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.