NY’s (mis)leading union tactic

by Ken Girardin |  | NY Torch

Desperate to minimize a potential loss of dues under a recent Supreme Court ruling, one of New York State’s largest public employee unions is telling public employers to disregard the union’s own previously stated conditions for letting workers stop paying dues.

The tactic employed by the Civil Service Employees Association (CSEA) in response to the Janus v. AFSCME decision will put local governments in a bind—which is likely to end up generating added legal bills for taxpayers.

CSEA represents close to 300,000 state and local government workers across New York—all of whom, thanks to Janus, now have a constitutional right to choose whether to pay dues to CSEA. But with the encouragement of Governor Andrew Cuomo, whose re-election the union has endorsed, CSEA is actively seeking to circumvent and undermine the ruling.

On July 31, CSEA’s director of internal operations, Peter G. Diana, sent a letter to public employers of union members. The letter began:

It has come to our attention that some employers are permitting union members to withdraw their authorization to pay dues by submitting something to the employer directly.

By “something,” he meant written requests from employees asserting their Janus rights. Diana then says that the union, and only the union, will decide when a worker covered by a CSEA contract will be allowed to stop paying dues:

As you know, whether an employee is a member of the union or not is a relationship between the member and the Union. If a member makes inquiry to you as to how to resign from membership, that member should be referred to their Union.

This poses an obvious legal problem. In his Janus majority opinion, Justice Samuel Alito wrote that union dues deductions from the paychecks of government employees must be considered unconstitutional “unless the employee affirmatively consents to pay.” And as explained here previously:

The present tense of “consent” is important here, because it implies a prospective choice, occurring from this point forward. It won’t be enough for a union to claim that someone has “consented” to paying dues in the past.

The Janus decision clearly implies that when a government employee asks his or her employer to stop deducting dues, the deduction must stop.

In fact, a version of the CSEA membership card in widespread use includes language addressed “to the fiscal or payroll officer of my employer,” and says, “I understand that this authorization for dues may be revoked at any time by written notice to you.”

Now that the Janus ruling has given union members a reason to reconsider their dues payments, the union has good reason to conceal these membership cards.

According to management-side labor lawyers contacted by the Empire Center, CSEA apparently has adopted a broad strategy of refusing to provide employers with signed cards proving workers belong to the union—although Section 208 of the state Civil Service Law requires signed “dues deduction authorization cards” as a condition for membership dues deductions. The law was widely ignored prior to Janus because, for all intents and purposes, it was a moot point: employers were allowed to deduct dues-like “agency fees” from workers who chose not to sign membership cards.

Following the June 27 Janus decision, employers including Saratoga County and Syracuse City School District requested the signed dues authorizations required by law. The Cuomo administration, apparently at the behest of unions resisting such requests, issued a “guidance” document that told employers to ignore Section 208 and accept member “lists” produced by the union. Employers are thus prevented from reviewing the actual terms of union cards—which, as noted above, may explicitly give workers the right to stop paying dues at any time.

Local government’s conundrum

Employers who get requests from workers to stop dues deductions now face a Hobson’s choice:

  1. Honor the request and face legal action by the union, probably in the form of an improper practice charge to be decided by an administrative law judge. That judge may seize on another clause of Section 208 to compel dues collection and perhaps also fine the employer. Win or lose, taxpayers ultimately will incur legal costs; or
  2. Ignore the request, and face a federal lawsuit by aggrieved employees. The employees seeking to enforce their Janus rights would likely prevail—after more legal costs for taxpayers.

This situation was entirely avoidable. Governor Andrew Cuomo and state lawmakers could have left intact a 60-year-old portion of state law (General Municipal Law, section 93B) that let public employers stop dues deductions upon request. But in March, they amended it, intending to make it easier for unions to scoop up new members and make it nearly impossible for existing ones to stop paying. One such change purports to restrict an employee’s ability to stop dues deductions to terms set by the unions on their membership cards—putting employers in the situation they face today.

In backing up CSEA, the Cuomo administration is pressuring public employers to simultaneously enforce and ignore CSEA’s terms without seeing what those terms even are, all to make it harder for people to stop paying—and guaranteeing taxpayers will pay, too.

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- Ken Girardin is the Policy Analyst at the Empire Center for Public Policy.