A rock and a hard place

The state of public employee freedom in Minnesota.

In the wake of a Supreme Court decision recognizing the First Amendment right of public employees to decline to fund unions (Janus v. AFSCME), employers must comply with the Court’s demand that they get an employee’s “affirmative consent” before deducting money for a union. The Court recognized that all public-sector union activity, including collective bargaining, is inherently political; thus, no citizen can be forced to subsidize it.

Although Janus dealt with non-members who paid a “fair-share” fee to (supposedly) just cover the costs of collective bargaining, the Court’s reasoning applies to union members, as well.

Following the June 27, 2018 decision, the State of Minnesota ordered all public employers to stop deducting fair-share fees from non-member paychecks. But the State was silent about union members who had previously signed a union card authorizing the deduction of dues, leaving cities, counties and state agencies between a rock (the State which is under the sway of government unions) and a hard place (government unions).

Employers know that the union dues-authorization cards they are relying on do not meet the Court’s requirement of “affirmative consent.” Prior to Janus, employees could not waive their constitutional rights; you cannot waive a right you do not know you have or that is not recognized under the law. Something new is needed, but what?

The Court said employees had to waive their First Amendment rights before an employer could deduct dues and that “such a waiver cannot be presumed… Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence…” That clear language means employers must obtain a written, voluntary waiver, not one signed under pressure by the union.

Employees are asking for information, but employers are afraid to talk to employees for fear the union will file unfair labor practice claims against them. According to employees who contacted the Center, employers are refusing to discuss Janus, telling people to talk to the union. But the union is not going to tell employees about their Janus Rights.

As a result, the League of Minnesota Cities, and other government associations around the country, are seeking help and legal cover. In its “2019 City Policies for Legislative and Administrative Action,” the League urged the state to “provide and disseminate information to employees about union membership across the state.” The state should take the lead, but local employers are not free to ignore their legal obligation to employees.

This is why the League “also urges the Legislature to act to protect public employers against [unfair labor practice charges]…when providing factual information to employees about union membership…[or] when requiring unions to provide original documentation of voluntary consent to dues deduction…”

Unfortunately, while this thorny issue gets sorted out (most likely in the courts), most public employees remain unaware of Janus. Cities, counties and state agencies continue to transfer millions of dollars out of employee paychecks into government union coffers. Why? Our government answers more to public-sector unions than to the law or its citizens. The Center conservatively estimates that government unions take in at least $181 million a year in Minnesota alone; only a small percentage is spent on collective bargaining. The rest is spent on electing friendly lawmakers and defeating ideas and people who might curb the growth of government and union power. An AFSCME union card has a check-off box proclaiming, “Elect Our Bosses!” That kind of sums up the problem.

If the State is not going to tell public employees about their rights, the Center will. Last year, we launched EducatedTeachersMN.com, a website devoted to informing teachers about their Janus Rights. This spring we launched EmployeeFreedomMN.com, a website devoted to the needs of local and state employees.

For example, union members who wish to resign from a government union are constrained by pre-Janus union terms; the cards restrict resignations to narrow windows once a year. (The Center expects these windows to be found unconstitutional.)

For teachers, a seven-day window opens at the end of September. But for most public employees, the window is a unique date based on when they signed their union card. The typical language is, “This authorization shall remain in effect and shall be irrevocable unless I revoke it by sending a written notice to both my employer and [the union] during the period not less than thirty and not more than forty-five days before the annual anniversary date of this authorization.”

The challenge is that people do not have a copy of their card and must ask the union for a copy. The Center has heard from AFSCME members trying to resign who received letters saying, “We are in receipt of your request to revoke your membership. Based on the membership card you have signed, this cannot be completed at this time as you are not within your revocation period. To view your card, please access your records by logging into MemberLink…”

Another member who sent a resignation letter to the Teamsters was told she “will continue to pay the full dues amount. However, you will no longer have the right to participate in contract negotiations, bargaining unit votes, receive mailings, attend union meetings, or receive other fraternal benefits…”

Given the power of government unions to “elect their own bosses,” it will take time, perhaps years, for labor laws to be brought into compliance with the high standards required by the Constitution. Our public sector has been corrupted by decades of forced union dues. To help reform our electoral politics, employees need to know about their Janus Rights.