Public unions: Navigating new era of opting in rather than opting out

Let’s look at how the Supreme Court’s Janus decision may affect public employees who have been paying full union dues. 

This op-ed originally appeared in the Star Tribune on September 15, 2018.

It is back-to-school time for teachers and education support professionals (ESPs), but is it back to the union, as well? At the end of June, the U.S. Supreme Court ruled that forcing public employees to fund a union as a condition of employment violated their First Amendment rights. That long-anticipated decision in Janus vs. AFSCME had immediate financial consequences for Minnesota’s public-sector unions and some employees.

Across Minnesota, government employers stopped deducting “fair-share” fees from the paychecks of employees who had previously exercised their right not to join the union. That fee was only supposed to cover the cost of collective bargaining; it was 85 percent of full dues. But the high court said that collective bargaining itself was political in nature, and thus employees could not be forced to fund it. People like Mark Janus who had exercised their right not to associate with their workplace union got a pay raise.

But what about employees who have been paying full union dues? Was there anything in the Janus decision that addressed them?

The court made it clear that employers and unions had to have the affirmative consent of employees before dues are deducted. Justice Samuel Alito, writing for the majority, said that “states and public-sector unions may no longer extract agency fees from nonconsenting employees” and that “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

The decision establishes an opt-in procedure for “nonmembers … waiving their First Amendment rights, and such a waiver cannot be presumed” (emphasis added). Further, Alito wrote, “[r]ather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence.”

This language is the equivalent of the court shouting from the bench. It is a warning to unions and employers not to go about business as usual. The court flipped the decades-old default from employees “opting out” of the union to employees “opting in” to the union. This is because Janus involves speech rights under our Constitution. Any interference with those rights must meet the toughest legal standard: strict scrutiny.

But what this means in practical terms is still being debated. Unions are arguing that the Janus decision had no effect whatsoever on employees paying union membership dues as of June 27, 2018. And furthermore, that union members are bound by whatever terms the union imposed on them unilaterally for exiting union membership.

But employees across the country are taking the position that when they signed a union card, they were waiving a right they did not know they had until Janus was decided, or that they signed union cards under duress. The choice of joining or not joining but paying 85 percent of union dues, losing membership benefits and the right to vote on the contract they paid to have negotiated and maybe even getting hassled by the union, was no choice at all.

This fight will play out in the courts, state legislatures and probably the streets for the next several years. In the meantime, what are public employees who want to exercise their right to resign from the union supposed to do?

For K-12 teachers and ESPs (paraprofessionals, payroll clerks, lunch room helpers, et al.) who are paying dues to Education Minnesota, there is a seven-day window to resign that runs between Sept. 24 and Sept. 30:

I agree to submit dues to Education Minnesota and hereby request and voluntarily authorize my employer to deduct [dues] from my wages. … This authorization shall remain in effect and shall be automatically renewed from year to year … 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.

The resignation window is unreasonably narrow, but the union card is clear: Teachers and ESPs have one week to submit their resignation.

What about public employees who are paying dues to other public-sector unions like AFSCME Council 5, or the SEIU? The terms for resigning that we have seen are based on the anniversary date of the signed card; each situation is unique. You can resign, for example, from the Minnesota Association of Professional Employees (MAPE) “[d]uring the period of not more than forty-five (45) days and not less than thirty (30) days before the annual anniversary date of this authorization.” Employees who did not keep a copy of the card (most people) must ask the union for a copy.

These terms, which are designed to block the exits, do not meet the high standard set by Janus, but until the issue is settled in law, employees should not be discouraged from exercising their rights. Some unions have already honored resignation letters outside of the terms. Our hope is that unions will embrace Janus by developing more reasonable membership terms that respect the constitutional right of employees to decide whether to support the union agenda.

What should public employers do? In Minnesota, employers collect union dues for the unions. Janus means they are between a rock and a hard place. If they do not have evidence that an employee has affirmatively waived their Janus rights, they should not deduct dues on behalf of the union. But if they do not deduct dues, the union may sue them for breach of contract. What is the solution? Employers must get that “clear and compelling evidence” ordered by the high court. The Minnesota Legislature could also take employers out of the middle by ending the practice of collecting union dues.

Kim Crockett is vice president, senior policy fellow and general counsel of the Center of the American Experiment.