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2022 rundown: Public-sector labor legislation in the states

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We’re off to the races in 2022! Thirty-two state legislatures are currently in session. Today, we’re taking a look at bills related to public-sector labor policy that have been introduced so far this year. 

Overview

We’re currently tracking 71 pieces of legislation related to public-sector labor policy in the states. Twenty-four of those bills have been introduced this year, and the rest were carried over from 2021. Since 2019, we’ve tracked an average of 107 bills per year.   

Of the bills introduced so far this year, Democrats and Republicans have each sponsored 12. Seven of the Republican-sponsored bills were introduced in Republican trifecta states, and five of the Democratic-sponsored bills were introduced in a Democratic trifecta state. Nine bills were introduced in states with divided government, and three Democratic-sponsored bills were introduced in states with Republican trifectas. 

Bill details

The following bills have been introduced in 2022:

  • Florida H1197 and S1458: These bills would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and that membership and dues are voluntary. The bills would require unions to allow certain public employees to end their membership by a written request. The bills would also prevent employers from deducting dues from certain employees’ paychecks. Both proposals would also amend requirements for bargaining agent recertification and union registration renewal. Republican sponsorship.  
  • Kentucky HB111: This bill would remove current restrictions on public employee collective organizing and strikes. It would repeal requirements for dues deduction authorizations. It would prevent state law from prohibiting public employers and local governments from requiring union membership for employment. Democratic sponsorship.
  • Maryland SB118: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, and St. Mary’s College of Maryland. Democratic sponsorship
  • Missouri HB2121 and SB728: These bills would establish the “Public Employee Janus Rights Act.” They would require public employees to give written, informed consent before union dues or fees may be withheld from their paychecks. Employees must also give written, informed consent for unions to use fees or dues for political purposes. Republican sponsorship.
  • Missouri HB2122 and SB880: These bills would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment. Republican sponsorship.
  • Missouri SB706: This bill would bar employers from requiring employees to join or not join a union as a condition of employment in counties that adopt the provisions of the bill. Republican sponsorship.
  • New Hampshire HB1041: This bill would extend the public employee labor relations act to cover nonpartisan employees of the New Hampshire legislature. Democratic sponsorship.
  • New Hampshire HB1472: This bill would prohibit employers from taking certain actions against employees involved in legal strikes or collective bargaining preceding a legal strike. It would also prohibit employers from “[engaging] in anti-union training of any kind.” Democratic sponsorship.   
  • Vermont H0621: This bill would allow certification of collective bargaining representatives through majority employee sign-up and voluntary employer recognition. Democratic sponsorship.  
  • Virginia HB335: This bill would allow public employees to bargain independently. It would prevent collective bargaining agreements from applying to non-member employees. Republican sponsorship.  
  • Virginia HB336: This bill would require a 51% vote of public employees in a collective bargaining unit to certify a bargaining representative in localities that have authorized collective bargaining. Republican sponsorship.
  • Virginia HB337: This bill would prohibit collective bargaining agreements from having a public employer provide compensation or compensated leave time for union activities. It would require unions to compensate public employers if union activities infringe upon their time or resources. Republican sponsorship.
  • Virginia HB341: This bill would require public employees to give consent before employers may deduct union dues from their pay, and it would allow employees to stop paying dues at any time. It would require annual reconfirmation of consent for union membership and dues deductions. Republican sponsorship.
  • Virginia HB790: This bill would prevent localities from entering collective bargaining agreements with law enforcement employee associations if the agreements do not meet certain criteria. Republican sponsorship.
  • Virginia SB264: This bill would allow state and local government employees, other than exempted employees, to organize and bargain collectively, and it would create a Public Employee Relations Board. It would require public employers and employee organizations to negotiate in good faith. Democratic sponsorship.
  • Washington HB1764: This bill would stipulate new requirements for collective bargaining negotiations and arbitration between the University of Washington School of Medicine and residents and fellows who have the right to bargain collectively. Democratic sponsorship
  • Washington HB1771: This bill would allow family child care providers to bargain collectively over defined contribution retirement benefits. Democratic sponsorship. 
  • Washington HB1806 and SB5773: These bills would give state legislative branch employees the right to bargain collectively. Democratic sponsorship.  
  • Washington SB5579: This bill would give Washington Management Service personnel the right to bargain collectively. Democratic sponsorship
  • West Virginia HB3124: This bill would outline rights and procedures for public employee collective bargaining. Democratic sponsorship

As always, an overview of the current legislation we’re tracking and a list of legislative actions from the past week are included at the end of this newsletter.

To view spreadsheets with information about all of the public-sector labor bills we’ve tracked since 2018, click here

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 71 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.

  • Delaware SB201: This bill would apply the Delaware Public Employment Relations Act to employers of 10 or more full-time employees, rather than 100 or more full-time employees.
    • Democratic sponsorship.
    • Senate Labor Committee hearing scheduled for Jan. 19. 
  • Florida H1197: This bill would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and that membership and dues are voluntary. It would require unions to allow certain public employees to end their membership by a written request. The bill would also prevent employers from deducting dues from certain employees’ paychecks. It would also amend requirements for bargaining agent recertification and union registration renewal. 
    • Republican sponsorship.
    • Referred to House State Affairs Committee (Government Operations Subcommittee), first reading Jan. 11. 
  • Florida S1458: This bill would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and that membership and dues are voluntary. It would require unions to allow certain public employees to end their membership by a written request. The bill would also prevent employers from deducting dues from certain employees’ paychecks. It would also amend requirements for bargaining agent recertification and union registration renewal.
    •  Republican sponsorship.
    • Referred to Senate Judiciary, Governmental Oversight and Accountability, and Appropriations Committees Jan. 12. 
  • Maine LD555: This bill would grant most public-sector employees the right to strike. Select public safety and judicial employees would not be allowed to strike. 
    • Democratic sponsorship.
    • Hearing scheduled for Jan. 19. 
  • Maryland SB118: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, and St. Mary’s College of Maryland.
    • Democratic sponsorship. 
    • Senate Finance Committee hearing scheduled for Jan. 27.
  • Missouri SB706: This bill would bar employers from requiring employees to join or not join a union as a condition of employment in counties that adopt the provisions of the bill.
    • Republican sponsorship.
    • Second read, referred to Senate Small Business and Industry Committee on Jan. 10.
  • Missouri SB728: This bill would establish the “Public Employee Janus Rights Act.” It would require public employees to give written, informed consent before union dues or fees may be withheld from their paychecks. Employees must also give written, informed consent for unions to use fees or dues for political purposes. 
    • Republican sponsorship.
    • Second read, referred to Senate General Laws Committee on Jan. 13.
  • New Hampshire HB1041: This bill would extend the public employee labor relations act to cover nonpartisan employees of the New Hampshire legislature. 
    • Democratic sponsorship.
    • House Legislative Administration Committee hearing scheduled for Jan. 19.
  • New Jersey A5862: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent those who do not agree to pay.
    • Democratic sponsorship.
    • Substituted by S3810 on Jan. 10.
  • New Jersey S3810: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent those who do not agree to pay.
    • Democratic sponsorship. 
    • Substituted for A5862, passed both chambers Jan. 10.
  • Vermont H0621: This bill would allow certification of collective bargaining representatives through majority employee sign-up and voluntary employer recognition.
    • Democratic sponsorship.   
    • Read first time, referred to House General, Housing, and Military Affairs Committee on Jan. 13.
  • Virginia HB335: This bill would allow public employees to bargain independently. It would prevent collective bargaining agreements from applying to non-member employees.
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia HB336: This bill would require a 51% vote of public employees in a collective bargaining unit to certify a bargaining representative in localities that have authorized collective bargaining. 
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia HB337: This bill would prohibit collective bargaining agreements from having a public employer provide compensation or compensated leave time for union activities. It would require unions to compensate public employers if union activities infringe upon their time or resources. 
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia HB341: This bill would require public employees to give consent before employers may deduct union dues from their pay, and it would allow employees to stop paying dues at any time. It would require annual reconfirmation of consent for union membership and dues deductions.
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia HB790: This bill would prevent localities from entering collective bargaining agreements with law enforcement employee associations if the agreements do not meet certain criteria.
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia SB264: This bill would allow state and local government employees, other than exempted employees, to organize and bargain collectively, and it would create a Public Employee Relations Board. It would require public employers and employee organizations to negotiate in good faith.
    • Democratic sponsorship.
    • Referred to Senate Commerce and Labor Committee Jan. 11.
  • Washington HB1764: This bill would stipulate new requirements for collective bargaining negotiations and arbitration between the University of Washington School of Medicine and residents and fellows who have the right to bargain collectively.
    • Democratic sponsorship.
    • Public hearing in the House Labor & Workplace Standards Committee held Jan. 14.
  • Washington HB1771: This bill would allow family child care providers to bargain collectively over defined contribution retirement benefits.
    • Democratic sponsorship.
    • Public hearing in the House Labor & Workplace Standards Committee held Jan. 14.
  • Washington HB1806: This bill would give state legislative branch employees the right to bargain collectively. 
    • Democratic sponsorship.
    •  First reading, referred to House Labor & Workplace Standards Committee Jan. 10.
  • Washington SB5579: This bill would give Washington Management Service personnel the right to bargain collectively.   
    • Democratic sponsorship.
    • First reading, referred to Senate Labor, Commerce & Tribal Affairs Committee Jan. 10.
  • Washington SB5773: This bill would give state legislative branch employees the right to bargain collectively. 
    • Democratic sponsorship.
    • First reading, referred to Senate Labor, Commerce & Tribal Affairs Committee Jan. 11.
  • West Virginia HB3124: This bill would outline rights and procedures for public employee collective bargaining. 
    • Democratic sponsorship.
    • Referred to House Government Organization Committee Jan. 12.


2021 recap: Public-sector labor legislation in the states

Happy New Year! Today we’ll look back at what happened to public-sector labor bills during the 2021 legislative year. Next week, we’ll give you a rundown of bills filed in 2022.

Highlights

  • State legislatures either introduced or carried over from earlier sessions 112 bills related to public-sector labor policy in 2021.
  • Fifteen relevant bills were enacted. 
  • Democrats and Republicans sponsored a similar number of bills, with Republicans sponsoring 51 and Democrats sponsoring 50. The rest either had nonpartisan legislative backing, were bipartisan, or were committee bills.  

Overview

The following map shows which states considered public-sector labor legislation in 2021, with darker colors representing a higher number of bills.

Legislators in Maryland introduced the most public-sector labor bills in 2021—10—followed by Pennsylvania with nine and Oregon and Connecticut tied with seven. 

This chart shows the legislative status of each bill at the end of 2021:

Enacted legislation

The following 15 bills were enacted in 2021:

  • Arkansas SB341: This bill prohibits collective bargaining on the part of certain public-sector employees. Read our coverage of the bill’s passage here
    • Republican sponsorship.
    • Gov. Asa Hutchinson (R) signed on April 8, 2021.       
  • Connecticut SB00908: This bill requires public employers to furnish unions with personal information of employees belonging to the bargaining unit. It also requires employers to grant unions access to new employee orientations.
    • Originally introduced by the General Assembly’s Labor and Public Employees Committee. 
    • Gov. Ned Lamont (D) signed on June 4, 2021. 
  • Delaware HB237: This bill grants select law enforcement officers the right of organization under the Police Officers’ and Firefighters’ Employment Relations Act.
    • Democratic sponsorship. 
    • Gov. John Carney (D) signed on Sept. 10, 2021. 
  • Illinois HB2521: This bill allows electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It allows certification elections to be conducted electronically. It also prohibits an employer from promising or taking action against an employee for participating in a strike.
    • Democratic sponsorship. 
    • Gov. J. B. Pritzker (D) signed on Aug. 27, 2021.
  • Illinois SJRCA0011: A legislatively referred constitutional amendment that would guarantee employees the right to organize and bargain collectively through representatives they choose. Read more about this amendment here and here.
    • Bipartisan sponsorship. 
    • The Illinois House and Senate adopted this joint resolution in May 2021.
  • Indiana SB0251: This bill establishes that a school employee can leave a union at any time. It also requires employees to annually authorize any payroll deductions of union dues. Read more about this bill here and its aftermath here
    • Republican sponsorship. 
    • Gov. Eric Holcomb (R) signed on April 22, 2021.  
  • Maine LD52: This bill allows educational policies related to preparation and planning time and transfer of teachers to be subjects of collective bargaining negotiations.
    • Democratic sponsorship. 
    • Gov. Janet Mills (D) signed on June 8, 2021.
  • Maryland SB138: This bill extends collective bargaining rights to employees of the Baltimore County Public Library. 
    • Democratic sponsorship. 
    • Enacted May 30, 2021.
  • Maryland SB556: This bill establishes a separate collective bargaining unit for teachers at the Maryland School for the Deaf.
    • Democratic sponsorship. 
    • Enacted May 30, 2021.
  • Oklahoma HB2747: This bill eliminates the Public Employees Relations Board. It directs municipal public employers to recognize unions as the exclusive bargaining agents for police officers or firefighters upon a majority vote of the members of the bargaining unit. 
    • Republican sponsorship. 
    • Gov. Kevin Stitt (R) signed on May 5, 2021. 
  • Oregon SB580: This bill amends the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts. 
    • Democratic sponsorship. 
    • Gov. Kate Brown (D) signed on July 14, 2021. 
  • Tennessee SJR0002: A legislatively referred 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. Read more about this amendment here
    • Republican sponsorship. 
    • The speakers of the Senate and House signed the joint resolution in May 2021. 
  • Washington SB5133: This bill amends the definition of a “confidential employee” for the purposes of collective bargaining. 
    • Democratic sponsorship. 
    • Gov. Jay Inslee (D) signed on May 3, 2021. 
  • West Virginia HB2009: This bill prohibits state, county, and municipal governments from deducting public union dues from paychecks. Read more here, here, and here.
    • Republican sponsorship.
    • Gov. Jim Justice (R) signed on March 30, 2021. 
  • West Virginia SB11: This bill prohibits public-sector employees from striking. Read more about this bill here.
    • Republican sponsorship. 
    • Enacted on March 16, 2021. 

Compared to years past

This chart shows the number of public-sector labor bills Ballotpedia tracked each year from 2019 to 2021 and the number of those bills that were enacted each year: 

This chart shows a breakdown of the partisan affiliation of bill sponsors by year. The percentage of bills sponsored by Republicans increased in 2021.

To view spreadsheets with information about all of the public-sector labor bills we’ve tracked since 2018, click here

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 59 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.

  • Florida H1197: This bill would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and membership and dues are voluntary. It would require unions to allow certain public employees to end their membership by a written request. The bill would also prevent employers from deducting dues from certain employees’ paychecks. It would also amend requirements for bargaining agent recertification and union registration renewal. 
    • Republican sponsorship. 
    • Filed Jan. 5.
  • Florida S1458: This bill would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and membership and dues are voluntary. It would require unions to allow certain public employees to end their membership by a written request. The bill would also prevent employers from deducting dues from certain employees’ paychecks. It would also amend requirements for bargaining agent recertification and union registration renewal. 
    • Republican sponsorship. 
    • Filed Jan. 4. 
  • Kentucky HB111: This bill would remove current restrictions on public employee collective organizing and strikes. It would repeal requirements for dues deduction authorizations. It would prevent state law from prohibiting public employers and local governments from requiring union membership for employment. 
    • Democratic sponsorship. 
    • Introduced Jan. 4. 
  • Maine LD555: This bill would grant most public-sector employees the right to strike. Select public safety and judicial employees would not be allowed to strike.  
    • Democratic sponsorship. 
    • Hearing scheduled for Jan. 19. 
  • Maryland SB118: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, and St. Mary’s College of Maryland.
    • Democratic sponsorship. 
    • Senate Finance Committee first reading scheduled for Jan. 12. 
  • Missouri HB2121: This bill would establish the “Public Employee Janus Rights Act.” It would require public employees to give written, informed consent before union dues or fees may be withheld from their paychecks. Employees must also give written, informed consent for unions to use fees or dues for political purposes. 
    • Republican sponsorship. 
    • Read second time Jan. 6.
  • Missouri HB2122: This bill would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment. 
    • Republican sponsorship. 
    • Read second time Jan. 6.
  • Missouri SB706: This bill would bar employers from requiring employees to become or refrain from becoming members of a union as a condition of employment in counties that adopt the provisions of the section.
    • Republican sponsorship. 
    • First read Jan. 5. 
  • Missouri SB728: This bill would establish the “Public Employee Janus Rights Act.” It would require public employees to give written, informed consent before union dues or fees may be withheld from their paychecks. Employees must also give written, informed consent for unions to use fees or dues for political purposes. 
    •  Republican sponsorship. 
    • First read Jan. 5. 
  • Missouri SB880: This bill would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment.
    • Republican sponsorship. 
    • First read Jan. 5. 
  • Nebraska LB684: This bill would prohibit public school employers and unions from placing restrictions on when employees can join or leave unions.
    • Carried over Jan. 5.
  • New Jersey A5862: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent those who does not agree to pay.
    • Democratic sponsorship. 
    • Assembly Appropriations Committee hearing Jan. 6. 
  • New Jersey S3810: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent those who does not agree to pay.
    • Democratic sponsorship. 
    • Senate Budget and Appropriations hearing Jan. 6.


An overview of the public-sector labor lawsuits tracked by Ballotpedia

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Note: The next edition of Union Station will be on Jan. 7, 2022. Until then, happy holidays!

Overview of federal lawsuits related to public-sector labor policy

Since late 2019, Ballotpedia has tracked 160 federal lawsuits related to public-sector labor policy. Today, we’ll look at an overview of these cases. We’ll also highlight seven Supreme Court decisions that these cases commonly reference. 

Overview 

The majority of these lawsuits ask one or more of the following questions:

  • Whether public-sector unions can be held liable for refunding agency fees paid before the Supreme Court’s 2018 ruling in Janus v. AFSCME;  
  • Whether public-sector unions may continue to collect union dues from an employee who leaves the union if there is a pre-existing agreement for fees deduction throughout a given time period; 
  • Whether exclusive bargaining representation laws violate non-union members’ First Amendment rights; 
  • Whether mandatory bar association dues should be reconsidered in light of Janus.

The map below shows the cases we’re tracking by the U.S. district court in which they originated. The three districts with the highest number of cases are the Central District of California (16 cases), the Middle District of Pennsylvania (16 cases), and the District of Oregon (13 cases).    

Here’s the breakdown by circuit:

And by case status (pending cases are divided by court level, and cases that have been dismissed, settled, or otherwise resolved are counted together):   

Finally, this chart shows the cases we’ve tracked by the year they were filed. The earliest case we’ve tracked was filed in 2014. 

Commonly referenced Supreme Court decisions

The following Supreme Court decisions are commonly referenced in these types of cases. Here’s a quick rundown of each decision, in chronological order: 

  • Lathrop v. Donohue (1961)
    • Appealed to the Supreme Court from the Supreme Court of Wisconsin. 
    • Chief Justice Earl Warren and Justices William Brennan, Tom Clark, Potter Stewart, John Marshall Harlan II, Felix Frankfurter, and Charles Evans Whittaker formed the majority. Justices Hugo Black and William O. Douglas dissented.  
    • Justice Brennan wrote: “We are persuaded that … we have no sound basis for deciding appellant’s constitutional claim insofar as it rests on the assertion that his rights of free speech are violated by the use of his money for causes which he opposes. Even if the demurrer is taken as admitting all the factual allegations of the complaint, even if these allegations are construed most expansively, and even if, like the Wisconsin Supreme Court, we take judicial notice of the political activities of the State Bar, still we think that the issue of impingement upon rights of free speech through the use of exacted dues is no more concretely presented for adjudication than it was in [Railway Employees’ Dept. v. Hanson (1956)]. ”
  • Abood v. Detroit Board of Education (1977)
    • Appealed to the Supreme Court from the Michigan Court of Appeals.
    • Unanimous decision.
    • Justice Potter Stewart wrote: “There can be no quarrel with the truism that, because public employee unions attempt to influence governmental policymaking, their activities — and the view of members who disagree with them — may be properly termed political. But that characterization does not raise the ideas and beliefs of public employees onto a higher plane than the idea and belief of private employees. … The differences between public and private sector collective bargaining simply do not translate into differences in First Amendment rights.” 
    • Overturned in Janus v. AFSCME (2018).
  • Chicago Teachers Union v. Hudson (1986)
    • Appealed to the Supreme Court from the Seventh Circuit.  
    • Unanimous decision.
    • Justice John Paul Stevens wrote: “We hold today that the constitutional requirements for the Union’s collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.”
  • Keller v. State Bar of California (1990)
    • Appealed to the U.S. Supreme Court from the Supreme Court of California. 
    • Unanimous decision. 
    • Chief Justice William Rehnquist wrote: “Here the compelled association and integrated bar is justified by the State’s interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity. The difficult question, of course, is to define the latter class of activities.”
  • Knox v. Serv. Emps. Int’l Union Local 1000 (2012)
    • Appealed to the Supreme Court from the Ninth Circuit. 
    • Chief Justice John Roberts and Justices Samuel Alito, Ruth Bader Ginsburg, Anthony Kennedy, Antonin Scalia, Sonia Sotomayor, and Clarence Thomas formed the majority. Justices Stephen Breyer and Elena Kagan dissented.
    • Justice Alito wrote: “In this case, we decide whether the First Amendment allows a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union’s political and ideological activities. […] Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. … But employees who choose not to join a union have the same rights. … Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.”
  • Harris v. Quinn (2014)
    • Appealed to the Supreme Court from the Seventh Circuit. 
    • Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Anthony Kennedy, and Clarence Thomas formed the majority. Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor dissented. 
    • Justice Alito wrote: “This case presents the question whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support. […] [W]e refuse to extend Abood in the manner that Illinois seeks. If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support. The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union.”
  • Janus v. AFSCME (2018)
    • Appealed to the Supreme Court from the Seventh Circuit.  
    • Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch formed the majority. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.
    • Justice Alito wrote: “Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. We upheld a similar law in Abood v. Detroit Bd. of Ed. … and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled.”

To view a spreadsheet with information about all of the lawsuits we’re tracking, click here.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 110 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.

  • New Jersey A5862: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to include those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent a non-dues-paying employee who does not agree to pay the cost of representation. 
    • Democratic sponsorship. 
    • Assembly Labor Committee hearing held Dec. 13. 


U.S. Supreme Court asked to reconsider mandatory bar association dues

Two petitions ask the Supreme Court to apply Janus v. AFSCME ruling to mandatory bar dues 

Attorneys from Oklahoma and Texas are asking the U.S. Supreme Court to reconsider mandatory bar association dues in light of its 2018 ruling in Janus v. AFSCME

In 1990, the Supreme Court unanimously upheld mandatory bar dues, ruling in Keller v. State Bar of California that “the compelled association and integrated bar is justified by the State’s interest in regulating the legal profession and improving the quality of legal services.”  A majority of states have mandatory bar associations. Bar dues are fees paid by attorneys in a state as required for membership in the state bar association.   

Schell v. Oklahoma Supreme Court Justices

Plaintiff Mark Schell, an Oklahoma attorney, filed a complaint in the U.S. District Court for the Western District of Oklahoma in March 2019, claiming the Oklahoma Bar Association’s compulsory membership and mandatory dues violated attorneys’ First and Fourteenth Amendment rights. The Goldwater Institute, which describes itself as a “free-market public policy research and litigation organization,” and attorneys from Jones Day are representing Schell. 

The defendants are the Chief Justice and Justices of the Oklahoma Supreme Court, the Oklahoma Bar Association’s Board of Governors, and Oklahoma Bar Association Executive Director John M. Williams. Attorneys from Maye Law Firm and Wilmer Cutler Pickering Hale and Dorr LLP represent the defendants.

U.S. District Court Judge Joe Heaton ruled in favor of the defendants in September 2019 and March 2020. In the September ruling, Heaton wrote: “To the extent that plaintiff contends the recent case of [Janus v. AFSCME] requires a different result, the court is unpersuaded. Janus involved the payment of agency fees by non-members of a public employee union. While there are some parallels between Janus and the circumstances here, there are also differences. There is also no suggestion in Janus that either [Lathrop v. Donohue (1961)] or [Keller v. State Bar of Calif. (1990)] were overruled or otherwise called into question. In such circumstances, the court is obliged to follow the cases which most directly control, and therefore declines to speculate as to whether the Supreme Court might reach some different result if it were to revisit either Lathrop or Keller.” President George W. Bush (R) nominated Heaton to the court.

Schell appealed to the U.S. Court of Appeals for the Tenth Circuit in April 2020.

On June 29, 2021, a three-judge panel of the Tenth Circuit—Judges Carolyn McHugh, Harris Hartz, and David Ebel—upheld the lower court’s ruling on mandatory bar dues but reversed and remanded the ruling on mandatory bar membership, finding that the lower court “erred by relying upon Lathrop and Keller to dismiss Mr. Schell’s freedom of association claim.” President Barack Obama (D) nominated McHugh, George W. Bush nominated Hartz, and President Ronald Reagan (R) nominated Ebel.

Schell appealed to the U.S. Supreme Court on Nov. 22. In the petition, Schell’s attorneys wrote: 

“In the wake of Janus, a handful of plaintiffs have filed petitions asking this Court to ‘overturn’ its decision in Keller v. State Bar of California … which addressed a First Amendment challenge to mandatory bar dues. […] 

“In this case, by contrast, Petitioner recognizes that there is no need to ‘overturn’ Keller in order to strike down compulsory subsidies for bar associations’ political speech. In fact, Keller itself squarely held that compulsory bar dues and union fees must be subject to the ‘same constitutional rule’ of First Amendment scrutiny. … And under Janus, the ‘constitutional rule’ is now exacting scrutiny. […]

“This Court should grant certiorari because the Tenth Circuit’s decision directly conflicts with the holdings of Keller and Janus. Keller held that bar dues and union fees must be subject to the “same constitutional rule.” … And Janus held that the rule is ‘exacting scrutiny.’ … In light of those holdings, the Tenth Circuit was wrong to follow Keller’s dicta about how bar dues might be analyzed under the now-defunct rule of [Abood v. Detroit Bd. of Educ.]. Since Janus overturned Abood, the only way to be faithful to Keller’s core holding is to make clear that both mandatory bar dues and compulsory union fees are subject to the same rule of exacting scrutiny.” 

The question presented is, “Are mandatory bar dues that subsidize the political and ideological speech of bar associations subject to ‘the same constitutional rule’ of exacting First Amendment scrutiny that applies to compulsory union fees under Janus?” 

The defendants filed waivers of their right to respond on Dec. 2. 

The case name and number are Schell v. Oklahoma Supreme Court Justices (21-779). 

McDonald v. Firth

The plaintiffs, Texas attorneys Tony McDonald, Joshua Hammer, and Mark Pulliam, filed their complaint in the U.S. District Court for the Western District of Texas in March 2019. The suit challenged the requirement for attorneys to join the State Bar of Texas as a condition of practicing law, alleging that mandatory membership violates the First Amendment. Attorneys from Consovoy McCarthy PLLC represent the plaintiffs.

The defendants are the members of the State Bar of Texas’ Board of Directors in their official capacities. Attorneys from Vinson & Elkins LLP represent the defendants.

In May 2020, U.S. District Court Judge Lee Yeakel ruled in favor of the defendants, writing: “Because the Bar has adequate procedural safeguards in place to protect against compelled speech and because mandatory Bar membership and compulsory fees do not otherwise violate the First Amendment, Plaintiffs’ claim that the Bar unconstitutionally coerces them into funding allegedly non-chargeable activities without a meaningful opportunity to object necessarily fails as a matter of law.” George W. Bush nominated Yeakel to the court.

The plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit in June 2020.  

On July 2, 2021, a three-judge panel of the Fifth Circuit—Judges Don Willett, Jerry E. Smith, and Stuart Kyle Duncan—ruled in favor of the plaintiffs, overturning the district court’s ruling, remanding the case back to the lower court, and blocking the state bar from requiring membership or dues of the plaintiffs while the case is pending in the lower court. President Donald Trump (R) nominated Willett and Duncan to the court. Reagan nominated Smith. 

The plaintiffs appealed to the U.S. Supreme Court on Nov. 24. Their petition says

“This case implicates the same types of First Amendment harms that were at issue in Janus. Petitioners are three Texas attorneys who are compelled to join and financially support the State Bar of Texas in order to practice their chosen profession. The Bar uses their coerced funds to support an extensive array of highly ideological and controversial activities, including lobbying for legislation; promoting identity-based programming and affinity groups; and supporting legal aid and pro bono initiatives that often touch on controversial matters such as immigration policy. Petitioners do not support these activities yet are compelled to associate with the Bar and fund its activities if they wish to continuing practicing law in Texas [sic]. […] 

“This Court should grant certiorari and hold that members of a mandatory bar cannot be compelled to finance any political or ideological activities, and cannot be compelled to join a bar that engages in such activities.” 

The question presented is, “Does the First Amendment prohibit a state from compelling attorneys to join and fund a state bar association that engages in extensive political and ideological activities?” 

The defendants filed a waiver of their right to respond on Dec. 2. The case was distributed for conference on Jan. 7, 2022. 

The case name and number are McDonald v. Firth (21-800).

About the Supreme Court

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 receives around 7,000 to 8,000 petitions every year. During its past five terms, the court has agreed to hear an average of 71 cases per term. The court generally releases the majority of its decisions in mid-June.   

To subscribe to Robe & Gavel, Ballotpedia’s federal courts newsletter, click here

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 110 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.

  • New Jersey A5862: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to include those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent a non-dues-paying employee who does not agree to pay the cost of representation. 
    • Democratic sponsorship. 
    • Assembly Labor Committee hearing on Dec. 13.


Tax deduction for union dues included in budget plan

Union Station

Tax deduction for union dues included in budget plan 

A federal tax deduction for union dues is part of Democrats’ budget plan for fiscal year 2022. 

About the union dues tax deduction

On Sept. 15, the House Ways and Means Committee approved its portion of Democrats’ budget reconciliation package, the Build Back Better Act. Section 138514 of Subtitle I, titled “Allowance of Deduction for Certain Expenses of the Trade or Business of Being an Employee,” says, “The provision allows for up to $250 in dues to a labor organization be claimed as an above-the-line deduction. The provision is effective for taxable years beginning after December 31, 2021.”

Republicans on the Ways and Means Committee opposed the deduction. An amendment sponsored by Rep. Lloyd Smucker (R-Pa.) to strike the deduction was defeated 25-18 along party lines. 

Before 2017, union dues were a work-related expense that could be included in an itemized (“below-the-line”) deduction of expenses exceeding 2% of the employee’s adjusted gross income. Republicans removed most work-related itemized deductions in the 2017 Tax Cuts and Jobs Act (TCJA). 

About the 2022 budget 

Senator Bernie Sanders (I-Vt.) introduced the budget resolution for fiscal year 2022 on Aug. 9. A budget resolution outlines instructions for Congress to use in drafting its spending plan. Passing a budget resolution is a necessary requirement before Congress may use the reconciliation process for a final budget package. The reconciliation process allows the Senate to pass a budget with a simple majority instead of the 60 votes necessary to invoke cloture and override the filibuster

The Senate approved the budget resolution on Aug. 11, and the House of Representatives approved it on Aug. 24. House and Senate committees then had until Sept. 15 to draft their legislation for the reconciliation package.

The deadline for Congress to pass a budget and avoid government shutdown is Sept. 30, as fiscal year 2022 begins on Oct. 1. On Sept. 21, the House voted 220-211 to pass a temporary continuing resolution to fund the government through Dec. 3. The bill went to the Senate on Sept. 22, where it requires 60 votes to pass. 

Democrats have a 220-212 majority in the House. The Senate is split 50-50 with Vice President Kamala Harris (D) having the tie-breaking vote.

Perspectives 

Support for union dues deductions 

In April 2021, Sen. Bob Casey (D-Pa.) said of a similar piece of proposed legislation, “Unions are the backbone of the middle class, supporting workers, wage growth and fair economic conditions. In 2017, Republicans eliminated tax deductions for workers and instead gave massive tax cuts for large, profitable corporations. [The Tax Fairness for Workers Act] would put money back in the pockets of working families by reinstating deductions for union dues and other unreimbursed employee expenses.” 

A 2020 Center for American Progress Action Fund brief stated, “This type of [above-the-line] deduction would allow union members to deduct the costs of earning their income and result in the tax code more accurately measuring individuals’ ability to pay.”

Opposition to union dues deductions

Rep. Kevin Brady (R-Texas), ranking member of the Ways and Means Committee, said, “In effect, they’ve forced the 90% of workers in America who aren’t in a union to subsidize the dues of those who are.”

Dominic Pino, a fellow at the National Review Institute, wrote, “By making union dues tax deductible, Democrats are essentially making it more financially viable for people to contribute to organizations that help elect Democrats.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 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.



Public-sector union responses to COVID-19 vaccine mandates

Exploring public-sector union responses to COVID-19 vaccine mandates

Public-sector unions have issued a range of responses to federal and state mandates requiring government workers to get a COVID-19 vaccine. However, most unions state that they should have input on how such policies are implemented. 

Public-sector union responses to federal vaccine mandate

On Sept. 9, President Joe Biden (D) announced a new COVID-19 plan, including “an emergency rule to require all employers with 100 or more employees … to ensure their workforces are fully vaccinated or show a negative test at least once a week.” The same day, Biden signed Executive Order 14043, which states that in order to promote workforce health and safety, “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.” 

Representatives from major public-sector unions responded:     

  • AFL-CIO President Liz Shuler said on Sept. 10, “The resurgence of COVID-19 requires swift and immediate action, and we commend President Biden for taking additional steps to help put an end to this crisis. Everyone should be vaccinated—as one step in stopping the pandemic. Workers and unions should have a voice in shaping these policies.” 
  • On Sept. 9, American Federation of Government Employees President Everett Kelley said, “Since the vaccines first became widely available, we have strongly encouraged all our members to take one of the several safe, effective vaccines against COVID-19. … Likewise, since President Biden made his first major announcement about changing COVID-19 protocols for the federal workforce in response to the surging Delta variant, we have said that changes like this should be negotiated with our bargaining units where appropriate. … Neither of these positions has changed. We expect to bargain over this change prior to implementation, and we urge everyone who is able to get vaccinated as soon as they can do so.”
  • American Federation of Teachers President Randi Weingarten said on Sept. 9, “The AFT wants to beat the pandemic, and that means now we must work together as a community. That’s why we stand in complete support of this plan and of the administration’s effort to protect as many people as possible.” 
  • On Sept. 9, Federal Law Enforcement Officers Association President Larry Cosme said, “The Biden-Harris Administration’s action to mandate the COVID-19 vaccine for all federal employees is ill conceived. … This executive order villainizes employees for reasonable concerns and hesitancies and inserts the federal government into individual medical decisions. People should not be made to feel uncomfortable for making a reasonable medical choice.”
  • On Sept. 15, the National Association of Letter Carriers (NALC) stated, “Currently, it is unclear how the executive orders and [emergency rule for employers with over 100 employees] will affect letter carriers and the Postal Service. As more information becomes available, NALC will review and bargain over any rulings that affect our members.” The American Postal Workers Union (APWU) stated on Sept. 10 that Biden’s executive orders “do not expressly apply to Postal Service Employees,” and that the union was waiting for more information on the emergency rule. In July, the union stated, “While the APWU leadership continues to encourage postal workers to voluntarily get vaccinated, it is not the role of the federal government to mandate vaccinations for the employees we represent.” 

Public-sector union responses to state vaccine mandates

Twenty states have issued COVID-19 vaccine requirements for state employees. Here are how some unions responded in four states: California, Hawaii, Vermont, and Washington.  

California

California Gov. Gavin Newsom (D) announced on July 26 that all state employees would be required to be vaccinated for COVID-19 or submit to weekly testing. 

Some unions, including SEIU Local 1000, the International Union of Operating Engineers, and  Cal Fire Local 2881, filed complaints following the mandate. SEIU Local 1000 sent a cease and desist letter to the California Department of Human Resources that said, “This is a change in the terms and working conditions of our represented employees and requires meeting and conferring with the union prior to implementing the change.” Tim Edwards, president of Cal Fire Local 2881, said, “We oppose mandating vaccinations and believe the state has a contractual obligation to meet and confer with labor over any possible impacts to the employees.”

Other unions expressed more support for the mandate. Glen Stailey, president of the California Correctional Peace Officers Association, said: “Newsom’s new vaccine policy is a reasonable compromise that we can get behind. It provides for regular testing at work for those who have chosen not to get vaccinated — this will prevent the spread of the virus among correctional officers and incarcerated individuals alike.” The California Statewide Law Enforcement Association said the union was “in the process of confirming that testing will be done at no cost to the employee and on State time and how employees will be compensated for self-quarantine if mandated to do so.”  

Hawaii

Hawaii Gov. David Ige (D) issued a proclamation on Aug. 5 requiring state and county employees to be vaccinated for COVID-19 or undergo regular testing. The same day, six public-sector unions—the Hawaii State Teachers Association, the Hawaii Fire Fighters Association, Hawaii Government Employees Association, the State of Hawaii Organization of Police Officers, the University of Hawaii Professional Assembly, and the United Public Workers—released a joint statement responding to the mandate. The unions said they had contacted the governor’s office “to initiate discussions about the vaccine mandate” but had been denied. The statement continued: “The emergency proclamation will impact our members’ working conditions and the employer must bargain those impacts with the appropriate collective bargaining units. Details on how tests will be administered, how results will be kept confidential, and how the state will fund this mandate will need to be negotiated with the state and we look forward to having those discussions right away.”

Vermont

On Sept. 8, Vermont Gov. Phil Scott (R) announced that the state’s vaccine requirement would be expanded to all state executive branch employees. Vermont State Employees Association (VSEA) President Steve Howard said, “The low hanging fruit is maybe requiring it of state employees. … The tougher part, which requires some leadership, is to say to the public, ‘You have to do your part.’”  

Washington

Washington Gov. Jay Inslee (D) announced a vaccine requirement for state workers on Aug. 9. Washington Federation of State Employees/AFSCME Council 28 (WFSE)’s initial attempts to reach a bargaining agreement with the state over the mandate were unsuccessful, and WFSE filed an unfair labor practice lawsuit in the Thurston County Superior Court on Aug. 26. A press release from the union said: “[Inslee’s] proclamation impairs the union’s right to bargain on behalf of employees and impairs the ability to ensure a fair and reasonable exemption process. The lawsuit alleges an unfair labor practice for refusal to bargain in good faith.”

After further negotiations with the state, WFSE members ratified an agreement on Sept. 9 outlining an exemption process and conditions of employment. WFSE President Mike Yestramski said: “Our union was able to achieve what we set out for—a victory for public health and due process. … Now, we have an agreement that incentivizes vaccination and helps ensure a fair process for workers requesting a medical or religious exemption.” Since an agreement has been reached, WFSE is dropping the lawsuit. 

For more information about the 20 states that have issued vaccine requirements for state employees, click here

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 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. 

  • Delaware HB237: This bill grants select law enforcement officers the right of organization and representation.  
    • Democratic sponsorship. 
    • Governor signed Sept. 10. 



Union Station: Biden, AFSCME include Public Service Freedom to Negotiate Act in Labor Day statements

Biden, AFSCME include Public Service Freedom to Negotiate Act in Labor Day statements

Over Labor Day weekend, President Joe Biden (D) and the American Federation of State, County and Municipal Employees (AFSCME) each reiterated their endorsements of the Public Service Freedom to Negotiate Act (PSFNA), congressional legislation originally introduced in response to the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME

Biden issued a Labor Day proclamation on Sept. 3 that said, “American workers should make their own decisions –- free from coercion and intimidation — about organizing with their co-workers to have a stronger voice in their workplaces, their communities, and their government. That is why I strongly support the Protecting the Right to Organize [PRO] Act and the Public Service Freedom to Negotiate Act.” (The PRO Act, which passed the U.S. House of Representatives in March, would amend federal labor laws for private sector workers.) 

AFSCME President Lee Saunders said in a Labor Day statement that the PSFNA would “empower public employees nationwide with collective bargaining rights, giving us the seat at the table we deserve.” AFSCME also highlighted its support for the act on its blog and Facebook page over the weekend. 

About the Public Service Freedom to Negotiate Act 

First introduced the day of the Supreme Court’s decision in Janus v. AFSCME, and reintroduced a year later, the PSFNA would “[set] a minimum nationwide standard for collective bargaining rights that all states must provide to public sector workers,” according to the bill’s fact sheet.  

Versions of the bill were introduced and referred to committee in June 2018, during the 115th Congress, and in June 2019, during the 116th Congress. Sen. Mazie Hirono (D-Hawaii) and Rep. Matt Cartwright (D-Pa.) sponsored the bill both years. Neither version of the bill made it to a vote.

The 2019 bill says, “Not later than 1 year after the date of enactment of this Act, the [Federal Labor Relations Authority] shall issue rules and take such actions that the Authority determines appropriate to establish and administer collective bargaining rights and procedures that substantially provide for the rights and procedures described in [the section of the act outlining federal minimum standards for collective bargaining rights].” The Federal Labor Relations Authority is the entity that administers federal labor relations.

The bill would establish the following rights for public employees: 

(A) to self-organization;

(B) to form, join, or assist a labor organization or to refrain from any such activity;

(C) to bargain collectively through representatives of their own choosing; and

(D) to engage in other concerted activities for the purpose of collective bargaining or other mutual aid (including the filing of joint class or collective legal claims) or protection.

For more information about each version of the bill on Congress.gov, click here.

Perspectives

Support

  • In August 2020, a report from the Economic Policy Institute (EPI) said: “Currently more than half of the states lack comprehensive collective bargaining laws for public-service workers like teachers. Public-service workers deserve the right to join together in unions to fight for stronger safety and health protections, better pay, and better working conditions.” The EPI describes its mission as “to inform and empower individuals to seek solutions that ensure broadly shared prosperity and opportunity.”  
  • A fact sheet for the Communications Workers of America’s June 2020 legislative-political conference said, “Since the outrageous, anti-worker Supreme Court decision in Janus vs. AFSCME, public service workers across the country work under this unfair free rider law. It’s time to level the playing field by establishing federal protections to guarantee public service workers the right to join together and collectively bargain.” 
  • An October 2019 AFL-CIO legislative alert said, “Unlike the private sector, there is no federal law that protects the freedom of state and local public service workers to join in a union and collectively bargain for fair wages, hours, and working conditions. … It’s time to even the playing field for working people and public servants by passing the Public Service Freedom to Negotiate Act.”  
  • A June 2019 legislative report from AFSCME said the PSFNA was “needed to unrig a system that favors the wealthy over working people. It marks another big step forward in the growing political and grassroots momentum behind unions after years of attacks on workers from right-wing special interests and politicians.”
  • In June 2019, American Federation of Teachers President Randi Weingarten said, “The Public Service Freedom to Negotiate Act closes the chasm in public sector bargaining rights, ensuring minimum standards are in place across the nation, while retaining flexibility for states to write and administer their own laws. … [T]his bill helps public workers achieve together what would be impossible alone—better and more-efficient services, dignity and a voice at work, and fair compensation and benefits for the work they do. We are proud to support it.” 

Opposition

  • In March 2021, National Right to Work Committee (NRTWC) President Mark Mix wrote, “A federal power grab introduced in the 2019-20 Congress as H.R.3464/S.1970, and strongly endorsed by Biden … would, by federal fiat, foist union monopoly bargaining on state and local fire fighters and other public-sector workers in all 50 states.” NRTWC describes itself as “a coalition of 2.8 million workers and concerned Americans fighting to break the chains of forced unionism.”
  • A January 2021 report from the Mackinac Center for Public Policy said, “The Public Service Freedom to Negotiate Act represents another tremendous threat to worker freedom. This act, while incapable of overriding the Supreme Court’s 2018 Janus v. AFSCME decision … would nevertheless drastically limit state’s [sic] abilities to manage government employees. … Most notably, the PSFNA would force all states to adopt collective bargaining with almost no limitation.” The Mackinac Center describes itself as “a nonprofit research and educational institute that advances the principles of free markets and limited government.” 
  • In September 2019, Empire Center for Public Policy fellow Ken Girardin said, “While supporters claim the proposed law merely intends to protect union bargaining rights, it would represent a major change in the federal government’s long-standing neutrality towards state and local labor relations. … Requiring binding arbitration, as opposed to simply allowing parties to come to terms directly, would be a one-way street to inflexible and expensive labor deals.” The Empire Center, a New York–based think tank, says its mission is to “Make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.”  
  • In July 2018, Competitive Enterprise Institute (CEI) policy analyst Trey Kovacs wrote, “The more concerning aspect of the bill is it grants broad power to the Federal Labor Relations Authority (FLRA), which currently governs only federal employee labor relations, to enforce the legislation and to determine whether states are in compliance with its requirements. … The FLRA’s regulations will essentially override current state labor relations law and establish collective bargaining procedures for the state.” CEI’s mission is to “promote both freedom and fairness by making good policy good politics.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 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.




Union Station: Lawyers file class action complaint against State Bar of Texas

Lawyers file class action complaint against State Bar of Texas

On Aug. 30, three members of the State Bar of Texas filed a class action complaint in the U.S. District Court for the Southern District of Texas alleging that the bar is violating their First Amendment rights. 

About the complaint 

The plaintiffs are attorneys Robert S. Bennett, Nachael Foster, and Andrew Bayley. Their complaint is a class action suit on behalf of “all Texas-licensed attorneys, past or present, and on either active or inactive status, who have endured First Amendment violations because of the Texas Bar’s relevant unlawful conduct.” Richard A. Robins, who runs the website texasbarsunset.com, represents the plaintiffs. The complaint names the Texas Bar “and culpable officials within it” as defendants. 

The complaint references the Fifth Circuit’s July 2021 ruling in McDonald v. Longley. In that case, a three-judge panel ruled that because the Texas Bar engaged in ideological activities that were not relevant to its core functions, compelling lawyers to join the bar violated their First Amendment rights. 

Referring to that decision, the complaint states that the Fifth Circuit “ruled that the Defendants have impermissibly, unlawfully and enduringly spent attorney members’ coercively extracted annual dues on ideological and political endeavors that are not germane to regulating or improving the practice of law here in Texas.” The plaintiffs allege the bar has “continued demanding full dues payments from the membership by no later than [August 31, 2021]. As of the date of this filing, they have also offered no refunds for their already sufficiently proven and established transgressions. They continue proceeding callously, resulting in further damage to the Class.” 

The plaintiffs allege that by requiring members to pay dues, the bar violates their freedoms of association, speech, and—in some cases—religion.

Reuters reports: “Texas Bar spokesman Amy Starnes said the association is committed to complying with the 5th Circuit decision in a timely manner, and is taking steps to update its policies and procedures. She said the new complaint is being reviewed.” 

The case name and number are Bennett v. Texas (4:21-cv-02829).

About McDonald v. Longley

On March 6, 2019, plaintiffs Tony McDonald, Joshua Hammer, and Mark Pulliam filed a complaint in the U.S. District Court for the Western District of Texas claiming mandatory membership in the State Bar of Texas violated their First and Fourteenth Amendment rights. The plaintiffs alleged that the bar’s opt-out process was “inadequate to ensure that members are not coerced into funding the Bar’s political and ideological activities.”

On May 29, 2020, the U.S. District Court ruled in the state bar’s favor. The plaintiffs appealed to the Fifth Circuit in June 2020.  

On July 2, 2021, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit—Judges Don Willett, Jerry E. Smith, and Stuart Kyle Duncan—overturned the district court’s ruling and returned the case to the lower court, saying the bar “engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights.” The Fifth Circuit blocked the state bar from requiring membership or dues of the plaintiffs while the case is pending in the lower court. President Donald Trump (R) appointed Willett and Duncan, and President Ronald Reagan (R) appointed Smith.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 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. 

  • Illinois HB2521: This bill allows electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It allows certification elections to be conducted electronically. It also prohibits an employer from promising or taking action against an employee for participating in a strike.
    • Democratic sponsorship. 
    • Governor approved Aug. 27; effective immediately. 
  • New York S07355: This bill would prevent public employers from firing or disciplining public employees who were selected to represent an employee organization or who commented on related matters.
    • Democratic sponsorship.  
    • Referred to Senate Rules Committee Aug. 30. 



Union Station: Biden appoints 10 members to Federal Service Impasses Panel

Biden appoints 10 members to Federal Service Impasses Panel

On Aug. 23, President Joe Biden (D) announced the names of 10 individuals he planned to appoint to the Federal Service Impasses Panel (FSIP), which has been vacant since shortly after Biden took office. The FSIP is an entity of the Federal Labor Relations Authority (FLRA). 

Biden asked the 10 FSIP members who were on the panel when he took office to resign in February, ultimately firing two who did not resign. This move was considered routine: Barack Obama (D) discharged the George W. Bush (R) administration’s panel in March 2009 and Donald Trump (R) discharged the Obama administration’s panel in May 2017. 

According to U.S. Code, the FSIP’s function is “to provide assistance in resolving negotiation impasses between agencies and exclusive representatives.” 

Everett Kelley, president of the American Federation of Government Employees (AFGE), responded to the appointments: “AFGE strongly supports President Biden’s selections to the Federal Service Impasses Panel. We are confident that these members will fairly resolve labor disputes between unions and agencies and restore dignity and fairness to the panel and its important work on behalf of federal employees.” The AFL-CIO affiliated AFGE is the country’s largest federal workers’ union. 

AFGE filed multiple lawsuits against the Trump administration panel which alleged—among other complaints—that members of the panel should have been confirmed by the Senate. They based this on the Appointments Clause of the U.S. Constitution. Some of these lawsuits have been dismissed. However, Judge Richard J. Leon of the U.S. District Court for the District of Columbia wrote that another pending case “may well be a meaningful avenue to review [the AFGE’s] Appointments Clause challenge.” George W. Bush nominated Leon to the court. 

According to Reuters, FSIP appointees “are traditionally not confirmed by the Senate because the panel is subordinate to the Federal Labor Relations Authority.” Biden did not seek Senate confirmation for his appointees. 

Obama named seven new appointees to the panel in September 2009, and Trump named his first seven appointees in July 2017. 

About the Federal Service Impasses Panel

Title 5 Section 7119 of the U.S. Code says, “The Panel shall be composed of a Chairman and at least six other members, who shall be appointed by the President, solely on the basis of fitness to perform duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations.” Members serve five-year terms unless appointed to fill a vacancy, in which case they serve the predecessor’s unexpired term. 

The panel investigates requests for assistance in resolving disputes between federal agencies and unions and may make recommendations or guide the parties through dispute resolution steps. According to the panel’s website, “If the parties still are unable to reach a voluntary settlement after the use of these procedures, the Panel may take whatever action it deems necessary to resolve the dispute.” This includes setting contract terms that are not able to be appealed. 

Past FSIP decisions can be viewed here.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 98 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.




Union Station: Union dues lawsuit heads to Supreme Court

Ninth Circuit grants plaintiffs’ request to uphold district court dismissal of union dues lawsuit

On Aug. 16, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted two Alaska state employees’ request to uphold a district court’s dismissal of their lawsuit so they can appeal the case to the U.S. Supreme Court. The court proceedings had been on hold since September 2020, awaiting the resolution of Belgau v. Inslee, which the Supreme Court declined to hear on June 21, 2021.  

Parties to the suit

The plaintiffs are Linda Creed, who works for the Alaska Department of Environmental Conservation, and Tyler Riberio, who works for the Alaska Department of Transportation. Attorneys from the Liberty Justice Center, which says it “fights for the constitutional rights of American families, workers, advocates and entrepreneurs,” represent the plaintiffs. The Alaska Policy Forum, which says its “mission is to empower and educate Alaskans and policymakers by promoting policies that grow freedom for all,” also assisted in the lawsuit. 

The defendants are the Alaska State Employees Association (ASEA), an affiliate of the American Federation of State, County, and Municipal Employees, and former Alaska Commissioner of Administration Kelly Tshibaka in her official capacity. Attorneys from Altshuler Berzon LLP, Dillon & Findley, P.C., and Consovoy McCarthy PLLC represent the defendants. 

About the case 

The plaintiffs filed their complaint in the U.S. District Court for the District of Alaska on March 16, 2020. The plaintiffs wanted to cancel their union memberships and paycheck deductions following the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME. They alleged that the defendants’ continued deductions of union dues from their paychecks according to a timetable plaintiffs agreed to before the Janus ruling had violated their First Amendment rights. The plaintiffs’ attorneys said the authorizations “[could not] constitute affirmative consent by those employees to waive their First Amendment right to not pay union dues or fees … because the Supreme Court had not yet recognized that right.” 

On July 14, 2020, Senior U.S. District Judge H. Russel Holland, who was appointed to the court by President Ronald Reagan (R), granted ASEA’s motion to dismiss. Holland wrote that the plaintiffs “voluntarily agreed to join the union and have dues deducted from their paychecks. Their union membership agreements were binding contracts that remain enforceable even after Janus. … Because of these binding contracts, plaintiffs have not stated a plausible violation of their First Amendment rights.”

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit on Aug. 25, 2020. On Sept. 11, 2020, the court granted ASEA’s motion to delay the proceedings until Belgau v. Inslee, which was then-pending in the Ninth Circuit, was resolved. On Sept. 16, 2020, a Ninth Circuit panel upheld the district court’s decision in Belgau v. Inslee, writing: “In the face of [plaintiffs’] voluntary agreement to pay union dues and in the absence of any legitimate claim of compulsion, the district court appropriately dismissed the First Amendment claim.” On June 21, 2021, the Supreme Court declined to hear an appeal in Belgau v. Inslee

After the Supreme Court’s decision not to hear Belgau v. Inslee, Creed and Riberio filed a motion in the Ninth Circuit requesting summary affirmance—a decision without an opinion—on July 2, 2021. The plaintiffs’ motion stated:

The Court’s decision in Belgau that no First Amendment waiver is required before dues are deducted pursuant to an employee’s dues deduction authorization forecloses Plaintiffs’ claims for retrospective relief, while the parties agree that this Court lacks jurisdiction over Plaintiffs’ claims for prospective relief. 

To be clear, Plaintiffs do not concede that Belgau is correctly decided. …

Plaintiffs, nonetheless, acknowledge that Belgau is currently controlling circuit precedent barring their claims for retrospective relief, and that their claims for prospective relief are now moot. They therefore move the Court to summarily affirm the District Court’s decision on the ground that their appeal is currently controlled by Belgau, so Plaintiffs may petition the United States Supreme Court for review.

On Aug. 16, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted the plaintiffs’ request, upholding the district court’s decision.  The panel included Senior Judge Mary Schroeder, a Jimmy Carter (D) appointee, Senior Judge A. Wallace Tashima, a Bill Clinton (D) appointee, and Judge Andrew Hurwitz, a Barack Obama (D) appointee. 

The plaintiffs plan to appeal the case to the Supreme Court.

The case name and number are Creed v. Alaska State Employees Association, 20-35743.

About the Ninth Circuit 

The U.S. Court of Appeals for the Ninth Circuit hears appeals from the district courts within its jurisdiction, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The chief judge of the court is Sidney Thomas, a Clinton appointee. Of the court’s 29 active judges, Clinton nominated nine, George W. Bush (R) nominated three, Obama nominated seven, and Donald Trump (R) nominated 10.  

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