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Despite Janus Ruling, Some Unions Still Forcing Public Workers to Pay Annual Dues

In California, new lawsuits aim to make unions respect the Supreme Court's authority.

The U.S. Supreme Court's decision from June in Janus v. the American Federation of State, County and Municipal Employees was clear: Public employees no longer are required to pay union dues, even for collective-bargaining purposes. This was no technical or ambiguous point. The court declared it an infringement of the First Amendment when the government forces workers to financially support organizations that they don't want to support.

Case settled, right? Not entirely. Public-sector unions, especially in California, aren't used to finding themselves on the losing end of a public-policy battle. As Janus made its way to the high court, some of the state's unions successfully lobbied the Democratic-controlled Legislature to pass laws designed to undermine the expected decision in that case, which involved an Illinois social-worker who didn't want to pay dues to his local AFSCME union.

For instance, Gov. Jerry Brown signed a law that gives unions on-the-job access to California public employees, where union organizers can provide "orientations" touting the benefits of union membership. Unions also have been sending public employees contracts that include "trap language." In essence, the public employees were given contracts that essentially signed away any post-Janus rights. In signing the contracts, they are trapped into paying dues even though the high court said they no longer were required to do so.

We're already seeing the fruits of these anti-Janus activities. In order to circumvent the decision, some California union leaders now are telling their members that they can resign their membership but that those contracts they signed require them to continue paying the union at the same rate. Some of the unions are calling this a service fee, but they can call it whatever they choose: It undermines the clear words, intent and spirit of Janus.

In recent weeks, union members who have tried to leave their unions have sent copies of their correspondence to the California Policy Center. In one example, a state of California employee sent a letter to Los Angeles-based Service Employees International Union Local 721 in which she resigned her membership and said that she no longer wishes to pay dues or fees to the union. In response, she received a letter touting the benefits of union membership and refusing to end the automatic dues deductions from her state paycheck until a coming deadline.

"Although this would mean losing the benefits of full union membership, we want to be clear that you may cancel your membership at any time," according to the letter. "But please be advised that you made a commitment to pay an amount equal to dues to support your union's work when you became a member. To end that commitment, you agreed to terminate dues deductions only within the prescribed window period outlined in your contract or membership application." In this case, the union member has a two-week window in May to terminate her dues deductions.

In another case, Sacramento-based AFSCME Local 3299, which represents University of California employees, agreed to terminate an employee's union membership, but reminded her that she must still pay an automatically renewing "service fee." She, too, would have to opt out only during a short window of time. After sending two mailed letters and then handing one to a union official, one Los Angeles teacher said he received a response from United Teachers Los Angeles (UTLA) confirming that he is now a "dues-paying non-member." Gee, thanks a lot. It sounds like buying a new car, but being forced the leave the showroom on foot.

In another correspondence, one member of the California School Employees Association, which represents non-teaching public-school employees, received a legal document from the union. It regarded a lawsuit seeking a return of agency fees that were paid before the Janusruling. The union is asking the employee to sign away her legal rights to recover those funds in exchange for a return of five days of agency fees, amounting to approximately $15. Such a deal.

Some unions have been telling reporters that they have lost only a tiny percentage of their membership following Janus. For instance, KPBS reported in September that membership in the San Diego teachers' union has held steady: "The San Diego Education Association had about 350 non-members paying $1,000 annually, said association President Kisha Borden, and 10 out of about 6,000 dues-paying members have ended their memberships since the ruling." Unions in other parts of the country have likewise reported that, despite dire predictions, few workers are opting out of union membership.

If the responses California Policy Center has received from government employees are typical, then it's not hard to come up with at least one explanation. Many public-sector unions are making it inordinately difficult for people to opt out of dues-paying. No wonder only a handful of people have left, given that in many cases their short window for opting out hasn't even arrived yet. It's like celebrating that your dog has never run away from home – even as you leave him locked in a kennel in the backyard.

Before Janus, the legal framework for public-union membership had been established by a 1977 U.S. Supreme Court case called Abood v. Detroit Board of Education. In that case, the high court ruled that public employees were not required to pay union dues that went for direct political purposes, but were still required to pay agency fees for contract negotiations. Janus negated Abood by expanding the prohibition of mandatory dues-paying for any purpose.

But that case gave us decades of experience of union members who were trying to withhold a portion of their dues. These workers often complained that this "opt out" process was overly burdensome given that these unions were in charge of the process, and they obviously have no reason to make it easier for them to do so. So it's not surprising that the unions are placing obstacles in the way of government employees who are trying to exert their Janus rights just as they placed obstacles in the way of those who exerted their Abood rights.

The California Policy Center and the Liberty Justice Center are planning to go back to court to settle the matter, which will center on contract law. They filed a lawsuit in California this week.

Anyone who signed these contracts should be free to leave the unions immediately. It's a no-brainer for contracts signed before the Janusruling. Those contracts were based on a legal regimen that no longer exists. It's an extreme but useful comparison: The title that Southern slave owners held to their chattel no longer meant anything after slavery was outlawed. Likewise, a contract requiring an employee to pay dues doesn't mean anything after the highest court outlawed the requirement that they pay dues.

What about those employees who signed a contract after Janus was decided? It still seems straightforward. Consider this scenario: It's your first day on the job in a school district and the union representative hands you a stack of employment papers including a contract for union membership. It's a situation referred to as "the inequality of bargaining power." You can't expect a new employee to refuse to sign and potentially threaten an important new job opportunity. In an ideal world, the public-sector unions would simply follow the spirit of the court decision and free public employees to make their own choices. This is far from an ideal world, so it looks like the courts are going to have to force them to do so.

Steven Greenhut is contributing editor to the California Policy Center. He is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Photo Credit: Jeff Malet Photography/Newscom

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  • Remember to keep it all polit||

    Baby steps is the best consolation I can offer. The unions must be scared spitless to go to such extremes. It seems like a no-brainer that these cute tricks will be overturned. I hope there's some kind of retroactive refunds coming.

  • D-Pizzle||

    By the Ninth Circuit? Unlikely. This will be in front of the Supreme Court again.

  • Ordinary Person||

    Too bad the Republicans on the Court have already said it was cool for banks and telecons to force people into shitty agreements.

  • loveconstitution1789||

    No they haven't.

    Dont agree to bad contract language.

    Contracts can be void on their face and that is what the union is producing for employees to sign. A contract full of lies.

  • Billy Bones||

    Talk about acting like a spoiled two-year-old little brat. These unions are not stupid. They know they have no legal footing for these shenanigans. They are only going lose more in legal fees than they are going to gain by "trapping" people in bogus contracts. The hubris of these asswipes will never fail to astonish me.

  • Rossami||

    I'm not so sure about that. The union's legal fees are likely to be relatively small, especially if their tactic is delay and obfuscate before eventually settling. That's balanced against the really large dollars that they will continue to collect from those who choose to watch the fight from the sidelines.

    The calculus would be very different if we had a credible loser-pays system. As it is, there's a certain rationality to the tactic even if it is deeply immoral.

  • SQRLSY One||

    This is endless welfare for lawyers!!! We need ten billion court cases before the rulings of the SCROTUS are actually enforced! And then only maybe!!!

  • damikesc||

    EXCEPT when it comes to abortion. SCOTUS is pretty on the nose with that. All other decisions, though, are negotiable.

  • Griffin3||

    Easy. Union can keep collecting fees while the court challenge is ongoing. But if they lose the case, the union owes owe back dues, plus interest, plus legal fees ... to everyone. You know, just like someone reinstated to the job by the union after performing their particular crime in the line of duty.

  • loveconstitution1789||

    Although a nice wallet punch would be nice, the feds just need to send in US Marshals and FBI to seize all union paperwork and begin proceedings against union officials that are violating the Civil Rights of government employees.

    The deductions would stop immediately.

  • Last of the Shitlords||

    Freeze their assets too. Including union employee payroll.

  • Jerryskids||

    Respecting the Supreme Court's authority is so 20th century. I thought we had moved past this with the Sebelius decision.

  • loki||

    Mobsters gonna mobster

  • damikesc||

    Democrats ignoring federal law when it benefits them to do so?

    Why, they have never done that before.

  • loveconstitution1789||

    Hopefully this just creates MORE non-Lefty voters too.

  • Warren||

    You can't expect a new employee to refuse to sign and potentially threaten an important new job opportunity.

    Why the fuck not?

  • Ben of Houston||

    That first day of paperwork occurs after the prior job has been given notice and resigned. Any other opportunities have already been politely let down. Possibly there has even been a relocation. If you walk out and are not hired, you will then have to begin a job search again, quite likely even from square one.

    I don't know about you, but my family needs my income. It would have to be an exceptionally egregious violation of my principles for it to be worth sacrificing so much.

  • Warren||

    Yeah, so? It's a fucking contract. If we won't uphold contract law, what's left of property and capitalism?

  • MarkW201||

    Mr. Greenhut is misrepresenting the Janus decision. It is about agency fees, not union dues. Greenhut repeatedly blurs the distinction between the two. Union dues are paid by union members, who, except in a union shop workplace, join the union voluntarily. Agency fees are paid by non-union members in a unionized workplace, and cover the worker's share of the costs of contract negotiations, grievance procedures, and other administrative costs. Agency fees are less than the dues paid by a union member, since non-members are not assessed a share of the unions political activities.

    The Janus decision concerned agency fees. It ruled that public employees in unionized workplaces who do not join the union representing them may not be required to pay agency fees, because doing so is, somehow, a violation of their First Amendment rights.

    Whether that is good First Amendment law or not is a separate question which I will not comment on here. The point here is that union member's dues are not the same thing as agency fees.

    Moreover, most of the anecdotes that Greenhut is going ballistic about here concern union members and their duues, not agency fees. The union conduct that Greenhut is describing--leaving aside whether he is doing so accurately and fairly--may or may not be legal. But it is not relevant to Janus, which, again, was about agency fees.

  • MarkW201||

    I'd like to also address the scary scenario that Greenhut conjures up in his final paragraph:

    "Consider this scenario: It's your first day on the job in a school district and the union representative hands you a stack of employment papers including a contract for union membership"

    That bears no resemblance to how hiring works in the real world, in my nearly 25 years of experience as a public sector educator (I'm a community college instructor). When I was hired to my current job, I first received an offer of employment from the office of the college President. I then responded and accepted the offer.

    A few months later, I attended a new faculty orientation. During that orientation, there was a session where the HR department--not the union rep--had us go through the process of filling out paperwork; most of it was for health insurance, life insurance, etc.

    At a completely separate time and place, we were given a pitch from the union. The union rep had zero authority do rescind the offer of employment made by the college President.

    I was, by free choice, an agency fee-paying non-union member for the past 17 years. However, at the start of this academic year, I filled out my union membership papers and joined the union. I did so for the simple reason that I am not a free rider. And also, as a small "take that" to the five Justices who made up the Janus majority and to anti-union ideologues like Greenhut.

  • Carter Mitchell||

    So glad to hear that you are paying your dues. Even happier to hear that people who choose not to associate with organizations are at last free to not associate with them. Not surprised that those thugs will resort to any tactic to keep the cash flowing.

    While unions are, thankfully, a non-issue in my line of work, I would never again associate with a union. I was in one as a factory worker when I was young. The primary beneficiaries (who were never laid off, for some reason) were the union "leaders".

  • MarkW201||

    Unless a workplace is a true union shop, employees are always free not to join the union. What has changed with Janus is that public sector employees are now "free to free-ride," by receiving the benefits of being represented by a union, while not sharing in the costs.

    I am sorry that your union leaders--based on your description--apparently never negotiated a single raise at your workplace, never negotiated a single improvement in benefits, never tried to address a single working conditions issue, never represented a single employee in a grievance procedure, etc. What did you and your coworkers do when the leaders were up for re-election?

  • Carter Mitchell||

    Personally, I went back to school, learned something useful, and got a better job. Haven't belonged to a union since, and wouldn't want to. And if I felt that I could improve, I went elsewhere.

    That's what happens in a free market - competition. Better employers are able to attract better employees, usually by offering better pay, working conditions, etc.

    I have no argument with people forming or joining a union. What I will argue with is someone attempting to use force (including the force of law) to coerce me into joining against my will.

  • pukool||

    The union rep had zero authority do rescind the offer of employment made by the college President.


    If you live in a blue state, your union would have a union security clause. This clause requires, by law, that you pay agency fees if you want to keep your job.


    One such case made national news where a teacher refused to pay agency fees, but was resolved when the legislature exempted ROTC instructors from the fees.


    article link


    Alas, this was how I was planning on retiring.... by quitting agency fees, and then making them fire me. =)

  • MarkW201||

    I do live in a blue state, actually (Washington). The issue that Greenhut raised was a hypothetical scenario where a new employee was coerced to join the union by the "union rep" who was handling his/her hiring paperwork--which is not how it is actually done.

  • NoAuthority||

    I also live in Washington. And when I was hired last December I had 60(? or 90?) days to join the union or I would lose my job. The only exception is for a bona fide religious belief against collective bargaining. This is what I did - and it was not a straight forward process. Unions for public employees are unethical.

  • MarkW201||

    That is the union shop exception that I mentioned in replying above to Carter.

  • Olderthandirt-stillkickin||

    Back in the early sixties, I got a job between semesters at a retail location, and two weeks later a Local Knee Breaker met me in the locker room and told me I had to join the union or hit the bricks. I told him to kiss my ass and hit the bricks that day. Nobody forces me to pay for the privilege of having them tell me what to do. They still don't.

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