Written by Kim Crockett | April 25, 2019

Supreme Court’s Janus ruling should apply to union members, too

This commentary by Kim Crockett and Doug Seaton was published in the Star Tribune on Thursday April 25, 2017.  The Center announced a new education program for public employee who are represented by a workplace union this week. You can learn more at EmployeeFreedomMN.com 

The U.S. Supreme Court ruled last June in Janus vs. AFSCME that public employees cannot be forced to fund a workplace union. The court had previously declared that public employees could not be forced to join a union. That would violate their freedom of association. But until last summer, employees were forced to pay “fair-share” fees to cover the costs of collective bargaining whether they were members or not.

After decades of treating public employees like second-class citizens, the court finally recognized that forcing employees to fund bargaining with government, an inherently political activity, violated their First Amendment rights.

The court was explicit that employees had to waive their rights before an employer could deduct any money 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 … .”

After the decision, the state of Minnesota ordered all public employers to stop deducting “fair-share” fees from nonmember paychecks. But the state was silent about union members who had previously signed a union membership card authorizing the deduction of dues. Did Janus affect union members, too?

Although Janus dealt directly with nonmembers who paid a “fair-share” fee, the court’s reasoning applies to union members, as well. This is because any union card signed before Janus was based on a “Hobson’s Choice” that the Supreme Court declared unconstitutional: Either become a member and pay full dues; pay “fair-share” fees as a nonmember (with no voting or other membership rights); or get fired.

Any “consent” based upon that unconstitutional choice is invalid because it does not satisfy the “clear and affirmative” consent standard that the Supreme Court established in Janus. That means public employers should have immediately stopped deducting membership dues until the employer obtained original documentation of an employee’s consent.

To date, no public employer in Minnesota has moved to enforce the constitutional rights of union members. Center of the American Experiment estimates that, instead, employers are deducting about $181 million a year from employee paychecks for government unions like Education Minnesota, AFSCME Council 5 and the Teamsters, all of which spend generously on an increasingly divisive and left-leaning agenda.

Employer organizations, however, like the League of Minnesota Cities, are seeking leadership from the state so they can safely comply with Janus.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 … .”

Individual employees, if they even know about their Janus rights and want to exercise them by resigning from the union, have been forced to continue to pay union dues while looking for an exit. Instead of finding an open door, they are getting caught in narrow “windows” that are proving tough to climb through.

One of those people is Laura Loescher, who works with children in the before- and after-school program at the Forest Lake School District. Local 320 of the International Brotherhood of Teamsters is her exclusive bargaining agent. Loescher told American Experiment: “The Teamsters use my membership dues to elect candidates and enact legislation that I strongly disagree with, and since I am not allowed to just support my local union, I decided to resign. But the union has not honored my wishes or my constitutional rights. Neither has my employer.”

After checking with the union several times to clarify the process, Loescher resigned, or rather tried to resign, last December. She was told she could resign and stop paying dues by writing to her local, so long as her resignation was received before the anniversary of her Feb. 5, 2016, union card. Yet, after she submitted a letter on Dec. 17, Local 320 refused to process her resignation and summarily cut her off from member rights.

Referencing her union card, the union said, “… you 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. … You can send a request again during your open window 60-75 days before the (anniversary) date of your signed application … or 60-75 days before the expiration of the current contract … . If you would like to cancel this request please notify this office by January 4 … .”

Rather than continue to plead with the Teamsters, Loescher sought legal advice on how to protect her constitutional rights.

It is unlawful for Local 320 to take dues from Loescher’s paycheck and refuse to recognize her membership rights. More important, the union cannot refuse to process her resignation, and the school district cannot continue to deduct dues for Local 320, irrespective of any claimed “window.” That “window” is an unreasonable burden on her right to resign, and the dues authorization was never valid because her employer, and the union, did not have her affirmative consent.

Like other employee rights, Janus requires that employees be notified by their employers of their Janus rights and given the opportunity to choose, without any pressure, whether to financially support their workplace union and its political agenda. Perhaps this will, when enforced, cause unions to focus more on the representational need of employees and less on partisan politics.

Kim Crockett is vice president of Center of the American Experiment. Doug Seaton is president of the Upper Midwest Law Center, a public-interest law firm representing Laura Loescher.

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