RECENT SUPREME COURT DECISION IN JANUS v. AFSCME RAISES QUESTIONS FOR ASSOCIATIONS

by | Oct 9, 2018

On 6/27/18, the U.S. Supreme Court issued its decision in Janus v. AFSCME.  The bar­rage of commentary which has followed may render it difficult for the many police officer asso­ciations affected by this decision to dis­cern what is important.  Therefore, I am pro­vid­ing the following question-and-answer series to provide guidance to these associ­ations regarding the significance of the Janus decision.

 

QUESTION #1: Does this deci­sion change existing law?

 

ANSWER: Yes.  By this deci­sion, the Su­preme Court has overruled the prece­dential law established by Abood v. Detroit Bd. of Education 431 U.S. 209 (1977). In Abood, the Su­preme Court approved the man­da­tory/involun­tary col­lec­tion of agency shop/fair share fees.

 

QUESTION #2:  Does this deci­sion eliminate public sector employee unions?

 

ANSWER: No.  The decision prohibits public sector unions from compelling the involuntary or non-consensual payment of agency shop fees from non-members.

 

QUESTION #3: Does this decision eliminate agency shop provisions in public sec­tor col­lec­tive bargaining agreements?

 

ANSWER: To the extent that such provisions allow the em­ployer, at the behest of the union, to collect agency fees from non-members, those pro­vi­sions are no longer deemed constitutional.

 

QUESTION #4: If my Asso­ciation does not exist as a closed agency shop, does this decision require me or the Association to do anything dif­ferent from what we have been doing?

 

 

ANSWER: No.

 

QUESTION #5: How do I know if I work in a closed agency shop?

 

ANSWER: It will be in your collective bar­gain­ing agree­ment (labor contract) with your City, County or District.  Cur­rently, most As­so­­ciations are not agency shops (with the ex­ception of SDPOA, SDCPOA and DSA, which are repre­sented by Fern Steiner).

 

QUESTION #6: From this date forward, will my Association now be required to get signed permission on an ongoing basis to collect Association dues?

 

ANSWER: No, not from members.

 

 

QUESTION #7: Can non-mem­­bers agree to voluntarily pay an agency fee?

 

 

ANSWER: Yes.  However, any non-mem­bers who waive their constitutional rights so an agency fee can be collected from them must sign a written waiver granting consent to the Association to collect the fee, and such waivers should be obtained on the same cycle that would have applied to distribution of Hudson letters.

 

QUESTION #8: For Asso­ci­a­tions which had agency shop status, is there a re­quire­ment that the Association refund any and all agency fees which have been collected for the duration of an employee’s employment?

 

ANSWER: No.  Prior to the Janus decision, collection of agency fees was deemed con­stitutional by the precedent established by the Abood decision. Pro rata refunding to fee payers for the period since the date of the Janus decision would be appropriate.

 

QUESTION #9: My Asso­ci­a­tion had been thinking of nego­tiating for agency shop status — is that now prohibited?

 

ANSWER: No.  However, you will not be able to compel the involuntary payment of an agency fee from those em­ployees who choose not to join the Association.

 

 

 

QUESTION #10: Under the duty of fair rep­resentation, does my Association still have the duty to bargain for non-members, even if the non-members don’t pay their fair share?

 

ANSWER: Yes, unless and until State law changes.

 

Keep in mind that our brothers and sisters in law enforcement recognize the tremendous ben­e­fits of Association mem­ber­ship in such areas as public safety legislative influence through PORAC, supplemental insurance, retiree medical trusts, criminal defense and administrative legal defense. These benefits are only avail­able to Association members.

 

It is for this reason that most of your Asso­ci­a­tions enjoy 100% (or nearly 100%) volun­tary mem­bership. The Janus deci­sion does not change this.  It only applies to Associations which are agency shops, and within those groups, the deci­sion benefits only those em­ploy­ees who are non-mem­bers.

 

Legislative changes at both the federal and state levels are anticipated to adjust to the paradigm shift intro­duced by this decision. For now, we will all simply need to watch and, when appro­priate, weigh in on any legis­lative proposals.


THE LAW OFFICES OF SCOTT A. O’MARA
2370 Fifth Ave. San Diego, CA 92101
4200 Latham St. – Ste. B Riverside, CA 92501-1766
1-800-LAW-1199 (1-800-529-1199)
619-583-1199 951-276-1199
www.law1199.com
BOBBITT, PINCKARD & FIELDS, A.P.C.
8388 Vickers St. San Diego, CA 92111
4200 Latham St. – Ste. B Riverside, CA 92501-1766
858-467-1199
www.coplaw.org


NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

RECENT SUPREME COURT DECISION IN JANUS v. AFSCME RAISES QUESTIONS FOR ASSOCIATIONS


THE LAW OFFICES OF SCOTT A. O’MARA
2370 Fifth Ave. San Diego, CA 92101
4200 Latham St. – Ste. B Riverside, CA 92501-1766
1-800-LAW-1199 (1-800-529-1199)
619-583-1199 951-276-1199
www.law1199.com
BOBBITT, PINCKARD & FIELDS, A.P.C.
8388 Vickers St. San Diego, CA 92111
4200 Latham St. – Ste. B Riverside, CA 92501-1766
858-467-1199
www.coplaw.org


NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.