Freedom Foundation

AFSCME Agrees to Refund Nonmembers’ Money Rather Than Litigate Unconstitutional ‘Maintenance of Membership’ Provision

A major obstacle erected in the path of select California Department of Social Services employees trying to opt out of their union was eliminated earlier this month when AFSCME 2620 voluntarily agreed to no longer try and enforce a “maintenance of membership” provision in its employment contract with the state.

The workers, represented by the Freedom Foundation, submitted their resignations last June and July — less than a month after the U.S. Supreme Court ruled in Janus v. AFSCME that government employees cannot be compelled to join a union or pay dues or “agency fees” as a condition of employment. The union refused to honor the workers’ request, prompting the Freedom Foundation to intervene. After several requests that the union cease deducting dues from the plaintiffs’ paychecks, on Feb. 1, under threat of an imminent lawsuit, an AFSCME official sent the workers a form allowing them to resign their membership and stop the deduction of dues. AFSCME also agreed to return all dues illegally confiscated after their lawful resignations.

According to the state’s collective bargaining agreement with AFSCME 2620:

Employees who voluntarily become a member of AFSCME shall remain members of AFSCME in good standing for the length of the agreement. However, this provision shall not apply to any employee who, within 30 days prior to the expiration of the agreement, withdraws from AFSCME.

But this so-called “maintenance of membership” provision is illegal post-Janus because it “…impose(s) upon California state employees an obligation to retain their membership in good standing with the union,” explained Maxford Nelsen, the Freedom Foundation’s labor policy director.

“It’s true that ‘membership’ obligates employees to pay union dues,” he said, “but it also places additional associational obligations upon employees above and beyond dues payment alone. As ‘members,’ employees are subject to union bylaws and discipline. Often, for example, union members can be fined or penalized for crossing a picket line.”

In other states — notably including Washington and Oregon — unions typically comply immediately when a public employee requests to drop his or her union membership. But they continue to deduct dues until the worker makes a second request within an arbitrary opt-out window, for example the two weeks following the anniversary of their original hiring date.

“What’s unique about the California maintenance of membership situation is that the unions are not attempting to compel nonmembers to keep paying,” Nelsen continued. “They’re trying to prevent members from becoming nonmembers.

“The union’s position had been that Janus only protects the rights of nonmembers to not pay agency fees,” he said, “but it says nothing about the right of public employees to resign union membership in the first place. They’re dead wrong about that, and apparently they finally realized it.”

Imposing an obligation on employees to be union members in good standing and pay union dues, Nelsen said, is an even greater burden on public employees’ First Amendment rights than a contractual requirement to pay union dues only.

“This is a major win,” Nelsen concluded. “Hopefully the rest of California’s employers seeking to hide behind this unconstitutional law wise up and follow suit.”