Court rules against the unions, how will it affect per capita and dues? An adverse decision in Janus would not, however, invalidate or otherwise interfere with the obligation of union members to pay per capita dues, or the ability of IAFF affiliates to collect these amounts through payroll deductions.
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What should all locals do to prepare for an adverse decision? •
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.
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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.
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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.
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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 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.
For a local that collects agency fees, what should it do to prepare for an adverse decision? •
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.
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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.
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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.
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If agency fees are received directly from employees, prepare to refund them as soon as possible. Be sure to document the refunds.
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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.
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Consult with your local's attorney about all steps you are considering.
If a local does not collect agency fees, but has an agency-shop arrangement with the employer, what should it do to prepare for an adverse decision? •
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.
Note: This Question & Answer document has been prepared for general guidance and consideration by IAFF affiliates. Because circumstances and procedures will vary among different affiliates, it is important for locals to consult with their local attorneys with respect to the specific steps that should be taken to be in a position to properly respond to an adverse decision issued in the Janus case.
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