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Univ. of Washington employee sues SEIU over membership opt-out provisions

On Jan. 20, an employee of the University of Washington filed a class-action lawsuit in U.S. District Court, alleging that her union, Service Employees International Union (SEIU) 925, had unconstitutionally barred her and other employees from opting out of union membership.

Who are the parties to the suit? The lead plaintiff is Charlene Wagner, a fiscal specialist for the state university system. She is represented by the Freedom Foundation, a nonprofit think tank and litigation firm whose self-described mission is “to advance individual liberty, free enterprise, and limited, accountable government.” The Freedom Foundation is currently involved in approximately 60 lawsuits concerning public-sector union practices in the aftermath of Janus v. AFSCME. The main defendant is Service Employees International Union (SEIU) 925, which represents about 17,000 education workers in Washington, making it one of the largest public-sector unions in the state. The University of Washington is also named as a defendant.

What is at issue? In October 2018, Wagner sought to opt out of union membership and cancel her dues deduction authorization. SEIU 925 informed her that the membership agreement she had signed limited opt-outs to an annual two-week period (in this case, from April 29, 2019, to May 14, 2019).

Wagner and her attorneys argue that “dues are being seized under an unconstitutional [state] law that gives the union sole discretion over who the university – a state actor – is and isn’t authorized to deduct dues from.” They also allege that “a union cannot impose an irrevocability provision, containing a narrow opt-out window, on union nonmembers without a knowing First Amendment waiver.”

What are the reactions? In a press release, Freedom Foundation Senior Litigation Counsel James Abernathy said, “The whole point of Janus is to protect the First Amendment rights of public employees to not support a labor union. State laws that try to limit those rights are unconstitutional regardless of whether they were passed before or after Janus. … We shouldn’t have to keep relitigating the same issues, but SEIU 925 apparently believes it can disregard laws it doesn’t like.”

As of Jan. 24, neither SEIU 925 nor the University of Washington have commented publicly on the suit.

What comes next? The suit was filed in the U.S. District Court for the Western District of Washington. It has been assigned to Judge Barbara Rothstein. Rothstein was first appointed to the federal bench by President Jimmy Carter (D). The case name and number are Wagner v. University of Washington (2:20-cv-00091).

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 66 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 January 24, 2020.png

Number of relevant bills by current legislative status

Union Station status chart January 24, 2020.png

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

Union Station partisan chart January 24, 2020.png

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. Bills are listed in alphabetical order, first by state then by bill number.

  • Hawaii SB2770: This bill would require public employers to reimburse unions for costs associated with collective bargaining, contract administration, etc.
    • Introduced Jan. 17 and passed first reading in Senate Jan. 21.
  • Iowa HF2074: This bill requires that negotiations between public employers and employees include terms authorizing dues deduction checkoffs for employees who are union members. This bill also repeals a prohibition on public employers from authorizing or administering dues deductions.
    • Introduced and referred to House Labor Committee Jan. 22.
  • Iowa HF2075: This bill would eliminate statutory language providing for public-sector union retention and recertification elections. It would also make other changes to the laws governing such elections.
    • Introduced and referred to House Labor Committee Jan. 22.
  • Maryland HB214: This bill would grant collective bargaining rights to graduate assistants in the University of Maryland system, Morgan State University, and St. Mary’s College.
    • House Appropriations Committee hearing scheduled Jan. 23.
  • New Hampshire HB1290: This bill would require the state public employee labor relations board to permit employees to vote by mail in certification elections.
    • House Labor, Industrial, and Rehabilitative Services Committee hearing scheduled Jan. 23.
  • New Hampshire HB1399: This bill would allow a bargaining unit to request certification of its union/representative.
    • House Labor, Industrial, and Rehabilitative Services Committee hearing scheduled Jan. 23.
  • New Mexico SB110: This bill would make various amendments to the state’s public-sector labor relations laws.
    • Introduced Jan. 21.
  • Washington HB1333: This bill would alter the definition of a public employee under the state’s public employee collective bargaining law.
    • House Appropriations Committee executive session scheduled Jan. 23.
  • Washington HB2017: This bill would establish collective bargaining rights for administrative law judges. This bill deals with the same subject as SB6224.
    • House Appropriations Committee hearing scheduled Jan. 22.
  • Washington SB6224: This bill would establish collective bargaining rights for administrative law judges. This bill deals with the same subject as HB2017.
    • Senate Labor and Commerce Committee hearing scheduled Jan. 20.


Maine professor asks Supreme Court to strike down exclusive representation requirement

On Jan. 2, 2020, a professor at the University of Maine filed an appeal with the U.S. Supreme Court requesting that it overturn a Maine law compelling public-sector employees to accept a union’s representation regardless of their membership status with that union (i.e., exclusive representation).

Who are the parties to the suit? The plaintiff is Jonathan Reisman, an associate professor of economics and public policy at the University of Maine at Machias. He is being represented by attorneys from The Buckeye Institute, an Ohio-based think tank, and BakerHostetler, a Washington, D.C. law firm. The defendants include Reisman’s union, the Associated Faculties of the University of Maine, the University of Maine and its board of trustees, and the state of Maine. The Associated Faculties of the University of Maine, an affiliate of the National Education Association, represents about 1,000 faculty members.

What is at issue? Reisman argues that Maine’s exclusive representation law violates his First Amendment free-speech and associational rights. Robert Alt, president and chief executive officer of The Buckeye Institute and a lead attorney for Reisman, said, “If state law cannot compel public employees to financially support union advocacy — as the [Supreme Court] ruled in Janus v. AFSCME — how can states require these same public employees to accept representation from unions that many of them have chosen not to join?”

How have the lower courts ruled in this matter? On Dec. 3, 2018, Judge Jon Levy, of the U.S. District Court for the District of Maine, dismissed the case. Levy said, “[By] authorizing the union, in its role as the agent for the bargaining unit, to negotiate with the board on matters related to the terms and conditions of employment, the act does not cloak the union with the authority to speak on issues of public concern on behalf of employees, such as Reisman, who do not belong to the union. Reisman remains free to speak out in opposition to the union and its positions as he sees fit. His constitutional challenge to the act thus rests on a fundamental misconception.”

Reisman appealed Levy’s decision to the U.S. Court of Appeals for the First Circuit. A three-judge panel, comprising Judges O. Rogeriee Thompson, Bruce Marshall Selya, and David Barron, heard the appeal. On Oct. 4, 2019, the panel voted unanimously to affirm Levy’s dismissal. Barron, writing for the court, said, “Considered in context … § 1025(2)(E) [the challenged law] is not properly read to designate AFUM as Reisman’s personal representative, as he contends. Rather, that provision merely makes clear that a union, once it becomes the exclusive bargaining agent for a bargaining unit, must represent the unit as an entity, and not only certain of the employees within it, and then solely for the purposes of collective bargaining.”

  • Levy, Thompson, and Barron were appointed to their positions by President Barack Obama (D). Selya was appointed by President Ronald Reagan (R)

What comes next? In a press release announcing the appeal, Andrew Grossman, counsel of record for Reisman, said, “Following the Court’s landmark Janus ruling, it is clear that these [exclusive representation] laws are unconstitutional, and we hope the Court will recognize them as such.” The formal appeal, known as a petition for writ of certiorari, can be read here. The opposing parties have 30 days to file a brief in response. On average, the court acts on an appeal within about six weeks of its filing.

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 58 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 January 17, 2020.png

Number of relevant bills by current legislative status

Union Station status chart January 17, 2020.png

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

Union Station partisan chart January 17, 2020.png

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. Bills are listed in alphabetical order, first by state then by bill number.

  • Kentucky HB231: This bill would allow public-sector employees to form, join, and assist labor unions.
    • Referred to House State Government Committee Jan. 13.
  • Kentucky HB251: This bill would eliminate existing state laws restricting the rights of public-sector employees to form, join, and participate in unions. This bill would allow public employers to make agreements with labor unions requiring union membership as a condition of employment.
    • Introduced Jan. 13; referred to House Economic Development and Workforce Investment Committee Jan. 15.
  • Maine LD900: This bill authorizes certain classes of public-sector employees to strike.
    • Hearing scheduled Jan. 15.
  • Pennsylvania HB785: This bill would require public employers to inform non-union employees and new employees that they do not have to join or pay fees to a union as a condition of employment
    • Removed from table Jan. 14.
  • Tennessee HJR0687: This bill proposes a constitutional amendment making it unlawful for the state and any of its subdivisions, as well as any person, corporation, or association, to make union participation a condition of employment.
    • Introduced and referred to House Consumer and Human Resources Committee Jan. 14.
  • Vermont H0700: This bill would require employers to provide unions with employee contact information. It would provide for automatic deduction of union dues from members’ paychecks. It would allow unions to meet with new employees to provide them with information about union membership. It would also prohibit recipients of state funds from interfering with union organizing efforts.
    • Introduced and referred to House General, House, and Military Affairs Committee Jan. 15; hearing scheduled Jan. 16.
  • Virginia SB939: This bill would permit local governments to recognize unions as bargaining agents for public-sector workers.
    • Introduced and referred to Senate Labor and Commerce Committee Jan. 13.
  • Washington HB1333: This bill would alter the definition of a public employee under the state’s public employee’s collective bargaining law.
    • Reintroduced and retained in present status Jan. 13.
  • Washington HB1452: This bill would extend collective bargaining rights to employees of the legislative branch of state government.
    • Reintroduced and retained in present status Jan. 13.
  • Washington HB1845: This bill would establish that payroll deduction authorizations must be made directly by employees to employers on at least a biannual basis.
    • Reintroduced and retained in present status Jan. 13.
  • Washington HB2017: This bill would establish collective bargaining rights for administrative law judges.
    • Reintroduced and retained in present status Jan. 13.
  • Washington SB5623: This bill would declare that public employers and public-sector unions are not liable for claims involving agency fees paid to unions prior to Janus.
    • Reintroduced and retained in present status Jan. 13.
  • Washington SB5691: This bill would extend collective bargaining rights to employees of the legislative branch of state government.
    • Reintroduced and retained in present status Jan. 13.
  • Washington SB6224: This bill would establish collective bargaining rights for administrative law judges.
    • Reintroduced and retained in present status Jan. 13.


Ninth Circuit rules public-sector unions not liable for fees paid prior to Janus

On Dec. 26, 2019, the U.S. Court of Appeals for the Ninth Circuit ruled that public-sector unions cannot be required to refund fees paid prior to Janus v. AFSCME. In Janus, the U.S. Supreme Court held that compulsory collection of union fees violates workers’ free-speech and associational rights.

Who are the parties to the suit? The plaintiffs are Dale Danielson, Benjamin Rast, and Tamara Roberson, all Washington state employees. The defendants are Gov. Jay Inslee (D), David Schumacher, Director of Washington State Office of Financial Management, and American Federation of State, County, and Municipal Employees Council 28.

What is at issue? The plaintiffs first filed their class-action lawsuit on March 15, 2018 in the U.S. District Court for the Western District of Washington. In their original filing, the plaintiffs challenged the constitutionality of compulsory fee collection and sought refunds of “all agency fees that were unlawfully collected from Plaintiffs and their fellow class members.” On June 27, 2018, the U.S. Supreme Court issued its ruling in Janus v. AFSCME. In light of Janus, AFSCME Council 28 requested that the district court dismiss the suit as moot. The district court granted this request. The plaintiffs appealed that decision to the U.S. Court of Appeals for the Ninth Circuit.

How did the court rule? On Dec. 26, a three-judge panel of the appeals court unanimously affirmed the district court’s decision. Judge Jacqueline Nguyen wrote the court’s opinion, which was joined by Judges Ronald Gould and Gregory Presnell. Nguyen wrote, “Throughout the country, public sector employees brought claims for monetary relief against the unions pursuant to 42 U.S.C. § 1983. Many unions asserted a good faith defense in response. Joining a growing consensus, the district court here ruled in favor of the union. We affirm and hold that private parties may invoke an affirmative defense of good faith to retrospective monetary liability under 42 U.S.C. § 1983, where they acted in direct reliance on then-binding Supreme Court precedent and presumptively-valid state law.”

Nguyen was appointed to the court by President Barack Obama (D). Gould and Presnell were appointed by President Bill Clinton (D).

Case information: The case name and number are Danielson v. Inslee (3:18-cv-05206- RJB).

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 49 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 January 10, 2020.png

Number of relevant bills by current legislative status

Union Station status chart January 10, 2020.png

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

Union Station partisan chart January 10, 2020.png

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. Bills are listed in alphabetical order, first by state then by bill number.

  • Maine LD1960: This bill would make communications between municipal/state workers and their unions confidential in proceedings before the Maine Labor Relations Board.
    • Introduced and referred to Judiciary Committee Jan. 8.
  • Missouri HB1906: This bill would require public employees to provide annual written or electronic authorization for payroll deductions of union dues.
    • Introduced Jan. 8.
  • New Hampshire HB1290: This bill would require the state public employee labor relations board to permit employees to vote by mail in certification elections.
    • Introduced and referred to House Labor, Industrial, and Rehabilitative Services Committee Jan. 8.
  • New Hampshire HB1322: This bill would prohibit university system funds from being used to oppose the formation of unions.
    • Introduced and referred to House Labor, Industrial, and Rehabilitative Services Committee Jan. 8.
  • New Hampshire HB1399: This bill would allow a bargaining unit to request certification of its union/representative.
    • Introduced and referred to House Labor, Industrial, and Rehabilitative Services Committee Jan. 8.
  • New Hampshire HB1554: This bill would provide for changes to public employee voting in certification elections.
    • Introduced and referred to House Labor, Industrial, and Rehabilitative Services Committee Jan. 8.
  • New Hampshire SB448: This bill would require the state public employee labor relations board to certify a union as a bargaining unit’s exclusive representative if that union receives a “majority written authorization.”
    • Introduced and referred to Senate Commerce Committee Jan. 8.
  • Virginia HB327: This bill would allow state and local government employers to recognize any union as the bargaining agent of any public employees.
    • Introduced Jan. 1.
  • Virginia HB582: This bill would repeal the existing prohibition against collective bargaining by public employees.
    • Introduced Jan. 1


Department of Labor proposes rule requiring mid-level public-sector unions to disclose finances

On Dec. 17, the U.S. Department of Labor proposed a regulation that would require mid-level public-sector unions (i.e., state, regional, or district affiliates of national-level unions) to disclose their finances to the federal government if their parent organizations represent private-sector workers.

What are the current regulations? Since 2010, mid-level unions representing public-sector employees exclusively have not been subject to federal financial reporting requirements, even if their parent unions do represent some private-sector workers. The Labor-Management Reporting and Disclosure Act requires all unions representing private-sector workers to file regular financial disclosure reports with the U.S. Department of Labor.

What is the proposed regulation? The proposed regulation would restore a 2003 rule that required intermediate public-sector union affiliates to disclose their finances if their parent unions represented some private-sector workers. The 2003 rule was enacted by the Bush administration and later rescinded by the Obama administration. According to the U.S. Department of Labor, the proposal would result in expanded disclosure filings by mid-level affiliates of the National Education Association, the American Federation of Teachers, the Fraternal Order of Police, and the International Association of Firefighters. Membership and financial figures for these unions are as follows:

What are the reactions?

  • In July 2018, the Department of Labor indicated it was considering the rule change. At that time, NEA general counsel Alice O’Brien said, “Given the strength of the pedigree of the current rule, any attempt by DOL to proceed with the proposed rule would be another attack on unions by this administration.”
  • Also in July 2018, Glenn Spencer, vice president of employment policy at the U.S. Chamber of Commerce, said, “The [Labor-Management Reporting and Disclosure Act] is meant to be construed broadly and it’s meant to extend coverage as widely as possible.”

What comes next? The proposed rule was published in the Federal Register on Dec. 17. The Department of Labor will accept public comments on the proposal until Feb. 18, 2020.

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 107 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 December 20, 2019.png

Number of relevant bills by current legislative status

Union Station status chart December 20, 2019.png

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

Union Station partisan chart December 20, 2019.png

Recent legislative actions

No legislative actions have occurred since our last issue.



Four Oregon public school employees sue union over resignation restrictions

On Dec. 5, four Oregon public school employees filed suit in U.S. District Court alleging that their union has unconstitutionally denied their resignation requests, continuing to collect dues against their wishes.

Who are the parties to the suit? Plaintiffs Dori Yates, Claudia Strickland, Tonya Sevilla, and Linda Newton work for Hillsboro United School District. They are being represented by attorneys from the Freedom Foundation. The defendants are the American Federation of Teachers, the Oregon state chapter of the AFT, AFT Local 4671, and the school district.

  • The Freedom Foundation is a nonprofit organization whose self-described aim is “to reverse the stranglehold government unions have on our state and local policymaking.”
  • According to a report filed with the U.S. Department of Labor, the Oregon state chapter of the AFT had 9,085 full dues-paying members as of Sept. 28, 2018.

What is at issue? The union’s membership agreement states that members may only revoke their dues deduction authorization during a 30-day period in June each year. The membership agreement also states that members must pay dues for a minimum of one year before resigning. The plaintiffs allege these provisions constitute compelled speech and association, a violation of the First Amendment and the precedent established last year in Janus v. AFSCME.

  • In Janus v. AFSCME, the Supreme Court ruled that unions cannot require non-member employees to pay agency fees covering the costs of non-political union activities. This overturned an earlier precedent, Abood v. Detroit Board of Education, which held that non-members could be required to pay fees to a union if those fees were not used for political purposes.

What are the reactions?

  • In a press release, Rebekah Millard, an attorney for the plaintiffs, said, “The issue is the union isn’t even following the terms of their own cards, which are contradictory. Instead of letting members out either a year after they signed a membership card or every June, they’re saying both rules apply and keeping people in for the maximum amount of time, which can be months longer than would be the case if they applied just one ‘window.'”
  • As of Dec. 12, neither union representatives nor school officials have publicly commented on the lawsuit.

Case information: The case name and number are Yates v. American Federation of Teachers, 3:19-cv-01975-SB. The case has been assigned to Judge Stacie Beckerman, a magistrate judge of the U.S. District Court for the District of Oregon.

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 107 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 December 13, 2019.png

Number of relevant bills by current legislative status

Union Station status chart December 13, 2019.png

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

Union Station partisan chart December 13, 2019.png

Recent legislative actions

No legislative actions have occurred since our last issue.



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