On June 27, 2018, the United States Supreme Court issued its decision in Janus v. AFSCME. Not surprisingly given the makeup of the Court, in a 5 to 4 decision the Court overturned its own precedent that had stood for over 40 years. It ruled that it was unconstitutional for state and municipal governments to enter into collective bargaining agreements that require employees who refuse to belong to the union that represents them to pay a fee to the union. The basis for the decision is that to require an employee to pay a fee to a union that advances positions in collective bargaining that the employee may not agree with, such as a wage increase, violate s that employee’s right to freedom of speech under the First Amendment of the U.S Constitution. (Yes, you read that correctly.)
Many states, including Pennsylvania, have adopted “fair share” legislation. Such legislation provides that if the public employer and the union that represents its employees set forth a fair share provision in the collective bargaining agreement, non-members must pay that fair share fee. The amount of such fee is equal to the union expenditures used for collective bargaining and representation. It is, therefore, an amount almost always less than the full union dues that members pay. That is now prohibited.
What does this mean for lodges? The answer depends upon the status of the lodge. If the lodge is not the bargaining representative, it has no effect. For lodges and police associations that are the bargaining unit representative, the lodge/association cannot charge non-members a fee of any type. But the lodge/association still has the duty to represent such “free riders” in the same manner as members who pay a fee. The Court did note that it may be acceptable for unions to charge a non-member a fee for representing him in a grievance that affects only him, such as a discharge grievance. The Court provided no guidance on this issue.
What about FOP member benefits, such as the Legal Defense Plan? Since that benefit is not a collectively bargained benefit but one available only to members of the FOP, the decision has no effect on such “member only” benefits. Non-members have no right to the benefit and lodges have no duty to offer the benefit.
What action should a lodge or police association that acts as the bargaining agent take? As to members, no action is needed. Likewise, as to fair share members, no action is required. As to employers, it is recommended that, if not done already, notice should be provided to the employer that remits a fair share fee to the lodge or association that it cease doing so immediately and that if such fee deduction has been taken from a fair share member’s paycheck on or after June 26, 2018, it be returned to the non-member and not remitted to the lodge or association.
Les Neri, President
PA FOP, State Lodge