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Appeals Court Hands "Right to Work" Foundation Another Loss; Agrees Public-Sector Unions Are Not Required to Represent Nonmembers in Disciplinary Hearings

In 2018, the Supreme Court sent shock waves through the public-sector labor movement when it invalidated the system of agency fees that had, for decades, ensured public-sector unions' financial health. Agency fees are, simply put, mandatory union dues paid by all members of a bargaining unit, whether or not they choose to be members of the union itself. Agency fees prevented unions from being sucked dry by "free riders" that receive all the benefits of union representation without paying for them. In Janus v. AFSCME, 138 S.Ct. 2448 (2018), the Court held that this violated the First Amendment, because (as we all know) money is speech. (Agency fees remain perfectly legal in the private sector.)


So what can unions do? It's not as easy as just limiting representation to members only. Collective bargaining doesn't work like that. Contracts don't get signed unless they cover everyone; solidarity means not letting employers divide and conquer. At the same time, unions needed a way to limit the resources spent on nonmembers--and, correspondingly, to encourage membership by providing concrete benefits.


In New York—where the legislature is relatively union-friendly compared to many other states—the legislature quickly responded by enacting Civil Service Law § 209-a.2(c), which limits a union's duty of fair representation to the negotiation and enforcement of a contract with a public employer. The union is still the exclusive bargaining representative - but the union is relieved of certain other duties, most importantly the requirement that it represent its members in disciplinary proceedings. Employees can choose not to pay union dues, but if they don't, they'll be on their own if they ever have to face disciplinary charges. Importantly, employees who don't pay dues are free to retain their own representative in disciplinary proceedings—they just aren't entitled to a free one from the union.


Predictably, a group of free-riders (represented by the Fairness Center and the National Right to Work Legal Defense Foundation) challenged the law, "contend[ing] that this provision—added in the wake of the Janus decision—authorizes the [union] to 'treat [them] less favorably than [union] members, solely because they have exercised their constitutional rights to become or remain non-members.'" Goldstein v. Pro. Staff Congress, 643 F. Supp. 3d 431, 447 (S.D.N.Y. 2022). Again, the constitutional right the employees were exercising was the right not to pay to be part of the union, yet they were shocked—shocked!—to discover that their nonpayment of dues had consequences. The district court had no trouble finding that § 209-a.2(c) was fully in accord with Janus, which had expressly noted that "[i]ndividual nonmembers could be required to pay for that service [of representation in disciplinary proceedings] or could be denied union representation altogether."


Small wonder that some people call NRWLDF the "Right to Shirk" foundation. In this case, they really showed their true colors. The gall it takes to simultaneously claim a fundamental right not to pay for union representation, and a right to nevertheless get union representation in disciplinary proceedings, is staggering.


Two weeks ago, the Second Circuit affirmed Goldstein, providing further security and clarity to public-sector unions in New York. Employees should be aware that, while the Supreme Court has given them the right not to pay dues, their decisions have consequences.


Burdick Law PLLC proudly represents both individual employees and labor unions in disputes with employers, including disciplinary proceedings. We support individuals' right to join and participate in their unions, and we encourage employees to exercise that right. We also recognize individuals' right not to join a union, and in meritorious cases, we can represent individual non-union members in disputes with their employers. However, Burdick Law PLLC does not represent individual employees in disputes with their unions, and will not file or assist with filing a decertification petition or duty-of-fair-representation (DFR) charge. Solidarity makes us all stronger.

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