This document provides general information and is not intended to offer legal advice about specific situations.
If you believe you need legal advice, contact an attorney, your professional association, your union, or a public interest law firm.

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Professional association or union membership is an important decision.

You are entitled to make the decision about association membership for yourself with accurate information and without fear of reprisal by a union or employer.

The restoration of this right to all public educators in Janus v. AFSCME (2018) has led to some confusion, misinterpretation, and misinformation about what impact your membership decision can and cannot have.

I. YOUR EMPLOYER CANNOT DISCRIMINATE AGAINST YOU BASED ON YOUR UNION MEMBERSHIP STATUS.

Public employers cannot discriminate against employees for joining or not joining a union.

Janus v. AFSCME, 585 U.S. ___ (2018); Cintron v. AFSCME, No. S–CB–16–032, p. 1, 34 PERI ¶105 (ILRB Dec. 13, 2017); 14 Penn Plaza LLC v. Pyett, 556 U. S. 247 (2009); Vaca v. Sipes, 386 U. S. 171 (1967); Steele v. Louisville & Nashville R. Co. 323 U.S. 192 (1944). 

• If you believe you are being discriminated against based on your membership in a union, contact your union’s attorney.

• If you believe you are being discriminated against for not joining a union, contact your professional association or an attorney.

II. THE TERMS OF THE NEGOTIATED AGREEMENT APPLY TO YOU REGARDLESS OF YOUR UNION MEMBERSHIP STATUS.

The terms of the negotiated agreement (including work place conditions, salary, health insurance, disability insurance, pension contributions, pay raises, bonuses, other benefits, sick leave, seniority, tenure, promotions, or any other compensation from your employer) apply to all employees in the bargaining unit, regardless of their union membership status. A union does often limit voting on the collective bargaining agreement and participating in the negotiating of the agreement to union members only.

Janus v. AFSCME, 585 U.S. ___ (2018); Cintron v. AFSCME, No. S–CB–16–032, p. 1, 34 PERI ¶105 (ILRB Dec. 13, 2017); 14 Penn Plaza LLC v. Pyett, 556 U. S. 247 (2009); Vaca v. Sipes, 386 U. S. 171 (1967); Steele v. Louisville & Nashville R. Co. 323 U.S. 192 (1944). 

• If you believe compensation or benefits are being withheld due to your joining a union, contact your union’s attorney.

• If you believe compensation or benefits are being withheld due to your not joining a union, contact your professional association or an attorney.

III. YOU HAVE THE RIGHT TO JOIN A UNION.

Nothing about the Janus decision or right-to-work laws prohibits you from being a voluntary member of a union.

Janus v. AFSCME, 585 U.S. ___ (2018).

• If you are being told that you cannot join a union, contact your union’s attorney.

IV. YOU CANNOT BE REQUIRED TO JOIN A UNION.

“Closed shops” in which union membership was required have been outlawed since 1947. Union membership is voluntary. As a membership organization a union can and does limit membership benefits, including liability insurance and discount programs, to members only. Professional associations also offer these benefits and services.

Janus v. AFSCME, 585 U.S. ___ (2018); Pacific Gas & Elec. , 475 U.S. 1 (1986); Roberts v. United States Jaycees, 468 U. S. 609 (1984).

• If you are being told you cannot leave a union or owe money to a union you have left or never joined, contact your professional association or an attorney.

V. NON-MEMBERS CANNOT BE REQUIRED TO PAY UNION DUES OR FEES.

The Janus Supreme Court decision ended “agency fee” arrangements in all states, meaning non-members are not required to pay the union. Current union members can leave the union and will not be required to pay dues after they have left.

Janus v. AFSCME, 585 U.S. ___ (2018).

• If you are being told you cannot leave a union or owe money to a union you have left or never joined, contact your professional association or an attorney.

VI. YOU HAVE THE RIGHT TO JOIN A PROFESSIONAL ASSOCIATION.

No union or public employer can forbid a public educator from joining a professional association. Professional association attorneys can provide assistance to members in all states regardless of the state in which the association attorney is located. Some professional associations provide funds for panel attorneys who are local for consultation, hearings, legal defense, and filing lawsuits.

Janus v. AFSCME, 585 U.S. ___ (2018).

• If you are being told that you cannot join a professional association, contact your professional association.

VII. YOU HAVE EMPLOYMENT RIGHTS REGARDLESS OF YOUR UNION MEMBERSHIP STATUS.

Public educators do not forfeit their right to private counsel to address workplace issues. This includes but is not limited to legal support to individually pursue a grievance (without union support), legal action to address wrongful termination, EEOC, FMLA, class action lawsuits, wage and hour claims, hostile work environment, harassment in the workplace, bullying claims, assault, battery, emotional distress claims and more. Some professional associations provide legal services or funds for private counsel.

The grievance process outlined in a negotiated agreement is limited to issues involving the enforcement and interpretation of the items in the negotiated agreement. The local union has a vested interest and may have an obligation to ensure the terms of the contract are upheld for members and non-members. Local unions may attempt to charge non-members to use grievance services.

Resolutions cannot circumvent the terms of the negotiated agreement unless those terms are determined to be illegal.

41 U.S.C.A. 2000e; 29 U.S.C.A. 2601, et seq., 29 U.S.C.A. §201; 29 U.S.C.A. §206; 29 U.S.C.A., §211, 29 U.S.C.A. §215 18 U.S.C. § 401 or 29 U.S.C. § 216; 42 U.S.C. §12101 et seq.; state claims vary from state to state.

• If you are experiencing a workplace issue, contact your union or professional association.

VIII. YOU HAVE THE RIGHT TO A REPRESENTATIVE AT A DISCIPLINARY MEETING.

Weingarten Rights protect an individual employee’s right to bring a representative to a disciplinary meeting. This could include a union representative, non-union association representative, pastor, attorney, colleague, family member, etc.  This right was first established in NLRB v Weingarten (1975) and subsequent case law has defended the right of individual employees to bring a representative to a disciplinary meeting and to suspend the disciplinary meeting temporarily to arrange for a representative.

A union asserting that this right is exclusive to union representatives and union members gravely threatens the existence of that right for all and limits it to only those times the employee wants the union representative present and the union agrees to be present, rather than at all disciplinary meetings.

The National Labor Relations Board has ruled both for and against asserting this privilege to workplaces without a union, leaving it inconclusive whether the right would be upheld in a non unionized setting.

NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975); Consolidated Edison Co. of New York, 323 NLRB 910 (1997); Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enforced in relevant part 268 F.3d 1095 (D.C. Cir. 2001); IBM Corporation, 341 NLRB No. 148 (2004); E.I. Dupont de Nemours & Co., 362 NLRB No. 98, slip op. at 1 fn. 2 (2015).

• If you are experiencing a workplace issue, contact your union or professional association.

IX. THE JANUS RULING APPLIES TO ALL PUBLIC EMPLOYEES IN UNIONIZED WORKPLACES, NOT JUST AGENCY-FEE PAYERS.

The Janus decision establishes that public unions can only collect dues from those who affirmatively and clearly consent to membership. All public employees in unionized workplaces can now make a decision about union membership without financial penalty. The Janus decision expanded non-membership as an option to all public employees. Efforts to characterize Janus as only applying to agency-fee payers are an attempt to discourage awareness and exercising of Janus rights.

Janus v. AFSCME, 585 U.S. ___ (2018)

• If you are being told you cannot leave a union or owe money to a union you have left or never joined, contact your professional association or an attorney.

X. THE JANUS RULING DOES NOT PROHIBIT UNIONS FROM OFFERING LOCAL-ONLY OR CONTRACT-ONLY MEMBERSHIP CATEGORIES.

The Janus decision ends the requirement that public employers collect partial dues (“agency fees”) from non-members, but does not prohibit any union from offering an “agency fee” membership category to voluntary members interested in local-only membership. Most teacher unions require local, state, and national dues for members, but there is no obligation to do so and no law or court decision prevents local-only or contract-only membership. It is up to unions what to charge members and how to limit membership benefits.

Janus v. AFSCME, 585 U.S. ___ (2018)

The Association of American Educators, as a national membership association, stands ready to take legal action on behalf of members to defend these rights and others for all educators.

This document was prepared by Sharon L. Nelson, Senior Director of Legal Services, Association of American Educators, for AAE members and made public at joinaae.org/dear for all public educators. Ms. Nelson is a civil-rights attorney with twenty years of employee rights advocacy. Licensed in Nevada and California, Ms. Nelson has practiced extensively in all state and federal courts in those jurisdictions.

Due to the nature of this content, the document will be updated to reflect continuing developments in legislation and litigation and is not intended to offer legal advice for specific situations. If you believe you need specific legal advice, please contact an attorney.

As a 501(c)(6) professional association, the Association of American Educators does not seek to replace, challenge, or undermine a duly-certified union from operating within the law. Nothing in this document is intended to question or challenge a local union’s status as the recognized bargaining agent or prevent a local union from operating, bargaining, grieving, recruiting members, or retaining members legally.

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