July 2018 Newsletter – School Districts
The Impact of Janus and California’s Legislative Reaction
The last week of June saw two developments that may have an impact on continued labor relations with employee representatives.
Supreme Court Rules “Agency Fees” Are Unconstitutional
In a decision issued on Wednesday, June 27, 2018 (Janus v. American Federation of State, County, and Municipal Employees, Council 31 (“Janus”)), the Supreme Court of the United States ruled that a union’s collection of “agency fees” or “fair share fees” from public employees violates the First Amendment to the US Constitution. (585 U.S. ____ (2018); see slip opinion at https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf.)
Justice Alito, writing for the majority in the 5-4 decision, discussed the grander judicial implications of overruling Abood v. Detroit Board of Education. (431 U.S. 209 (1977).) Under Abood, an agency fee could be assessed from employees who chose not to join the union as a way to cover expenses relating to collective bargaining, grievance proceedings, and contract administration costs incurred by the union. However, the majority in Janus explicitly overruled Abood in order to protect the First Amendment rights of public employees. Characterizing the fees as “compelled speech,” and a subsidized contribution to an organization that the employee may disagree with, the Supreme Court recognized that agency fees may “seriously impinge” First Amendment rights and thus require additional scrutiny.
In effect, the ruling of the Supreme Court was fairly narrow – Abood is overruled, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.” (Janus, slip op. at 48.) The decision does not invalidate the collection of union dues from union members; it does not eliminate the concept of an “exclusive representative”; it does not relieve unions of their power to bargain wages, hours, and conditions of employment. The Court explicitly discussed grievance procedures as an activity that directly impacts “administration of a collective-bargaining agreement, since the resolution of one employee’s grievance can affect others.” (slip op. at 16.) However, citing specifically to the California Educational Employment Relations Act, the Court left open questions regarding non-member employee representation in discipline proceedings. (slip op. at 17, fn. 6.)
The narrow question was answered. In order to deduct any payment from a nonmember’s wages, the union must obtain an employee’s affirmative consent. An employee signing a dues deduction card waives their First Amendment right, but such a waiver may not be presumed, but “must be freely given and shown by clear and convincing evidence.” (slip op. at 48; internal quotes and citations omitted.)
The deduction of agency fees authorized by Abood stood for the past 41-years. That practice is no more. Employee organizations across California, and across the country, are likely deciding where to go from here. The effect on public-sector employers is clearer – cease deduction of agency fees from non-union employee wages immediately. The section of the EERA that authorized agency fees is (likely) void, unenforceable, and unconstitutional. (Govt. Code § 3540.1.) The bulk of the EERA does not seem to be in immediate danger, as the Legislature has included a severability clause providing that the remainder of the Act remains in effect if a portion of it is deemed invalid. (Govt. Code § 3549.3.)
SB-866 – California Legislation Regarding Public Employee Labor Relations
Governor Brown signed Senate Bill 866 into law on the same day as the Janus ruling, June 27, 2018. SB-866 was introduced as an act relating to the 2018 budget, but was amended in the Assembly on June 13, 2018, passed by the Assembly and Senate on June 18, 2018. The overall effect of the amendment was to clarify existing law and add statutory protections for employee organizations and public employers. SB-866 became effective immediately, on June 27. The following subjects have been modified.
Employee Payroll Deduction/Dues Authorizations
SB-866 modified the Education Code with respect to payroll deductions for union dues. (See Educ. Code § 45060 (K-12 certificated); 45168 (K-12 classified); 87833 (community college academic); 88167 (community college classified).) Specifically, employee requests to revoke their dues authorizations must now be directed to the employee organization for processing. Further, requests to revoke dues authorization must be submitted to the employee organization in writing, and must conform to the terms of the authorization. Additionally, an employee organization that certifies that it has and will maintain individual dues authorizations is not required to submit proof of individual authorizations to the governing board except in cases where a dispute arises about the existence or terms of the authorization. Finally, when an employee organization certifies that it has and will maintain authorizations, the employee organization “shall indemnify the governing board for any claims made by the employee for deductions made in reliance on its notification.”
The legislature has thus created a paradigm wherein the authorization to deduct dues and any subsequent revocation of the same is a matter strictly between the employee and the employee organization.
Communications Intended to Deter or Discourage Union Activity
Previously effective January 1, 2018, Government Code section 3550 required public employers to refrain from any communication that would “deter or discourage” District employees from “remaining members of an employee organization,” as doing so is an unfair labor practice. (Govt. Code § 3550.) SB-866 extends this prohibition to individuals applying for employment, and additionally mandates that public employers may not make communications intended to deter authorization of an employee organization or the authorization of dues/fee deductions.
However, if a public employer chooses to communicate via “mass communication,” including written documents and/or scripts for oral/recorded presentation, with employees and/or applicants regarding employees’ right to join, support, or refrain from joining or supporting an employee organization, the district “shall meet and confer with the exclusive representative concerning the content of the mass communication.” (Govt. Code § 3553(b).) In the event that the district and union cannot agree on the content of the message, the district “shall distribute…in addition to, and at the same time…a communication of reasonable length provided…by the exclusive representative.” (Govt. Code § 3553(c).)
Access to Information Regarding New Employee Orientations
In addition to the provisions effective January 1, 2018, Government Code section 3556 providing access to new employee orientations to the exclusive representative has been modified to create a degree of privacy. Specifically, only the employees, the exclusive representative, and any vendors contracted to provide a service at the orientation shall be entitled to receive information regarding the date, time, and place of the orientation. (Id.) This information “shall not be disclosed” to any other parties. (Id.) Previously, we had received information from clients suggesting that some organizations have been expressly requesting employee orientation information through California Public Records Act requests. Accordingly, it is our opinion that information requests relating to employee orientations made by individuals or organizations that are not employees, employee organizations, or contracted vendors are expressly prohibited by operation of Government Code section 3556, and exempt from disclosure under the CPRA. (See Govt. Code § 6254(k).)
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