Freedom Foundation

Lawsuit catches union already violating Janus

Unions have been abusing state-granted privileges for generations. The ability to exclusively represent everyone in a workplace bargaining unit, regardless whether all the employees want representation, has been a boon to union coffers across the country. So, too, was a union’s ability to force workers into paying union fees as a condition of employment.

Many state employers also conspired with unions to deduct union fees from employees’ wages without their permission pursuant to what is called an “out-out scheme,” which requires an employee to affirmatively object to the deductions to stop them.

But Janus v. AFSCME, Council 31 changed all that. Or at least it should have.

Exclusive representation remains, but the U.S. Supreme Court held in Janus that agency fees and opt-out schemes violate public workers’ First Amendment rights of free speech and free association. Thus, before any payments can be made to a union, a public employee must clearly and affirmatively consent to the payments by voluntarily, knowingly, and intelligently waiving her right to not subsidize a union’s political advocacy (which is what all public-sector union dues are subsidizing).

This is what the Supreme Court meant in Janus when it said the waiver must be demonstrated by “clear and compelling evidence.”

The Washington Federation of State Employees, AFSCME Council 28 (“WFSE”) and Washington Attorney General Bob Ferguson (“AG”), however, treat Janus’ requirements as mere suggestions rather than law. We know this because they are preventing Washington state employees from resigning union membership and ceasing the payment of union dues.

The state takes the position that workers who resign union membership in the wake of Janus must nonetheless continue dues payments because the workers signed cards before Janus limiting their ability to resign union membership to a narrow 10-day window once a year.

The AG contends that Janus “only impacts the payment of an agency fee by individuals who decline union membership” and that the decision “does not impact any agreements between a union and its members to pay dues.” In other words, Ferguson asserts Janus’ requirement of a clear and compelling waiver does not apply to workers who become union members.

The Freedom Foundation filed a lawsuit on behalf of seven public workers in Washington who disagree. The case, Belgau, et al., v. Inslee, et al., (Case No. 3:18-cv-05620-RJB filed in the U.S. District Court for the Western District of Washington), challenges the AG’s unduly narrow interpretation of Janus.

The plaintiffs are subjected to exclusive representation by WFSE and were forced for years to at least pay an agency fee constituting approximately 80 percent of full union dues. During this time, the plaintiffs signed WFSE cards agreeing to pay full union dues. Had they objected to union membership, they would still have been forced to pay 80 percent of full union dues, but would have been deprived of the ability to vote on their own employment contract.

Since they did not have the right at the time to pay 0 percent of full union dues, they signed the cards.

But then the Supreme Court issued Janus, recognizing public workers’ right to pay no union dues or fees because compulsory agency fees violated their First Amendment rights of free speech and free association. Everything a public-sector union does is political advocacy, and the First Amendment does not tolerate compulsory subsidization of political advocacy.

Not surprisingly, many workers who had faced the decision to pay either 80 percent of dues or 100 percent of dues and chose to pay 100 percent would now prefer to exercise their newly acknowledged Janus rights and pay nothing. The plaintiffs in Belgau are among these workers, so they resigned their union membership and objected to the payment of union dues.

But WFSE and its friends in Olympia will not stop deducting union dues from these workers’ wages, citing the WFSE cards the plaintiffs signed that contain an irrevocability provision limiting their ability to resign to a mere 10 days a year near the one year anniversary of their initial signature on the card.

If the plaintiffs do not object within those 10 days, the irrevocability period renews for another year … and so on and so forth ad infinitum.

However, according to Janus, any agreement to make any payments to a union must constitute the valid waiver of a constitutional right. This means the WFSE cards must constitute such a waiver, which they cannot because the workers signed them before courts first recognized the constitutional right in Janus.

It is impossible to knowingly waive a constitutional right before the constitutional right is recognized. And even if such a thing were possible, the WFSE cards fall woefully short of constituting valid constitutional waivers because they say nothing about the constitutional right purportedly being waived, or possibly being waived (since it was not yet recognized).

Ferguson and WFSE ignore this requirement and continue to enforce “agreements” executed by workers under what were unconstitutional circumstances. Workers were already forced to pay an agency fee constituting 80 percent of full union dues, were forced to be exclusively represented by WFSE, faced WFSE’s denial of the right to vote on their own employment contract if they “only” paid 80 percent of full union dues and did not have the right to pay nothing to support WFSE’s political advocacy.

In other words, WFSE and the state were able to bully workers into “agreements” that revoked their own ability to exercise an unrecognized right.

Such circumstances hardly amount to a knowing and voluntary decision to waive an unrecognized constitutional right.

The AG’s position that Janus does not apply to agreements between a union and its “members” makes no sense because Janus applies to all public workers upon hire when they initially decide to either exercise their Janus rights by declining union membership and dues payments or decline their Janus rights by joining a union and paying union dues.

Saying Janus does not apply to the latter is essentially saying that a union can presume workers who become union members waived their right under Janus to fully waive their constitutional right to not subsidize union political advocacy. Only upon such a presumption could a union card that does not constitute a valid constitutional waiver justify the continued deduction of union dues from the wages of workers who have objected to such deductions.

Such a presumption clearly violates Janus.

WFSE, the AG, and Washington’s public employers under the leadership of Gov. Jay Inslee have once again conspired to ensure the steady flow of money into union coffers at the expense of the workers’ individual rights. States and unions have been doing this for 50 years, continually abusing workers under agency fee regimes, opt-out schemes, and complicated opt-out procedures.

State politicians and the unions who elected them perpetrated these abuses by manipulating the law as it stood under the Supreme Court’s 1977 decision Abood v. Detroit Board of Education. But as noted by the Supreme Court a few weeks ago in Janus, “Abood was poorly reasoned” and “has led to practical problems and abuse.”

Along with their preferred politicians, unions are once again abusing public workers. Unions treat public employment as a playground on which they can bully public workers into handing over their lunch money.

Except this time, the unions won’t get away with it if seven courageous public workers in Washington have anything to say on the matter.