Page 16 - 2018 Janus Toolkit CCD

SAMPLE LETTER TO BOARD MEMBERS

The United States Supreme Court recently decided the highly-anticipated Janus v. AFSCME case
in a 5 - 4 decision that alters the landscape of public sector employment relations and collective
bargaining. Overturning longstanding precedent, the Court held that public employees may not
be compelled to pay mandatory agency fees, or “fair share” fees, to public-sector unions,
because such involuntary fees violate the First Amendment of the United States Constitution.

Janus v. AFSCME challenged the constitutionality of requiring public employees who are not
union members to pay compulsory agency fees to an exclusive representative. Mark Janus is an
Illinois public sector employee who sued the American Federation of State, County and
Municipal Employees (“AFSCME”), arguing a state law allowing the union to charge and collect
fees from non-members, including Janus, violated his and other workers’ First Amendment
rights.

Agency fee payers are employees who work under an agency fee system who have opted out of
the union. Through agency fees, these employees are required to pay the costs associated with
collective bargaining, grievance processing, and contract administration, among other things.
Agency fee payers cannot be compelled to pay for the political and ideological activities of the
union. At least 22 states, including California, have laws that provide for agency fees. Under
Janus, these agency fee statutes are no longer constitutional. Dues payers, on the other hand,
are employees who are members of the union and pay dues to the union for both the matters
that agency fee payers pay for, and also for the political and ideological activities of the union.
Janus does not immediately impact dues payers because these employees have chosen to be
part of the union. However, the Janus decision held that employees who choose not to be in the
union must affirmatively consent to any payment made by that nonmember to the union.
Similarly, Janus requires employees to affirmatively consent to be in the union, which could
impact public agencies that have a union contract providing for an opt-out system wherein the
employee is automatically in the union and a dues payer unless he/she opts out of union
membership.

The Supreme Court previously decided this issue in 1977 in Abood v. Detroit Board of Education,
then holding it constitutional for public sector unions to collect fees from nonunion members, to
defray the cost of collective bargaining and other activities, provided nonunion members are not
required to pay for a union’s political activities. This has been the law for over forty years, until
now.

In anticipation of the Janus decision, labor unions throughout California lobbied legislators to
obtain more protective and union friendly laws on the books in order to acquire and retain more
dues payers. Assembly Bill (“AB”) 119, requiring public employers to give unions access to new
employee orientations and onboarding, is an example of these lobbying efforts that have
translated into new law. In addition, Senate Bill (“SB”) 285, signed into law in October 2017,