Freedom Foundation

What the Janus decision means for Washington

This week, the U.S. Supreme Court recognized what the Freedom Foundation has argued for years: Forcing public employees to financially support a labor union as a condition of employment is unconstitutional.

The 5-4 decision in Janus v. AFSCME Council 31 is a resounding victory for civil liberties and free speech, and it gives public employees greater control over their workplace representation.

Below are a few observations, thoughts and takeaways about what the decision will mean for Washington state and how things are likely to unfold from here.

1. Public employees’ rights are dramatically expanded.

Research compiled by Barry Hirsch of Georgia State University and David Macpherson of Trinity University, and available at UnionStats.com, estimated there were about 290,000 union-represented public employees in Washington in 2017. Until now, almost all of these employees were required by state law and union collective bargaining agreements to pay union dues or fees as a condition of employment.

However, the Supreme Court held in Janus, “This procedure violates the First Amendment and cannot continue.”

Unions claim the decision undermines workers’ freedom to join together. Nothing could be further from the truth. It is no harder for a public employee to join a labor union after Janus than it was before.

However, public employees may no longer compelled to “join together” and financially support labor unions against their will.

2. Union opt-out schemes are dead.

While the court could have simply said that public employees can’t be forced to pay a union, it took the additional step of clarifying that unions cannot collect dues or fees without employees’ permission, ruling:

“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

It’s an important clarification.

In its 2014 Harris v. Quinn decision, the Supreme Court ruled that “partial-public employees” like home care aides serving Medicaid-eligible clients could not be forced to pay union dues or fees as a condition of employment.

To try and keep caregivers paying dues, SEIU 775 and Gov. Jay Inslee negotiated a contract provision requiring the state to collect union dues from caregivers’ pay automatically, even if the caregiver never signed up for union membership or authorized the deductions. The deductions would be stopped only if a caregiver opted out after the fact by submitting a written demand to the union. This exploitative scheme has been used to seize millions of dollars in dues from thousands of caregivers without their consent over the past four years.

The Freedom Foundation documented this experience in one of the two amicus briefs it filed with the Supreme Court on behalf of the plaintiff, Illinois state employee Mark Janus, and urged the court to, “…make clear that government employers and unions must obtain workers’ affirmative consent before deducting any union dues or fees from their wages.”

Thankfully for public employees, the court did exactly that.

The clarity of the ruling likely renders HB 2751, recently passed by the Washington Legislature, unenforceable. Introduced by Washington Education Association activist Rep. Monica Stonier (D-Vancouver), the bill sought to preserve automatic, unauthorized union dues deductions for public employees in the event the Supreme Court merely said union dues payment could not be compelled.

At the time, Stonier described her bill this way:

“It is my intent to make sure that workers who come to their workplace are (union) members… I think we just want it to be clear in Washington state that workers are members of their union first when they are hired into a collective bargaining unit and then, if they so choose to opt out of that union, that comes as a second step.”

Under Janus, such shady practices cannot be legally implemented.

3. The Supreme Court rejected unions’ flawed “labor peace” argument.

In a joint statement issued after the ruling, Gov. Inslee and Attorney General Bob Ferguson denounced Janus as, “taking us backwards to a time when workers had to resort to enormously disruptive strikes and walk-outs in order to make their voices heard.”

This echoes one of the unions’ primary legal arguments in defense of compulsory union fees, namely, that the government’s interest in promoting “labor peace” allows it to violate public employees’ free speech rights by forcing them to pay protection money to labor unions.

However, Freedom Foundation research, submitted to the Supreme Court in a second amicus brief, documented how public employees in right-to-work states historically go on strike at a far lower rate than their counterparts in states allowing compelled union payments. The brief noted,

“…the fact that RTW states generally have fewer strikes and more engaged employees than agency-fee states indicates that states and public employers have other means at their disposal for ensuring labor peace that are less restrictive of First Amendment free speech and association rights than compelling public employees to pay union dues or fees under a union security provision.”

Drawing on the experience of federal government employment, where union membership has always been optional, and public employment labor relations “in the 28 States that have laws generally prohibiting agency fees,” the court correctly concluded,

“Whatever may have been the case 41 years ago when Abood was handed down, it is now undeniable that ‘labor peace’ can readily be achieved ‘through means significantly less restrictive of associational freedoms’ than the assessment of agency fees.

4. Certain union Janus work-arounds remain in place.

Even though HB 2751 was effectively voided by Janus, other union-supported work-arounds remain in effect. SB 6229, also passed this year, requires public employers to give union organizers at least 30 minutes with newly hired employees to pressure them into signing union membership forms. Such captive-audience meetings tend to be very coercive and deceptive.

To make matters worse, many government unions have revised the terms of their membership forms to make it difficult for signers to cancel the deduction of dues from their pay, typically by only allowing them to cancel the deduction during a short annual escape period.

To counter these tactics, the Freedom Foundation has already begun educational outreach to hundreds of thousands of public employees along the west coast as well as litigation efforts to protect public employees’ rights.

5. Union-friendly politicians will go out of their way to shield government unions.

Unions expected to lose Janus. Consequently, labor insiders have been sketching out what potential responses might look like for years. Many of the ideas being considered will require legislative changes to implement, and Washington’s Legislature — currently controlled by narrow Democratic majorities — may be willing to oblige.

Rep. Stonier told the Seattle Times she is looking for ways to salvage HB 2751, while Sen. Karen Keiser (D-Kent) — chair of the Senate Labor and Commerce Committee and former communications director for the Washington State Labor Council — said, “There will be many new (legislative) initiatives in 2019.”

The only limitation on the types of proposals that may surface is the imagination of government unions and their political allies. Proposals could include things like allowing unions to bill nonmembers for grievance services, a possibility recognized by the court in Janus. Other labor academics contend governments should stop collecting dues from employees pay and, instead, simply subsidize unions directly with tax dollars. Under such an arrangement, the government would pay unions to collectively bargain against the government. It would mean government officials would even more directly subsidize their political allies with tax dollars than they do now.

While changes like these would require legislative approval, some local officials are aligning themselves with government unions as well. Tacoma Mayor Victoria Woodard, for example, signed onto a pledge to implement a range of measures designed to promote unions’ dues collection.

Perhaps the biggest takeaway is that the end of the Janus decision — though a significant victory — is, in many ways, merely the beginning.

The Freedom Foundation’s experience assisting home care aides and child care workers over the past four years to learn about and exercise their right to leave SEIU shows that making Janus a practical reality for public employees will require massive educational outreach, enforcement litigation to hold unions accountable and engagement in the Legislature to push back against end-runs around employee rights. And that’s exactly what we intend to do.