RI Seeks a Workaround to Janus

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Ballotpedia highlights a new union-helping law in Rhode Island:

On July 8, Governor Gina Raimondo (D) signed H5259 and S0712 into law. These companion bills authorize public-sector unions to impose fees on non-members who request union representation in grievance and/or arbitration proceedings. It requires public-sector employers to notify unions within five days of hiring new employees. It also requires employees to file written notice with the state controller in order to discontinue payroll deductions for union dues.

Some labor attorneys with whom I’ve spoken have suggested that this is patently unconstitutional under the Supreme Court’s Janus decision.  They say that if union members do not have to pay extra for a service — that is, if the service of grievance representation is included in dues — then non-members cannot be charged for it.

At the very least, one can say that it is a legally gray area.  Consider this from Janus, wherein the court is arguing that the idea that employees are “free riders” if they can’t be forced to pay agency fees is not a very strong point (citations removed):

What about the representation of nonmembers in grievance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers—which is why Illinois law gives a public-sector union the right to send a representative to such proceedings even if the employee declines union representation. Representation of nonmembers furthers the union’s interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee’s grievance can affect others.  And when a union controls the grievance process, it may, as a practical matter, effectively subordinate “the interests of [an] individual employee . . . to the collective interests of all employees in the bargaining unit.” Alexander v. Gardner-Denver Co.

The next paragraph suggests less-invasive means than agency fees, such as charging for the service.  However, the text and a related footnote imply that the ability to charge is dependent on the employee’s request for union representation, which seems to suggest that non-members in a collective bargaining unit can choose other representation.

If non-members must be covered by a contract and cannot negotiate their own, separate grievance procedures, they should be afforded the option of hiring some other representative for that narrow purpose than the union.  Naturally, this being Rhode Island, we should expect all legislation to be geared toward helping the labor unions rather than balancing the legitimate interests of everybody involved.



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