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Janus Decision Restored Freedom of Choice, But Public-Sector Employees Still Limited on How They Can Exercise It

Despite the freedom millions of government employees now have to choose for themselves whether to financially support a union, too many are bound by union resignation “windows” that limit when they can exercise this choice.

William Neely, a state hospital psychiatric aide in Berks County, Pennsylvania, faced this hurdle when he decided to resign his union membership after the U.S. Supreme Court’s ruling in Janus v. AFSCME, according to The Wall Street Journal.

In July, weeks after the Janus ruling, Mr. Neely submitted his resignation letter. Receiving no response, he called and emailed union officials, who stonewalled him. Though a union member for more than a decade, Mr. Neely was startled to discover that the fine print of his union’s state contract included a “maintenance of membership” clause preventing him from resigning until a 15-day “window” opened in June 2019.

Unions often enforce resignation windows that open only briefly at the end of contracts spanning several years. As a result, many union members will have to wait a long time for their first opportunity to resign.

Other public-sector employees who have signed membership cards are bound to similar opt-out constraints, often written in very fine print on the bottom of their card.

For example, Minnesota teachers and education support professionals who are members of the state’s teachers’ union, Education Minnesota, signed union membership cards limiting them to a narrow, seven-day resignation window at the end of September every year.

I agree to submit dues to Education Minnesota and hereby request and voluntarily authorize my employer to deduct from my wages an amount equal to the regular monthly dues uniformly applicable to members of Education Minnesota or monthly service fee, and further that such amount so deducted be sent to such local union for and on my behalf. This authorization shall remain in effect and shall be automatically renewed from year to year, irrespective of my membership in the union, unless I revoke it by submitting written notice to both my employer and the local union during the seven-day period that begins on September 24 and ends on September 30. Such revocation will take effect on October 1 in the year in which I submit the revocation. [Emphasis added]

While teachers in Minnesota all have the same opt-out window, other civil servants have to calculate their resignation windows by first locating their membership card and determining their membership anniversary date (the date they signed their membership card). Then, they must count back 30 days or so to identify the dates when they are eligible to opt-out.

Language restricting public-sector employees’ ability to resign from their union is already under legal challenge because it’s problematic to public employees’ ability to fully exercise their First Amendment rights. Language on membership cards that says dues will be deducted regardless of whether an employee remains in the union is also problematic to these rights.

The fine print shouldn’t surprise us, though, the Journal article continued.

Before the Janus ruling was handed down, union leaders claimed that losing agency fees would decimate their finances. Others predicted a swift membership exodus and an end to unions’ outsize political influence. The truth is that union leaders are far too savvy to allow a single ruling to destroy their business model in a few months. Janus broke down a major barrier trapping workers who wanted to break free of unions, but other barriers remain.

Unions anticipated Janus would rock the boat, and steps were taken to shore up membership by asking union members to sign membership renewal forms. One local teachers’ union in Minnesota even offered a membership “deal” to its fair-share payers, according to an email sent out in April 2018 by the union’s president.

During the last month you have been asked to sign AHEM [Anoka-Hennepin Education Minnesota] membership re-commitment forms. Quite simply, this is being done in an effort to have the most current contact information from our members and also to have “our ducks in a row” for any potential impact of the pending US Supreme Court Janus case.

Fee payers always have the option of joining our union at any time. However from April 1, to August 31, 2018, there is a[n] opportunity for fee payers to join AHEM and become a member for the rest of this year for no additional 2017-18 cost increase in dues. Fee payers would immediately upon joining have the full benefits of membership. Your dues for membership would not be adjusted until the 2018-19 school year commences… This option is only available to fee payers that have never been an Education Minnesota member in Anoka Hennepin or other Education Minnesota represented school districts.

These membership renewal forms locked educators into another year of union membership, and many are unaware of their options in this post-Janus world. (Teachers looking to find out more about the ruling, their First Amendment right, and union membership can check out our report here.)

Public employees should be informed of the Janus decision and the options they now have. “Maintenance-of-membership rules” need to be removed so public employees can fully exercise their freedom of choice. Janus put the importance of worker freedom center stage, but it only resolved part of the problem. It’s up to our state lawmakers to take the next step and reform labor laws with common sense policies that benefit our hard-working government employees.

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