July 22, 2021
By Jacob Huebert

Unions are being allowed to flout a landmark Supreme Court ruling—and it’s time for the Court to take action to protect workers’ rights.

Government employees across the country are resigning from their unions and telling their employers that they no longer want to pay union dues. That’s their right under the Supreme Court’s 2018 Janus v. AFSCME decision, which said that the First Amendment forbids governments from forcing their employees to give money to a union. But many of these unions are still forcing these employees to pay, and state and local governments are still taking dues out of their paychecks. They argue that those employees signed membership agreements, and can therefore be forced to pay regardless of the Janus ruling.

That’s absurd, because before Janus, government employees in states with mandatory union fees were denied the right to refuse. They had to choose between paying dues as union members and paying a union “agency fee,” which was typically slightly less than the full dues amount. They didn’t have the third option to which they were entitled under the First Amendment: to pay the union nothing. Faced with that choice, any “agreements” employees signed were not freely entered. Now that Janus has made clear that they have the right to say no, those agreements should be declared void.

Yet federal courts have allowed these unions to continue deducting dues from workers’ paychecks. They’ve held that an employee who signed a union membership agreement can be forced to wait until an escape period during which employees are allowed to withdraw from the union. An escape period can be months or years away. Add to that the fact that these membership agreements were signed under pressure at a time when workers were typically denied the right to say no, and the fact that unions are now making a concerted effort to block employees from learning of their rights under the Janus decision, and it’s clear why these membership requirements shouldn’t be legally binding.  

Today, the Goldwater Institute, together with the Cato Institute, submitted a brief urging the Supreme Court to review this issue in a case called Troesch v. Chicago Teachers Union. The case involves two public school employees who signed union membership agreements before the Janus decision, but who resigned in October 2019 after they learned of their rights under Janus. The Chicago Teachers Union accepted their resignations—but said it would still keep taking dues from them until the following September, because the membership agreements they signed stated that they could only ask to withdraw from membership during the month of August.

The Janus decision made clear what should have been clear all along: that people have a First Amendment right not to join a union against their will or to be forced to pay it annual dues. But in the wake of Janus, public sector unions are engaged in a campaign of “massive resistance” to deprive government employees of their constitutional rights.

For example, several states give union employees’ personal contact information but deny that information to anyone else. In Washington State, voters approved a ballot measure that prohibits anyone except a union from obtaining the contact information of unionized home care providers. The public sector unions that drafted and promoted the measure openly admitted that it was for the purpose of preventing an interested organization from informing the providers of their rights. Illinois responded to the Janus ruling by enacting a law that prohibits the state from communicating with government employees about their rights. Instead, all questions must be directed to the union. And union-allied officials in many states have enacted laws giving unions the right to meet with providers and employees for the purpose of persuading them to sign union membership agreements. People who want to present other points of view are excluded. California even enacted a law—signed the day the Supreme Court decided Janus—that prohibits the government from disclosing where employee meetings with the union will occur, so that people who wish to provide an alternative perspective can’t speak to workers before they enter the meeting.

These efforts to deprive government employees of their constitutional rights must end. It is imperative that the Supreme Court make clear government employees have the right to decide for themselves whether to join or subsidize a union—and anyone who signed union membership agreements before Janus should be free to get out of them, completely and immediately.

You can read more about the Troesch case here.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.

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