Freedom Foundation

Lawsuit alleges state, unions continue to deduct dues illegally after Janus ruling

The state of Washington and the government unions that too often pull its strings responded to June’s landmark U.S. Supreme Court ruling in Janus v. AFSCME with all-too-predictable denial and obfuscation.

But if a lawsuit filed in federal court on Thursday by the Freedom Foundation, an Olympia-based free-market think tank, is successful, it could establish a precedent that influences the way Janus is interpreted in every state – and potentially blow a multi-billion-dollar hole in the unions’ balance sheets.

The class action lawsuit, Belgau v. Inslee, et al, was filed on behalf of six state employees who attempted to resign from the Washington Federation of State Employees (WFSE) after Janus, only to be told by the union they had to wait until unique, 10-day escape periods occurring over the course of the next year.

Under the Janus ruling, issued on June 27, public employees can no longer be compelled to pay dues or agency fees to a union as a condition of employment. Moreover, Justice Samuel Alito, writing for the majority, emphasized that:

“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.”

The sentence – taken nearly word for word from an amicus brief submitted to the court by the Freedom Foundation last December – addressed a familiar tactic employed by unions against workers who’ve expressed a desire to opt out of full dues and instead pay slightly reduced “agency fees.”

In such cases, unions take the position that every worker is a dues-paying member until he or she successfully negotiates a deliberately complicated opt-out process.

Alito made it clear, however, that public employees cannot be charged any union dues or fees until they knowingly and affirmatively consent to the deduction.

Further, Alito noted:

“By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”

Again, the wording is unambiguous. A public employee allowing his or her dues to be taken is waiving a constitutional right, which can only be done voluntarily and knowingly.

And since it’s impossible for a worker to have knowingly waived a right that wasn’t recognized by    the court until the Janus ruling was issued, it follows that all union membership cards signed prior to June 27, 2018, are invalid.

Consequently, the state cannot continue to garnish the wages of anyone except the relative handful of public employees who may have provided proper authorization in the past four weeks.

“The state and the unions are determined to act as though the Janus ruling affects only those workers who successfully opt out,” said Freedom Foundation Litigation Counsel James Abernathy. “But it goes a lot farther than that.

Janus,” he explained, “puts the burden of proof on the union to prove a worker actually wants to be a dues-paying member. It can’t simply assume they do until informed otherwise, nor can the

workers be bullied into waiving rights they don’t realize they have.”

Two weeks after the ruling was issued, on July 10, the Freedom Foundation held a press conference outside Washington’s Office of Financial Management and warned the state and the unions there could be expensive consequences to an interpretation of Janus that fails to appreciate its true scope.

Washington Attorney General Bob Ferguson responded with a statement asserting:

“The Janus decision does not impact any agreements between a union and its members to pay union dues, and existing membership cards or other agreements by union members to pay dues should continue to be honored. The opinion only impacts the payment of an agency service fee by individuals who decline union membership.”

Abernathy disagrees.

“There are close to 300,000 unionized public employees in Washington alone,” he said.

“Considering these people pay as much as $100 a month in dues, that means the unions are raking in millions of dollars per month they’re not entitled to. And you can bet a lot of these workers are going to want their money back. Ferguson is taking a huge risk with someone else’s money.”

The Freedom Foundation’s lawsuit names Gov. Jay Inslee, the heads of four state agencies and WFSE (AFSCME Council 28) as defendants.

The suit seeks, among other relief, an injunction that would prevent the state from continuing its practice of skimming money from the paychecks of government employees who couldn’t possibly have knowingly authorized it, along with punitive damages from the defendants because their conduct … was and is (the product of) evil motive or intent or involves reckless or callous indifference.”