Ninth Circuit rejects challenge to dues deduction practices for public-sector union members in Washington

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Ninth Circuit rejects challenge to dues deduction practices for public-sector union members in Washington

On Sept. 16, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejected a challenge to a Washington state statute and collective bargaining agreement that restrict the terms under which union members can resign their membership and cease paying dues.

Who were the parties to the suit?

The plaintiffs are Melissa Belgau, Michael Stone, Richard Ostrander, Miriam Torres, Katherine Newman, Donna Bybee, and Gary Honc, all of whom are Washington state employees. Attorneys from the Freedom Foundation, a non-profit whose mission “is to advance individual liberty, free enterprise, and limited, accountable government,” represent the plaintiffs.

The defendants are the Washington Federation of State Employees (WFSE), and several state executives in their official capacities, including Gov. Jay Inslee (D).

WFSE, an affiliate of the American Federation of State, County, and Municipal Employees (AFSCME), has 32,649 dues-paying members, according to its most recent annual report to the U.S. Department of Labor.

What was at issue?

After the U.S. Supreme Court issued its Janus v. AFSCME ruling in 2018, the plaintiffs notified the state and WFSE in writing of their desire to resign from the union and cease payment of dues. The defendants continued to deduct dues from the plaintiffs’ paychecks, citing the dues deduction authorization forms the plaintiffs had signed. These forms state that “authorization for the deductions will automatically renew annually unless the employee revokes the authorization between 10 and 20 days prior to the anniversary of the day” the employee signed the authorization.

The plaintiffs filed a class-action in the U.S. District Court for the Western District of Washington on Aug. 2, 2018. They allege the state statute (RCW 41.80.100) and collective bargaining agreement (CBA) providing for this dues deduction system violate their First Amendment rights to free speech and association. The plaintiffs’ attorney wrote the following in their complaint:

RCW 41.80.100, Amended 2017-2019 CBA Art. 40.2, 40.3, and/or 40.6, other cited provisions of the CBA, and Defendants’ actions pursuant thereto violate Plaintiffs’ and class members’ First Amendment right to the freedom of association, as secured against state infringement by the Fourteenth Amendment and 42 U.S.C. § 1983. Consent to fund union advocacy cannot be presumed and neither Plaintiffs nor class members waived their constitutional right to not fund union advocacy. No compelling state interest justifies this infringement on Plaintiffs’ and class members’ First Amendment right to freedom of association.[1]

On Feb. 15, 2019, Judge Robert Bryan dismissed the suit, writing: “The plain language of RCW 41.80.100 and the CBA do not compel involuntary dues deductions and do not violate the First Amendment.” On Feb. 20, 2019, the plaintiffs appealed Bryan’s ruling to the Ninth Circuit, which heard oral arguments on Dec. 10, 2019.

Relevant precedents

In Janus v. AFSCME, decided in 2018, the court ruled that public-sector unions cannot compel non-member employees they represent to pay fees to cover the costs of non-political union activities. To do so, the court determined, would constitute a violation of employees’ First Amendment rights

How did the Ninth Circuit rule?

Judges M. Margaret McKeownMorgan Christen, and M. Douglas Harpool unanimously affirmed the lower court’s decision. McKeown wrote the court’s opinion.

In response to the plaintiffs’ First Amendment claims, McKeown wrote:

The First Amendment does not support the Employees’ right to renege on their promise to join and support the union. This promise was made in the context of a contractual relationship between the union and its employees. When ‘legal obligations are self-imposed,’ state law, not the First Amendment, normally governs.[1]

McKeown then addressed the plaintiffs’ claims within the context of Janus:

Janus did not alter these basic tenets of the First Amendment. The dangers of compelled speech animate Janus. The Court underscored that the pernicious nature of compelled speech extends to ‘[c]ompelling individuals to mouth support for views they find objectionable’ by forcing them to subsidize that speech. For that reason, the Court condemned the practice of ‘automatically deduct[ing]’ agency fees from nonmembers who were ‘not asked’ and ‘not required to consent before the fees are deducted.’Employees, who are union members, experienced no such compulsion. Under Washington law, Employees were free to ‘join’ WFSE or ‘refrain’ from participating in union activities.[1]

Christen and Harpool are Barack Obama (D) appointees. McKeown is a Bill Clinton (D) appointee.

What are the reactions, and what comes next?

Judith Rivlin, general counsel for AFSCME, supported the ruling, comparing it to other federal court rulings that “continue to reject these attempts by corporate interests to manipulate the judiciary against working people and trample on their rights and freedom to join together in a union.”

James Abernathy, the plaintiffs’ attorney, said he would appeal the decision, either to the Ninth Circuit sitting en banc or the Supreme Court. Abernathy criticized the panel’s ruling, saying it effectively held “the First Amendment does not apply to employees who choose to pay union dues.”

The case name and number are Belgau v. Inslee (19-35137).

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

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Number of relevant bills by current legislative status

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Number of relevant bills by partisan status of sponsor(s)

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Recent legislative actions

  • Vermont S0254: This bill would require public employers to provide unions with employee contact information. It would provide for the automatic deduction of union dues from members’ paychecks, and it would permit unions to meet with new employees to provide them with information regarding union membership.
    • Democratic sponsorship.
    • House approved with proposal of amendment Sept. 24. Sent to Senate Sept. 25.