Tuesday, July 24, 2018

NEW YORK STATE DEPARTMENT OF LABOR TAKES AN EXTREMELY NARROW VIEW OF JANUS

We have said on this blog that New York State is not Wisconsin, Michigan or Ohio in that here in the Empire State the government and public sector unions have a very cozy relationship with each other. Some would say they are in bed together. If one wants to see evidence of the government-public employee union bond, look no further than the New York State Department of Labor's Guidance on the Janus Supreme Court decision. New York is interpreting the Janus decision in a very narrow way.

Our new progressive "friend" Governor Andrew Cuomo directed the Labor Department to issue this Guidance. Please read it very closely to understand how little is changing here in New York even after Janus.

Guidance for Public-Sector Employers and Employees in New York State
New York State has a long and important tradition of supporting the organized labor movement and the fundamental right of workers to organize. Public-sector employees play a crucial role in communities across New York State. Each day they work hard to ensure public safety, protect public health, and to provide other critical services to New York residents.

The Supreme Court of the United States issued a decision in Janus v. AFSCME Council 31, 585 U.S. ____, 138 S.Ct. 2448 (2018) on June 27, 2018. The Janus decision overturned decades of established law and practice relating to the right of a union to receive the payment of fair share agency fees from public sector employees who decline union membership. As a result, there has been much confusion and this Guidance is intended to provide clarity to employers and employees. The only change under Janus is that public employers may not deduct agency fees from a non-member’s wages, nor may a union otherwise collect agency fees from a non-member, without the non-member employee’s affirmative consent. All other rights and obligations of public-sector employers and employees under state law remain unchanged. For example, unions have, in the past, presented dues deduction cards, or other similar evidence of union membership such as membership lists, to public employers and those employers previously collected union dues from its employees on that basis. The decision in Janus does not require a union to obtain new dues deduction cards or obtain other evidence of union membership or remove a public employer’s obligation to collect dues from members of a union. Public employee unions are not required to produce dues authorizations cards for members from whom the employer has previously deducted dues. 

Collective Bargaining  
• Under New York law, the rights of public-sector employees to collectively bargain are unaffected by the decision in Janus.  Employees maintain the right to: 
           -organize;
           -form, join, or assist any employee organization for the purpose of bargaining collectively through representatives of their own choosing on questions of wages, hours, and other terms and conditions of employment; and
            -engage in lawful, concerted activities for the purpose of collective bargaining. 
• Employees also continue to have the right to be free from threats, interference or coercive statements when exercising their protected rights to engage in concerted activity. 
• Public employers are forbidden from interfering in the formation of a union, discriminating against or terminating an employee based on union membership or activity, and refusing to bargain in good faith with a union. 

Union Dues & Agency Fees 
• The Janus decision does not impact any agreements between a union and its members to pay union dues, and existing membership cards or other agreements by union members to pay dues must be honored. The Janus decision only impacts the mandatory collection of an agency fee by individuals who decline union membership. 
• Employees who are non-members and paying agency fees may choose to become dues paying union members. 
• Employees may pay dues through a payroll deduction. 

  
Member Access & Personal Information
• Under many collective bargaining agreements, and under Civil Service Law § 208, public employers are required to provide in a timely manner, the collective bargaining representative with the names and contact information of any newly hired employees. 
• Public employees have the right to keep their personal information protected by their employer. An employee’s personal information, such as home address, personal email address, home or mobile telephone numbers, and other contact information is protected from disclosure (with limited exceptions). 

Employees who believe their rights have been violated should contact their employer or their union. 

Please note there is not a word, not one single word, on union members opting out of their union. There is a Frequently Asked Questions that clarifies the Guidance.

Here is a significant pair of questions along with the answers from the State Department of Labor:

What does this decision mean for union members? The Janus decision does not impact any agreements between a union and its members to pay union dues. Existing membership cards or other agreements by union members to pay dues must be honored. The Janus decision only impacts the mandatory collection of an agency service fee by individuals who decline union membership. 

Does Janus affect current union members and the deduction of dues? No.  Historically, unions have presented dues deduction cards, or other similar evidence of union membership such as membership lists, to public employers, who collected dues from employees on that basis. The Janus decision does not require a union to obtain new dues deduction cards or obtain other evidence of union membership.  Public employers still have an obligation to collect dues from union members. 

Those of you looking to opt out to save your union dues are not going to find a friend in New York State government. New York is, for lack of a better term, a company union state in the public sector.

Politicians obtain union assistance with phone banking to help win elections and in return those elected officials leave the unions alone and allow them to be kind of co-managers, along with the government, of the public sector workforce. It is a strange relationship but it describes the unions in NY. If one belongs to a stronger union such as the PBA or Transport Workers Union Local 100 and some others, the workers have unions that at least look out for them. If one belongs to a weaker union such as the UFT or DC37, union support is often lacking. If you are lucky or really knowledgeable, maybe they will do something for you. The government and the unions are not going to risk their friendly arrangement.

This leads me to a thought: Does the UFT have to accept your Koch Brothers backed opt out letters?  This is the last line of the retired teachers' chapter membership application (I couldn't find the active teacher membership application online):

It is understood that this authorization shall remain in force and effect until revoked or superseded by a new dues deduction authorization card executed and filed by me.

Nothing on opting out of the UFT. Sending a letter to quit the union might not be as straightforward as you defectors are hoping. You think the unions and the state are going to make it easy to quit? Once again, we are not Wisconsin. Cuomo has done a 180 degree turn and is now the best friend of labor.

Your opt out letter just might not be accepted as valid by the United Federation of Teachers or the Department of Education. The Department of Labor is recommending employees go to their employer or union if they feel their rights aren't being upheld. Good luck with that.

The Koch brothers have never had a direct fight with the Unity Caucus who will do whatever it takes to protect the Unity empire. Unity now has a very friendly state government siding with them. For the rank and file these are very difficult times for sure as the unions will do even less than ever to upset the government hand that is almost literally feeding them.

25 comments:

Anonymous said...

Dear James,

What do you say to the teacher who found themselves the principal's target, for personal reasons, and was forced to hire a private attorney? And it was the ATTORNEY who saved their job. NOT the union. It was the ATTORNEY who advised the teacher when to file grievances. It was the ATTORNEY who filed the PERB complaint. It was the ATTORNEY who got the letters to file removed. It was the ATTORNEY who got the U rating overturned. NOT. THE. UNION.

Should a teacher like that pay dues?

Anonymous said...

Sounds like the Koch brothers (David and Charles) should pack it in. Unity just beat them and this is a win for the middle class.

Anonymous said...

Looks like the Koch Brothers just lost the propaganda war in NY.

Anonymous said...

One of your previous commenters notes that his dues will cease to be take out as of the 9/16 check - confirmed by HR. That sounds fairly conclusive.

Anonymous said...

I’ll wait till the end of September and if I don’t see any positive change from the UFT concerning the ATR situation I will opt out, even if I have to get one of the Koch brothers to sue for me. It’s our money that slime ball Coumo can’t keep it captive because he’s up for re-election. He and Mulgrew must have a blood pact.

Anonymous said...

I'll believe you're out when I see it. Maybe they are going to force you to listen to pro Mulgrew propaganda before accepting opt outs.

Anonymous said...

Must have been in another state last year when all the chicken littles were running around telling us our pensions were gone if a constitutional convention was approved. Fun Fact: teachers in New York State gained tenure through one such convention.

Bronx ATR said...

11:38 - We all get the NY Teacher monthly, can't get more pro Mulgrew propaganda than that. I agree with waiting until the fall to make an opt out decision. Give the UFT a chance to do something about the ATR pool, they've only had thirteen years.

jeff said...

James...Don't you see, this is why we are screwed, no matter what happens, the union keeps collecting, and we keep getting nothing for paying, and get tortured and get substandard contracts. The opt out was the only thing we had.

Anonymous said...

Do you people understand that the UFT is like a roach motel. You check in but you don't check out.

Anonymous said...

Or the Hotel California: You can check out anytime you like but you can never leave.

Anonymous said...

Everyone can opt out. I did it last week and received confirmation from HR. The UFT can no longer legally rob us.

Anonymous said...

The Guidance from the state came this week.

It says, "The Janus decision does not impact any agreements between a union and its members to pay union dues, and existing membership cards or other agreements by union members to pay dues must be honored."

What are you going to do if the DOE-UFT do not honor your Koch brothers unofficial letter?

Anonymous said...

332 said he opted out.

Anonymous said...

That scab could become the UFT Janus. Sue the DOEUFT if they don't let that unofficial Koch Brothers letter be your escape pass? I would love to see you loathsome individuals have to go on the public record to opt out.

Anonymous said...

If I were the UFT-DOE, I wouldn't honor those Koch brothers letters. Make the assholes on here opt out through some official process. Make them squirm and be uncomfortable.

Anonymous said...

If and when I decide to opt out that isn’t going to make me squirm one iota. Let me repeat - Fuck the UFT!

Anonymous said...

You are very creative in your language 4:03 however you don't understand that the company might not like it when members leave the company union.

jefg said...

2nd question for James, if the uft and state are so buddy-buddy, how about 8.25% TDA? Thats the least they could do. We both know it isnt happening. Thats why we want out. Only when it helps unity leadership..

Anonymous said...

Get with the program jefg and the rest of you. The government and the union leadership are there for each other, not for you or the rank and file. Would Mulgrew rather have the state pressure the DOE to make it hard for teachers to leave the union or push to get the interest rate raised? The former is easier and costs much less money.

Anonymous said...

Send a letter if you want to opt out. If they continue to take out dues and refuse to honor your letter. Call any right wing think tank they will take your case just like they did for Janus and that will end the cozy party for good. Any Union doing its job doesn't need to worry If your Union sucks they should get better or get prepared. I am sure the PBA isn't worrying

Anonymous said...

While your case winds through the courts, you might retire. This may have been the UFT's strategy all along. You guys are showing your hand when you have to line up with right wing think tanks.

Anonymous said...

That’s what happens when you tell the difference between the UFT and the DOE.

Anonymous said...

What difference?

Anonymous said...

thot