(SAN FRANCISCO, Calif.) — The U.S. Supreme this week was presented with the latest and perhaps most compelling argument yet for finally enforcing a 2018 ruling affirming the right of public employees to decline union membership and dues deductions without fear of losing their jobs.
On June 20, attorneys from the Freedom Foundation and the Alexandria, Va.-based firm of Clement & Murphy, PLLC, filed a request for certiorari on behalf of Terry Klee, an employee with the California Department of Correction and Rehabilitation (CDCR), who is suing the International Union of Operating Engineers, Local 51, (IUOE) as well as the California State Department of Corrections and Rehabilitation asserting Klee’s request to leave the union was illegally delayed for nearly two years.
By coincidence, the appeal comes seven years almost to the day after the court recognized in Janus v. AFSCME that compelling government employees to join or financially support a labor union amounts to a violation of their First Amendment rights to freedom of speech and association.
Since then, hundreds of thousands of state, county and local government workers have successfully opted out of their union, but too often doing so has required navigating a long list of arbitrarily imposed restrictions.
Klee could be the poster child for union — and state — foot-dragging.
When Klee was first hired by the state prior to Janus, he was required by law to either join IUOE and pay full dues or, if he declined membership, pay instead a so-called “agency fee” comparable to the cost of his dues.
Klee tried to opt out of the union in December 2019, but the state continued deducting dues from his paychecks until November 2021.
Under California law, Klee’s employer, the Department of Corrections and Rehabilitation, delegates the power to determine who does and doesn’t pay dues to the union — which has a financial stake in the matter.
In Klee’s case, because IUOE knowingly disregarded his opt-out request for 22 months, the state continued to deduct — and remit to the union — around $1,000 in illegally confiscated dues money which the union used to support its political agenda.
But when Klee filed a lawsuit demanding his dues be refunded, a District Court judge concluded — and the 9th Circuit Court of Appeals subsequently agreed — that the union couldn’t be held liable because IUOE, despite being handed the power to deduct dues from state employees’ wages, isn’t itself a “state actor.”
State officials, meanwhile, are protected from litigation by sovereign immunity.
“The union disregards a Supreme Court ruling, the state illegally deducts money from the plaintiff’s paycheck and the courts say neither of them did anything wrong,” said Freedom Foundation attorney Shella Alcabes.
“As far as they’re concerned,” Alcabes added, “union members like Mr. Klee may have a Constitutional right to decline membership and dues, but nothing says the process has to be easy.”
“The 9th Circuit has all but eviscerated that constitutional right for all public-sector employees in California,” the court filing asserts. “That is astonishing, particularly in a nation that prides itself on protecting the ‘general and indisputable rule’ that, ‘Where there is a legal right, there is also a legal remedy.’ ”
“This case underscores perfectly the need for the Supreme Court to start enforcing Janus,” Alcabes said. “When that ruling was first handed down, unions devised a lot of complex schemes to avoid having to comply with it. But it’s reached the point now where they don’t even bother. A law that isn’t enforced might as well not even exist.”
Watch Terry Klee’s Story:
