October 9, 2019
By Jacob Huebert
Alaska recently became the first and only state to fully protect government employees’ freedom to choose whether to pay money to a union, as the First Amendment and the Supreme Court’s 2018 decision in Janus v. AFSCME require. But an Alaska trial court has put the state’s new reforms on hold.
On August 27, Alaska Attorney General Kevin G. Clarkson issued a memo advising the state to provide stronger protections for state employees’ First Amendment rights. To ensure that the state only takes union dues from workers who actually want to pay them, Clarkson advised the state to stop taking union dues from all employees except those who have clearly expressed their affirmative consent to pay—and knowingly waived their First Amendment right not to pay—after Janus was decided.
To accomplish that, Clarkson recommended that Alaska “implement and maintain an online system and new written consent forms through which employees wishing to authorize payroll deductions for union dues and fees may provide consent.” That process, under which unions would not “control the conditions in which the employee provides consent to a payroll deduction” for union dues, as they still do in many states, would ensure that workers’ waivers of their First Amendment rights “are knowing, intelligent, and voluntary” as required.
Alaska Governor Mike Dunleavy issued an administrative order implementing the recommendation on September 26. The state then filed a lawsuit asking the Alaska Superior Court to declare that the reforms were warranted by the First Amendment and Janus.
The AFSCME-affiliated Alaska State Employees Association (ASEA) then asked the same court to issue a temporary restraining order to prevent the Governor’s order from taking effect. On October 3, the court granted the union’s motion.
The court concluded that the state is unlikely to succeed in the lawsuit. It said that Governor Dunleavy’s order requiring new procedures for employees to opt in to union membership “seems directly at odds” with both a state statute governing public-sector labor relations and the state’s collective bargaining agreement with ASEA. It also concluded that neither Janus nor any other Supreme Court precedent requires dues authorizations to contain the waiver warning that the administrative order calls for or requires states to control the opt-in process. In support, the court cited federal court and trial court decisions that have held that people who signed union membership agreements before Janus were not entitled to opt out before their membership terms expired.
The court also concluded that a restraining order was warranted to prevent harm to the union, which would otherwise be “genuinely injured” because some workers would stop paying dues—as, in fact, some already had. The state, on the other hand, would only suffer “slight” harm from a restraining order. Any real harm would not be felt by the state, the court said, but by employees who don’t want to pay union dues—whose interests and rights appeared to be of relatively little concern.
The temporary restraining order will remain in effect until the litigation is concluded, unless it’s vacated by a higher court in the meantime.
Higher courts—including, if necessary, the U.S. Supreme Court—should vacate the restraining order and rule in favor of the state and the workers the Governor’s order protects. In Janus, the Supreme Court said that a government may not deduct union dues or fees from an employee’s paycheck unless it has “‘clear and compelling’ evidence” that the employee has “affirmatively consent[ed]” to pay and has “freely given” a waiver of his or her right not to pay. That’s because the government may never simply presume that someone has chosen to waive First Amendment rights.
Before Janus, many government employees in Alaska and the 21 other states with mandatory unions signed up for union membership and apparently agreed to pay union dues. But there’s no evidence to support the position that every worker actually freely consented. After all, pre-Janus, workers’ only alternative was to pay an “agency fee” that was typically only slightly less than full union dues. They didn’t have the third option to which they were entitled under the First Amendment: to pay a union nothing at all.
Also, before Janus, governments often lacked “clear and compelling” evidence that employees had consented to pay before deducting union dues from their checks, as Janus requires. Instead, they just took the union’s word for it that a given employee was a member.
Alaska’s new rules solved both of these problems by allowing the state to verify that every employee paying union dues has actually freely chosen to do so.
The Alaska Superior Court’s analysis was exactly backward. Contrary to basic constitutional principles, it elevated a state statute and collective bargaining agreement above federal constitutional rights. And contrary to the First Amendment and Janus, it elevated a union’s interest in taking money from workers over workers’ interest in deciding for themselves whether to fund a union and its politics.
The courts not only should uphold Alaska’s rules but also should mandate similar rules in every other state to fulfill Janus’s promise that government employees will be free to choose which groups they will and won’t support with their money.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.