INTRODUCTION
Governor Andrew Cuomo in 2018 pledged to “protect and strengthen” public employee unions after the U.S. Supreme Court ruled the unions could no longer force non-members to pay them.
The decision in Janus v. AFSCME ended New York’s decades-long “agency-shop” arrangement under which workers who chose not to join a union were charged the same amount they would have paid if they had joined. The end of agency-shop meant it suddenly became optional for upwards of one million New York public employees to continue paying dues that typically range from $400 to $1,400 annually. Tens of thousands of New York public employees have since opted to stop.
Cuomo’s policy to “protect and strengthen” the unions involved directing a deluge of misinformation toward both public employees and municipal leaders:
- The state Labor Commissioner, in July 2018, sent factually inaccurate “guidance” directing local governments and school districts to continue deducting union dues even without employee consent. The state’s “Local Government Handbook,” despite being revised in 2019, still tells employers they must make union deductions from people who choose not to join.
- One major union has presented new hires with a “beneficiary form” for a $10,000 death benefit—which, a reading of the fine print reveals, is actually an agreement to pay union dues.
- State agencies have told new employees, incorrectly, that they won’t receive employer-funded benefits unless they sign a union membership card.
- Neither New York State nor the City of New York—the state’s two largest public employers—notified their employees about Janus. Most of New York’s other largest public employers appear to have also failed to tell their workers.
- As of August 2022—more than four years after Janus—several state agencies and large municipalities were still distributing employee handbooks falsely indicating that paying a union was a mandatory condition of employment.
Employers
understand they should never engage in coercive activity, which includes speaking
disparagingly about the union or an employee’s involvement with the union. But
few understand where those speech restrictions end, and that they are always
allowed to give their employees a complete and accurate picture of how state
law affects them.
Background: Management’s Speech Rights Under the Taylor Law
Managers and elected officials often worry that talking about collective bargaining with their employees will lead to state penalties, either for speech being deemed coercive or threatening or for direct dealing (attempting to negotiate directly with employees rather than the union that represents them).
Few public employers know they enjoy significant speech rights under the Taylor Law, which is enforced by the state Public Employment Relations Board (PERB).
In a key 1984 decision, PERB held an employer’s actions—in this case, discussing potential layoffs with union-represented workers—would be improper “only if they were intended or likely to coerce employees into relinquishing rights guaranteed by the Taylor Law, such as the right of the union’s membership to decide whether or not to accept or reject a negotiated agreement or the right to take the dispute to arbitration.”[1]
This view of employer speech rights has endured:
- PERB in 1999 found that factual, informative communications with employees (in that case, about the status of negotiations) which was not threatening or coercive was also not prohibited by the Taylor Law.[2]
- “The announcement or sharing of information with employees, without any intention to reach agreement as to terms and conditions, or bypass the union, is not prohibited” by the Taylor Law, PERB held in a 2005 case.[3]
- A PERB Administrative Law Judge in 2019 upheld an employer’s right to discuss the outcomes of a grievance with employees.[4]
Remember: it is only communication by public employers that is intended to interfere, restrain, discourage or coerce from exercising rights to join, form or participate in unions that could form the basis of an improper practice charge.
THE 5 STEPS EVERY EMPLOYER SHOULD TAKE
1. Make sure new hires understand their rights and who to ask.
New hire orientation sessions often leave out a crucial detail: every New York public employee has the right to join, or not join, the union.
You should also advise the employee that the law states that the union authorization document will dictate the procedure should the employee later decide to withdraw the authorization for union dues deduction.
A sample notice of non-discrimination, which can be included in orientation packets, is provided in Appendix A.
Watch out for these common sources of confusion:
- If a union administers employee benefits, make sure employees understand these benefits are funded by the employer, not by union dues. For instance, employees sometimes believe they need to pay CSEA dues to receive dental and vision benefits administered by the CSEA Employee Benefit(s) Fund.
- Some employers include a union membership application in their orientation packets. Unless this is explicitly required by a contract, an employer should never distribute union membership applications.
- Employers should designate a member of the management team as the point of contact for questions about anything related to the contract. Employees should never have to ask the union for information about their relationship with their employer.
2. Tell your current employees about the Janus decision.
Janus made agency-fee deductions a prohibited subject of bargaining, which changed the terms and conditions for every unionized employee covered by the Taylor Law. New York since 1992 had required anyone represented by a union to pay a dues-like fee if they chose not to join that union. That means many if not most employees who chose to join the union did so believing they’d have to pay regardless. An example Janus notice is attached in Appendix A.
3. Update your orientation material, employee manual, and job postings.
Educating public employees about their rights begins even before they’ve accepted the position.
Besides missing an opportunity to tell people about their rights, state and local government employment materials often include outdated information. Most notably, some employee handbooks still indicate payments to the union are mandatory.
Every point of contact with a new hire, from job postings to orientation to the employee handbook, should mention their rights under Civil Service Law §202:
“Public employees shall have the right to form, join and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing.”
4. Update and post your contract online.
The union contract applies to everyone in the bargaining unit, not just union members, so employees should be able to access the contract directly. If your most recent union agreement was a memorandum of understanding, memorandum of agreement, or arbitration award, make sure to update the main contract document to reflect those changes. This makes it easier for your employees (and the public) to understand the terms and conditions of employment.
4. Leave union membership issues to the union.
Tens of thousands
of New York public employees have opted to discontinue or otherwise forgo union
membership in recent years. If an employee makes a written request to
discontinue union dues deduction, cease deductions immediately and notify the
union. Forcing an employee to pay a public-sector union against his or her will
is a violation of the First Amendment of the United States Constitution.
Employers must ensure that a signed membership card exists for any individual
on behalf of whom union dues are being withheld.
ENDNOTES
[1] 17 PERB ¶ 3068, 17 Off. Dec. of N. Y. Pub. Employee Rel. Bd. ¶ 3068, 1984
[2] 32 PERB ¶ 3035, 32 Off. Dec. of N. Y. Pub. Employee Rel. Bd. ¶ 3035, 1999
[3] 38 PERB ¶ 4503, 38 Off. Dec. of N. Y. Pub. Employee Rel. Bd. ¶ 4503, 2005
[4] 52 PERB ¶ 4537, 52 Off. Dec. of N. Y. Pub. Employee Rel. Bd. ¶ 4537, 2019
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