Writing for the majority in Janus, Justice Samuel Alito wrote, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” [emphasis added]
Many collective bargaining agreements contain express language recognizing an “agency shop”. An example of such contract language is as follows:
ARTICLE XX – AGENCY SHOP.
The (County/City/Town/Village) shall deduct from the wages of those employed in the bargaining unit who are not members of the union, a service fee (agency fee) equivalent to the total annual dues paid by members of the union. Such service fee shall be deducted in the same manner as payroll deductions of dues and transmitted to the union.
While this provision is now unconstitutional and thus unenforceable,[1] it should be removed from the collective bargaining agreement. Most unions understand this and will agree to remove such language.
Soon after Janus was decided, Assemblyman Richard Gottfried of Manhattan signaled he would introduce legislation to help unions “overcome” the court’s decision by allowing for direct subsidies of the unions in lieu of agency fees. Such arrangements, if pursued, would also be constitutionally suspect and should be avoided.
What the public employer should do:
- Work with the union to remove the agency-fee language from its contract.
- Avoid agreeing to any direct subsidies or other Janus ‘workarounds’ which could subject the employer to litigation.
[1] City of Troy, 28 PERB 3027 at 3064 to the effect that the law controls the agency shop fee deduction obligations, not the provisions of any contract negotiated at a time when the applicable law was different