Janus v. AFSCME (Q & A)
What you need to know about the US Supreme Court "Janus" decision
and its impact on our Technical Employees Association (TEA)
Since the release of the "Janus v. AFSCME" decision by the US Supreme Court last month, we’ve been receiving some member questions about the decision and how it affects TEA and member obligations to pay dues or agency fees in lieu of dues. We’ve consulted with our lawyers, Cline and Associates, and they’ve helped us develop this Q and A that we hope will bring you current on ”Janus" and what it means.
Q: The US Supreme Court has held that unions, which would include the Technical Employees Association, can no longer charge agency fees, also known as fair share fees, for nonmembers. Is full membership no longer required as a condition of employment, even though TEA’s Collective Bargaining Agreements (CBA) currently says that membership in the TEA is required?
A: Yes, the Supreme Court held that labor contracts cannot compel full union membership or alternatively “agency/fair share fees” to cover contract negotiation costs. TEA’s current labor contracts allow TEA to charge agency fees to non-members and non-members must pay those fees as a condition of employment. These provisions will need to be amended to allow new employees to opt into full union membership.
Q: Can a bargaining unit member that does not opt into full union membership by paying dues receive individual representation without charge?
A: The Janus case specifically states that the Union owes a duty of fair representation to all of the members of its bargaining unit, regardless of whether the member is a dues paying member, or not. However, Janus allows for the charging of "service fees" for nonmembers who request individualized services from their union. The purpose of this provision is to relieve the burden that paying members of unions would shoulder if the union is required to represent a non-dues-paying member in an individual kind of activity, such as a grievance or classification matter.
Q: What are "service fees" and how is that different from what nonmembers used to pay?
A: Previously anyone that wanted to opt out of TEA membership was required by the contract to pay a "fair share" amount in lieu of dues that approximated the costs of representing the entire bargaining unit in contract bargaining. An agency or fair share amount was calculated using all the costs incurred to negotiate and enforce the labor contract, and that fee was automatically required of anyone that opted out of membership. A service fee, on the other hand, only relates to the individual representation and is an estimated amount to be held in a trust account and would be required at the time a non-member seeks representation.
Q: If "fair share or agency fee" covers all representation and ”service charges" are only for individual representation, and that means that "service charges" would be less than dues over time?
A: "Agency fees" would normally be about 85% to 95% of full dues. Service charges could be zero if a nonmember never asks for any representation over the course of their entire employment. However, individual service fees would likely to be more than dues if a member needs individualized services. Dues paying members receive individualized services of representation in grievances, arbitrations, and classification actions. As such, paying dues and retaining status as a full member acts like a form of insurance, where everyone pays a small amount in dues to cover legal expenses for contract negotiation and for representation of individual grievances, if an individual matter arises. Our legal advisor, Cline and Associates, has performed a ten year historical analysis of the legal costs of pursuing disciplinary cases, which revealed legal fees and costs ranged from $8,000 to $20,000 for a suspension case, and $40,000 to $100,000 for a termination case, with an average of $60,000. A nonmember would be expected to pay an upfront estimated amount for those expenses and be liable for any additional expenditures of time.
Q: How are service fees determined?
A: If you look at the attached new dues option and informed consent form TEA is implementing, it defines service fees and how they are calculated. If a non-member is disciplined and asks for representation, they have to make up front and full payments into a trust account for the estimated cost of TEA representation. As noted in the previous answer, estimated costs that could be quite high based on previous suspension and discharge cases, whether they are incurred by TEA’s counsel or another private legal firm. The consent form is intended to convey such risks so that employees who want to avoid paying dues would understand that they run a risk of being liable for charges that may greatly exceed regular TEA dues.
Q: I can see that those are substantial fees. If someone had to pay those full and up front, I don’t know too many who would be able to come up with such sizeable amounts of money. But as a practical matter, what just keeps a nonmember from rejoining the Association when they realize that they are having job troubles and want to get Association protection?
A: TEA will need to change its bylaws to eliminate the "Fair Share" language and replace it with ”service charge" language. Under the revised bylaws, members will be allowed to become Full Members at any point after the initial 30-day sign up period, whenever they decide they want representation, but they will have to pay the service charges for representation on any individual issues that exist before or at the time they rejoin as well as back dues.
Q: So someone that drops out of the Association can’t rejoin later?
A: They can, they just cannot avoid these service charges, or avoid paying back dues. They’ll have to cover any dues that they missed out on up to a maximum amount to be determined, but currently planned to be 12 months. These requirements are designed to prevent people from going in and out of full membership solely in order to receive benefits without paying dues in on a regular basis. These provisions will assure TEA maintains a sound financial model that is fair to dues paying members.
Q: Someone that opted out without fully understanding all the financial risks and later needed representation later could feed that they did not receive adequate notice. How will TEA help him or her to understand what the risks of opting out?
A: That’s why we have developed a lengthy "informed consent" form as part of the opting in/out process. We intend to ensure that no one will withdraw from TEA or decline to join without being fully informed of the potential risks. For new employees, we intend to meet with them one-on-one to discuss the issue.
Q: Are the employees who decline to pay dues allowed to participate in the Association?
A: No. Only Full Members have a vote on TEA matters or serve on the TEA Board. This includes the contract negotiation committees, elections, and anything else that requires membership votes.
Q: If giving up voting rights and having potential financial exposure to service charges is the consequence to individual bargaining unit members of opting out, why is TEA concerned about losing members?
A: We believe that the media, anti-union special interest groups, and even the employer and other unions will not fully understand that Janus replaced the fair share charge with the necessity for unions to charge non-members for services. We cannot speak as to how other unions are going to handle this but we believe that most members will find it preferable to continue to pay dues. Even if people do not care about their TEA voting rights, the possibility of encountering some type of individual issue does not change and without TEA representation this new union environment potentially carries additional financial risk.
One distinguishing characteristic of TEA is a high standard of advocacy and attorney engagement in grievance and contract enforcement matters. Cline and Associates has performed a ten year review of time spend on grievances and arbitrations matters, e.g., suspensions and termination cases, and this gives us a new understanding of the level of effort involved in defending employees.
Q: If a member doesn’t opt back in, can they hire their own lawyer?
A: Not in all circumstances. By law, only the TEA has standing to enforce the Collective Bargaining Agreement, through grievances that go to arbitration. This standing is to make sure that outside parties do not interfere with our contract or take cases to arbitration that the TEA would resolve in a different manner.
Q: Okay, I have decided that although I do not expect to have any job issues I’m still going to pay TEA dues because I want to have a voice. How do you persuade those who think they will never need the union to pay dues?
A: The analogy that we think makes sense is with house insurance—you do not expect that your house to burn down but you still buy fire insurance. Think of Association dues like "career insurance" – you hope you never need it but not having that insurance is too costly to forego, particularly since not everything is under your control. Many employees who consider themselves outstanding employees can become involved in a disciplinary matter or be the subject of unfair or arbitrary management decisions. TEA does not discuss individual cases except on a ”need to know basis", but there are many instances where members of the Association never thought they would need representation until they in fact did.
Q: Do you think that the impact of Janus is overblown? Why do you think the news reports tend to focus on potentially dire impacts on unions?
A: In Washington, a political group funded by the Koch Brothers called the Evergreen Freedom Foundation is sending out mailers to TEA members’ homes telling them that they no longer have to pay "union dues." But the mailers do not talk about ”service charges" and the potential risk of exposure that employees can have without the union support. Regardless of the Evergreen Freedom Foundation’s agenda, our lawyers prepared the dues waiver informed consent form so no one would opt out of paying union dues without realizing what risk they could be taking on, something the Koch foundation may have overlooked in their communication. It is our job to make sure employees hear the union side of the issue and understand how the costs of being union members confers substantial advantages, not just through the collective bargaining for wages and benefits, but for representing individual full members free of charge on personal matters. We believe it is worth the dues, or else we wouldn’t be volunteering our time to lead the union. We anticipate that most of our members will not change their current dues paying status and will remain full members. TEA expects the impact on TEA revenues that the Janus decision crates will have minor impacts to TEA over time.