PUBLIC EMPLOYERS MUST OBTAIN APPROVAL FROM UNION MEMBERS FOR MEMBERSHIP DUES DEDUCTIONS
The U.S. Supreme Court in Janus held:
"The First Amendment is violated when money is taken from nonconsenting employees for a public sector Union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."
The U.S. Supreme Court was clear. A public employer must have a record of Union members' choice to pay full membership Union dues in order to continue the payroll deduction of voluntary membership Union dues. Has Governor Wolf done this for all state employees under his jurisdiction? A 7-6-18 Right to Know Law ("RTKL") request seeks to find out.
Do non-members (former fair share feepayers) who do NOT wish financially contribute to the Union have to do anything? ...
No. At least, not in theory. Janus makes clear that a person who was a fair-share feepayer must not have any money deducted from their paychecks any longer. If Union dues or fees are still being deducted by your employer, and you have not affirmatively consented to it, be sure to tell your employer and the Union to immediately stop it. Feel free to also contact us.
What about non-members who wish to financially contribute to the Union (even though they don't have to)? ...
The Supreme Court in Janus wrote:
"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 affirmatibely consents to pay. By agreeing to pay*, nonmembers are waiving their First Amendment rights, and such waiver cannot be presumed."
*Some people think this language would permit a non-Union employee who wanted to contribute financial support to the Union (even though the Janus decision says they don't have to contribute anything) to have access to public payroll systems to effectuate such a decision. We do not agree. We find no constitutional, statutory, or contractual basis for such an idea. At a constitutional level the the Supreme Court in Ysursa v. Pocatello Education Association held that Unions have no affirmative right to access public payroll systems. At a statutory level, non-members payroll deductions were mandatory and were authorized by now "dead" laws (the fair share fee laws). At the contractual level (collective bargaining agreement) only Union membership dues are authorized to be deducted (if agreed to be deducted by the terms of a collective bargaining agreement) as provided for by Section 705 of the Public Employee Relations Act (PERA):
"Membership dues deductions and maintenance of membership are proper subjects of bargaining with the proviso that as to the latter, the payment of dues and assessments while members, may be the only requisite employment condition."
[Note: Section 705 of PERA says nothing about the possibility of nonmembers deductions]
Fair share (agency fees) is "dead". Time to change the language to "voluntary payments by nonmembers"
Nonmembers who wanted to financially support the Union (after the Janus decision) would not be bound to do so at any particular level of contribution. One nonmember might think the Union is worth $10/month, another $0/month, and still another might be willing to pay the rate former 'fair share' rate. The constitutional point is that no amount would be required. Expressions like 'fair share' or 'agency fees' are now useless expressions that carry no legal meaning. It makes more sense to say "voluntary payments by nonmembers".
Post-Janus, there is no state law, and no bargaining agreement (that we know of), that a public employer could use to cite as legal authority for deducting voluntary payments by nonmembers. That is not to say a nonmember couldn't contact the Union directly to set up direct payment to the Union - they could. The issue is the use of public payroll systems. Only Union members have a statutory/contractual ability to have payroll deductions of dues per the terms of a collective bargaining agreement as permitted by Section 705 of PERA.