Janus Presents Opportunities For Private Attorneys To Participate In Union Proceedings

On June 27, 2018, the Supremes held in Janus v. AFSCME, 585 U.S. ___(June 27, 2018), that agency fee statutes violated the First Amendment. Some 22 states, including NYS, have agency fee legislation which requires public employees to pay a fee instead of union dues if they do not want to join a union. Those individuals can also object to paying a portion of the agency fee that was unrelated to collective bargaining. That was the rule established in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977) that Janus overruled.

Very significantly, in response to the argument that agency fee statutes were necessary to prevent the free rider problem (i.e., non-union members receiving union services for free), the Court stated at page 17:

"In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated through means significantly less restrictive of associational freedoms than the imposition of agency fees. Individual nonmembers could be required to pay for that service or could be denied union representation altogether.  Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers." (emphasis added)(citations omitted).

In anticipation of this decision, New York recently amended the Taylor Law to provide that unions do NOT have a duty to represent non-members in disciplinary proceedings or in investigatory interviews. Specifically, the Taylor Law now provides:

Notwithstanding any law, rule or regulation to the contrary, an employee organization’s duty of fair representation to a public employee it represents but who is not a member of the employee organization shall be limited to the negotiation or enforcement of the terms of an agreement with the public employer. No provision of this article shall be construed to require an employee organization to provide representation to a non-member(i) during questioning by the employer,(ii) in statutory or administrative proceedings or to enforce statutory or regulatory rights, or(iii) in any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to proceed without the employee organization and be represented by his or her own advocate.Nor shall any provision of this article prohibit an employee organization from providing legal, economic or job-related services or benefits beyond those provided in the agreement with a public employer only to its members.

Therefore, this decision may open up many opportunities for private attorneys to represent union members in proceedings which formerly were the sole province of union attorneys.

Update July 2, 2018. NEA predicts a 14% membership decline over the next 2 years. Personally, I think that number will be about double.