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

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

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

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

Who were the parties to the suit?

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

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

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

What was at issue?

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

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

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

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

Relevant precedents

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

How did the Ninth Circuit rule?

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

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

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

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

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

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

What are the reactions, and what comes next?

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

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

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

What we’re reading

The big picture

Number of relevant bills by state

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

Union Station map September 25, 2020.png

Number of relevant bills by current legislative status

Union Station status chart September 25, 2020.png

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

Union Station partisan chart September 25, 2020.png

Recent legislative actions

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


SEIU settles class-action lawsuit over dues deductions for home healthcare workers

SEIU settles class-action lawsuit over dues deductions for home healthcare workers                   

Earlier this month, the Service Employees  International Union, Healthcare Illinois and Indiana agreed to settle a class-action lawsuit over dues deduction practices as applied to home healthcare workers.

Who were the parties to the suit?  

The plaintiff was Hydie Nance, a home-based healthcare provider in Illinois. The National Right to Work Legal Defense Foundation represented Nance. The group 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 was the Service Employees  International Union, Healthcare Illinois and Indiana (SEIU-HCII). According to its most recent federal report the union’s membership is 61,637. SEIU-HCII represents healthcare, child-care, home-care, and nursing home workers in Illinois, Indiana, Missouri, and Kansas.

What was at issue?

Illinois’ Home Services Plan “provides services to individuals with severe disabilities so they can remain in their homes and be as independent as possible.” The Illinois Department of Human Services administers the program, which uses Medicaid funds to pay for a variety of services, including personal assistance, homemaker services, and others. 

Nance provides home-based healthcare under the Home Services Plan.  She alleged that the Illinois Department of Human Services “deducted union dues from the subsidies of home healthcare providers without informing them that ‘that they have a First Amendment right not to financially support SEIU-HCII.'”

Nance twice requested that SEIU-HCII stop deducting dues from her subsidies. After her second request, SEIU-HCII officials told her that a valid photo ID was needed in order to process these requests. Nance subsequently filed suit in the U.S. District Court for the Northern District of Illinois, alleging the dues deduction system “impedes and burdens personal assistants’ First Amendment right to stop subsidizing SEIU-HCII and its speech.” Nance also argued that the photo ID requirement “impinges on personal assistants’ right to privacy and exposes them to the threat of identity theft.” 

Relevant precedents

Nance’s attorneys cited two U.S. Supreme Court decisions, Harris v. Quinn and Janus v. AFSCME

In Harris v. Quinn, decided in 2014, the court struck down an Illinois statute compelling a specific class of home healthcare workers to pay fees to the Service Employees International Union. 

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

What were the terms of settlement?

Under the terms of the settlement, SEIU-HCII agreed to

  • Refund Nance $245 in dues deducted from her subsidies after she requested the union stop deducting dues. 
  • Accept requests to end dues deductions without requiring employees to provide photo identification.
  • “Identify from its records providers whose requests to resign their union membership” were rejected due to their failure to provide photo identification and process those requests. 
  • Accept dues deduction requests made on forms provided by third-party organizations.

What were the reactions?

National Right to Work Foundation President Mark Mix said, “Though this settlement puts an end to this blatantly unconstitutional arrangement, it is outrageous that over two years after Janus was decided and over eight years after Harris was decided, union bosses still refuse to respect, and devise ways to circumvent, the constitutional rights of those they claim to represent.” 

SEIU-HCII has not made a public statement on the settlement and declined to respond to requests for comment from other media outlets. 

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.
    • Senate approved Sept. 4. Referred to House General, Housing, and Military Affairs Committee Sept. 8. Committee hearing scheduled Sept. 17.


Class-action lawsuits over repaying public-sector union fees rejected

Third Circuit rejects class-action lawsuits over repaying public-sector union fees                   

On Aug. 28, a three-judge panel of the United States Court of Appeals for the Third Circuit affirmed two lower court rulings that public-sector unions cannot be held liable for repaying fees collected from non-members before Janus v. AFSCME.

Who are the parties to the suit?  

The Third Circuit issued a joint ruling on two separate, but related, lawsuits: 

Diamond v. Pennsylvania State Education Association

The plaintiffs are Arthur Diamond, Jeffrey Schawartz, Sandra H. Ziegler, Matthew Shively, Matthew Simkins, Douglas R. Kase, and Justin Barry, all current or former public school teachers in Pennsylvania. The defendants are the Pennsylvania State Education Association, the Chestnut Ridge Education Association, the National Education Association, and several individuals in their official state capacities.

Wenzig v. Service Employees International Union Local 668

The plaintiffs are Janine Wenzig and Catherine Kioussis, two Pennsylvania state employees. The defendant is the Services Employees International Union Local 668.

What is at issue?

On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. American Federation of State, County, and Municipal Employees. In a 5-4 decision, the court ruled that public-sector unions cannot compel non-member employees they represent to pay fees to cover the costs of non-political union activities. To do so, the court determined, would constitute a violation of employees’ First Amendment rights.

Janus overturned the court’s 1977 decision in Abood v. Detroit Education Association. In Abood, the court ruled that public-sector unions could require non-members to pay fees to support union activities that benefitted them (e.g., collective bargaining).  These fees are generally referred to as either fair-share or agency fees. 

After Janus, the plaintiffs in both Diamond and Wenzig petitioned for reimbursement for the agency fees they, and those similar to them, paid before Janus. On July 8, 2019, Judge Kim Gibson of the U.S. District Court for the Western District of Pennsylvania dismissed Diamond, ruling that the union had collected the fees in good faith given then-prevailing law. On Dec. 10, 2019, Judge Malachy E. Mannion of the U.S. District Court for the Middle District of Pennsylvania issued a similar dismissal for Wenzig. 

Both the Diamond and Wenzig plaintiffs appealed to the Third Circuit, which consolidated the two suits. Oral argument occurred on April 24. 

How did the court rule?

The appellate panel voted 2-1 to affirm the lower court decisions. Judge Marjorie Rendell, a Bill Clinton (D) appointee, wrote the court’s opinion. Rendell cited similar recent decisions by other federal appellate courts.

We are not the first court of appeals to rule on this question, and we join a growing consensus of our sister circuits who, in virtually identical cases, have held that because the unions collected the fair-share fees in good faith reliance on a governing state statute and Supreme Court precedent, they are entitled to a good faith defense that bars Appellants’ claims for monetary liability under 42 U.S.C. §1983.

42 U.S.C. §1983 “creates a cause of action for plaintiffs who are injured by a person who, acting ‘under the color of any statute … of any State,’ causes the plaintiff to suffer ‘the deprivation of any rights, privileges, or immunities secured by the Constitution.” Rendell, pointing to unclear Supreme Court precedent on the question of whether “private parties may assert a good faith defense to §1983 liability,” cited a Third Circuit precedent to that effect: 

In Jordan v. Fox, Rothschild, O’Brien & Frankel, we held that a ‘good faith defense is available’ to private parties who act under color of state law and are sued for monetary liability under §1983. We stated our ‘basic agreement’ that ‘private defendants should not be held liable under §1983 absent a showing of malice and evidence that they either knew or should have known of the state’s constitutional infirmity.’

Judge D. Michael Fisher, a George W. Bush (R) appointee, wrote a separate opinion concurring in the court’s judgment but dissenting from Rendell’s reading of 42 U.S.C. §1983:

[The] Supreme Court has … read immunities and defenses into § 1983, but it has done so principally on the conceit that they were available at common law in 1871, and implicitly incorporated into the statute. While this approach certainly limits the scope of liability, it also constrains judges from straying too far from the statutory text.

Judge Peter Phipps, a Donald Trump (R) appointee, dissented from the judgment, writing: 

The central question presented in these consolidated cases, which seek recovery of agency fees garnished from the wages of non-union members, is whether a good faith affirmative defense exists to a First Amendment compelled speech claim under §1983. I do not see a valid basis for recognizing such a defense. A good faith affirmative defense was not firmly rooted in the common law in 1871 when § 1983 was enacted, and nothing else compels recognition of such a defense today.

About the Third Circuit

The United States Court of Appeals for the Third Circuit is a federal court that hears appeals from the district courts in Delaware, New Jersey, and Pennsylvania. The court has 14 authorized judicial posts and no current vacancies. The chief judge is Brooks Smith, a George W. Bush appointee. Of the court’s 14 active judges, six were appointed by Democrats and eight by Republicans. Appeals are heard in the James A. Byrne Federal Courthouse in Philadelphia, Pennsylvania. 

What comes next?

Attorneys for the plaintiffs have not said whether they intend to appeal the decision. The case names and numbers are Diamond v. Pennsylvania State Education Association (19-2812) and Wenzig v. Service Employees International Union Local 668 (19-3906).

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.



Federal court rejects challenge to Ohio exclusive representation law

Sixth Circuit rejects challenge to Ohio exclusive representation law                   

On Aug. 25, a three-judge panel of the United States Court of Appeals for the Sixth Circuit rejected a challenge to Ohio laws that allow unions to become exclusive bargaining agents for all public-sector employees within a bargaining unit.

Who are the parties to the suit?  

The plaintiff is Jade Thompson, a Spanish teacher at Marietta High School in Ohio.  Attorneys from the Buckeye Institute and Baker and Hostetler, LLP, represent her. The Buckeye Institute describes itself as “an independent research and educational institution – a think tank – whose mission is to advance free-market public policy in the states.” 

The defendants are the Marietta City School District Board of Education and the Marietta Education Association, a teachers’ union that is the exclusive bargaining representative for the district’s employees. 

What is at issue?

Ohio law allows a union to become the exclusive bargaining agent for all public-sector employees within a bargaining unit, if the union can prove that a majority of the unit’s members want its representation. If a union has been certified as a unit’s exclusive bargaining agent, the public employer must bargain with that union and no one else. This prohibition extends both to individuals and other labor organizations. 

Thompson, who is not a member of the union that represents her bargaining unit, objects to the union’s “policies and to any association with it.” She filed suit in the United States District Court for the Southern District of Ohio, alleging that: 

  1. Ohio’s exclusive bargaining law “violates her [First Amendment] rights to be free from compelled speech and association”
  2. The law violates her First Amendment “right to meaningfully communicate with the government”

Judge Michael Watson, who was appointed to the bench by George W. Bush (R), rejected these arguments on Nov. 26, 2019. Thompson appealed the decision to the United States Court of Appeals for the Sixth Circuit. 

How did the court rule?

The three-judge appellate panel unanimously affirmed the district court’s decision. Judge Amul Thapar, who was appointed to the court by Donald Trump (R), wrote the court’s opinion. Addressing Thompson’s first argument, Thapar cited Minnesota State Board for Community Colleges v. Knight. In Knight, a group of non-union community college instructors objected to a Minnesota statute allowing an exclusive representative to speak on behalf of all of a bargaining unit’s employees at “meet and confer” sessions. The U.S. Supreme Court ruled Minnesota had “in no way restrained [the instructors’] freedom to speak … or their freedom to associate or not to associate with whom they please.” Thapar wrote: 

“Knight controls here. If allowing exclusive representatives to speak for all employees at “meet and confer” sessions does not violate the First Amendment, we see no basis for concluding that the result should be different where the union engages in more traditional collective bargaining activities. It appears that every other circuit to address the issue has agreed.”

Regarding Thompson’s second argument, Thapar wrote: 

“First, we consider Smith v. Arkansas State Highway Employees. There, the [Supreme Court] held that the First Amendment imposes no “affirmative obligation on the government to listen, to respond[,] or . . . [to] bargain.” And since the government has no obligation to bargain with Thompson, it is difficult to see how the government’s decision to bargain with someone else violates her rights. Second, in Knight, the Supreme Court recognized that it was “doubtless true that the unique status of the exclusive representative … amplifies its voice in the policymaking process.” But amplification “is inherent in government’s freedom to choose its advisers.” And a “person’s right to speak is not infringed when government simply ignores that person while listening to others.” Thus, Knight again forecloses Thompson’s claim.”

Judges Julia Gibbons and Richard Griffin, both George W. Bush (R) appointees, joined Thapar’s opinion. 

About the Sixth Circui

The United States Court of Appeals for the Sixth Circuit is a federal court that hears appeals from the district courts within its jurisdiction, which includes Kentucky, Michigan, Ohio, and Tennessee. The court has 16 authorized judicial posts and no current vacancies. The chief judge is Guy Cole, a Bill Clinton (D) appointee. Of the court’s 16 active judges, five were appointed by Democrats and 11 by Republicans. Appeals are heard in the Potter Stewart United States Courthouse in Cincinnati, Ohio. 

What comes next?

Neither Thompson nor her attorneys have not said whether they will appeal the decision. The case name and number are Thompson v. Marietta Education Association (19-4217).

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.



Vegas police officer files union membership resignation policies lawsuit

Las Vegas police officer files federal lawsuit over union membership resignation policies  

On Aug. 10, a Las Vegas police officer filed suit in the U.S. District Court for the District of Nevada against both her union and the police department, alleging the union’s membership resignation policies violate her First Amendment rights.

Who are the parties to the suit?  

The plaintiff is Melodie DePierro, an officer of the Las Vegas Metropolitan Police Department. Her attorneys are from the National Right to Work Legal Defense Foundation, which describes itself as a “nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses.”

The defendants are the Las Vegas Police Protective Association (LVPPA) and the Las Vegas Metropolitan Police Department. Founded in 1947, the LVPPA, an affiliate of the National Association of Police Organizations, represents active and retired police and corrections officers and the Las Vegas Deputy City and Municipal Court Marshals. 

What is at issue?

On Jan. 9, DePierro informed both the LVPPA and the police department of her resignation from the union. DePierro requested that dues deductions from her wages stop immediately. 

Both the LVPPA and the police department denied DePierro’s request. They cited Article 4.1 of the current collective bargaining agreement between the LVPPA and the police department: 

“The [Las Vegas Metropolitan Police Department] agrees to deduct from the paycheck of each employee within the bargaining unit who has signed an authorized payroll deduction card such amount as has been designated by the Association as Association dues and is so certified by the treasurer of the Association. … Dues deduction authorization shall be irrevocable for a period of one (1) year and automatically renewed each year thereafter commencing October 1, except that authorization may be withdrawn by an employee during a period of 20 days each year ending October 20.” 

DePierro says she never signed a dues deduction authorization form. Her attorneys say “the restrictive revocation policy, contained in the collective bargaining agreement and as applied to DePierro, prohibits DePierro from exercising her First Amendment right under Janus not to subsidize a labor union and its speech.” 

DePierro’s attorneys are seeking the following from the court: 

  • A declaratory judgment that the policy in question is unconstitutional and that DePierro’s Jan. 9 resignation was valid.
  • An injunction permanently barring the defendants from collecting dues from DePierro. 
  • An order requiring the defendants to reimburse DePierro for all dues deducted from her wages after her Jan. 9 resignation. 
  • A judgement awarding DePierro nominal damages, costs, and reasonable attorneys’ fees.

What are the reactions?

The police department has not publicly responded to the lawsuit, in keeping with its policy not to comment on pending litigation. The LVPPA has also not commented on the suit. 

What comes next?

The case is currently assigned to Judge Gloria M. Navarro, a Barack Obama (D) appointee. No hearings have been scheduled yet. The case name and number are DePierro v. Las Vegas Police Protective Association Metro, Inc., 2:20-cv-01481.

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

  • California AB2850: This bill would specify 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.
    • Democratic sponsorship.
    • Senate Appropriations Committee reported favorably Aug. 20. Read second time and ordered to third reading.
  • Virginia HB5021: This bill would prohibit consideration of any action or discussion regarding the hiring, firing, or discipline of a local employee during collective bargaining negotiations. 
    • Republican sponsorship.
    • Introduced and referred to House Labor and Commerce Committee Aug. 18.
  • Virginia SB5027: This bill would establish that no local governmental entity is authorized to recognize or collectively bargain with a law enforcement employee union. Effective May 1, 2021, localities would have the authority to recognize such unions if a local ordinance allowing for such recognition is passed.
    • Republican sponsorship.
    • Senate Commerce and Labor Committee passed by indefinitely Aug. 19.
  • Virginia SB5078: This bill would prohibit municipalities from recognizing any labor union or association as the bargaining agent of any law enforcement agency.
    • Republican sponsorship.
    • Introduced and referred to Senate Commerce and Labor Committee Aug. 18. Hearing scheduled Aug. 19.


Penn. state employee sues AFSCME Council 13 over automatic paycheck dues deductions

Penn. state employee sues AFSCME Council 13 over automatic paycheck dues deductions                   

On July 6, a Pennsylvania state employee filed suit in the U.S. District Court for the Western District of Pennsylvania against the American Federation of State, County, and Municipal Employees Council 13 and state officials. The employee alleges that the union violated her First and Fourteenth Amendment rights when it continued to collect dues from her paychecks against her wishes after she resigned her membership. 

Who are the parties to the suit?  

The plaintiff is LuAnn Zeigler, an employee of the Pennsylvania Department of Revenue. She is represented by attorneys from the Fairness Center, which describes itself as “nonprofit, public interest law firm that provides free legal services to those hurt by public-sector union officials.” The Fairness Center has, to date, filed eight suits against AFSCME Council 13 over the union’s dues deduction practices.

The defendants are: 

  • AFSCME Council 13
  • Michael Newsome, in his capacity as Secretary of the Pennsylvania Office of Administration
  • Brian T. Lyman, in his capacity as Chief Accounting Officer for the Commonwealth and Deputy Secretary for the Office of Comptroller Operations

AFSCME Council 13 is one of Pennsylvania’s larger public-sector labor unions. According to its most recent annual report filed with the U.S. Department of Labor, AFSCME Council 13 had 52,883 dues-paying members and 582 fee payers (who are not considered full members), as of Sept. 27, 2019.

What is at issue?

The collective bargaining agreement covering Zeigler’s employment is in effect from July 1, 2019, to June 30, 2023. It provides for automatic dues deductions and stipulates that “the employer shall rely on the information provided by the union to cancel or change authorizations.” 

On July 25, 2018, Zeigler signed a union membership card, which stated that dues deduction authorizations are revocable only “during the 15 days before the annual anniversary date of this authorization or, for public sector contracts, during the 15 days before the date of termination of the appropriate collective bargaining agreement between the employer and the union, whichever occurs sooner.” 

Zeigler resigned from the union on Jan. 2. On Jan. 31, a union representative wrote to Zeigler, confirming both the cancelation of her membership and the continuation of dues deductions: “When you joined the union, you agreed to continue to provide financial support in an amount equal to dues until a certain window period. … Given your commitment to continue providing financial support at least until this window, you cannot cancel your payments right now.” 

Zeigler and her attorneys argue that continued compulsory dues deductions violate her rights to free speech, association, and equal protection under the First and Fourteenth Amendments, respectively. They cite the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME.  

What comes next?

The case is currently assigned to Judge David Cercone, a George W. Bush (R) appointee. No hearings have been scheduled yet. The case name and number are Zeigler v. American Federation of State, County and Municipal Employees, Council 13, 2:20-cv-00996.

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

  • California AB2850: This bill would specify 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.
    • Democratic sponsorship.
    • Senate Labor, Public Employment and Retirement Committee reported favorably Aug. 12. Referred to Senate Appropriations Committee. Hearing scheduled Aug. 17.


How is 2020’s legislative activity shaping up?

Comparing legislative activity in 2020 and 2019                   

In this week’s edition, we compare legislative activity on public-sector labor issues in the first seven months of 2020 with activity during the same period in 2019.

2019 legislative activity, January through July  

In the first seven months of 2019, legislatures nationwide took up 101 bills related to public-sector labor policy. Seven became law. 

  • Total number of bills introduced or carried over from prior sessions: 101
    • Bills sponsored by Democrats: 50
    • Bills sponsored by Republicans: 38
    • Bills sponsored by bipartisan groups: 6
    • Bills sponsored by committees: 7
  •  Total number of enacted bills: 7
    • Illinois SB1784: This bill requires that public-sector union representatives be granted an opportunity to meet with new hires. It requires employers to furnish unions with worker information, including addresses, contact numbers, and email addresses. It also permits unions to limit the period during which members can resign and rescind dues deduction authorizations. 
    • Nevada SB135: This bill provides for collective bargaining rights for state employees.
    • Oregon HB3009: This bill requires public employers to provide unions with access to new employees. This bill also permits individuals who are not union members to make payments in lieu of dues to unions. 
    • Oregon HB2016: This bill requires public employers to grant paid time to employees participating in certain union activities. It also requires employers to furnish unions with access to employees. 
    • Rhode Island H5259: This bill authorizes unions to impose fees on non-members for administrative matters.
    • Rhode Island S0712: This bill authorizes unions to impose fees on non-members for administrative matters. It requires employers to notify unions within five days of hiring new employees. It also requires employees to file written notice with the state controller in order to discontinue dues payroll deductions.
    • Washington HB1575: This bill declares that public employers and public-sector unions are not liable for claims involving agency fees paid to unions before Janus. It repealed statutes requiring employees to join unions or pay dues as a condition of employment. It also amends dues deduction authorization laws, allowing authorizations to be initiated via electronic, voice, or written communication. It also requires authorizations to be discontinued by a written request made to the union.
  • States with the most legislative activity:
    • Oregon: 10 bills
    • Pennsylvania: 9 bills
    • Washington: 8 bills
    • Massachusetts: 6 bills
    • New Hampshire: 6 bills
    • Oklahoma: 5 bills

2020 legislative activity, January through July

In the first seven months of 2020, legislatures nationwide have taken up 99 bills related to public-sector labor policy. This is roughly on par with the number of relevant bills taken up during the same period in 2019. Three bills became law. 

Although sessions in many states were either suspended or otherwise affected as a result of the COVID-19 outbreak, the similarity between the total number of bills introduced or carried over in 2019 and 2020 shows that most of this activity occurs in the first two or three months of the year when legislatures first convene. 

  • Total number of bills introduced or carried over from prior sessions: 99
    • Bills sponsored by Democrats: 52
    • Bills sponsored by Republicans: 34
    • Bills sponsored by bipartisan groups: 5
    • Bills sponsored by committees: 8
  •  Total number of enacted bills: 3
    • Virginia HB582: This bill repealed an existing ban on collective bargaining by public employees.
    • Virginia SB939: This bill permitted local governments to recognize unions as bargaining agents for public-sector workers.
    • Washington HB2017: This bill established collective bargaining rights for administrative law judges.
  • States with the most legislative activity:
    • Pennsylvania: 10 bills
    • Oklahoma: 8 bills
    • Washington: 8 bills
    • Maryland: 7 bills
    • California: 6 bills 
    • New Hampshire: 6 bills

The stacked bar chart below compares the 2019 and 2020 figures by partisan affiliation of bill sponsors. 

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

  • California AB2850: This bill would specify 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.
    • Democratic sponsorship.
    • Senate Labor, Public Employment and Retirement Committee hearing, scheduled Aug. 5, postponed.


Penn. public-sector employee sues AFSCME over membership resignation policies

Penn. public-sector employee sues AFSCME over membership resignation policies            

On July 29, a public-sector employee in Pennsylvania filed a federal suit against the American Federation of State, County, and Municipal Employees (AFSCME) Council 13, challenging the constitutionality of the union’s membership and dues-deduction revocation policies.

Who are the parties to the suit?  

The plaintiff is Ralph R. Rhodes, an employee of the state Department of Human Services. Attorneys from the Fairness Center are representing Rhodes. The Fairness Center describes itself as “a nonprofit, public interest law firm that provides free legal services to those hurt by public-sector union officials.”

The defendants are AFSCME Council 13 and its executive director, David R. Fillman. AFSCME Council 13 is one of Pennsylvania’s larger public-sector labor unions. According to its most recent annual report filed with the U.S. Department of Labor, AFSCME Council 13 had 52,883 dues-paying members and 582 fee payers (who are not considered full members), as of Sept. 27, 2019. 

What is at issue?

AFSCME Council 13 negotiated a collective bargaining agreement with the state, effective July 1, 2016, through June 30, 2019. Resignations from the union were restricted to the 15-day period preceding the expiration of the agreement. Union policies also limit revocations of dues deduction authorizations to either the 15-day period preceding the annual anniversary date of the authorization or the 15-day period preceding the expiration of the collective bargaining agreement.  

Rhodes submitted his resignation letter to the union, both by mail (postmarked June 25, 2019) and in person (to his union representative). Rhodes alleges “defendants continued to take and/or accept purported union dues deducted from plaintiff’s wages even after they knew that seizure of purported union dues from plaintiff’s wages was against plaintiff’s will and without his consent.” Rhodes argues these actions amounted to “compelled association and speech,” in violation of his First and Fourteenth Amendment rights. He is seeking damages in the amount of all dues deducted from his wages between the date of his resignation and the date on which the deductions stopped (June 12, 2020). 

What are the reactions? 

Nathan McGrath, president of the Fairness Center, said, “Mr. Rhodes followed all the right steps to resign, and the union refused to honor his resignation. In addition to ignoring his resignation, AFSCME added insult to injury by continuing to take union dues from Mr. Rhodes long after he resigned.” 

AFSCME Council 13 officials have not commented publicly on the lawsuit. 

What comes next? 

The suit was filed in the United States District Court for the Middle District of Pennsylvania. It has been assigned to Judge Matthew Brann, a Barack Obama (D) appointee. The case name and number are Rhodes v. American Federation of State County and Municipal Employees Council 13, 4:20-cv-01313. 

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

  • California AB2850: This bill would specify 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.
    • Democratic sponsorship.
    • Amended and re-referred to Assembly Labor and Public Employment and Retirement committees July 28.
  • Ohio HB733: This bill would make employees of the General Assembly subject to the state’s Public Employees’ Collective Bargaining Law.
    • Democratic sponsorship. 
    • Introduced July 27. 

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Union Station: July 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.

Federal court dismisses Alaska state employee lawsuit over union dues payment practices

On July 15, a federal district court dismissed a lawsuit filed by two Alaska state employees over union dues payment practices limiting the period of time during which a member can withdraw his or her consent to having dues withdrawn from his or her paycheck.

Who are the parties to the suit?

The plaintiffs are Linda Creed, an employee of the Alaska Department of Environmental Conservation, and Tyler Riberio, an employee of the Alaska Department of Transportation. Attorneys from the Alaska Policy Forum and the Liberty Justice Center represent the plaintiffs.

The defendants are the Alaska State Employees Association (ASEA), an affiliate of the American Federation of State, County, and Municipal Employees, and Kelly Tshibaka, in her official capacity as commissioner of the Department of Administration.

What is at issue?

Alaska’s Public Employment Relations Act (PERA) allows for the automatic deduction of union dues or fees from an employee’s paycheck upon his or her written consent. The Alaska State Employees Association dues deduction authorization form establishes the following restrictions on rescinding the authorization:

“This voluntary authorization and assignment shall be irrevocable, regardless of whether I am or remain a member of ASEA, for a period of one year from the date of execution or until the termination date of the collective bargaining agreement (if there is one) between the Employer and the Union, whichever occurs sooner, and for year to year thereafter unless I give the Employer and the Union written notice of revocation not less than ten (10) days and not more than twenty (20) days before the end of any yearly period.”

The following is a timeline of the major events related to this lawsuit:

  • June 27, 2018: The U.S. Supreme Court ruled in Janus v. AFSCME, that public-sector unions cannot compel workers to pay fees to support non-political union activities (contract administration, grievance arbitration, etc.).
  • Aug. 27, 2019: Alaska Attorney General Kevin Clarkson (R) issued a formal opinion that, in light of Janus, the state must have an employee’s consent in order to deduct dues or fees from his or her paycheck.
  • Sept. 26, 2019: Pursuant to Clarkson’s opinion, Governor Mike Dunleavy (R) issued an administrative order directing Tshibaka to obtain consent from employees in order to continue dues deductions. Creed and Riberio withdrew their consent, and the state stopped deducting dues from their paychecks.
  • Oct. 3, 2019: A state trial court issued a temporary restraining order barring implementation of Dunleavy’s order. Dues deductions resumed for both Creed and Riberio.
  • March 16, 2020: The plaintiffs filed suit in the United States District Court for the District of Alaska, arguing that the existing restrictions violate their First Amendment rights. They asked for an injunction against the restrictions. They also sought restitution for dues paid to the union before Janus. They argued that their “consent to dues collection was not ‘freely given’ because it was given on an unconstitutional choice of either paying the union as a member or paying the union agency fees as a non-member.” The case was assigned to Judge H. Russel Holland, who was appointed to the court by President Ronald Reagan (R) in 1984.

How did the court rule? 

Holland granted ASEA’s motion to dismiss, ruling that the plaintiffs had voluntarily entered into their membership agreements, which are binding contracts:

“[Any] argument that the revocation window in plaintiffs’ contract is itself unconstitutional fails, and in fact, plaintiffs contend that they are not arguing that the revocation window is itself unconstitutional. Rather, they contend that they are arguing that they must be released from their authorizations outside the revocation window because the authorizations were invalid in the first place.”

“But … 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.”

Case information 

The plaintiffs have not indicated whether they intend to appeal Holland’s decision to the United States Court of Appeals for the Ninth Circuit. The case name and number are Creed v. Alaska State Employees Association, 3:20-cv-00065.

THE BIG PICTURE

Number of relevant bills by state

We are currently tracking 97 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.



Michigan Civil Service Commission approves union dues deduction rule change

Michigan Civil Service Commission approves rule change for deducting union dues from employee paychecks                 

On July 13, the Michigan Civil Service Commission voted 3-1 in favor of a rule change requiring unionized state employees to authorize union dues deductions from their paychecks on an annual basis. 

What is at issue?

Rule 6-7 of Michigan’s Civil Service Rules had allowed for the deduction of union dues from workers’ paychecks, subject to their consent. The rule did not establish an expiration date for dues deduction authorizations: 

“If agreed to in a collective bargaining agreement, the state may deduct the dues or service fee of a member of an exclusively represented bargaining unit through payroll deduction. An appointing authority cannot deduct membership dues or service fees unless the employee has made a voluntary authorization. The director shall establish the exclusive process for employees to authorize or deauthorize deduction of dues or fees.” 

Under the rule change which takes effect Sept. 1, workers must consent to dues deductions annually. If a worker does not authorize dues deductions between now and Sept. 1, dues deductions will be automatically cancelled. 

What is the Michigan Civil Service Commission, and how did the vote split? 

The Michigan Civil Service Commission is a state agency that regulates all conditions of employment for classified state employees. The governor appoints the commission’s four members to staggered eight-year terms. 

Gov. Rick Snyder (R) appointed all four current members of the commission. Three members – James Barrett, Jase Bolger, and Jeff Steffel – voted to approve the rule change. Commission chair Janet McClelland voted against it. Bolger and Barrett are registered with the Republican Party. Steffel and McClelland are registered independents.

What are the reactions? 

Support

  • Bolger said the rule change is a “protection of rights” for state employees: “I do not agree with claims that it impacts rights to collective bargaining. Instead, unions will be able to make their case, but I do believe it protects individual workers’ rights. Workers will remain free to make their choice.” 

Opposition

  • Ron Bieber, president of the Michigan affiliate of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), said, “This action has no other purpose than to impose arbitrary hardships on bargaining units, create turmoil in workplaces during a historic pandemic and a global recession, and disrupt the work that unions do on behalf of these state workers. It’s unconstitutional, it’s unsupported by any recent laws or court decisions, and it’s just plain wrong. They should be ashamed.

Relation to Janus v. AFSCME

  • Vincent Vernuccio, senior fellow for the Mackinac Center for Public Policy, discussed the rule change in relation to the Supreme Court’s 2018 decision in Janus v. AFSCME: “In 2018, the U.S. Supreme Court issued the [Janus] decision that did two things, both of which are being updated for the rule change here. The first, it basically gave right to work for state employees throughout the country. The second, in what Justice [Samuel] Alito called ‘affirmative consent,’ it required an opt-in provision to protect the public employees’ First Amendment rights.”
  • Chuck Browning, director of the United Auto Workers Region 1A, disputed the application of Janus as a justification for the rule change: “As the court itself noted, ‘States can keep their labor relations systems exactly as they are.’ Only that they don’t have to force non-members to subsidize public sector unions. Janus, therefore, does not justify the proposed rule change.”

What we’ve been reading 

The big picture

Number of relevant bills by state

We are currently tracking 97 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.

 



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