Forty-one years after it ruled that employees who choose not to join a union may be required to pay a portion of dues representing the cost for collective bargaining and contract administration (Abood v Detroit Board of Education), the United States Supreme Court determined this standard to be unconstitutional. Over the last 4 decades, Abood has become part of the landscape in which labor relations practitioners function, and grappling with such a drastic change can be disorienting. Public sector unions and employers must now pivot sharply. Attempting to gauge the potential long-term impacts should not be the sole focus of advocates during this time; immediate adjustments are needed to comply with the law.
Ultimately, an effective response to Janus involves finding ways to manage the practical and logistic impacts on the labor-management relationship. There are a number of things advocates can and should do to position themselves for the transition and beyond.
Review and Revise Contract Language Concerns that Janus would invalidate all labor contracts are, for the most part, unnecessary. Most collective bargaining agreements include a savings clause that preserves all remaining provisions in the event a particular provision is deemed unlawful. What’s needed is a review of the contract to identify any provisions that will be affected by the ruling, including dues checkoff, union security and recognition provisions. Jointly review the contract to determine what changes need to be made and agree on new language that’s consistent with the new law. If the contract is closed, execute a formal memorandum of agreement that clearly lays out all amendments to the contract and integrate them at the next general contract negotiations.
Update New Hire & Payroll Procedures Consider whether portions of the new hire process need to be revisited. This activity can be done carried out as a joint effort between labor and management, particularly in cases where the union typically takes an active part in the orientation or union enrollment of new employees. Determine what documents, presentations or other communication need to be changed, dentify payroll procedures that need to be adjusted, and be sure to communicate with employees regarding the changes they can expect to see.
Agree on New Procedures Negotiate and agree on a mutually acceptable procedure for receiving and implementing employees’ wishes regarding union membership. Formalize the agreement and make it accessible to workers, managers and union officers. Be sure to provide a means for employees to get answers to their questions. The ins and outs of a change such as this can be confusing for many employees and they will want to understand how it affects them and what their options are. Designate someone who will be able to answer the complex questions and explain things in a way that makes sense.
Consider Joint Communication In the spirit of capitalizing on this situation for the benefit of the labor-management relationship, consider issuing joint communication to the membership. This may be done over time as changes are implemented, or be limited to a statement of the parties’ mutual understandings or position on the matter. Whichever approach is selected, this can help alleviate employees’ concerns about the stability of the established labor-management relationship.
Educate managers and union leaders on the change, the reasons for the change and the organization’s position on the change. If a policy or protocol has been decided, share it and the rationale behind it. This will better equip leaders to respond effectively and assist workers in adjusting to the change. Educate yourself on the alternatives, options and best practices for addressing emerging issues.
Consider Other Matters As parties move through the necessary adjustments, it likely will become clear that other issues not directly tied to dues checkoff or union membership decisions require a second look. One area in which parties may identify such a need is in conflict resolution, typically delineated in the grievance procedure. Grievance procedures often specify the whos, whats, whens and hows of engaging the grievance procedure, details that may need to be adjusted as unions adjust. Similarly, management may need to alter internal procedures to ensure proper administration of the grievance process.
One anticipated outcome of Janus is an eventual reduction in the number of labor relations advocates available to handle contract administration and dispute resolution. If this is a possibility, consider shoring up existing resources to ensure your ability to continue to meet bargaining obligations. For employers, this may mean identifying first-line supervisors who will be able to facilitate quick and effective dispute resolution on the shop floor. For unions, equipping more members to act as stewards can free up time for advocates to manage the more complex matters if the union is working with a smaller team of dedicated advocates.
Don’t Lose Sight of Your People! Political, organizational and economic considerations abound in this situation. Janus raises important issues that must be addressed by every organization affected by the ruling. However, as advocates you must keep one thing in mind: at the end of the day, collective bargaining does not exist apart from the employees. As you revise policies and procedures, remember you’re not just moving widgets around; you’re dealing with people, and they need to be able to look to you to help them understand this new paradigm.
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Charlene MacMillan 