True fulfillment of the landmark court decision might take years, but conservatives are up to the fight.
True fulfillment of the landmark court decision might take years, but conservatives are up to the fight.
Editor’s Note: This is the third and final article in a series of occasional pieces on the political impact of the U.S. Supreme Court’s 2018 Janus ruling, which affirmed the rights of government employees who had been forced to pay fees to unions that subsidized political candidates and causes contrary to their principles. The preceding articles can be found here and here.
I n its 1954 Brown v. Board of Education decision, the United States Supreme Court overruled the “separate but equal” precedent established six decades prior in Plessy v. Ferguson. In doing so, it outlawed and ended segregated education in America.
Except it didn’t end.
Three years later, it took President Eisenhower’s federalizing of Arkansas National Guardsmen to allow nine black teens admittance to Little Rock High School. Five years after that, James Meredith still needed the High Court’s action (and many thousands of federal troops) to force defiant administrators and politicians to allow him to register at Ole Miss. One year later, Alabama’s intransigent governor stood on the state university’s steps to prevent that school’s integration by two black students, Vivian Malone and James Hood.
And so it goes with historic SCOTUS rulings — no matter their importance, no matter their clarity, there will be, and are, 21st-century editions of George Wallace and Orval Faubus, insolent and intimidating and intent on obstructing defined constitutional rights.
The Supreme Court’s 2018 Janus decision — which protects the First Amendment rights of public-sector employees, and which dismantled the labor-law precedent (the 1977 Abood decision) — is very much in this tradition. Justice Samuel Alito clearly ruled that government workers had to give affirmative consent in order for once-obligatory dues and fees to be payroll-deducted into union coffers, and that consent may not be assumed. This ruling may have Big Labor running scared, but it is also widely ignored in practice, the subject of brazen defiance.
Which comes as no surprise to Mark Janus, the case’s principal litigant. Yes, the High Court’s verdict on his behalf — together with the related 2014 Harris v. Quinn ruling — was unambiguous. But it was a forgone conclusion that Big Labor would retaliate by engaging in a modern version of standing on steps and in doorways.
The ruling secured justice, in part. But it has proven to be only a first act.
Now a senior fellow at the Liberty Justice Center (LJC), which argued his case through the federal system and up to the Supreme Court, Janus says, “The fight for worker freedom is ongoing. As long as public-sector unions deny workers their First Amendment rights of freedom of speech and association, the litigation in the courts will continue.”
For how long? “It may take years before full worker freedom is achieved,” he predicts, adding, “It is a fight worth pursuing, the same as all other rights we enjoy under our contract our forefathers established — known as the Constitution.”
In America’s state and federal courts, the fight to defend the rights of workers is fulsome and widespread — the fight to exercise the First Amendment and to end the many means and tactics (some ingenious, some crude) that public-sector Big Labor and compliant legislatures have employed to explicitly ignore and deny Janus rights.
One of the organizations on the fight’s front lines is LJC, whose Kristen Williamson says, “Litigation remains a critical part of the post-Janus worker-freedom landscape.” With a staff of attorneys specializing in public employees’ free-speech rights, LJC has initiated numerous important cases that are working their way through America’s courts. The goal is simple: to see Janus implemented as SCOTUS intended.
Which is not what Big Labor intends. Among the defiant tactics used against workers’ rights is the nefarious creation of extreme and elusive opt-out windows — the means by which union members, per Janus, can refuse to give “affirmative consent,” formally resign, and end the dunning of dues and agency fees.
The courts are what they have been — the most realistic means of combating the relentless overreaching of public-sector unions.
LJC’s most significant case along these lines, O’Callaghan v. Napolitano, involves two University of California employees: Cara O’Callaghan (finance manager of the Sport Club program at UC Santa Barbara) and Jenée Misraje (student affairs officer at UCLA). For nearly a decade, O’Callaghan had refused to become a union member, opting instead to pay “agency fees.” But mere weeks before Janus was rendered in 2018, the dynamics changed, as union reps pressured her, alleging that union membership was now mandatory. Browbeaten, she complied. But when weeks later she learned of the Janus ruling, she resigned her membership . . . and still the money kept flowing to the coffers. O’Callaghan was told that she was still required to pay “service fees” (coincidentally, the same amount as full union dues) for another four years.
It’s a tactic of the times: Union bosses, desperate to stop the hemorrhaging of dues, have concocted new rules and “multiyear traps” that, depending on the union, relegate opting-out to limited periods — often ten days, once annually, or at the end of a collective-bargaining agreement’s term.
That can be three or four years.
According to the National Right to Work Foundation (NRTW) which has been fighting for workers’ First-Amendment rights for nearly half a century, the narrow-window tactic isn’t only a tactic — in some places it’s the law. In labor-friendly New Jersey, statutes dictate:
Employees who have authorized the payroll deduction of fees to employee organizations may revoke such authorization by providing written notice to their public employer during the 10 days following each anniversary date of their employment.
Which means, says Bill Messenger, NRTW’s ace lawyer (he argued the Janus case before the Supreme Court), that “New Jersey effectively prohibits employees from stopping union dues deduction for 355–56 days of each year.”
Who knew their constitutional rights were applicable for less than a fortnight?
O’Callaghan (now before the Ninth Circuit Court of Appeals) is one of a dozen lawsuits that LJC has filed against government-unions’ obstructionism — their waving of the middle finger in the face of Janus as they force employees to continue paying dues even after they’ve resigned union membership.
In one of the rare opportunities to side with the government seeking to uphold Janus, LJC lawyers are representing two Alaska state employees (Creed v. Alaska State Employees Association) who invoked their Janus rights and “vehemently declined union membership,” this after Alaska’s governor and attorney general took action to broadly implement the 2018 Janus decision.
That did not prevent the brazen effort of the Alaska State Employees Association, which prevailed in legal action against the employees, convincing a state judge to reverse their resignations from the union, and allow the union to resume dues-collecting. (This case is also currently now before the Ninth Circuit Court of Appeals.)
The organization with the hottest Janus-related legal property, though, might be the Washington State–based Freedom Foundation, which in mid February filed a cert petition with SCOTUS to hear Belgau v. Inslee.
Like O’Callaghan, the case involves constricted “escape periods” for the exercise of First Amendment rights. According to Maxford Nelsen, the Foundation’s director of labor policy, a group of AFSCME-represented state employees “signed up for union membership pre-Janus, attempted to opt-out post-Janus, and had their requests denied by the union and state because . . . the terms of their union-membership agreements limits their ability to cancel dues deductions to a ten-day annual escape period.” Nelsen contends that Janus has made such membership rules and forms “invalid and unenforceable,” adding, “They fall short of establishing that the employees affirmatively agreed to waive their First Amendment right to refrain from dues payment.”
As is often the case, “not only were the employees not informed of their right, they signed the membership forms before the court had even recognized they had such a right in Janus.” Similar cases are working their way through federal courts, but Belgau is the first filed after Janus, and also the first to reach SCOTUS — which this week ordered Washington’s governor and union leaders to respond to the Foundation’s cert arguments, a sign that the High Court might have some interest in taking up the matter.
(Among the numerous amicus briefs filed in support of Freedom Foundation’s petition is one from 13 state attorneys general, spearheaded by Alaska AG Treg Taylor.)
A victory at this level would have a colossal impact on unions, negating in-use membership forms, time-limit windows, and other sketchy practices by which government employees have been denied (or kept in the dark about) their right to opt out, or to give affirmative consent.
Taking on an increasingly non-rare method of union hijinks, this week the Foundation filed its fifth case, in adjoining Oregon, against the powerful SEIU 503 union, charging it with attempting to concoct consent by forging employees’ signatures on union-membership and dues-deduction authorization forms.
The grabbing of bucks knows few limits. But the forgery epidemic in the Beaver State could backfire, and badly. It has now proven so common that Foundation attorneys contend that unions have entered the realm of bona fide racketeering. They are asking Oregon courts to hold SEIU accountable for violating state and federal RICO laws.
A tougher area of Janus courtroom battles concerns the refund of dues. It may prove a bridge too far, but the undertaking could have massive consequences for Big Labor. It’s one thing for public-sector unions to be hammered by the significant fall-off in dues-paying membership. But what if union members who were denied their Janus rights have a legitimate claim — as National Right to Work and others argue they do — to be refunded the payments that were taken against their will and conscience?
After all, their First Amendment rights did exist before the High Court’s ruling.
National Right to Work is at the forefront of the refund fight, having provided free legal representation to workers in 18 cases. Of particular interest is a New Hampshire case (Doughty v. State Employees’ Association of New Hampshire, SEIU Local 1984) where government workers (fees-paying non-union members) are asking for “three years of unconstitutionally seized fees returned,” which is back to the statute of limitations.
It’s a long-shot, because unions have claimed, with some success, that a “good-faith defense” shields them from refunding these monies (ones they unlawfully seized, counter conservatives). “Unfortunately,” says NRTW’s Bill Messenger, “several appellate courts have now accepted this good-faith defense argument. However, I believe the defense is untenable.”
But, what if . . . what if the day comes when a court accepts that workers have a Janus right to refunds?
It will be a bleak one for the bank accounts of public-sector unions. And isn’t this really what it is all about — the money? That it happens to be the money earned by the worker is irrelevant to Big Labor bosses, whose Janus recalcitrance belies the prevailing philosophy best articulated by the great Max Bialystok: I want it.
The fight to beat back the avarice has just begun. And it will likely continue for a long time. But it is indeed being fought.
Editor’s note: This article originally called Maxford Nelsen the Freedom Foundation’s director of legal policy. He is its director of labor policy.