The Supreme Court’s Janus case isn’t the only challenge to public sector labor law that the justices may take up this year. A related case, Yohn v. California Teachers Association, is still pending, and its advocates said Tuesday they will likely continue to push it regardless of the justices’ ultimate decision in Janus.
Both cases involve whether the First Amendment allowed dissenting public-sector union members to opt out of financially supporting the union. Yohn involves an additional issue not raised in Janus, said Terry Pell, president of the Center for Individual Rights, the nonprofit law firm representing the plaintiffs.
Teachers in California currently have the right to opt out of paying the portion of their dues unrelated to the unions’ collective bargaining. Yohn challenges the unions’ existing opt-out system, a narrow window of just one or two weeks a year where the teachers can ask for those dues to be reimbursed. The Center for Individual Rights argues this is intentionally designed to stymie those who would opt out and therefore violates the teachers’ rights.
“That’s the issue we would want to get to the Supreme Court,” Pell said. CIR is waiting to see how the Supreme Court rules in the Janus case and will push forward if the justices rule narrowly. The Supreme Court heard oral arguments in the Janus case Monday, and a decision is expected this June.
CIR was the same law firm that represented Rebecca Friedrichs, the plaintiff in the 2017 Supreme Court case Friedrichs v. California Teachers Association. Justice Antonin Scalia died before the Supreme Court ruled on that, and the remaining justices split 4-4, leaving the case unresolved.
“We brought Yohn v. CTA as essentially a replacement for the Friedrichs case,” Pell said.
Requiring workers to officially opt out of paying noncollective bargaining union expenses is a common feature of union contracts in the public and private sector. A 1988 Supreme Court decision, Beck v. Communication Workers of America, said private-sector workers couldn’t be forced to pay for a union’s political activities, and a 1977 decision, Abood v. Detroit Board of Education, created the same rules for public sector workers. Workers who just pay the collective bargaining fees are known as “agency fee payers.”
It is typically up to the union to create the mechanism for workers to become agency fee payers. The unions often only allow this during brief periods of just a few weeks once a year. Those who miss that window, or who mail in the request late or even early, are automatically paying full dues for the entire year.
It is also the union that decides what is and isn’t chargeable as an agency fee, and the plaintiffs in Yohn say it is a mystery to them what the difference is.
“Thirty percent of the state dues and 50 percent of the national dues are refunded to me. And that’s what a union-paid official determined were chargeable activities,” said Darren Miller, a Sacramento teacher and plaintiff in Yohn.
