Government unions dodged a bullet in 2016 when the Supreme Court deadlocked 4-4 in Friedrichs v. CTA. Had Justice Antonin Scalia been alive for the decision, that case would have likely ended the practice of government agencies forcing nonunion workers to pay a hefty fee in lieu of union dues as a condition of employment.
Today, that bullet finally caught up with them. But that isn’t the end of the story.
As of today, 22 states require public employees to pay “fair share” fees even if they don’t join the union and don’t share its views. The plaintiffs in Friedrichs — eight California teachers — argued that compelling them to pay agency fees violated their First Amendment right to decide for themselves what organizations to support. Today, the Justices issued their ruling in new challenge to mandatory fees based on the same free speech argument. in Janus v. AFSCME, with Neil Gorsuch now on the Court, the 5-4 majority chose to end the practice.
Even before the decision was issued, union leaders were already at work pushing state legislative plans to mitigate the possible loss of millions of dollars in mandatory fees. Right now, unions in Washington State, New Jersey, New York, Maryland, and California are pushing legislation designed to make it difficult for public employees to exercise what the Supreme Court now says is their First Amendment right to stop financing union speech.
Several weeks ago, New York legislators bundled a union wish list of legislative changes deep in a budget bill that Democratic Gov. Cuomo quickly signed, in part because he now faces a primary challenge from his left. The new provisions allow unions to create opt-out rules for dues deductions that continue in force even after an employee has quit the union. The new law allows unions to require departing employees to make a separate election to stop dues deductions during a short window once a year. If an employee fails to comply or misses the window, he could be paying dues for years after leaving the union.
New York isn’t the only state that is rushing to create complex opt-out rules to trap workers in payroll deduction authorizations. Washington’s legislature passed a similar law, and unions in other states such as Minnesota and California are including so-called union security provisions in their collective bargaining agreements.
The requirement that employees separately opt-out of paying union dues after they have already resigned from the union is as constitutionally suspect as requiring nonmembers to pay agency fees. In both cases, individuals are pushed into subsidizing speech with which they fundamentally disagree, either directly or through rules deliberately constructed to make it difficult to stop payments.
Even worse, states are passing laws to make it harder for public employees to find out about any potential new rules for leaving the union, if the Court sides with Janus. In Washington State, for example, the state Senate passed a bill that would limit the information that public employees can receive about their right to leave the union without having to pay compulsory agency fees. Not only would public employers be prohibited from distributing emails or posting notices, but the bill would make it difficult for outside groups to identify and communicate with public employees.
In stark contrast, Washington also passed legislation requiring employers to provide unions with detailed information about each new and existing employee (including home addresses and personal cell phone numbers), as well as guarantee a special 30-minute on-the-job private meeting for union officials to persuade employees of the value of union membership. New York and Maryland are following this lead and created similar bills for consideration.
You can probably guess what’s going on here. If you devise secret and complex rules that are hard to find out about in the first place, they will be especially hard to follow. The idea is to trap individuals into funding unions’ political speech in violation of their First Amendment rights.
Union leaders may never agree that public employees should have the right to decide for themselves whether to join or fund a union. But now they have to live with that reality. If they really want to strengthen the labor movement, they should start by respecting the right of workers to choose union membership, instead of relying on abusive state laws in order to trap workers into coerced membership.
Terence J. Pell is President of the Center for Individual Rights, which is representing several California teachers in Yohn v. CTA, a case challenging union dues opt out rules.
