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 firstname.lastname@example.org.
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