Government Unions Can’t Keep Forcing Public Employees to Pay Up

F our years ago, the U.S. Supreme Court issued a landmark ruling in Janus v. American Federation of State, County, and Municipal Employees affirming that unions could no longer compel government employees to join a labor union or have union dues or fees deducted from their paychecks.

For millions of workers in the 22 states lacking right-to-work protections at the time, the decision allowed them to finally do what consumers in a free society have every right to do — decide for themselves whether a service is worth purchasing and know that they can’t be punished for concluding that it isn’t.

In the ensuing years, hundreds of thousands of government workers have done just that. But the path to freedom has too often been blocked by union leaders, who are worried about the loss of the hundreds of millions in revenue on which they have counted for generations to feather their own nests and fund their favored political campaigns and causes.

What the law promises on paper hasn’t been delivered because many government-employee unions have made a conscious decision to challenge — or outright ignore — opt-out requests by their members in hopes of sending a message to all those who consider the same action. And with heartbreakingly few exceptions, lower courts have gone along with it. Now, with Janus appeals mounting, the Supreme Court has a chance to hold government-employee unions accountable.

Just before Thanksgiving, the Freedom Foundation — a national, nonpartisan policy organization whose goal is to expose and challenge the abuses of public-sector unions — filed the first appeal of four Ninth Circuit rulings to the Supreme Court, each seeking to buttress Janus.

In Kurk v. Los Rios Classified Employees Association (LRCEA), et al, the organization represents a benefits technician for the Los Rios community-college district who, in 1997, agreed to permit the district to deduct dues from her paycheck by signing a check-off form that forced her to select one of two options — either deducting monthly dues or deducting a so-called “agency fee.” (The two amounts were exactly the same.) The form specified no restrictions on terminating her union membership or withdrawing authorization to dues deductions.

But, when Kurk sought to leave the union in 2018 — only weeks after the Janus ruling was issued — LRCEA officials refused to let her do so, citing her dues check-off form and a California law preventing public employees from leaving a union while its collective-bargaining agreement with the agency the employees work for is still in force.

There are two problems with this reasoning: First, the dues check-off form that Kurk signed 25 years earlier — which, again, placed no limits on her ability to opt out — is not an agreement to maintain union membership, nor is it an agreement with the union at all. It is, at most, her authorizing the college district to use a particular method of dues deductions. Second, her right to resign from the union cannot be constrained by a collective-bargaining agreement between the government and the union, to which she is not a party. Otherwise, taken to its logical conclusion, such a provision would allow unions to keep their members in the fold in perpetuity simply by renegotiating their existing collective-bargaining agreements before they expire.

In prior Janus-related appeals, the Freedom Foundation has cited First Amendment protections for free speech. This is because the Janus ruling specifically noted that forcing government employees to fund a union, whose activities are by definition political, amounts to compelled speech. Kurk is the first case to rely, instead, on the freedom of association. The Freedom Foundation’s appeal notes:

If a public employer and union, pursuant to state statute, can enter a contract to restrict free association rights by preventing union members from ever resigning membership, then millions of public employees across the country cease to have a meaningful right to freedom of association.

The other two Freedom Foundation appeals were filed on December 19.

Regarding two cases consolidated into one appeal — Wright v. SEIU 503 and Zielinski v. SEIU 503 — the organization is appealing because the acknowledgment that a pair of Oregon public employees had their signatures forged on union-membership cards wasn’t enough for the Ninth Circuit to allow them to claim First Amendment protection from paying dues to the union.

In the third appeal, Ochoa v. Inslee, Spokane, Wash., home-care provider Cindy Ochoa argues that the state completely failed to provide necessary due-process protections before taking her lawfully earned wages — on two separate occasions — and giving the money to SEIU 775, which represents Medicaid-reimbursed caregivers in Washington. Under well-established First Amendment law, diverting her wages to the union compels her to fund objectionable speech.

For a ruling with implications as broad as Janus’s, it’s common to have subsequent cases clarify and reinforce the original. And the justices typically wait until lower courts have decided a number of appeals in order to clearly demonstrate the need for action.

Perhaps three such appeals in the span of a month will demonstrate just how brazenly government unions are thumbing their noses at the Constitution.