CSL §208.1(b) entitles a union to automatic dues deduction “upon presentation of dues deduction authorization cards signed by individual employees.”
Most payroll systems came online after the state mandated agency-fee collection for local governments and school districts in 1992, meaning there was no immediate need to differentiate between members and non-members. In the leadup to the Janus, a review by the Empire Center found nearly three in four public employers couldn’t make this distinction, and that many were making dues deductions without first having been presented with a membership card.
If an employee has not signed a membership card, dues should not be deducted from his or her pay. If a union submits new union cards, the employer cannot refuse to acknowledge them on minor technical deficiencies.[1]
Now that New York State requires public employers to enforce the terms of membership cards (see section 3), it is more important than ever that employers possess them. The public employer should review the instructions to ensure that they are not onerous and to determine whether they place any burden or responsibility on the employer (e.g. to escrow funds). Since it is unlikely that the union will agree to defend and indemnify the employer from any actions arising from disputes between the member and the union, the employer may want to consider alternate language as a bargaining subject.
What the public employer should do:
- Verify that any employee for whom dues are being deducted has signed a card.
- Review membership terms outlined on cards
- Consider contract language that will indemnify that employer from any actions arising from disputes between the member and the union
[1] Evidence sustained a finding by PERB of reasonable cause to believe that city violated Civil Service Law §§ 209-a(1)(a), 208(1)(b), 208(3)(b) and 202 when it refused to deduct city employees’ union dues and agency shop fees because of “a few” improperly executed dues deduction authorization cards; thus, injunction against city was warranted under § 209-a(4) pending resolution of matter before PERB, in view of irreparable damage being done to union and its relationship with its representatives. New York State Pub. Employment Relations Bd. v City of Troy, 164 Misc. 2d 9, 623 N.Y.S.2d 701, 1995 N.Y. Misc. LEXIS 54 (N.Y. Sup. Ct. 1995). Ruling on the underlying improper practice charge, PERB found that the city’s refusal to deduct and transmit fees was linked to its effort to influence the outcome of negotiations and that the city had had a longstanding history of dues deduction without question as to the adequacy of dues deduction authorizations. City of Troy 28 PERB 3027 (1995). Simply put, the problem, as usual in these types of charges, is the finding of an improper motive for the employer’s actions.