TagUnion Station

Tag for the Union Station newsletter

Ballotpedia’s Union Station: Third Circuit rejects challenge to class action suit over union fees

Third Circuit rejects challenge to class action suit over union fees

On Jan. 15, 2021, a three-judge panel of the U.S. Court of Appeals for the Third Circuit upheld the U.S. District Court for the Middle District of Pennsylvania’s decision in Bethany LaSpina v. SEIU Pennsylvania State Council et al. The lower court had dismissed the case, ruling that LaSpina did not have standing to bring a class action suit against SEIU seeking refunds of union fees.    

Parties to the suit

The plaintiff is Bethany LaSpina, a Scranton Public Library employee. The defendants are the Service Employees International Union (SEIU) Pennsylvania State Council, SEIU Local 668, SEIU Local 32BJ, SEIU Healthcare PA, Pennsylvania Joint Board of Workers United, Scranton Public Library, and the Lackawanna County Public Library System.

What’s at issue, and how the lower court ruled

On Oct. 18, 2018, Bethany LaSpina filed a class action lawsuit in the U.S. District Court for the Middle District of Pennsylvania. The plaintiff asked the court to certify two classes:

  • Public employees forced to pay fees to SEIU affiliates as a condition of employment (including non-members charged fair-share fees, members who were not told they had a right to decline membership, and members who would not have joined if non-members were not charged fair-share fees). 
    • LaSpina sought refunds for all union fees collected from this class. 
  • Employees who wished to resign union membership, who would resign if told they had a right to decline, or who would not join if told of their right to decline. 
    • LaSpina asked the court to stop SEIU affiliates from withholding dues until the union obtained new fee waivers informing employees of their rights under the U.S. Supreme Court’s Janus v. AFSCME ruling.

On Sept. 30, 2019, Judge Malachy Mannion, a Barack Obama (D) appointee, dismissed the plaintiff’s claims for lack of standing and mootness.

About Janus and Abood: On June 27, 2018, the U.S. Supreme Court issued its 5-4 decision in Janus v. AFSCME. The court ruled that public-sector unions cannot compel the non-member employees they represent to pay fees to cover the costs of non-political union activities. Janus overturned the precedent established in Abood v. Detroit Board of Education in 1977. In that case, the court ruled that requiring employees to pay fees to support union activities did not violate the employees’ First Amendment rights. These fees were commonly referred to as agency fees or fair-share fees.

How the Third Circuit ruled

The three-judge panel—Judges Cheryl Ann Krause, Felipe Restrepo, and Stephanos Bibas—unanimously affirmed the district court’s ruling. 

Writing for the court, Restrepo said

LaSpina had no standing to seek a refund of any portion of the Union dues she made prior to Janus because she cannot tie the payment of those dues to the Union’s unconstitutional deduction of fair-share fees from nonmembers. In addition, if LaSpina is due a refund of certain monies that were deducted from her wages after she resigned, the claim is not a federal one; rather, it is, if anything, a state court claim for conversion or trespass to chattels. Finally, LaSpina’s claim that the Union may not collect any dues from an employee until that employee knowingly and freely waives their constitutional right to resign from Union membership and withhold payments to the Union is moot as LaSpina no longer is a Union member.

Krause and Restrepo are Obama appointees. Bibas was appointed by Donald Trump (R).

What comes next

LaSpina has not commented on whether she will appeal the Third Circuit’s decision. The case and number are Bethany LaSpina v. SEIU Pennsylvania State Council et al. (19-3484). 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 28 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.

  • Maryland HB374: This bill would extend collective bargaining rights to faculty at Baltimore City Community College.
    • Democratic sponsorship.
    • House Appropriations Committee hearing scheduled for Jan. 27. 
  • Maryland HB486: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.  
    • Democratic sponsorship.
    • Introduced and referred to House Appropriations Committee Jan. 15. 
  • Maryland SB9: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.
    • Democratic sponsorship.
    • Senate Finance Committee hearing scheduled for Feb. 4. 
  • Maryland SB138: This bill would extend collective bargaining rights to employees of the Baltimore County Public Library.
    • Democratic sponsorship. 
    • Senate Finance Committee hearing scheduled for Feb. 4.
  • Montana HB168: This bill would prohibit a public employer from deducting union dues or fees from an employee’s paycheck without that employee’s express consent, which an employee can withdraw at any time.
    • Republican sponsorship. 
    • Introduced Jan. 14. House Business and Labor Committee hearing scheduled for Jan. 22.
  •  Washington SB5133: This bill amends the definition of a “confidential employee” for the purposes of collective bargaining.
    • Democratic sponsorship. 
    •  Senate Labor, Commerce, and Tribal Affairs Committee hearing Jan. 18.



Biden nominates Walsh as labor secretary

Biden nominates Boston Mayor Marty Walsh as labor secretary  

President-elect Joe Biden (D) announced last week that he would nominate Boston Mayor Marty Walsh for secretary of labor. Biden’s transition team said Walsh “has the necessary experience, relationships, and the trust of the President-elect to help workers recover from this historic economic downturn and usher in a new era of worker power.”

Walsh has served as the mayor of Boston since 2014. He was a member of the Massachusetts House of Representatives, chair of the Massachusetts Democratic Party Labor Caucus, and the co-chair of the Special Commission on Public Construction Reform. Walsh was also a union leader, serving as the head of the Laborers’ Union Local 223 and the Building and the Boston Metropolitan District Building Trades Council. 

The American Federation of State, County and Municipal Employees (AFSCME) said Walsh’s nomination “was especially welcomed by our union, as we threw our support behind the mayor soon after Biden won the election.” AFSCME President Lee Saunders said, “Secretary-designate Walsh understands the contributions public service workers make to the strength and vitality of our communities. On behalf of the 1.4 million AFSCME members, I am proud to support him and look forward to working with him.”

According to John Logan, a professor of labor and employment relations at San Francisco State University, Walsh “has supported many progressive causes, such as greater police accountability, declaring racism a public health issue, tackling wage theft, championing workplace safety in the construction industry, using city contracts to promote diversity, and pushing parental leave for city employees.” 

Logan says Walsh is “significantly more progressive than many former building trades officials” and says Walsh could “bridge the various sections of the labor movement, which is currently more divided than almost ever before. … The AFT, AFSCME, AFL-CIO, and building trades do not agree on too much; but they all agreed on Marty Walsh for Secretary of Labor.”

According to Politico, United Auto Workers, Utility Workers Union of America, National Nurses United, Communications Workers of America, and United Farm Workers of America backed other candidates for the position.

Sean Higgins, a research fellow at the Competitive Enterprise Institute, responded to the nomination, “Joe Biden’s decision to nominate Boston Mayor Marty Walsh as Labor Secretary will elevate a person to oversee the nation’s workplace who is not merely pro-union, but who sees the purpose of public office as working to represent the interests of unions. The interests of business leaders, entrepreneurs, independent workers and voters in general will take a back seat.” 

The last time a union member served as secretary of labor was in 1977, according to the Northwest Labor Press. W.J. Usery Jr. was a member of the International Association of Machinists and Aerospace Workers.

Biden and Walsh on public-sector unions and Janus v. AFSCME

Biden’s campaign website laid out the following labor policy priorities: 

As president, Biden will establish a federal right to union organizing and collective bargaining for all public sector employees, and make it easier for those employees who serve our communities to both join a union and bargain. He will do so by fighting for and signing into law the Public Safety Employer Employee Cooperation Act and Public Service Freedom to Negotiate Act. He will work to ensure public sector workers, including public school educators, have a greater voice in the decisions that impact their students and their working conditions. He will also strongly encourage states to pursue expanded bargaining rights for state licensed and contracted workers, including child care workers and home health care workers. And, he will look for federal solutions that will protect these workers’ rights to organize and bargain collectively.

In a 2019 Labor Day message, Walsh referenced the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME

Janus was just the start. The regulators who killed overtime for low-income workers and let Walmart fire people for organizing? The trade wars that devastate truck drivers and farmers? The government shutdown that bankrupted federal employees and contractors? Their new plan is to deregulate apprenticeships — the hard-earned credential that your careers and paychecks are built on — turned into nothing more than a piece of paper. Who will be left to speak up for you, when your rights are gone?

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 26 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.

  • Maine LD52: This bill would allow educational policies related to preparation and planning time and transfer of teachers to be subjects of collective bargaining negotiations. 
    • Democratic sponsorship. 
    • Introduced and referred to Labor and Housing Committee Jan. 11. 
  • Maryland HB374: This bill would extend collective bargaining rights to faculty at Baltimore City Community College.
    • Democratic sponsorship.
    • Introduced Jan. 13. House Appropriations Committee hearing scheduled for Jan. 27.
  • Maryland SB9: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.    
    • Democratic sponsorship.
    • Introduced Jan. 13. Senate Finance Committee hearing scheduled for Feb. 4. 
  •  Maryland SB138: This bill would extend collective bargaining rights to employees of the Baltimore County Public Library.
    • Democratic sponsorship.
    • Senate Finance Committee hearing scheduled for Feb. 4.  
  • New Hampshire HB348: This bill would require a public employer to provide notice of a new or amended collective bargaining agreement.
    • Republican sponsorship.
    • Referred to House Labor, Industrial and Rehabilitative Services Committee on Jan. 9. 
  • New York A01804: This bill would alter resolution procedures for disputes that arise during collective bargaining between public-sector employers and unions.
    • Democratic sponsorship.
    • Introduced and referred to Assembly Governmental Employees Committee Jan. 11. 
  • Oregon HB2061: This bill would prohibit public employers and unions from entering into fair-share agreements.
    • Introduced Jan. 11.  
  • Oregon HB2270: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts. 
    • Democratic sponsorship. 
    • Introduced Jan. 11.
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.  
    • Democratic sponsorship. 
    • Introduced Jan. 11.
  • Oregon SB679: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts. 
    • Democratic sponsorship. 
    • Introduced Jan. 11.
  • Tennessee SJR0002: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization.
    • Republican sponsorship.
    • Referred to Senate Judiciary Committee Jan. 13. 
  • Washington SB5055: This bill would prohibit law enforcement personnel from entering into collective bargaining agreements that prevent, prohibit, or otherwise alter local government ordinances or charters providing for “civilian review of law enforcement personnel.”
    • Democratic sponsorship. 
    • Senate Labor, Commerce, and Tribal Affairs Committee hearing held Jan. 14.
  • Washington SB5133: This bill amends the definition of a “confidential employee” for the purposes of collective bargaining.
    • Democratic sponsorship. 
    • Introduced Jan. 8; referred to Senate Labor, Commerce, and Tribal Affairs Committee Jan. 11. 


Union Station: Federal court rejects challenge to Wisconsin union regulations

Seventh Circuit rejects challenge to Wisc. Act 10   

On Dec. 17, 2020, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit rejected a challenge to Wisconsin Act 10, omnibus legislation enacted in 2011 that introduced new requirements and regulations for public-sector labor unions.

The parties to the suit  

The plaintiffs are the International Union of Operating Engineers, Local 139, and two of its members: Karen Erickson and Heath Hanrahan. IUOE Local 139 is an affiliate of AFL-CIO. According to its most recent filing with the U.S. Department of Labor, IUOE Local 139 has 10,223 members. 

The defendants are James Daley, chairman of the Wisconsin Employment Relations Commission, and the Wisconsin Legislature. 

What is at issue, and how the lower court ruled  

On Aug. 26, 2019, the plaintiffs filed suit in the U.S. District Court for the Eastern District of Wisconsin. They alleged the following Act 10 provisions violated their constitutional rights:

  • Collective bargaining subject restrictions: Act 10 prohibited municipal government employers from bargaining collectively with public-sector unions over any condition of employment except wages.
    • The plaintiffs alleged that “Act 10 has been interpreted and applied by the WERC to preclude any agreements between Unions and municipalities over any issues besides wages, even if not ‘collectively bargained.’ … Such an interpretation and application of Act 10 imposes an arbitrary restriction [on] Unions’ ability to negotiate and/or contract with municipal employers on matters of significant public concern, outside of the collective bargaining context, in violation of the First Amendment and/or Fourteenth Amendment.”
  • Prohibition against payroll dues deductions: Act 10 prohibited municipal government employers from deducting union dues from union members’ paychecks.
    • The plaintiffs alleged that “Act 10’s blanket prohibition on wage deductions for Union dues constitutes a content based restriction on public employees’ First Amendment rights.”
  • Recertification elections: Act 10 required annual recertification elections for unions, with a requirement that at least 51 percent of all workers in the bargaining unit vote to recertify.
    • The plaintiffs alleged that “by counting a non-vote as a ‘no’ vote, Act 10 violates the First Amendment rights of public employee non-voters to remain silent in the recertification process.” 

In two separate orders (the first in March 2020 and the second in April 2020), U.S. District Court Judge Joseph Stadtmueller, a Ronald Reagan (R) appointee, dismissed these arguments. Stadtmueller ruled that the union lacked standing to challenge Act 10’s recertification requirements and bargaining subject limitations. He dismissed the plaintiffs’ challenge to the prohibition against payroll dues deductions on the merits, citing a 2013 Seventh Circuit ruling (Wisconsin Education Association Council (WEAC) v. Walker) that upheld such prohibitions.  

The plaintiffs appealed to the Seventh Circuit, which held oral argument on Nov. 13, 2020. 

How the Seventh Circuit ruled  

The three-judge panel – Judges Joel Flaum, Ilana Rovner, and Michael B. Brennanunanimously affirmed the lower court’s decision. Regarding the plaintiffs’ dues deduction claim, Flaum, writing for the court, cited two U.S. Supreme Court precedents:

  • Ysursa v. Pocatello Education Association, a 2009 decision upholding a law prohibiting payroll dues deductions because “[the First Amendment] does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” 
  • Janus v. AFSCME, a 2018 decision establishing that public-sector unions cannot require non-member employees to pay fees covering the costs of non-political union activities. 

Flaum wrote: 

Plaintiffs-appellants’ contention that we should revisit WEAC because Janus overruled Ysursa fares no better. Janus held that the First Amendment prohibits compelled speech in the form of mandatory agency fees. It did not mention Ysursa, let alone overrule its holding that states have no obligation to provide any payroll deductions. Plaintiffs-appellants concede that ‘Janus did not have the opportunity to have directly overruled or altered the framework of Ysursa.’ Given that the Supreme Court does not normally overturn or dramatically limit its precedents sub silentio [i.e., under silence, or implicitly], we conclude that Ysursa — and by extension, WEAC — still controls.

Flaum, Rovner, and Brennan are Reagan, George H.W. Bush (R), and Donald Trump (R) appointees, respectively. 

What comes next  

The plaintiffs have not said whether they will appeal the Seventh Circuit’s decision. The case and number are International Union of Operating Engineers, Local 139 v. Daley (appellate court: 20-1672, 20-1724; district court: 2:19-cv-01233).

What we’re reading


The big picture

Number of relevant bill by state

We are currently tracking 10 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 bill by current legislative status

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

Recent legislative actions

  • Maryland SB9: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.
    • Democratic sponsorship.
    • First reading in Senate Finance Committee scheduled for Jan. 13.
  • New Hampshire HB206: This bill would establish that collective bargaining strategy discussions in which only one party is involved would not be subject to the state’s right-to-know law.
    • Republican sponsorship.
    • Introduced and referred to House Judiciary Committee Jan. 6.
  • New York A00243: This bill would allow public-sector labor unions to reconsider and re-vote on written agreements that were initially voted down.
    • Democratic sponsorship.
    • Referred to Assembly Governmental Employees Committee Jan. 6.
  • Washington SB5055: This bill would prohibit law enforcement personnel from entering into collective bargaining agreements that prevent, prohibit, or otherwise alter local government ordinances or charters providing for “civilian review of law enforcement personnel.”
    • Democratic sponsorship.
    • Pre-filed for introduction Jan. 4.


Union Station—2020: the legislative year in review

2020: the legislative year in review    

This being our last issue of the year, let’s take a look back at the public-sector labor bills that lawmakers nationwide considered this year.

Our next edition will come out on Jan.  8, 2021. Until then, happy holidays! 

How many bills were introduced, and what happened to them  

State legislatures either introduced or carried over from previous sessions 102 bills involving some aspect of public-sector labor policy. 

As of Dec. 11: 

  • 5 bills have been enacted into law.
  • 4 bills have passed lower chambers, but have not yet passed upper chambers. 
  • 77 are pending in committees. 
    • Most of these bills will die in committee at the end of the year. Bills in New Jersey and Virginia may carry over into the 2021 session. 
  • 16 have died in committee. 

How this compares with 2019: In 2019, state legislatures either introduced or carried over from previous sessions 107 relevant bills. Nine of these were enacted into law, four were vetoed, and the remainder either died in committee or carried over to the next sessions. 

Where bills were introduced   

Lawmakers in 30 states introduced public-sector labor bills in 2020. In eight of these states, lawmakers introduced five or more relevant bills: 

  • Pennsylvania: 10 bills
  • Oklahoma and Washington: 8 bills
  • Maryland and Virginia: 7 bills
  • California and New Hampshire: 6 bills
  • Iowa: 5 bills

How this compares with 2019: In 2019, lawmakers in 31 states introduced relevant bills. In six of those states, lawmakers introduced five or more relevant bills: Oregon (10 bills), Pennsylvania (9 bills), Washington (8 bills), Massachusetts (6 bills), New Hampshire (6 bills), and Oklahoma (5 bills). 

Who introduced bills

In 2020, Democrats introduced 52 of the 102 relevant bills we tracked this year. Republicans sponsored 37 bills. Bipartisan groups or committees introduced the remaining 13 bills. 

How this compares with 2019: In 2019, Democrats introduced 55 of the 107 bills we tracked. Republicans sponsored 39 bills, and bipartisan groups or committees sponsored the remaining 13 bills. 

Enacted legislation   

Four states have enacted five bills this year. Three of these states – California, Virginia, and Washington – are Democratic trifectas, meaning Democrats control the governorship and both chambers of the state legislature. Vermont has a divided government. 

  • California AB2850: Grants the Public Employment Relations Board the jurisdiction to enforce statutory provisions governing employer-employee relations within the San Francisco Bay Area Rapid Transit District.
    • Democratic sponsorship.
  • Vermont S0254: Requires public employers to provide unions with employee contact information. Provides for the automatic deduction of union dues from members’ paychecks, and permits unions to meet with new employees to provide them with information regarding union membership.
    • Democratic sponsorship.
  • Virginia HB582: Repealed the previous ban on public employee collective bargaining.
  • Virginia SB939: Permits local governments to recognize unions as bargaining agents for public-sector workers.
    • Democratic sponsorship.
  • Washington HB2017: Establishes collective bargaining rights for administrative law judges.
    • Democratic sponsorship.

What we’re reading



First Circuit: New Hampshire workers not entitled to refunds for previously paid union fees

First Circuit: New Hampshire workers not entitled to refunds for previously paid union fees          

On Nov. 30, a three-judge panel of the U.S. Court of Appeals for the First Circuit ruled that public-sector unions are not liable for refunding fees paid by non-members before Janus v. AFSCME.

Parties to the lawsuit  

The plaintiffs are Patrick Doughty and Randy Severance, New Hampshire state workers. Attorneys from the National Right to Work Legal Defense Foundation represent the plaintiffs. The defendant is the State Employee’s Association of New Hampshire (SEA). 

What’s at issue, and how the lower court ruled   

On Jan. 14, 2019, Doughty and Severance filed a class-action lawsuit against SEA in the U.S. District Court for the District of New Hampshire. Doughty and Severance alleged that SEA had violated their First and Fourteenth Amendment rights “not to associate with or financially support a labor organization and its affiliates as a condition of employment, without their affirmative consent and knowing waiver of their First Amendment rights.” They asked that the court order SEA to refund all agency fees that they and others (i.e., non-member employees) had paid before Janus v. AFSCME

The plaintiffs cited 42 U.S.C. § 1983, a federal statute establishing that any person who, “under color of any statute, ordinance, regulation, custom, or usage, of any state or territory,” deprives a U.S. citizen of his or her constitutional rights can be held liable in a court of law. 

SEA moved to dismiss the suit.  On June 6, 2019, Judge Paul Barbadoro, a George H.W. Bush (R) appointee, granted SEA’s motion to dismiss, ruling that SEA had deducted the disputed fees in good faith under the then-controlling precedent established by Abood v. Detroit Board of Education

About Janus and Abood: On June 27, 2018, the U.S. Supreme Court  issued its 5-4 decision in Janus v. AFSCME, ruling that public-sector unions cannot compel the non-member employees they represent to pay fees to cover the costs of non-political union activities. This decision overturned the precedent established in Abood v. Detroit Board of Education in 1977. In Abood, the U.S. Supreme Court held that it was not a violation of employees’ free-speech and associational rights to require them to pay fees to support union activities from which they benefited (e.g., collective bargaining, contract administration, etc.). These fees were commonly referred to as agency fees or fair-share fees

How the First Circuit ruled


On Nov. 30, the three-judge panel unanimously upheld the lower court’s decision. Writing for the court, Judge David Barron, a Barack Obama (D) appointee, said

[A]lthough Doughty and Severance assert that their claim for damages seeks to vindicate their First Amendment right against compelled speech and association and that this right provides protection from harm that the common law itself did not, they ignore the unusual nature of their attempt to secure relief for the violation of that constitutional right. They thus develop  no argument — nor does any occur to us — why close attention to the values and purposes of the First Amendment right against compelled speech and association supports the conclusion that the Congress that enacted § 1983 must have meant to create a claim for damages for its retroactive violation when the violation results in payments made pursuant to a lawful-when-invoked, state-backed process.

Judges Jeffrey R. Howard and O. Rogeriee Thompson, George W. Bush (R) and Obama (D) appointees, respectively, joined Barron’s opinion.

What comes next?   

Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, said his group would appeal the decision to the U.S. Supreme Court.  

The case  name and number are Doughty v. State Employees’ Association of New Hampshire (19-1636).

What we’re reading

The big picture

Number of relevant bill 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. 

Number of relevant bill by current legislative status

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

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.



Missouri Supreme Court weighs challenge to public-sector labor laws

Missouri Supreme Court weighs challenge to public-sector labor laws           

On Nov. 16, the Missouri Supreme Court heard oral arguments in a challenge to HB1413, a 2018 bill that made several changes to the state’s public-sector labor laws.

Who are the parties to the suit?  

The plaintiffs are: 

  • Missouri Education Association
  • Ferguson-Florissant Education Association
  • Hazelwood Association of Support Personnel
  • Service Employees International Union Local 1
  • Laborers’ International Union of North American Local 42
  • International Brotherhood of Teamsters Local 610
  • International Union of Operating Engineers Local 148

The defendants include several state and municipal government entities, including the Missouri Department of Labor and Industrial Relations and the State Board of Mediation. 

What’s at issue?   

On June 1, 2018, Gov. Eric Greitens (R) signed HB1413 into law. The omnibus legislation made several changes to the state’s public-sector labor laws: 

  • Requires annual authorization for union dues payroll deductions.
  • Requires unions to file annual financial reports and make financial records available to the public. 
  • Requires unions to submit to certification elections before the State Board of Mediation in order to be recognized as the representative of a group of public employees. Requires unions to be recertified every three years. 
  • Makes all collective bargaining agreements subject to certain limitations, including:
    • “Management reserving the right to hire, discipline, and discharge employees [and] reserving the right to make and amend reasonable work rules”
    • “Prohibiting all strikes and picketing”
    • “Extending the duty of fair representation to all employees of the bargaining unit”
    • “Prohibiting labor organization employees from accepting paid time by a public body for conducting labor organization business with certain exceptions”
    • “Providing for the modification of the agreement in the event of a budget shortfall”

The plaintiff unions sued in state court, alleging “HB1413’s draconian restrictions on public-sector collective bargaining are incompatible with Article I, Section 29 of the [Missouri] Constitution, which expressly guarantees the right of employees ‘to organize and bargain collectively’ and to do so ‘through representatives of their own choosing.’” On Jan. 27, Judge Joseph Walsh of the St. Louis County Circuit Court ruled in the unions’ favor. The state appealed to the Missouri Supreme Court.

What are the arguments?


Missouri Attorney General Eric Schmitt (R), in his brief on behalf of the state defendants, wrote: 

[No] provision of HB 1413 violates employees’ right to ‘bargain collectively’ with ‘representatives of their own choosing’ under Article I, § 29. Contrary to the Constitution’s plain language and this Court’s cases, the trial court fundamentally misunderstood Section 29 by interpreting it to guarantee certain outcomes of bargaining, instead of the process of negotiation. The provisions of HB1413 do not affect any public employee’s ability to engage in collective bargaining, and they affirmatively protect employees’ ability to choose their own representatives through meaningful, democratically accountable procedures. [emphasis in the original]

Jason Walta, a National Education Association lawyer and lead counsel for the plaintiffs, wrote in his brief

Not only are HB 1413’s burdens severe, they are discriminatory. Unlike any other regulation of public-sector collective bargaining in existence, HB 1413 grants or withholds public employees’ bargaining and speech rights based entirely on the identity of the union those employees decide to associate with and select as their bargaining representative. If they select a union that the Legislature sought to favor, HB 1413 imposes no restrictions on their collective bargaining or speech rights. If they select a union the Legislature sought to penalize, HB1413 renders collective bargaining a farce and saddles them and their union with onerous restrictions on speech and association.

Case and court information   

The case name and number are Missouri National Education Association v. Missouri Department of Labor and Industrial Relations, SC98412.

The Missouri Supreme Court is the state’s court of last resort. Democratic governors appointed four of the court’s seven justices: Chief Justice George Draper and Justices Mary Rhodes Russell, Laura Denvir Stith, and Paul C. Wilson. Republican governors appointed the three remaining justices: Zel Fischer, Patricia Breckenridge, and Wesley Brent Powell.  

What we’re reading

The big picture

Number of relevant bill 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. 

Number of relevant bill by current legislative status

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

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.



Union Station: November 13, 2020

Welcome to Union Station, our weekly newsletter that keeps you abreast of the legislation, national trends, and public debate surrounding public-sector union policy.

Seventh Circuit weighs challenge to Wisconsin’s Act 10

On Nov. 13, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit heard oral arguments in a challenge to Wisconsin’s Act 10, a 2011 bill that overhauled the state’s public-sector labor laws.

Who are the parties to the suit?  

Plaintiffs Karen Erickson and Heath Hanrahan are municipal employees of Marinette County, Wisconsin. Their union, International Union of Operating Engineers Local 139, represents approximately 9,500 workers in Wisconsin. The defendant is James Daley, chairman of the Wisconsin Employment Relations Commission.

What’s at issue?   

Act 10 prohibits municipal employers from negotiating with a union over “any factor or condition of employment except wages.” The law prohibits employers from deducting union dues from municipal employees’ paychecks. Act 10 also establishes annual recertification elections for municipal employee unions. In these elections, a union must receive at least 51 percent of the votes of all employees in the bargaining unit in order to be certified as the exclusive representative of those employees.

The plaintiffs allege these provisions of Act 10 violate their First and Fourteenth Amendment rights. The plaintiffs also argue that previous court decisions upholding these provisions of Act 10 should be reconsidered in light of the U.S. Supreme Court’s 2018 Janus v. AFSCME decision. This contrasts with the ways in which Janus has been invoked in other suits to challenge union-backed laws and practices (e.g., dues-deduction authorization windows, paid time off for union activities, etc.).

How did the lower court rule?

The plaintiffs filed suit in the U.S. District Court for the Eastern District of Wisconsin on Aug. 26, 2019. On March 3, Judge Joseph Stadtmueller dismissed two of the plaintiffs’ three claims, writing: 

As written, Act 10 does not violate Plaintiffs’ First Amendment rights because it does not prevent the union or its members from speaking. This is true even if municipal employers refuse to engage discussions with unions outside of the collective bargaining process. To the extent that Plaintiffs allege that Act 10, as applied, is unconstitutional because Defendant uses it to prohibit municipal employers from listening to what the unions have to say, then the injury would run to the municipal employers, not to the union.2 Accordingly, this claim will be dismissed without prejudice because the Plaintiffs lack standing to bring it. 

On April 7, Stadtmueller, a Ronald Reagan (R) appointee, dismissed the remaining claim, in which the plaintiffs argued that Act 10 unconstitutionally compels speech by counting non-votes in union certification elections as “no” votes. The plaintiffs appealed the decision to the Seventh Circuit. 

Case information   

The case name and number are International Union of Operating Engineers Local 139 v. Dale, 20-1672.

What we’re reading

THE BIG PICTURE

Number of relevant bill 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. 

Number of relevant bill by current legislative status

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

RECENT LEGISLATIVE ACTIONS

No legislative actions have been taken on relevant bills since our last issue.



U.S. Department of Labor proposes changes to union reporting requirements

U.S. Department of Labor proposes changes to union reporting requirements           

On Oct. 13, the U.S. Department of Labor announced a series of proposed changes to reporting requirements for unions subject to the disclosure provisions of the Labor-Management Reporting and Disclosure Act (LMRDA).

Background  

Enacted in 1959, LMRDA requires certain unions to file annual financial reports. These reports must include the following information:

  • The reporting union’s assets and liabilities at the beginning and end of the fiscal year.
  • All revenues and their sources.
  • Salary and other compensation for any union officer or employee receiving $10,000 or more from the union in a reporting year.
  • Direct and indirect loans made to union officers, employees, or members. 
  • Direct and indirect loans to businesses. 
  • Union membership figures. 

LMRDA grants the secretary of labor the “authority to issue, amend, and rescind rules and regulations prescribing the form and publication of reports” required under the law. Since 2012, the labor secretary has delegated this authority to the director of the Office of Labor-Management Standards. The forms used for these reports are referred to as LM-2 forms. 

Unions that represent public-sector workers exclusively are not subject to these requirements. Unions representing both private-sector and public-sector workers are required to file reports. 

Proposed changes  

The revised LM-2 forms would require unions to:  

  • Disclose whether an officer or employee receiving $10,000 or more from the union also received $10,000 or more from another union. 
  • Disclose the existence and, if applicable, amount of a union’s strike fund. 
  • Report the date of the latest change to a union’s bylaws. 
  • Report sales and purchases of investments and fixed assets as four distinct entries.
  • Report spending for political activities and lobbying as two distinct entries. 
  • Provide more detailed information about membership (e.g., membership status, how many members are paying full dues, etc.).

The proposed changes do not directly affect the exemption for unions representing only public-sector workers. 

What are the reactions, and what comes next?   

Edwin Hill, Jr., an international representative for the International Brotherhood of Electrical Workers, opposed the proposal: “I do not see the necessity to further burden local union offices with additional documentation regarding their financial responsibility to its members and in accordance with existing laws. … [The existing report form]  suits the needs of interested and regulatory parties as it stands today.” 

Writing for the National Legal and Policy Center, Carl Horowitz supported the proposed changes: “Labor leaders understandably oppose this. But the proposal rule change addresses real problems, which however frequently detected and punished, require adequate tools.” 

The proposal was published in the Federal Register on Oct. 13. The comment period for this proposed rule change is open through Dec. 14. For more information about the next steps in the rulemaking process, click here

What we’re reading

The big picture

Number of relevant bill 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. 

Number of relevant bill by current legislative status

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

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.



Vermont enacts legislation granting public-sector unions greater access to new employees

Vermont enacts legislation granting public-sector unions greater access to new employees           

On Oct. 12, Gov. Phil Scott (R) into law S254, omnibus legislation that will grant public-sector unions greater access to new employees and facilitate automatic dues deductions.

What does the legislation do?  

The legislation will make the following changes to Vermont’s public-sector labor relations laws effective Jan. 1, 2021: 

  • Requires employers to provide unions with opportunities to meet newly hired employees, either during an employee’s orientation or within 30 days of being hired. 
  • Requires an employer to furnish a union with a list of all the employees within the union’s bargaining unit. This list, which the employer must provide annually, must contain every employee’s name, work location, job classification, and contact information (including home address, personal email address, and home and cell phone numbers).  
  • Grants employees the right to automatic union dues deductions. An employer must begin dues deductions within 30 days of receiving an employee’s written consent. 
  • Modifies the union certification process.

Other enacted public-sector labor bills

State legislatures in three other states have enacted public-sector labor legislation this year: 

  • California AB2850: Specifies that the Public Employment Relations Board has jurisdiction to enforce statutory provisions governing employer-employee relations within the San Francisco Bay Area Rapid Transit District.
  • Virginia HB582: Repeals the prohibition against public-sector employee collective bargaining.
  • Virginia SB939: Permits local governments to recognize unions as bargaining agents for public-sector workers.
  • Washington HB2017: Establishes collective bargaining rights for administrative law judges.

Legislative history

Sen. Michael Sirotkin (D) introduced S254 on Jan. 9. On Sept. 4, the Senate approved the legislation and sent it to the House, which passed it with an amendment on Sept. 23. The Senate agreed to the House amendment on Sept. 24 and sent the bill to the governor on Oct. 6. Scott signed it into law on Oct. 12.  

Political context

Vermont has a divided government. A Republican holds the governorship, but Democrats have majorities in both chambers of the state legislature. 

What are the reactions?

Support

  • Heather Riemer, the director of the Vermont chapter of the American Federation of Teachers, said, “It’s basically making sure employers don’t decide they want to make it harder for people to be union members by denying them the right to have their union dues taken out of their paycheck.” 

Opposition

  • Max Nelsen, the labor policy director at the Freedom Foundation, said, “If you happen to make it through that 60-minute orientation and you don’t sign up for union membership, It’s entirely possible that you’ll start receiving phone calls or emails or maybe a visit to your home on a Saturday morning from union organizers trying to get you signed up.” 

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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.



Ohio state government employee asks SCOTUS to consider class-action lawsuit over refunds for previously paid union fees

Ohio state government employee asks SCOTUS to consider class-action lawsuit over refunds for previously paid union fees           

On Oct. 8, attorneys for an Ohio state employee petitioned the U.S. Supreme Court to take up his class-action lawsuit, in which he is seeking refunds for the dues he and other non-member employees were required to pay to the union representing their workplace.

Who are the parties to the suit?  

The plaintiff is Nathaniel Ogle, an employee of the Ohio Department of Taxation. Attorneys from the National Right to Work Legal Defense Foundation (NRTWLDF) are representing Ogle. NRTWLDF describes itself as a nonprofit whose “mission is to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs.” 

The defendant is the Ohio Civil Service Employee Association (OCSEA), the exclusive bargaining representative for Ohio state employees. OCSEA is an affiliate of the American Federation of State, County, and Municipal Employees. According to its website, OCSEA represents roughly 30,000 state and local government employees.  

What is at issue?

Ogle, who began working for the state in 2011 and was never a dues-paying member of OCSEA, was required to pay fees to support non-political union activities, including collective bargaining, contract administration, and grievance arbitration. This was in keeping with the U.S. Supreme Court’s 1977 ruling in Abood v. Detroit Education Association, in which the court upheld the constitutionality of these fees, which are commonly referred to as either agency or fair-share fees.  

However, on June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME, overturning the Abood precedent. The court ruled that public-sector unions cannot compel non-member employees to pay agency fees.  

On Oct. 15, 2018, Ogle filed a class-action lawsuit against OCSEA in the U.S. District Court for the Southern District of Ohio. Citing Janus, Ogle’s attorneys argued that “OCSEA’s seizure of fair-share fees from Ogle, and from other employees who did not affirmatively consent to paying such fees prior to their exaction, violated their First Amendment rights.” His attorneys said that, in light of Supreme Court decisions preceding Janus, “OCSEA should have known that its seizure of fair-share fees from unconsenting employees violated their First Amendment rights.” They asked that the court “refund with interest all fair-share fees that were unconstitutionally extracted from Ogle and his fellow class members.” 

How have the lower courts ruled?

On July 17, 2019, Judge George Smith granted the defendants’ motion to dismiss the lawsuit, finding that the union had acted in good faith according to the Abood precedent and was not liable to refund agency fees paid before Janus. Smith is a Ronald Reagan (R) appointee. 

Ogle appealed Smith’s ruling to the U.S. Court of Appeals for the Sixth Circuit. A three-judge panel unanimously affirmed Smith’s decision. The panel included Judges Jeffrey Sutton, John K. Bush, and Chad Readler. Sutton is a George W. Bush (R) appointee, and Bush and Readler are Donald Trump (R) appointees. 

What comes next?

On Oct. 14, the Supreme Court added Ogle v. Ohio Civil Service Employees Association to its schedule for consideration. A response from the defendants is due Nov. 13. 

Ogle is the fifth suit of its kind pending before the high court. The other four include Casanova v. International Association of Machinists, Janus v. AFSCME (not to be confused with the 2018 Janus decision), Danielson v. Inslee, and Mooney v. Illinois Education Association

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. 

Number of relevant bills by current legislative status

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

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.
    • Governor signed into law Oct. 12.


Bitnami