It’s Time to End Government Unions’ Post-Janus Coercion

The Supreme Court has a chance to put some teeth on its ruling that workers can’t be compelled to pay dues.

I f the U.S. Supreme Court was waiting for a signature case to illustrate why its landmark 2018 labor-reform ruling in Janus v. AFSCME needs to be enforced, it’s here.

On June 24, attorneys from the Freedom Foundation and the Alexandria, Va.–based firm of Clement & Murphy, PLLC, filed a request for certiorari on behalf of Terry Klee, an employee with the California Department of Correction and Rehabilitation (CDCR), who is suing the International Union of Operating Engineers, Local 51 (IUOE), as well as the CDCR, asserting that Klee’s request to leave the union was illegally delayed for nearly two years.

By coincidence, the appeal comes seven years almost to the day after the court recognized in Janus that compelling government employees to join or financially support a labor union amounts to a violation of their First Amendment rights to freedom of speech and association.

Since then, hundreds of thousands of state, county, and local government workers have successfully opted out of their union, but too often doing so has required navigating a long list of arbitrarily imposed restrictions.

Klee could be the poster child for union — and state — indifference to the Court and the Constitution its rulings uphold.

Klee was told by the union it couldn’t intervene on his behalf in workplace disputes unless he was a member in good standing.

It was a barefaced lie, but it worked. Klee grudgingly signed up and authorized dues deductions.

However, by December 2019 — just a year after the Janus ruling — Klee exercised his First Amendment rights by seeking his freedom. But the state and the union didn’t honor his request until November 2021.

Under California law, Klee’s employer, the Department of Corrections and Rehabilitation, delegates the power to determine who does and doesn’t pay dues to the union itself — even though IUOE clearly has a financial stake in the matter.

In Klee’s case, because IUOE knowingly disregarded his opt-out request for 22 months, the state continued to deduct — and remit to the union — around $1,000 in illegally confiscated dues.

But when Klee filed a lawsuit demanding the money be refunded, a District Court judge somehow managed to conclude the union isn’t liable because IUOE — despite being gifted the power to deduct dues from state employees’ wages — isn’t itself a state “actor.”

Meanwhile, state officials can’t be held accountable, either, because they’re protected from litigation by sovereign immunity.

Earlier this year, the notoriously liberal Ninth Circuit Court of Appeals upheld that ruling, prompting Klee’s petition to the U.S. Supreme Court.

In the months and years following Janus, unions and their allies in government agencies developed a number of techniques for blunting its impact. These include, but aren’t limited to:

• acknowledging the workers’ right to opt out of union membership and dues, but refusing to honor their request to do so except during an arbitrary, union-determined two-week “opt-out window” of which the worker is unaware;

• inviting union operatives to make high-pressure, often-deceptive recruiting pitches to all newly hired public employees while denying the same privilege to organizations anxious to offer the workers an alternative point of view;

• refusing to open mail suspected to contain member opt-out requests;

• passing laws and filing lawsuits intended to prevent disclosure of government employees’ contact information — which is clearly a matter of public record — solely to keep organizations such as the Freedom Foundation from informing workers about their constitutional right to decline union participation;

• arguing that Janus provides no protections for union members, not even a constitutionally protected right to resign from the union; and, when all else fails,

• simply forging an employee’s name on a dues-authorization form.

Klee is a mélange of several dirty schemes. The union disregards an unequivocal Supreme Court ruling, the state illegally deducts money from the plaintiff’s paycheck, and the courts say neither of them did anything wrong.

“The 9th Circuit has all but eviscerated that constitutional right for all public-sector employees in California,” the court filing asserts. “That is astonishing, particularly in a nation that prides itself on protecting the ‘general and indisputable rule’ that, ‘Where there is a legal right, there is also a legal remedy.’ ”

The Klee case underscores perfectly the need for the Supreme Court to start enforcing Janus. After years of watching the justices decline to consider literally dozens of appeals that would have finally given Janus some teeth, it’s reached the point where unions no longer even disguise their contempt for the ruling.

It’s long since time the Court stood up to the unions by standing behind its own decisions.