(SALEM, Ore.) — Ironically, the U.S. Supreme Court’s last-minute decision in November not to hear an appeal making similar arguments emboldened the Freedom Foundation to ask the justices on Jan. 10 to consider another potentially landmark labor reform case that would put teeth into a 2018 ruling freeing government employees from mandatory union membership and dues.

The new case, Yates v. Hillsboro Unified School District, targets the union tactic of limiting union opt-outs to a narrow annual window arbitrarily chosen by — and known only to — union officials in an effort to avoid complying with Janus v. AFSCME. 

In Janus, the justices affirmed that virtually every action a government employee union takes has a political component since its members are ultimately paid with taxpayer dollars. Consequently, forced membership and dues in the public sector violate the First Amendment because they force employees to subsidize political speech with which they may disagree.

The unions responded to the ruling by arguing that while Janus may allow employees to opt out, the process doesn’t have to be easy or painless.

“Unions have taken a variety of measures — including filing lawsuits against their own members — to deny government employees their Constitutional right not to join or fund someone else’s political agenda,” said Freedom Foundation attorney Rebekah Millard. “Opt-out windows are perhaps the most arrogant and unconstitutional of these because they’re nothing short of a union trying to decide when and under what circumstances Americans are entitled to exercise their rights.”

The three plaintiffs in Yates are all employees of the Hillsboro (Ore.) Unified School District who attempted to leave their union, Hillsboro Classified United Local 4671 and its parent, the American Federation of Teachers. The plaintiffs sought to cease paying dues in the wake of Janus, only to have their requests denied because they hadn’t been submitted within a union-controlled annual month-long time frame.

The employees had all signed membership agreements that authorized the union to deduct dues, but the boilerplate wording in the document didn’t make clear to the employees they didn’t have to become members.

“The ruling in Janus gave employees the opportunity to pay nothing to a labor union, unless they affirmatively consent to pay.” Millard explained. “The union can constitutionally take an employee’s money if the employee knowingly agreed to waive their right to not pay. Here, the employees did not know that they had this right and did not know that signing the membership cards would obligate them to continue to pay until the arbitrary window set by the union.”

The Freedom Foundation — a national policy watchdog that specializes in public-sector union abuses — had earlier made that argument on behalf of several Washington state public employees in Belgau v. Inslee, which it appealed to the U.S. Supreme Court last summer.

“It’s not unusual for the Court to deny the first few petitions for review involving an important point like this, waiting for additional cases to show the controversy isn’t a one-time thing,” Millard said.

Like Belgau, Yates challenges the question of whether a membership agreement in which the workers weren’t advised of their rights can be enforced. But it also takes a hard look at whether the union has the ability to limit how Constitutional rights can be exercised by honoring them for only one month a year.

“Millions of government employees should have been freed after the Janus ruling,” Millard said. “But the unions have set up a system under which that freedom can only be enjoyed on their terms rather than the worker’s.”

She concluded, “The justices can go a long way in Yates toward forcing the unions to comply with the First Amendment as laid out in Janus.”