July/August 2018 Issue

Also in this issue: The End of Deference to Agency Interpretations of Law in Wisconsin     |     Court of Appeals Rules for City in Town’s Challenge to Annexation Ordinance     |     Wisconsin Supreme Court Extends Building Permit Rule to Land     |     Court of Appeals Clears the Way for Badger Coulee Project

U.S. Supreme Court Decision Impacts Public Safety Union’s Dues Deductions

Steve Zach | 08.02.18

As part of the sweeping changes to municipal labor law enacted in Wisconsin in 2011 (known as ​“Act 10”), municipal employers are prohibited from deducting union dues from the earnings of a public safety or a transit employee, unless the municipal employer was provided with an individual authorization signed by the employee. The authorization is required to be terminable by at least the end of any year of its life or earlier, provided the employee gave at least 30 days’ written notice to the municipal employer and to the union. Wis. Stat. § 111.70(3)(a)(6). This provision did not apply to public safety or municipal transit employees who were part of a collective bargaining unit with a collective bargaining agreement that contained a fair share provision requiring bargaining unit employees to be part of the union and also authorized the deduction of their dues without individual consent. In those bargaining units, municipal employers have been deducting union dues from all bargaining unit members pursuant to the contract language.

However, the United States Supreme Court recently held that such fair share and mandatory dues deduction provisions in collective bargaining agreements violate public employees’ First Amendment rights. Janus v. AFSCME, 585 U.S. ___ (2018). In particular, the Court held that public employees cannot be required to pay union dues or fees because doing so violates the free speech rights of employees by compelling them to subsidize the union’s ​“private speech on matters of substantial public concern.” 

The effect of this decision is to invalidate immediately the fair share and mandatory dues deduction provisions in existing collective bargaining agreements covering public safety employees and municipal transit workers. Accordingly, employees in those bargaining units are no longer required to be union members and pay union initiation fees, dues, or other fees. Employees in those bargaining units who desire to be union members, and have union fees and dues deducted from their paychecks and forwarded to the union by the municipality, must file an authorization signed by the employee with the municipality and the union. 

One question that has arisen in implementing practices to comply with Janus is whether a municipality can recognize authorizations signed prior to the Janus decision or whether a municipality is required to receive post-Janus authorizations from employees who want to have union dues deducted from their paycheck. The decision is not clear on this issue, and municipalities are split on the path they are choosing. There is also some question as to when an employee can revoke an authorization. The relevant Wisconsin statute requires the authorization to be ​“terminable by at least the end of any year of its life or earlier,” but requires at least 30 days’ notice. Accordingly, while unions have expressed a desire for an authorization that allows revocation annually, the statute allows revocation upon at least 30 days’ notice. 

While Janus does not impact most municipal workers, if the Act 10 provisions are ever amended to permit other public sector unions to operate on a broader scope than currently allowed, Janus would still prohibit a municipality and those unions from agreeing to a fair share provision requiring the payment of union dues. 

— Steven C. Zach