Brief Summary of Bill

(As Amended by Senate)

Provides that public employers and employee organizations are not liable for requiring, deducting, receiving, or retaining agency or fair share fees from public employees if the fees were permitted at the time under state law and were paid before June 27, 2018.
Removes provisions in state law authorizing union security clauses in collective bargaining agreements.
Provides procedures for authorizing the deduction of union dues from an employee's pay and for the revocation of such authorization.
Modifies the showing of interest required for certification of an exclusive bargaining representative by cross-check for certain public employees.

Background: Public Employees' Collective Bargaining Act. The Public Employees' Collective Bargaining Act (PECBA) provides for collective bargaining by counties, cities, other political subdivisions, and certain state employees, such as commissioned officers of the State Patrol. PECBA also provides for collective bargaining between the Governor and certain non-state employee groups such as family child care providers, adult family home providers, individual providers of home care services, and language access providers. These groups are state employees solely for the purpose of collective bargaining.

Union Security Clauses. A union security provision requires employees to maintain union membership or pay union dues or fees as a condition of continued employment. One type of union security provision is an agency shop agreement, where the employer may hire union or non-union employees, and the employees do not need to join the union. However, non-union member employees must pay a fee to cover representation-related costs. This fee is known as an agency shop fee or agency fee.

In 2018, in Janus v. American Federation of State, County, and Municipal Employees, the United States Supreme Court held that, for public employers, requiring non-union member employees to pay agency fees violated the constitution.

Dues Deduction. Under state collective bargaining laws, if a collective bargaining agreement contains an authorized union security provision, the employer must enforce the agreement by deducting the dues required for membership in the exclusive bargaining representative, or the equivalent fee for nonmembers, from the employee's pay and transmitting that money to the exclusive bargaining representative.

If the collective bargaining agreement requires deductions not subject to the union security provision, written authorization from the employee is required before the employer may make the deduction from the employee's pay. If a collective bargaining agreement does not contain a union security provision, written authorization from the employee is required before the employer may deduct union dues from the employee's pay.

Certifying Union Representation. A union files a petition on behalf of the employees it wants to represent. A showing of interest must be filed with all petitions, which requires signed and dated cards from at least 30 percent of employees in the proposed bargaining unit stating the desired outcome of the petition. If a petition is supported by 30 percent of employees in the proposed bargaining unit, an election or cross-check is held.

A cross-check, where showing of interest cards are compared to employment records, is conducted if the petitioning union submits showing of interest cards from at least 70 percent of the employees in the proposed bargaining unit in favor of the petition, or at least 50 percent for state civil service employees and certain higher education employees. Certificated school district employees and faculty of community and technical colleges cannot organize by cross-check.

Summary of Amended Bill: Post-Janus Liability. Public employers and employee organizations are not liable for, and have a complete defense to, claims or actions for requiring, deducting, receiving, or retaining agency or fair share fees from public employees if the fees were permitted at the time under state law and were paid before June 27, 2018. The bar on claims applies to all claims pending on the effective date of the bill and to claims filed on or after the effective date of the bill.

Union Security Clauses. Provisions in state law authorizing union security clauses are removed.

Dues Deduction and Revocation. An employee's request to revoke authorization for payroll deductions must be in writing and submitted by the employee to the exclusive bargaining representative. After the employer receives confirmation from the exclusive bargaining representative that the employee has revoked the authorization, the employer must end the deductions no later than the second payroll after receipt of the confirmation. The employer must rely on information provided by the exclusive bargaining representative regarding the authorization and revocation of deductions.

An employee's request to revoke authorization for payroll deductions must be in writing and submitted by the employee to the exclusive bargaining representative. After the employer receives confirmation from the exclusive bargaining representative that the employee has revoked the authorization, the employer must end the deductions no later than the second payroll after receipt of the confirmation. The employer must rely on information provided by the exclusive bargaining representative regarding the authorization and revocation of deductions.

An exclusive bargaining representative of individual providers may designate a third-party entity to act as the individual provider's agent in receiving payments from the state, so long as the individual provider has entered into an agency agreement with a third party for the purposes of deducting and remitting payments to the exclusive bargaining representative.

Cross-check Procedures. If only one employee organization is seeking certification as the exclusive bargaining representative, and there is no incumbent exclusive bargaining representative, the Public Employment Relations Commission may determine the question of representation using cross-check.

The threshold for the showing of interest needed for certification by cross-check is changed to 50 percent for:

employees bargaining under PECBA, except for individual providers, family child care providers, adult family home providers, and language access providers;
faculty at public four-year higher education institutions;
marine employees; and
symphony musicians that collectively bargain under state law.

Provisions are added standardizing cross-check procedures for most public employees. The Public Employment Relations Commission may adopt rules to implement cross-check procedures.

Staff Summary of Public Testimony on Substitute House Bill: The committee recommended a different version of the bill than what was heard. PRO: The bill aligns the statute with the Janus decision and defines the relationship between the union and the employee. After Janus, unions did a lot of grassroots work to maintain membership. The bill ensures the revocation of dues deduction adheres to the agreement between the union and the employee.

CON: There are more ways to authorize dues deductions than there are to revoke them. Telephonic authorizations, which the bill permits, are coercive. The bill encourages cross-checks, which is undemocratic. Instead, secret ballot elections should be encouraged.

OTHER: The requirement that the dues deduction be ended on the first payroll may create logistical issues in certain rare circumstances.