Labor Relations: The Meet and Confer Process

e. Elimination of Agency Shop Arrangements and Union Fee Deductions For more than 40 years, an agency shop arrangement required that, as a condition of continued employment, a public employee within the defined bargaining unit either join the recognized employee organization as a member, or not join as a member and instead pay a service fee to the organization. 196 The MMBA previously permitted agency shop arrangements by either agreement between the public agency and a recognized employee association or by the employees’ election in the applicable bargaining unit. 197 On June 27, 2018, the United States Supreme Court ruled agency shop arrangements unconstitutional under the First Amendment of the U.S. Constitution. In Janus v. AFSCME , 198 the U.S. Supreme Court specifically held that public agencies and “public-sector unions may no longer extract agency fees from nonconsenting employees.” 199 The Court reasoned that agency shop arrangements violate free speech rights of non-member employees by compelling them to subsidize private union speech on matters of public concern. The Court also held that compelling employees to pay agency fees “violates the First Amendment and cannot continue. 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 a waiver cannot be presumed … Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence.” 200 This ruling prohibits public sector employers from deducting agency shop/service fees from non- union member employees. As a result of Janus v. AFSCME , 201 public sector employers will need to meet and confer over the negotiable effects of the Janus decision, including for example, modifying inconsistent bargaining agreement provisions or removing union membership forms from the agency’s new employee packet. For example, if an employer wishes to communicate to employees regarding the Janus decision and/or the right to join or not join an employee organization, it must now first meet and confer with the employee organization prior to disseminating that “mass communication.” 202 The term “mass communications” under Government Code section 3553 is defined as “any written document, or script for an oral or recorded presentation or message, that is intended for delivery to multiple public employees.” 203 If employers and unions cannot agree on the content of an employer’s mass communication, the employer must include the union’s own communication when it distributes its own mass communication. 204 Additionally, public sector employers must honor union and employee requests to deduct union dues and honor the terms of written employee authorizations. 205 Further, whereas previously the public sector employer maintained the employee’s written authorization for the deduction of dues or fees, now it must rely on the union’s certification that a specific employee has authorized Within hours of the U.S. Supreme Court’s Janus decision, Governor Brown signed into law S.B. 866, urgency legislature designed to, among other things, combat the impact of Janus.

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 37