Three Washington school district workers are poised to become the latest public employees in the nation to test whether a two-year-old U.S. Supreme Court ruling means what it clearly says or what labor unions desperately want it to mean.
The trio on May 13 filed a class-action lawsuit in Eastern Washington District Court alleging their union, Service Employees International Union (SEIU) Local 1948, continued to deduct dues from their paychecks even after they exercised their Constitutionally protected right to opt out of union membership.
The case is the most recent in a long string of union attempts to strain the limits of Janus v. AFSCME, the landmark lawsuit in which the justices affirmed that forcing government employees to either join a union or support its activities with their dues or fees amounted to forced political speech.
The ruling cleared the way for thousands of public employees to opt out by emphasizing that dues cannot be deducted from a worker’s paycheck without his or her affirmative consent. But Janus also included a provision stating the decision to pay union dues constitutes a waiver of the First Amendment right to pay nothing to a union.
Consequently, it isn’t enough for a worker to simply sign a dues authorization form. The union must also inform them of their right to pay nothing to the union and that signing a union membership card constitutes a waiver of that right.
“The unions are still in denial about the second provision, and there hasn’t been a definitive ruling on it yet,” said James Abernathy, litigation counsel for the Freedom Foundation, which is representing the three school workers. “But we’re confident the Supreme Court will eventually issue a follow-up ruling reinforcing what it already said in Janus. And when it does, it will be a game-changer.”
The plaintiffs include:
- Carolyn Crouthamel, who works as a secretary for Walla Walla Public Schools;
- Diane McCallister, who works as a secretary for the Evergreen Public School District in Vancouver, Wash.; and,
- Joanne Baker, an administrative assistant for the Kent School District.
All three were pressured to sign a new membership agreement with SEIU 1948 just before the Janus ruling was issued in June 2018. The new contract provided no new benefits; it simply included language limiting opt-outs to a two-week annual window — and automatically renewed their union membership for another year if the employee didn’t act during that span.
They later requested to leave the union and, although their memberships were terminated, SEIU 1948 continued to confiscate dues, claiming the workers could only cease the deductions during the opt-out window.
“The unions insist a signed membership card satisfies their requirement to obtain the employee’s permission before deducting dues,” Abernathy said. “But there are two problems with that.
“First, it completely ignores the companion requirement that they fully inform the workers of their rights,” he said. “And secondly, a membership contract doesn’t trump the U.S. Constitution. Whatever they signed or agreed to is meaningless if it denies their legal rights.”
In addition to SEIU 1948, Abernathy said the complainants are also suing the state of Washington for continuing to deduct dues based on authorization from the union rather than the actual workers.
The Freedom Foundation, which has offices in Washington, Oregon, California, Ohio and Pennsylvania, has filed at least a dozen cases making the same basic argument. The most prominent of these is Belgau v. Inslee which is already at the 9th Circuit. Oral argument in Belgau was in December 2019 and a decision from the court is expected shortly. Regardless who prevails in Belgau at the 9th Circuit, the case is expected to be appealed to the U. S. Supreme Court.
“We’re cautiously optimistic the justices will want to hear our case after seeing what the lower courts are doing with their handiwork,” Abernathy said. “And when they rule in our favor, it changes the whole landscape for these unions.
“Instead of being able to take for granted that millions of workers will be dues-paying members until they can fight their way out,” he explained, “none of them will be. And it’ll be the unions’ job to persuade them to come back.”
No wonder they’re so worried.
