CategoryUncategorized

Missouri Court of Appeals upholds trial court ruling ordering state to resume payroll deductions for Department of Corrections employees

On Dec. 6, 2022, a three-judge panel of the Missouri Western District Court of Appeals upheld a September 2021 ruling by Cole County Circuit Court Judge Jon Edward Beetem in which Beetem ordered the Missouri Office of Administration to resume payroll deductions for Department of Corrections employees. The Office of Administration issued rules in 2019 and 2020 suspending and denying, respectively, payroll deductions for the Missouri Corrections Officers Association.

Background

The Missouri Corrections Officers Association (MOCOA) and two corrections officers filed a petition for declaratory judgment and injunctive relief against the Missouri Office of Administration in the Cole County Circuit Court on March 24, 2020. 

According to the St. Louis Post-Dispatch’s Kurt Erickson, “The state said it wouldn’t collect dues because the workers were no longer in a union since the contract had expired. The state also argued it was not recognizing the organization because it allowed about 100 retirees to be members.” 

On Sept. 27, 2021, Judge Jon Edward Beetem ordered the Office of Administration to “[resume] payroll deductions for any current employees who were having MOCOA dues deducted from their pay right before December 9, 2019, pursuant to the authorizations they had signed …” and to “accept new MOCOA dues deduction authorizations signed by employees in the future, and begin and continue deductions for those employees, pursuant to their authorizations.” 

The Office of Administration defendants appealed to the Western District Court of Appeals on Oct. 28, 2021. The Western District is the largest of three court of appeals districts. The court of appeals, Missouri’s intermediate appellate court, hears appeals from the state’s circuit courts. 

The oral argument for this case was held on Nov. 2, 2022. 

About the ruling

Chief Judge Gary D. Witt, Judge Mark D. Pfeiffer, and Judge Thomas N. Chapman affirmed Beetem’s ruling on Dec. 6, 2022. Witt wrote:

“The trial court … [found] that the Emergency Rule and Final Rule (collectively, “Rules”) issued by [the Missouri Office of Administration (“OA”)] were unconstitutional because they infringed on [Missouri Corrections Officers Association, Inc. (“MOCOA”)]’s constitutional rights to organize and to bargain collectively, freedoms of speech and association, and equal protection. The trial court also found that OA’s decisions in December 2019 to suspend payroll deduction and in March 2020 to deny payroll deductions for MOCOA were unlawful, arbitrary, capricious, and unreasonable. … We affirm the judgment of the trial court. …

“The record shows that OA’s interpretation of the regulations and its stated reasons for amending the regulations was a moving target, supporting the trial court’s determination that its rationale was pretextual and its decision to suspend MOCOA’s payroll dues deductions applied the regulation in an arbitrary and capricious manner. …

“The practical result of the Rule is to give OA an unfair advantage in the negotiations by starving the labor union for dues funding during the contract negotiations process. OA has failed to meet its burden of showing that its action was narrowly tailored to further a compelling governmental interest. 

“The Rules allowed employee associations that do not collectively bargain to benefit from payroll deduction, but prohibits employee associations that do collectively bargain from receiving the benefits of payroll deduction. And because the right to organize and to bargain collectively is a fundamental right protected by the Missouri constitution, laws that discriminate on the basis of the exercise of that right are subject to strict scrutiny.”

According to the Missouri Independent’s Rudi Keller, “The union did not seek, nor was it awarded, any tax money to replace the funds lost while dues have not been withheld.” 

A spokesman for the Missouri attorney general’s office said the state was “evaluating the decision and determining next steps.” Cases decided by the Western District Court of Appeals may be appealed to the Missouri Supreme Court. 

Gov. Jay Nixon (D) appointed Witt and Pfeiffer to the court. Gov. Mike Parson (R) appointed Chapman. Court of appeals judges are selected through the Missouri Nonpartisan Selection of Judges Court Plan.

What we’re reading

• Spokane Public Radio, “Washington State Supreme Court overturns Spokane collective bargaining charter amendment,”  Dec. 8, 2022
• The Buckeye Institute, “The Buckeye Institute and National Right to Work File Suit Demanding Union Return Wages Taken from Workers,” Dec. 8, 2022
• RealClearInvestigations, “Illinois Is Pushing Back Against the Anti-Union Tide,” Dec. 8, 2022
• JD Supra, “Unionization of Public-Sector Jobs in Colorado: The Collective Bargaining by County Employees Act,” Dec. 6, 2022
• Government Executive, “Feds Working During Shutdowns Not Entitled to Bonus Pay, Appeals Court Rules,” Dec. 1, 2022

The big picture

Number of relevant bills by state

We are currently tracking 150 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.

Wisconsin Employment Relations Commission issues decision on collective bargaining for UW Health nurses 

The Wisconsin Employment Relations Commission (WERC) ruled on Nov. 25 that the University of Wisconsin Hospitals and Clinics Authority (UW Health) is not legally required to collectively bargain with UW Nurses United, a chapter of SEIU Healthcare Wisconsin.  

Background

SEIU Healthcare Wisconsin and UW Health filed a joint petition on Sept. 20, 2022, asking the commission for a declaratory ruling on whether Wisconsin Statutes chapter 111, subchapter 1—called the Wisconsin Employment Peace Act—applied to UW Health and its employees.

The Peace Act says, “Employees shall have the right of self-organization and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 

According to the Wisconsin Examiner’s Erik Gunn, SEIU lawyers “[contended] that UW Health is covered by the Peace Act and as such its employees have full collective bargaining rights,” while UW Health attorneys argued the Peace Act no longer applied to UW Health after former Gov. Scott Walker (R) signed 2011 Wisconsin Act 10 into law. Act 10 limited collective bargaining rights for public sector workers.

The joint petition was part of an agreement between the parties to call off a planned nurses’ strike. To read more about the agreement in an earlier edition of Union Station, click here. 

WERC ruling 

WERC issued its decision on Nov. 25, finding that the Peace Act does not apply to UW Health employees. The commission’s decision said:

“The parties disagree as to whether statutory history is always to be considered when seeking the ‘plain meaning’ of a statute. SEIU asserts that it is only appropriate to look at statutory history if it confirms the ‘plain meaning’ derived from an analysis of the statutory language itself. UWHCA argues that statutory history is always to be considered. The Commission concludes that UWHCA is correct. …

“While the current version of Wis. Stat. § 111.02(7)1 is certainly susceptible to the interpretation given it by SEIU, the statutory history summarized in Findings of Fact 3 – 6 provides clear determinative evidence of the Wisconsin Legislature’s intent. Act 10’s specific deletion of all statutory references related to the UWHCA as a Peace Act ‘employer’ clearly establishes that the UWHCA is not an ‘employer’ within the plain meaning of Wis. Stat. §111.02(7). Contrary to the argument of SEIU, there are no plausible alternative explanations for the legislative deletions reflected in Act 10. 

“Given the foregoing, the Commission declares that the Wisconsin Employment Peace Act, Wis. Stat. ch. 111, subch. 1 (WEPA) does not apply to the University of Wisconsin Hospitals and Clinics Authority and its employees and their chosen representatives, if any.”

The Cap Times’ Jessie Opoien reported that it “remains unresolved … whether UW Health can voluntarily recognize the union.”

What comes next

According to the Milwaukee Journal Sentinel’s Jessica Van Egeren, “Since a ruling by the commission is not the same as a ruling by the courts, neither side ever viewed a decision by WERC as the final answer.” Representatives for both parties have said that they plan to appeal the commission’s decision.

UW Health says it will appeal to the Wisconsin Supreme Court. Press secretary Emily Kumlien said, “WERC’s decision is an important first step toward obtaining definitive answers from the Wisconsin legal system on both the question WERC addressed and whether UW Health could voluntarily recognize a union and bargain collectively. … We believe that an expedited decision on these important legal issues will best allow us to move forward.” 

UW Health nurses Mary Jorgensen, Colin Gillis, and Sarah Langland said, “We will be appealing WERC’s decision through the courts and petitioning for an election with the National Labor Relations Board (NLRB). … This is the first round in a multi-step process for nurses achieving collective bargaining rights, either through the courts, the NLRB, or through voluntary recognition by UW Health.” 

Jorgensen, Gillis and Langland also said, “Hundreds of us have already signed up to become union members and we are meeting directly with the administration to raise critical issues and create real solutions. … The opinion by the Wisconsin Employment Relations Commission (WERC) does not impact our union membership or the Meet and Discuss process at UW Health.”

What we’re reading

• Illinois Policy, “Illinois Labor Board Says Government Unions Cannot Discriminate Against Nonmembers,” Nov. 30, 2022
• Los Angeles Times, “UC postdoctoral scholars and researchers reach tentative deal but strike continues,” Nov. 29, 2022
• The Center Square, “Workers’ rights case appealed to Supreme Court by Washington think tank,” Nov. 28, 2022 
• Jacobin, “Come January, Federal Workers Might Not Have a Functioning Labor Board,” Nov. 28, 2022
• Las Vegas Review-Journal, “Metro officer asks US Supreme Court to hear suit over union fees,” Nov. 28, 2022 
• The Washington Times, “ICE employees say agency canceled their union but still collected dues,” Nov. 28, 2022
• The Washington Post, “Va. public employees begin union contract talks for first time in decades,” Nov. 23, 2022
• Federal News Network, “Federal appeals court latest stop for immigration judges union to get recertified,” Nov. 22, 2022 

The big picture

Number of relevant bills by state

We are currently tracking 150 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.

Illinois voters to decide whether to adopt collective bargaining amendment

Note: With the election around the corner, we’ll be taking a break from Union Station next week and helping support our results team efforts. The next edition of Union Station will arrive on Nov. 18. In the meantime, visit Ballotpedia for next week’s election results and ongoing analysis.

On Nov. 8, Illinois voters will decide on Illinois Amendment 1, a legislatively referred constitutional amendment stating that employees have a “fundamental right to organize and bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work” and prohibiting any law that “interferes with, negates, or diminishes the right of employees to organize and bargain collectively.” 

According to Law360, Illinois would be the first state to ban right-to-work laws in its constitution. Three other states—Hawaii, Missouri, and New York—provide a right to collective bargaining in their state constitutions. 

Let’s go through some background on the measure and see what supporters and opponents are saying about it.

Background

Amendment 1 was introduced as Senate Joint Resolution Constitutional Amendment No. 11 in May 2021. The resolution passed the Senate 49-7 and the House 80-30 that month. No Democrats voted against the resolution. Eleven Republicans in the Senate and nine Republicans in the House supported it. In Illinois, a legislatively referred constitutional amendment requires three-fifths approval from the members of both houses of the General Assembly. 

The proposed amendment would add the following language to Article I of the Illinois Constitution:

“(a) Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.

“(b) The provisions of this Section are controlling over those of Section 6 of Article VII.”

For the amendment to be ratified, either 60% of those voting on the question must approve it, or a majority of those voting in the election must approve it. 

Legal challenge

In April 2022, a group of parents and teachers filed a petition in the Seventh Judicial Circuit Court in Sangamon County to have the amendment removed from the ballot. The petitioners said the National Labor Relations Act would preempt the amendment and claimed they had standing as taxpayers to sue to prevent the state from putting an unconstitutional amendment on the ballot. 

In May, Circuit Judge Raylene Grischow denied the petition, and in August, the Illinois Fourth District Appellate Court upheld Grischow’s ruling. Read more about these decisions here and here.

The petitioners appealed to the Illinois Supreme Court, which declined to hear the case on Sept. 20. 

Perspectives

Support

• Illinois AFL-CIO president Tim Drea said, “There’s a lot of concern about the political climate and how rights can be taken away. … People are very cognizant that everybody’s rights are at stake right now.” He also said, “[Former Republican Gov.] Bruce Rauner had a war on unions … It was quite the wake-up call. We had also seen in Wisconsin, a progressive state that led the nation in labor, Scott Walker wiped out collective bargaining for public employees.”
  
• Sen. Dick Durbin (D) said, “We will make sure Illinois says clearly that our workers’ rights are going to be protected. … State after state surrounding us, we will find ourselves a blue island in a red sea and many of these states are cutting back on the basic rights of workers.”
  
• Northwestern University Institute for Policy Research fellow Daniel Galvin said, “A big important state like Illinois enshrining this right to their constitution sends a signal across the country that the right to bargain collectively is a fundamental right.”
  
• Chicago Teachers Union (CTU) communications director Christine Geovanis said, “The CTU enthusiastically supports the Workers’ Rights Amendment on the November ballot, which guarantees the fundamental rights of workers to organize and have a voice in their workplaces — the very rights that Republicans across the country and right here in Illinois have been trying to undermine for years.”
  
• Illinois Economic Policy Institute executive director Frank Manzo IV said, “The amendment is really intended to prevent politicians from enacting laws that interfere with the private negotiations of businesses and their workers. … And by doing so the amendment would protect middle class wages and benefits, and promote workplace safety.” Manzo also said, “Similar to recent decisions on reproductive rights at the Supreme Court level that have taken away rights that have long been held by a certain segment of the population and saying it’s kind of up to the states. … Should that happen for this segment of the population called workers, and rights are taken away at the federal level, or at least removed as being a federal right, or even if Congress were to just get rid of the National Labor Relations Act in a couple months, this would be an answer at the state level.”
  
• Sen. Ram Villivalam (D) said, “[Illinois becoming a right-to-work state] is not a hypothetical scenario. … This policy was [pushed] by the previous governor. Future politicians can be different than the ones we have today. We would rather have this voted on by voters than have politicians in Springfield changing the law every four years.”
  
• Rep. Lance Yednock (D) said, “When workers are free to bargain collectively, it leads to safer workplaces, enhanced skill levels and better economic conditions for all workers, whether or not they’re in a union.” 

Opposition

• The Chicago Tribune editorial board wrote, “Since federal law generally protects collective bargaining within the private sector, the principal beneficiaries of the amendment are public-sector employees. More specifically, the slippery term ‘economic welfare,’ which could mean all kinds of things and, remember, the constitution is the mighty constitution when it comes to power structure of laws, and likely would result in greatly increased power for unions even beyond their core (and legitimate) collective bargaining functions.” 

• Liberty Justice Center president Jacob Huebert said, “They’re smuggling this in under something that might be more popular. It says, ‘We’re going to give rights to all employees,’ when really the state can only give them to public sector employees. A private sector employee might say, ‘More rights for me; I’ll vote for that.’ It’s hard to see this as anything other than deliberately deceptive.” 

• Illinois Chamber of Commerce president and CEO Todd Maisch said, “I think it’s mostly another signal to the rest of the nation that Illinois is an outlier. … We continue to find ways to make this state unattractive to investment.”
  
• Illinois Policy Institute vice president Adam Schuster said, “Amendment 1 would guarantee state and local taxes rise faster and higher than they have already. Analysis of a decade of data across all 50 states shows a strong statistical association between both: the power of government unions and a state’s average effective property tax rate, and the amount of debt owed to government unions and the overall amount of debt per taxpayer.” 
  
• Illinois Policy Institute labor policy director and staff attorney Mailee Smith said, “The amendment’s extreme powers would elevate government unions’ influence in Illinois government above that of taxpayers and allow government unions’ collective bargaining agreements to override Illinois’ state law forever. … [T]hrough a provision that prevents lawmakers from ever limiting or clarifying the government unions’ collective bargaining methods, the amendment gives government union leaders a permanent right to strike to get their demands met. Government union leaders would forever hold the power to shut down critical government services until they get what they want.”
  
• Illinois Republican Party chairman Don Tracy said, “This constitutional referendum grants super-legislative powers to union bosses that could only be changed by further constitutional referendums, not legislative action. … Illinois voters should reject Amendment 1 as the government union power grab and trojan horse pathway to tax increases that it is.”
  
• The Wall Street Journal editorial board wrote, “Public unions already dominate government in Illinois, and Democratic lawmakers now want to amend the constitution to entrench that power and block reforms. … If you think teachers unions are powerful now, wait until this passes. Amendment 1 would bar the Legislature from passing anything that ‘interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety.’” 

What we’re reading

• Northwest Labor Press, “Workers rights on the ballot nationwide,” Nov. 2, 2022
• The College Fix, “Oral arguments heard in First Amendment case over forced dues by ‘anti-Israel’ union,” Oct. 31, 2022
• The 74, “PACs Get Attention, but Teachers Unions Still Dominate School Board Elections,” Oct. 31, 2022 
• The Fairfield Sun Times, “Post-Janus, Battles with Public-Sector Unions Continue,” Oct. 28, 2022 
• The Hill, “What’s next for staffer unions on the Hill?” Oct. 27, 2022

The big picture

Number of relevant bills by state

We are currently tracking 150 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.

School counselor appeals grievance representation challenge to Ohio Supreme Court 

Attorneys from The Buckeye Institute filed an appeal to the Ohio Supreme Court on behalf of a school guidance counselor who was not allowed under an exclusive collective bargaining agreement to use her own lawyer in a dispute with the school district. 

Background

The plaintiff, Barbara Kolkowski, is a high school guidance counselor in the Ashtabula Area City School District. Kolkowski is not a member of the Ashtabula Area Teachers Association. However, as an employee of the school district, Kolkowski is a member of the bargaining unit the union represents. 

In November 2020, Kolkowski wanted to use her own lawyer to represent her in arbitration with the school district. The union denied her request, saying that the collective bargaining agreement required an advocate from the union to represent her.  

In January 2021, Kolkowski sued the union and district board of education in the Ashtabula County Court of Common Pleas. Attorneys from The Buckeye Institute, which says its “mission is to advance free-market public policy in the states,” represent Kolkowski. 

Kolkowski’s lawsuit said she wanted to “choose her own counsel, make her own arguments, and present her grievance in arbitration without the intervention of the Union.” Kolkowski’s attorneys cited Ohio Revised Code 4117.03(A)(5), which says that public employees have the right to “[p]resent grievances and have them adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of the collective bargaining agreement then in effect and as long as the bargaining representatives have the opportunity to be present at the adjustment.” 

On Oct. 5, 2021, Judge David A. Schroeder ruled in favor of the union. Schroeder wrote: 

“First, Defendants argue that this is not a constitutional question, but a contract law question. They believe this comes down to specific language in the [collective bargaining agreement (CBA)], which is binding on [Kolkowski]. Their position is that under the CBA the union provides the representation for arbitration, and that [Kolkowski] has no right to retain her own counsel to represent her at arbitration. Defendants also argue that once [Kolkowski] asked for the [union] to become involved, the grievance was turned over to the union and [Kolkowski] lost standing. Finally, they argue that since this is a question regarding an issue with the CBA, the [State Employment Relations Board] has exclusive jurisdiction over this matter. … The Motions to Dismiss filed by the Defendants are well-taken.” 

Kolkowski’s attorneys appealed to the Ohio Eleventh District Court of Appeals on Jan. 18, 2022. They wrote, “… Ms. Kolkowski never sought Union representation. The only part that Ms. Kolkowski allowed the Union to play was that of transmitting the arbitration demand, which the Union was required to submit under the CBA. … If, as the trial court held, the mere request for arbitration amounts to Union ‘representation,’ then the guarantees provided by [Johnson v. Metro Health Medical Centr. (2001)] and [Gaydosh v. Trumbull County (2017)], codified in R.C. 4117, and protected by the U.S. and Ohio Constitutions are illusory.” 

On Sept. 6, 2022, Judges John J. Eklund, Thomas R. Wright, and Mary Jane Trapp upheld the lower court’s ruling. Eklund wrote:

“It is incongruous with the principles of collective bargaining for [Kolkowski] to argue that she has rights to free speech and due process which entitle her to be represented by the counsel of her choosing at a proceeding which she herself is not legally entitled to initiate. It would be incongruous for [Kolkowski] to possess a constitutional right to hire her own attorney for an arbitration proceeding which is an optional portion of a negotiated grievance procedure between the Association and the Board. Finally, it is incongruous for [Kolkowski] to individually assert a right to enforce the CBA in arbitration, the result of which may well affect the rights of other Association members under the CBA.” 

Supreme Court appeal

On Oct. 21, Kolkowski’s attorneys filed an appeal to the Ohio Supreme Court. 

Buckeye Institute senior litigator Jay R. Carson said, “When the United States Supreme Court issued its opinion in Janus v. AFSCME, it recognized that public employment does not require public employees to surrender their constitutional rights. Ohio has recognized that same right in its constitution and laws. … But that is just what the union—which Ms. Kolkowski is not a member of—is forcing her to do—surrender her right to hire her own lawyer, at her own expense, to represent her in a workplace arbitration dispute. Today, the Ohio Supreme Court has an opportunity to vindicate Ms. Kolkowski’s right to have her own legal counsel.”

The case name and number are Kolkowski v. Ashtabula Area Teachers Association (2022-1299). 

There are seven justices on the Ohio Supreme Court. Justices are elected to six-year terms in partisan elections. There are currently three Democrats and four Republicans on the court. 

All but one of the current justices were on the court in 2020 when we published “Ballotpedia Courts: State Partisanship,” a report evaluating justices’ partisan affiliations through their behavior before joining the court. In that report, we assigned a score of “Mild Democrat” to two of the current Democratic justices and “Strong Republican” to all four current Republican justices. In 2020, the Ohio Supreme Court heard 436 cases and decided 67% of them unanimously.   

What we’re reading

• Chicago Sun-Times, “Amendment ‘right thing’ for workers? Or ‘government union power play’? Proposal stirs debate on union rights, worker safety,” Oct. 27, 2022
• NJ.com, “South Jersey bus drivers getting back union dues that suit said they shouldn’t have paid,” Oct. 26, 2022
• Americans for Fair Treatment, “Teachers Unions’ Illegal Strikes in Massachusetts Test State Law,” Oct. 26, 2022
• Reuters, “Town must bargain with firefighters’ union over termination policy – N.Y. top court,” Oct. 26, 2022
• NBC Chicago, “Who Does and Does Not Support the Workers’ Rights Amendment in the 2022 Illinois Election,” Oct. 25, 2022
• Chicago, “State of the Unions,” Oct. 24, 2022 
• Daily Kos, “Teachers in two Massachusetts cities strike, this week in the war on workers,” Oct. 22, 2022 

The big picture

Number of relevant bills by state

We are currently tracking 150 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.

Alaska Supreme Court hears arguments on whether Janus requires annual opt-ins for union membership

The Alaska Supreme Court heard oral arguments last week in a case where the state of Alaska claims that the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME requires annual opt-ins for union membership.

Background

Alaska Gov. Mike Dunleavy (R) issued an administrative order on Sept. 26, 2019, instructing the Department of Administration and Department of Law to require state employees to submit an authorization form to affirmatively opt-in or opt-out of paying union dues or fees. In the order, Dunleavy cited an opinion former Alaska Attorney General Kevin Clarkson (R) issued on Aug. 27, 2019. Dunleavy wrote: “The Opinion explained that under Janus, the State of Alaska may no longer automatically deduct union dues and fees from an employee’s wages unless the employee affirmatively consents to waive his or her First Amendment rights. The Opinion also made clear that the State’s previous steps to implement the Janus decision did not go far enough.” 

State attorneys filed a lawsuit in the Alaska Superior Court asking the court to decide if Clarkson’s opinion was correct, and the union filed counterclaims. On Oct. 3, 2019, Anchorage Superior Court Judge Gregory Miller issued a temporary restraining order blocking Dunleavy’s order. 

On Feb. 8, 2021, Miller ruled in favor of the union, writing, “ASEA is entitled to a declaratory judgment that the First Amendment to the U.S. Constitution does not require the State to alter the union dues deduction practices in place prior to August 27, 2019, and does not require the steps set forth in Attorney General Clarkson’s August 27, 2019 legal opinion or the steps mandated in Administrative Order 312.” The court entered the final judgment in favor of the union in September 2021. 

Supreme Court appeal

Attorneys for the state of Alaska filed an appeal to the Alaska Supreme Court on Sept. 2, 2021. In their brief to the court, the state’s attorneys wrote: 

“Janus was a landmark decision protecting the First Amendment rights of public union members and nonmembers alike. It requires the State to ensure that it does not continue to take dues from employees’ wages over their objection and without evidence that the employees waived their First Amendment rights. The superior court misread Janus and incorrectly granted summary judgment in favor of ASEA on all claims. …

“In denying the State’s requests for declaratory judgment, the superior court ignored the Supreme Court’s clear instruction to public-sector unions and states: No employee can be forced to subsidize union speech—through ‘an agency fee [or] any other payment’—unless the employee has waived his or her First Amendment rights. This Court should reverse the superior court’s decision because it leaves state employees powerless to timely stop subsidizing speech with which they disagree.” 

Attorneys from Altshuler Berzon LLP represent the Alaska State Employees Association. The union’s attorneys wrote: 

“The State’s current executive branch officials seek to justify their blatant violations of the State’s contract with ASEA and Alaska state law by asserting a radical misinterpretation of Janus. They contend that Janus voided all state employee union membership agreements and requires the State to impose a special heightened ‘waiver’ analysis before processing public employees’ voluntary affirmative dues deduction authorizations. … That contention has been unanimously and correctly rejected by every court to consider it. The Superior Court correctly rejected the State’s central argument, and the Superior Court’s other rulings regarding the State’s violation of its contract with ASEA and multiple state laws were all also correct. … 

“As a threshold matter, the State is barred by collateral estoppel from relitigating its

Janus-based arguments here. … The State already litigated and lost the same Janus issues in two federal lawsuits (Creed and Woods), based on the same underlying facts, against the same party (ASEA). These issues were ‘actually … determined’ in Creed and Woods ‘by a valid and final judgment,’ and the rejection of the State’s arguments regarding Janus was ‘essential to the judgment’ in both cases. Thus, collateral estoppel applies, and this Court should affirm the Superior Court’s ruling on the First Amendment issue on that threshold ground.” 

On Oct. 13, the Alaska Supreme Court heard oral arguments in the case. According to KINY’s James Brooks, Chief Justice Daniel Winfree asked Alaska solicitor general for civil appeals Jessica Alloway, “Not a single case has agreed with you, as far as I know. Is that correct?” Alloway answered affirmatively. According to Brooks, “Winfree told attorneys that the case will be taken under advisement, with a written decision to be issued at a later date.” 

The case name and number are State of Alaska v. Alaska State Employees Association/AFSCME Local 52, AFL-CIO (S-18172).

There are five justices on the Alaska Supreme Court. Republican governors appointed four of the current justices, and an independent governor appointed one. Three of the current justices were on the court in 2020 when we published our “Ballotpedia Courts: State Partisanship” report, which evaluated justices’ partisan affiliations through their behavior before joining the court. In that report, we assigned a score of “Mild Republican” to one of the current justices, and two current justices received an “Indeterminate” score. In 2020, the Alaska Supreme Court heard 138 cases and decided 92% of them unanimously.

What we’re reading

• Baltimore Sun, “Is the Walters Art Museum part of city government? Not by a long shot say trustees in court documents filed this week,” Oct. 20, 2022 
• People’s World, “California enacts hefty fines for government union-busting,” Oct. 20, 2022
• InsideNoVa, “Prince William School Board passes collective bargaining rights as rancor continues between board and education association,” Oct. 20, 2022
• Government Executive, “The FLRA Says HHS Erred in Implementing a Partial Union Contract During the Trump Administration,” Oct. 19, 2022
• Iowa Starting Line, “What Is Recertification And Why Does Iowa Make Public Unions Do It?” Oct. 19th, 2022
• PBS Wisconsin, “Workers lost ground on wages in wake of Wisconsin’s anti-labor laws,” Oct. 19, 2022
• Bloomberg Government, “Labor Unions on Defense in Tennessee, on Offense in Illinois,” Oct. 18, 2022
• Illinois Policy, “3rd Anniversary of 2019 Chicago Teachers Union Strike Gives Glimpse of Amendment 1,” Oct. 17, 2022
• The DePaulia, “Illinois Workers’ Rights Amendment protects right to collectively bargain and unionize,” Oct. 16, 2022

The big picture

Number of relevant bills by state

We are currently tracking 150 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.

Supreme Court agrees to hear case challenging FLRA jurisdiction over Ohio National Guard collective bargaining dispute

The U.S. Supreme Court has agreed to hear an appeal of a Sixth Circuit ruling that the Federal Labor Relations Authority (FLRA) has jurisdiction to regulate a collective bargaining dispute between the Ohio National Guard and the American Federation of Government Employees (AFGE). AFGE is the federal employee union representing Ohio National Guard technicians, who are civilian federal employees. 

Background

According to Government Executive’s Erich Wagner:

“[Ohio]’s union contract with the American Federation of Government Employees expired in 2014, and although the state committed to continue to bargain in good faith with the union on a successor agreement, in 2016 it distributed a memo saying that the state is neither bound by the expired contract nor the Civil Service Reform Act. The state then proceeded to cancel union dues payroll deductions from ‘most’ dues-paying members, prompting a series of unfair labor practice complaints that were upheld by the FLRA in 2020.” 

The Ohio Adjutant General’s Department, the Ohio Adjutant General, and the Ohio National Guard appealed the FLRA’s 2020 ruling to the U.S. Court of Appeals for the Sixth Circuit. Senior U.S. Circuit Judge Martha Daughtrey and U.S. Circuit Judges R. Guy Cole Jr. and Eric Clay denied the petition on Dec. 21, 2021. Cole wrote, “The FLRA has jurisdiction to adjudicate the collective-bargaining dispute between the Guard and the Union and to issue an order requiring the Guard to comply. Further, the Guard can lawfully comply with the FLRA’s order.” 

At the Supreme Court

The Ohio petitioners appealed to the Supreme Court on May 13, 2022. The petitioners presented the following questions: 

1. “Does the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only … empower it to regulate the labor practices of state militias?”

2. “The second Militia Clause empowers Congress to ‘provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.’ … Assuming the Civil Service Reform Act of 1978 permits the Federal Labor Relations Authority to regulate the labor practices of state militias, is the Act unconstitutional in its application to labor practices pertaining to militia members who are not employed in the service of the United States?” 

On July 18, 2022, attorneys for the FLRA filed a brief opposing the petition, rephrasing the questions as follows: 

1. “Whether the adjutant general of a state National Guard unit, and the unit itself, are subject to the requirements of the Federal Service Labor-Management Relations Act … when they act in their capacities as supervisors of dual status technicians, who are ‘[f]ederal civilian employe[es],’ …

2. “Whether the Act violates the Militia Clauses, U.S. Const. Art. I, § 8, Cl. 15, 16, by providing dual status technicians the right to collectively bargain over certain conditions of their federal civilian employment.” 

To view additional briefs submitted to the court in this case, click here. 

The justices reviewed the case during their first conference of the 2022-2023 term on Sept. 28. On Oct. 3, the court granted the petition to hear the case, limited to the petitioners’ first question, whether the Civil Service Reform Act of 1978 gives the FLRA authority to regulate state militia labor practices. The case has not yet been set for argument. 

The case name and number are The Ohio Adjutant General’s Department, et al., v. Federal Labor Relations Authority, et al. (No. 21-1454).

What we’re reading

• The 74, “Open Collective Bargaining — Something Everyone Can Agree On?” Oct. 13, 2022
• FXXnow, “Fairfax County firefighters could let union negotiate work conditions for first time in decades,” Oct. 12, 2022
• The Express-Times, “Op-ed spread false information about Pa. teachers’ union. Here’s the truth. | Letter,” Oct. 12, 2022
• Roll Call, “Staffers for Rep. Melanie Stansbury vote to unionize,” Oct. 11, 2022
• Newsweek, “Public-Sector Unions Struggle to Maintain Influence, Membership | Opinion,” Oct. 11, 2022
• Chicago Tribune, “Editorial: Vote ‘no’ on Amendment One,” Oct. 10, 2022
• Government Executive, “A Union Says the National Park Service Violated the Law by Allowing an HR Official to Pursue Decertification After Her Promotion,” Oct. 7, 2022 

The big picture

Number of relevant bills by state

We are currently tracking 150 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.

End-of-session roundup of California public-sector union legislation

California Gov. Gavin Newsom (D) recently signed three bills related to public-sector union policy and vetoed another three. 

About the bills   

Newsom had until Sept. 30 to sign or veto bills the legislature passed before the end of its session on Aug. 31, with any unreturned bills becoming law without his signature. According to his office, Newsom signed 997 bills into law in the 2022 legislative session and vetoed 169 bills.

California requires a two-thirds vote from both chambers of the legislature to override a gubernatorial veto. Democrats currently have veto-proof majorities in both chambers. The legislature has 60 days to consider a veto.  

Here’s a roundup of bills related to public-sector union policy that Newsom signed or vetoed in September. Democrats introduced all six bills. To view a spreadsheet with all the public-sector union bills we’re tracking across the country, click here. 

Signed bills: 

• AB 158: This budget-related bill includes a proposed tax credit for union dues. (To read more about the proposed tax credit, see the July 8 edition of Union Station.) According to The Sacramento Bee’s Wes Venteicher, AB 158 “doesn’t specify the size of the credits for most dues-payers” but “sets out lawmakers’ intent to provide $400 million worth of the credits starting in 2024.” Venteicher writes, “While not included in the language of the bill, backers have talked about capping credits at about a third of dues. The Legislature would still have to appropriate the $400 million — and could reduce or increase the amount — in future budgets.” Newsom signed AB 158 on Sept. 29.

• AB 2556: This bill changes the time for a public agency to implement its final offer after mediation from 10 to 15 days after the factfinding panel has submitted its recommendation. It also authorizes a union to charge certain employees under the Firefighters Procedural Bill of Rights Act for the cost of requested representation if they have declined union membership. Newsom signed the bill on Sept. 18.
  
• SB 931: This bill allows a union to bring a claim before the Public Employment Relations Board against a public employer that the union alleges to be in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. Newsom signed the bill on Sept. 29. The bill’s sponsor, Sen. Connie Leyva (D), said, “Though it is wrong—and even already illegal—for public sector employers to purposely discourage union activity, these tactics still continue as employers try to prevent their workers from unionizing and asserting their rights. SB 931 will create a financial penalty and disincentive that will hopefully finally deter public sector employers from breaking the law by deliberately discouraging union activity among their workers.”

Vetoed bills: 

• AB 1714 and SB 1406: These bills would have allowed unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances. Newsom vetoed both bills on Sept. 18, writing, “Current law allows managers and supervisors to pursue resolution of disagreements through a four-step grievance process and pursue a claim with the State Personnel Board. AB 1714 would add a costly step to this process. Additionally, AB 1714 would permit excluded employees to arbitrate the Department of Human Resources’ (CalHR) authorizing statutes, regulations, policies, and/or practices before non-governmental entities. This could lead to conflicts with the statutory authority delegated to CalHR and the Legislature ‘s authority. These are the same concerns I had with previous, nearly-identical bills, SB 179 (2019), and SB 76 (2021) which I also vetoed.” SB 1406 went back to the Senate for consideration of the governor’s veto.
  
• SB 1313: This bill would have prohibited Los Angeles County from discriminating against union members by limiting employee health benefits. Newsom vetoed this bill on Sept. 28, writing, “The State of California stands firmly against employee discrimination in all forms. This bill, however, suggests the final outcome of good faith bargaining between parties is inherently unfair because unrepresented workers may have access to better benefits. If enacted, it would upend existing collectively bargained contracts by effectively codifying the setting of local employee benefits which is best addressed through the collective bargaining process. Additionally, if determined to be a state mandate, this bill would result in additional costs to the state in the hundreds of millions of dollars not accounted for in the budget. … Bills with significant fiscal impact, such as this measure, should be considered and accounted for as part of the annual budget process.” SB 1313 went back to the Senate for consideration of the governor’s veto.

Another bill we tracked this year passed the Assembly and Senate but didn’t make it to Newsom’s desk. AB 1577 would have allowed state legislative employees to organize and bargain collectively. Both chambers passed versions of the bill, but failed to agree on Senate amendments. The bill died in the Assembly Public Employment and Retirement Committee at the end of August. According to the Los Angeles Times’ Taryn Luna, this was the “fourth time in five years [that] the California Legislature rejected a bill to allow its staff to unionize.” 

Political context 

California has had a Democratic trifecta–with a Democratic governor and Democrats holding majorities in both chambers of the Legislature–since 2011. Fourteen states currently have Democratic trifectas.  

What we’re reading

• Wisconsin Watch, “Wisconsin workers show renewed energy after decade of anti-union laws,” Oct. 6, 2022 
• AFGE, “AFGE Charges National Park Service with Violating Federal Labor Law,” Oct. 5, 2022
• Government Executive, “Supreme Court Takes Up Case Challenging FLRA’s Long-Settled Jurisdiction Over National Guard Civilians,” Oct. 4, 2022  
• Missouri Independent, “Missouri Supreme Court upholds law stripping state workers of merit system protections,” Oct. 4, 2022 
• The Daily Progress, “Charlottesville raises bus driver pay, enables collective bargaining,” Oct. 4, 2022 
• Michigan Capitol Confidential, “School districts could become dues collectors for employee unions under current legislation,” Oct. 3, 2022
• Vox, “Two states, two visions for the future of labor,” Sept. 29, 2022 

The big picture

Number of relevant bills by state

We are currently tracking 150 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

• California AB158: This trailer bill would provide for appropriations related to the budget, which included a proposed tax credit for union dues. 
  • Assembly Budget Committee introduced.  
  • Governor signed Sept. 29, secretary of state assigned a chapter number (Chapter 737, Statutes of 2022).
• California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer that the union alleges to be in violation of California Government Code Section 3550 and would set civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
  • Democratic sponsorship. 
  • Governor signed Sept. 29, secretary of state assigned a chapter number (Chapter 823, Statutes of 2022).
• California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
  • Democratic sponsorship. 
  • Governor vetoed Sept. 28. Consideration of governor’s veto pending in the Senate.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.

Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue:

1. Delaware state court strikes down law allowing no-excuse absentee/mail-in voting
2. California enacts three election-related bills
3. Legislation update: Legislation activity in September 2022

Have a question/feedback/or just want to say hello? Respond to this email, or drop me a line directly at Jerrick@Ballotpedia.org.

Delaware state court strikes down law allowing no-excuse absentee/mail-in voting

On Sept. 14, Vice Chancellor Nathan Cook, of the Delaware Court of Chancery, ruled that a state law allowing any registered voter to vote by absentee/mail-in ballot was unconstitutional. However, on Sept. 19, Cook delayed implementation of his ruling, pending an expedited appeal to the state supreme court. 

The law in question

On July 22, Gov. John Carney (D) signed SB320 into law, establishing no-excuse absentee/mail-in voting in any non-presidential primary election, general election, or special election to fill a vacancy in a statewide office or the General Assembly. The state Senate approved the bill 13-8 on June 16, with 13 Democrats voting in favor and one Democrat and seven Republicans opposed. The state House approved the bill 25-12 on June 29, with 24 Democrats and one Republican voting in favor and 12 Republicans opposed. The bill took retroactive effect on July 1.

Article V, Section 4A, of the state constitution states:

The General Assembly shall enact general laws providing that any qualified elector of this State, duly registered, who shall be unable to appear to cast his or her ballot at any general election at the regular polling place of the election district in which he or she is registered, either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion, may cast a ballot at such general election to be counted in such election district.

The parties to the lawsuit and their arguments

The plaintiffs are five registered voters: Michael Higgin (who is also a Republican candidate for Delaware House District 15), Michael Mennella (who plans to serve as an election inspector in the Nov. 8 general election), Ayonne Miles, Paul Falkowski, and Nancy Smith. The defendants are Delaware State Election Commissioner Anthony J. Albence and the Delaware Department of Elections. 

The plaintiffs, arguing that SB320 is “irreconcilable with the Delaware Constitution,” asked the court to declare the law unconstitutional and bar its enforcement in the Nov. 8 general election. 

The defendants argued the plaintiffs lacked standing to challenge SB320. The defendants further argued that SB320 was constitutional. 

How the court ruled

Cook ruled:

• The plaintiffs had standing to challenge SB320. Cook wrote, “[A]lthough the plaintiffs likely would not have standing under federal jurisprudence, I conclude that the plaintiffs have standing to challenge the Vote-by-Mail Statute under state law. … In this case, the plaintiffs represent various parts of the election process, and I conclude they have a substantial interest in this court reaching a decision on the merits, particularly given the fundamental nature of voting.” 
• SB320 violates the state constitution: Cook wrote, “The plaintiffs argue that Article V, Section 4A, of the Delaware Constitution … provides for absentee voting in certain enumerated circumstances. Our Supreme Court and this Court have consistently stated that those circumstances are exhaustive. Therefore, as a trial judge, I am compelled by precedent to conclude that the Vote-by-Mail Statute’s attempt to expand absentee voting to Delawareans who do not align with any of Section 4A’s categories must be rejected.” 

Cook concluded an injunction (i.e., an order barring the state from enforcing SB320) was appropriate because “there would be irreparable harm in the absence of injunctive relief and … the balance of the equities favors entry of an injunction.” 

What comes next

On Sept. 19, Cook stayed enforcement of his ruling, pending an expedited appeal to the state supreme court, which was scheduled to hear oral argument in the case on Oct. 5. 

California enacts three election-related bills

In September, California Gov. Gavin Newsom (D) signed three election-related bills into law.

• AB1631: Existing law requires elections officials to make public a list of the precincts to which precinct officials who are fluent in a non-English language and in English were appointed, and the language or languages other than English in which the officials will provide assistance. This bill requires the county elections official to make this list available on the county elections official’s website.
• AB2815: This bill requires a county, for a statewide primary or general election, to provide an additional vote-by-mail ballot drop-off location on each California State University main campus within its jurisdiction and, upon request, each University of California campus within its jurisdiction.
• SB1131: Existing law requires an election official to post a list of all polling places and precinct board members at specified times before an election. This bill would eliminate the requirement to post the names of the precinct board members, but would still require the election official to post the political party preference for all precinct board members, as specified.

Legislation update: Legislation activity in September 2022

In September, legislatures in five states and the District of Columbia took action on 36 election bills. 

The chart below identifies the 10 most common policy areas implicated by the bills that state lawmakers acted on in September. The number listed on the blue portion of each bar indicates the number of Democratic-sponsored bills dealing with the subject in question. The number listed on the red portion of the bar indicates the number of Republican-sponsored bills. The purple and gray portions of the bar indicate the number of bipartisan-sponsored bills and bills with unspecified sponsorship, respectively. Note that the total number of bills listed will not equal the total number of enacted bills because some bills deal with multiple subjects.

Democrats sponsored 21 of the 36 bills acted on in September (58.3%). Republicans sponsored 7 (19.4%). Bipartisan groups sponsored eight (22.2%). 

This information comes from Ballotpedia’s Election Administration Legislation Tracker, which went live on June 29. This free and accessible online resource allows you to find easy-to-digest bill tags and summaries—written and curated by our election administration experts! We update our database and bill-tracking daily. Using our powerful interactive search function, you can zero in on more 2,500 bills (and counting) covering these topics:

• Absentee/mail-in voting and early voting policies
• Ballot access requirements for candidates, parties, and ballot initiatives
• Election dates and deadlines
• Election oversight protocols
• In-person voting procedures
• Post-election procedures (including counting, canvassing, and auditing policies)
• Voter ID
• Voter registration and eligibility

To make your search results more precise, we first place bills into one of 22 parent categories. We then apply to each bill one or more of the 88 tags we’ve developed. 

If you don’t want to immerse yourself in the world of election legislation quite that often, we have a free, weekly digest that goes straight to your inbox and keeps you caught up on the week’s developments.

U.S. Supreme Court begins 2022-2023 term with seven petitions to review public-sector union cases

The Supreme Court’s next term will begin on Monday, Oct. 3. As of Sept. 29, appellants had filed seven petitions for writs of certiorari—requests for the Supreme Court to review a lower court’s ruling—in public-sector union cases we’re tracking. The Supreme Court began considering petitions for this term on Wednesday, Sept. 28.  

Petitions filed for the 2022-2023 term 

The court held its first conference for the term, where it reviews petitions filed over the summer, on Sept. 28. Only one of the seven petitions we’re watching, Adams v. Teamsters Union Local 429, was on the list of petitions for the justices to consider during this conference. 

The Supreme Court receives 7,000 to 8,000 petitions every year. In order for a petition to be granted, at least four of the nine justices must vote to hear the case. Between 2007 and 2021, the court issued opinions in an average of 75 cases per year. 

The following seven petitions from public-sector union cases are currently pending before the Supreme Court. This outline includes a link to the Supreme Court docket for each case, as well as available documents and case information. 

Adams v. Teamsters Local Union 429

• Appealed from the Third Circuit.
  • Original complaint: Feb. 27, 2019
  • Appellate ruling: Jan. 20, 2022
• Docketed April 22, 2022.
• Distributed for conference on Sept. 28, 2022.
• Question presented in the petition: “For whom does this Court’s affirmative consent waiver requirement set forth in Janus apply: nonmembers currently or previously employed in agency shop arrangements, like Mark Janus—as several lower courts have held—or employees, like Petitioners, who sign an agreement to pay a union, such as union membership card or dues deduction authorization?”
• Questions presented in the respondents’ briefs:
  • Teamsters Union Local 429: “Whether public employees who voluntarily joined a union, signed written agreements to pay membership dues via payroll deduction for a one-year period, and received membership rights and benefits in return, suffered a violation of their First Amendment rights when their employer made the deductions that they affirmatively and unambiguously authorized?”  
  • Pennsylvania Attorney General Josh Shapiro (D), et al.: “When public employees voluntarily joined a union and affirmatively authorized union dues to be deducted from their paychecks, did their public employer violate the First Amendment by making those deductions?” 
  • Lebanon County, Pennsylvania: “Whether the Petitioners lack standing to challenge Union and County Respondents for monetary relief under 42 U.S.C. § 1983 for receiving and spending agency fees to pay for collective bargaining representation prior to Janus … as the Third Circuit made no error of law, there is unity amongst the Circuit Courts of Appeal as to this issue, and Petitioners’ raise new issues within the writ, as to whether Janus applies to union members who signed union membership cards with dues authorization deductions?”

File v. Brost

• Appealed from the Seventh Circuit.
  • Original complaint: July 25, 2019
  • Appellate ruling: April 29, 2022
• Docketed Aug. 1, 2022.
• Not yet distributed. 
• Question presented in the petition: “Whether membership in a mandatory state bar is subject to heightened scrutiny under the First Amendment.”
• Respondents have until Sept. 30 to file briefs in opposition. 
• Amici curiae: Mackinac Center for Public Policy, Alliance Defending Freedom, Goldwater Institute, Americans for Prosperity Foundation, National Right to Work Legal Defense Foundation, Pelican Institute for Public Policy, First Liberty Institute. 

Cooley v. California Statewide Law Enforcement Association

• Appealed from the Ninth Circuit. 
  • Original complaint: Nov. 13, 2018
  • Appellate ruling: April 28, 2022
• Docketed Sept. 9, 2022. 
• Not yet distributed. 
• Question presented in the petition: “Does the Constitution allow a public-sector union to enter into a contract with a state employer that restricts a public employee’s constitutional right to resign his union membership?” 
• Respondents have until Oct. 11 to file briefs in opposition.

O’Callaghan v. Drake

• Appealed from the Ninth Circuit. 
  • Original complaint: March 27, 2019
  • Appellate ruling: April 28, 2022
• Docketed Sept. 9, 2022. 
• Not yet distributed. 
• Question presented in the petition: “Whether a union can trap a government worker into paying dues for longer than a year under Janus[.]” 
• Respondents have until Oct. 11 to file briefs in opposition.

Polk v. Yee & Quirarte v. United Domestic Workers AFSCME Local 3930 (consolidated in the circuit court)

• Appealed from the Ninth Circuit. 
  • Original complaints: Nov. 1, 2018 (Polk v. Yee); July 11, 2019 (Quirarte v. United Domestic Workers AFSCME Local 3930)
  • Appellate ruling: June 8, 2022
• Docketed Sept. 8, 2022.
• Not yet distributed. 
• Questions presented in the petition: 
  • “Do states and unions need clear and compelling evidence that nonmembers of a union waived their First Amendment right to refrain from subsidizing union speech in order to constitutionally seize payments for union speech from those individuals?” 
  • “When a union acts jointly with a state to seize union payments from nonmembers’ wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983?”
• Respondents have until Oct. 11 to file briefs in opposition.

Savas v. California State Law Enforcement Agency

• Appealed from the Ninth Circuit. 
  • Original complaint: Jan. 6, 2020
  • Appellate ruling: April 28, 2022
• Docketed Sept. 8, 2022.
• Not yet distributed. 
• Questions presented in the petition: 
  • “Does it violate the First Amendment for a state and union to compel objecting employees to remain union members and to subsidize the union and its speech?” 
  • “To constitutionally compel objecting employees to remain union members and to subsidize the union and its speech, do states and unions need clear and compelling evidence the objecting employees waived their First Amendment rights?” 
• Respondents have until Oct. 11 to file briefs in opposition.

Wilford v. National Education Association

• Appealed from the Ninth Circuit. 
  • Original complaint: July 2, 2018
  • Appellate ruling: Jan. 26, 2022
• Docketed Sept. 19, 2022. 
• Distributed for conference on Oct. 7, 2022.  
• Questions presented in the petition: 
  • “Whether the Ninth Circuit erred by basing a defense to § 1983 on ‘equality and fairness’ rather than determining whether the common law in 1871 provided a good-faith defense to a private party for the most analogous tort.”
  • “Whether the remedy Petitioners seek is equitable restitution such that a good-faith defense to money damages, if it exists, does not apply.”
  • “Whether a good-faith defense, if it exists, applies only to individuals, not legal entities like the Respondent unions.” 
  • “Whether the Ninth Circuit erred by failing to give Janus truly retroactive effect.” 
• Respondents waived the right to respond.

Historic trends

In the analysis below, cases appealed in joint petitions are counted individually.

Since the Supreme Court’s 2018 ruling in Janus v. AFSCME, Ballotpedia has tracked close to 200 public-sector union lawsuits in federal and state courts, 60 of which have been appealed to the Supreme Court since the 2018-2019 term. So far, the court has not heard any of these subsequent appeals, although in 2018 it sent one case back to the Eighth Circuit to be reconsidered in light of Janus. (The court denied a second appeal in the same case in 2020.)

During its 2021-2022 term, the court denied petitions in 33 public-sector union cases. During the 2020-2021 term, the court denied petitions in 13 cases. During its 2019-2020 term, it denied four petitions. During its 2018-2019 term, it denied two petitions and sent one back to the circuit court.

About the Supreme Court

The Supreme Court consists of nine justices who are nominated by the president and confirmed by the U.S. Senate. President George H.W. Bush (R) appointed Justice Clarence Thomas to the court. President George W. Bush (R) appointed Chief Justice John Roberts and Justice Samuel Alito. President Barack Obama (D) appointed Justices Elena Kagan and Sonia Sotomayor. President Donald Trump (R) appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. President Joe Biden (D) appointed Justice Ketanji Brown Jackson, who joined the court in June 2022. 

The Supreme Court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June. 

To subscribe to Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court, click here. 

What we’re reading

• The Seattle Times, “Seattle School Board approves 3-year contract with educators union,” Sept. 28, 2022 
• Freedom Foundation, “Lawsuit Challenging SEIU ‘Issues Fund’ Surcharge Heads to 9th Circuit,” Sept. 28, 2022
• Government Executive, “Unions Are Making a Last-Ditch Effort to Expand Bargaining Rights for VA Medical Professionals,” Sept. 27, 2022
• AFGE, “AFGE Calls on Congress to Expand Bargaining Rights for Thousands of VA Providers,” Sept. 27, 2022
• The Hill, “Levin’s staff becomes first Capitol Hill office to unionize,” Sept. 26, 2022
• WTTW, “A Workers’ Rights Amendment Will Be on the Illinois Ballot. Here’s What It Does,” Sept. 26, 2022
• Chicago Tribune, “Collective bargaining amendment brings national labor fight to Illinois ballot,” Sept. 25, 2022
• AFSCME, “Workers union sues Walters Art Museum for violating the Maryland Public Information Act,” Sept. 22, 2022

The big picture

Number of relevant bills by state

We are currently tracking 149 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.