The U.S. Supreme Court is expected to issue its decision on the constitutionality of fair share fees in the pending case of Janus v. AFSCME before the Court adjourns its current session at the end of June. We will follow-up with an e-mail alert when the case is issued.
It is widely expected that the Court will rule that the mandatory deduction of fair share fees is unconstitutional. If the Court rules as expected there are two immediate impacts that you should be prepared for:
- Public employers will have to cease making fair share deductions for employees. We expect that this mandate will be effective immediately and do not expect a grace period.
- If the union or association demands to bargain as a result of the Court ruling, you will have an obligation to bargain pursuant to ORS 243.702, and, perhaps, pursuant to a “severability” or “savings” clause in your collective bargaining agreement that provides a right to bargain over provisions determined to be unlawful or invalid.
The Court’s ruling will not affect a public employer’s obligation to make deductions for union members or those employees with a deduction authorization or request form consistent with ORS 243.776 and 292.055.
What to Do Now
You may want to consider (1) reviewing your records now and see if they are in order to allow you to identify fair share payers; (2) asking the union representing your employees to provide a list identifying who are union members, according to the union records, and; (3) reaching an understanding with the union (and even individual employees) about who is a fair share payer. Representatives of both AFSCME and SEIU state organizations have asserted that their membership rolls are quite reliable and that the state organizations have been working with local unions to maintain up-to-date membership rolls.
Public employers should caution supervisors and managers about what is said to bargaining unit members about Janus when it is issued—you might even direct them not to discuss the case with bargaining unit members. Any suggestion from supervisors or managers to bargaining unit members that could be construed as encouraging union resignations is likely to be met with unfair labor practice charges for interference with protected employee and union rights under ORS 243.672(1)(a) and (b).
We understand that some public employers deduct "fair share fees" pursuant to individually executed deduction authorization forms. You should consult with counsel about the effect of such forms.
The Bargaining Obligation
Under ORS 243.702, when any provision of a collective bargaining agreement is deemed invalid, “the invalid words or sections of the collective bargaining agreement shall be reopened for negotiation” upon the request of either party subject to PECBA’s 90-day interim bargaining process. In addition, many collective bargaining agreements have similar provisions, which may arguably impose more broad obligations than those found in the PECBA.
We understand some unions have already sent out a letter about bargaining in anticipation of the Court’s ruling. Some of the letters appear to be an effort to shift the burden or risk of noncompliance with the anticipated change to the employer from the union. If you want advice about how to respond, please contact us.