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Illinois judge denies petition to have collective bargaining amendment removed from ballot

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On May 26, an Illinois judge denied a petition to have the Illinois Right to Collective Bargaining Amendment (Amendment 1) removed from the November general election ballot. 

Background

The Illinois General Assembly referred a constitutional amendment to the Nov. 8, 2022, ballot that would guarantee employees the right to organize and bargain collectively.

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

  1. “Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.”
  2. “The provisions of this Section are controlling over those of Section 6 of Article VII.”

In Illinois, a legislatively referred constitutional amendment requires three-fifths of the members of both houses of the General Assembly to vote to put it on the ballot. Amendment 1 was introduced as Senate Joint Resolution 11 on May 7, 2021. The resolution passed the Senate 49-7 on May 21, 2021, and passed the House 80-30 on May 26. No Democrats voted against the resolution. Eleven Republicans in the Senate and nine Republicans in the House supported the resolution. 

For the amendment to be ratified, the ballot measure must be approved by three-fifths of voters, or by a majority of voters who cast a ballot in the election. In most states, voters can pass a legislatively referred constitutional amendment with a simple majority vote on the question.  

About the petition

On April 21, 2022, petitioners Sarah Sachen, Ifeoma Nkemdi, Joseph Ocol, and Alberto Molina filed a petition and complaint in the Seventh Judicial Circuit Court in Sangamon County against the Illinois State Board of Elections, the Illinois Secretary of State, and the Illinois State Comptroller, seeking to remove the amendment from the ballot. Attorneys from the Liberty Justice Center and the Illinois Policy Institute represent the petitioners, who are Chicago Public School teachers or parents.  

The petitioners alleged that the National Labor Relations Act (NLRA) “preempts Amendment 1’s attempt to provide a state-law right to collective bargaining” and that “Amendment 1 conflicts with the NLRA.” The petitioners asked the court to declare that the amendment would violate the Supremacy Clause of the U.S. Constitution and to block the defendants from using public funds to put the amendment on the ballot. The petition said, “Petitioners have standing to bring their claim as taxpayers. Taxpayers are injured when the state uses its general revenue funds for an unconstitutional purpose because they are liable to replenish improperly used funds. … Thus, the Illinois Supreme Court has repeatedly recognized that taxpayers have standing to seek an injunction to prevent the state from using public funds to place an unconstitutional proposal on the ballot.” 

A hearing was held on May 20. 

The court’s decision

On May 26, Circuit Judge Raylene Grischow denied the petition, writing that “the Court has no power to restrain a referendum on the grounds that, if the proposed law were enacted, its enforcement would be unconstitutional” and that the petitioners “offer no basis for preventing the Amendment’s submission to the voters merely because some anticipated applications may be preempted by federal law.” 

Grischow wrote:

“At most, federal preemption would merely render the Workers’ Rights Amendment dormant, not invalid, because it would still apply to situations not covered by the NLRA and would become enforceable even as to preempted applications in the event the NLRA were ever repealed. … 

“Thus, the proposed Amendment would serve at least three permissible purposes. First, it would create rights for public employees, which Petitioners concede is not preempted by the NLRA. Second, it would restrain the power of the General Assembly to pass laws restricting union security agreements, a subject left open to the states. Third, it would act as a state-law failsafe to preserve rights for private-sector employees in the event the federal government ever decided to abandon the NLRA. … 

“Accordingly, the Petition states no reasonable grounds for filing suit. The Illinois constitution requires the amendment to be put to the voters because it complies with the requirements in Article XIV, section 2 of the Illinois constitution. The Court has no power to pass on the validity of the proposed Amendment unless and until it is adopted by the voters. To do so would constitute an improper advisory opinion. … Moreover, even if the Court could entertain Petitioners’ challenges to the anticipated enforcement of the proposed Amendment, Petitioners plainly concede it has substantial applications unaffected by any federal preemption. Petitioners are therefore not entitled to an order prohibiting the placement of the proposed Amendment on the ballot.”

The case name and number are Sachen v. Illinois State Board of Elections (22-CH-34).

What happens next

Representatives from the Liberty Justice Center and the Illinois Policy Institute say they plan to appeal the circuit court’s decision.  

Illinois Policy Institute attorney Mailee Smith said, “We are committed to pursuing our claims in court and ensuring Illinois voters are not forced to vote on an unconstitutional amendment. The law is clear that Amendment 1 would do more than the state is allowed to do. Illinoisans deserve to have this addressed now. Not later. Not after their tax dollars have been wasted putting an unconstitutional measure on the ballot. We look forward to our next opportunity to argue on behalf of taxpayers.”

According to NPR Illinois’ Hannah Meisel, Amendment 1 “will have a full-scale campaign behind it beginning later this spring, orchestrated by labor-backed independent expenditure committee Vote Yes for Workers Rights.” A representative for the committee said, “Frankly, we aren’t surprised that big money special interest groups are trying to keep workers in Illinois from being able to vote yes for workers rights in a fair and free election. … We’re confident that this amendment will be on the ballot in November…And I think that it’s very telling that [the opposition] knows voters have this opportunity to make this choice and they’re doing everything that they can to remove that choice from the hands of working Illinoisans.”

At least three state constitutions—in Hawaii, Missouri, and New York—provide a right to collective bargaining. Unlike in those states, the Illinois Right to Collective Bargaining Amendment would also preempt right-to-work laws prohibiting collective bargaining agreements requiring union membership as a condition of employment. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 144 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB1577: This bill would allow state legislative employees to organize and bargain collectively.
    • Bipartisan sponsorship.
    • Referred to Senate Labor, Public Employment, and Retirement Committee and Senate Judiciary Committee June 8.
  • California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
    • Democratic sponsorship.
    • Referred to Senate Labor, Public Employment, and Retirement Committee and Senate Judiciary Committee June 8. Senate Labor, Public Employment, and Retirement Committee hearing set for June 13.
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership.
    • Democratic sponsorship.
    • Assembly Judiciary Committee hearing set for June 14.
  • Pennsylvania HB844: This bill would ban public employee social security numbers and personal contact information as subjects of collective bargaining.
    • Republican sponsorship.
    • Removed from the table June 7, laid on the table again June 8.
  • Pennsylvania HB845: This bill would require any proposed public employee collective bargaining agreement to be published on the public employer’s website at least 14 days before the agreement is accepted. It would also make documents from the collective bargaining process into public records subject to the state’s right-to-know law.
    • Republican sponsorship.
    • Removed from the table June 7, laid on the table again June 8.
  • Pennsylvania HB2042: This bill would require public employers to provide non-union members with an annual notification that they are not required to make payments to a union and to provide new and returning employees with a notification that they do not have to join a union.
    • Republican sponsorship.
    • Removed from the table June 7, laid on the table again June 8.
  • Pennsylvania HB2048: This bill would prohibit collective bargaining agreements from authorizing the deduction of political contributions from public employee wages.
    • Republican sponsorship.
    • Removed from the table June 7, laid on the table again June 8.


Union Station: Pennsylvania judge says state fair share fees law is unconstitutional

 Judge Leonard G. Brown III of the Lancaster County Court of Common Pleas said in an order issued on May 23 that Pennsylvania’s Fair Share Fee Law is unconstitutional under the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME. Brown’s order does not overturn the Pennsylvania law. 

About the case

The plaintiffs, public school teachers Jane Ladley and Christopher Meier, filed a lawsuit in the Lancaster County Court of Common Pleas on Sept. 18, 2014, against the Pennsylvania State Education Association (PSEA). The Fairness Center, which represents the plaintiffs, said, “Ladley and Meier initially objected to paying the PSEA on religious grounds. Before the Janus ruling, PSEA officials could force teachers to pay union fees, but state law allowed religious objectors to send money to a charity of their choosing in lieu of paying fees to a union. But for years, PSEA officials rejected Ladley’s and Meier’s chosen charities and demanded that the money go to charities approved by the union.” 

After Janus, the union returned the money to the plaintiffs. 

On Oct. 29, 2018,  Judge Leonard G. Brown III dismissed the suit, writing, “While the change in law at the United States Supreme Court level did not automatically render the legal issue at hand moot, PSEA’s voluntary actions—its good-faith cessation of fair share fee collections and the steps it has taken to refund fair share fees and prevent their future collection—have created a change in facts sufficient to moot this case.”

Brown was elected to the court in November 2011 and retained in November 2021. Although Pennsylvania holds partisan judicial elections, Court of Common Pleas candidates may cross-file to run in the Democratic and Republican primaries, which Brown did in 2011. According to LNP’s Tom Murse, Brown is a registered Republican. 

The plaintiffs appealed to the Commonwealth Court of Pennsylvania on Nov. 28, 2018, asking it to declare Pennsylvania’s Fair Share Fee Law (Pennsylvania Statutes Title 71, Section 575) unconstitutional in light of Janus. The Fairness Center’s president, Nathan McGrath, said in January 2022, “The Supreme Court made clear in 2018 that public employee unions cannot force nonmembers to pay a union. … But Pennsylvania law still says unions can do just that. And almost four years after Janus, PSEA and its affiliates have continued to write illegal fair share fee provisions into teachers’ collective bargaining agreements. Our clients want to force PSEA to respect the Supreme Court’s ruling.”

The union replied in its brief to the court:

“The Brief of the Appellant religious objectors has it backwards: The Court cannot examine the vestigial remainder of Pennsylvania’s fair share fee statute to decide if it should be explicitly stricken down as an unconstitutional unless it has jurisdiction to do so conferred by a pending case that raises the issue as a justiciable controversy. Courts exist to settle disputes and declare rights. There is no dispute here. There is no need for a judicial declaration of rights. All parties acknowledge that the Pennsylvania fair share fee statute is unenforceable. No one is suggesting or trying to act otherwise. PSEA did not abandon fair share fee collection voluntarily to avoid the consequences of this litigation; it abandoned fair share because the United States Supreme Court declared it unconstitutional.” 

On Jan. 4, 2022, a seven-judge panel overturned Brown’s decision and sent it back, telling the lower court to determine whether the plaintiffs’ constitutional claims had merit. Judge Patricia McCullough wrote:

“Naturally, in determining whether Teachers were a ‘prevailing party’ for purposes of attorney’s fees and costs under 42 U.S.C. §1988, the trial court would have to examine the merits of Teachers’ underlying constitutional claims and/or the impact that the likelihood of success of such a claim had on PSEA and its decision to voluntarily discontinue collecting fair share fees. After the trial court makes that ruling, in the event of a subsequent appeal to this Court, our appellate review would entail a de novo evaluation of the trial court’s conclusions of law underlying its decision to grant or deny attorney’s fees. Therefore, this Court remands for the trial court to decide the issue of attorney’s fees and, in conjunction therewith, to render a determination regarding the merits of the Teachers’ constitutional claim.”  

McCullough was first elected to the Pennsylvania Commonwealth Court in 2009 as a Republican. Voters retained McCullough in 2019. 

On May 21, 2022, both parties filed an agreement for a consent order. On May 23, Brown wrote, “Judgment is entered in favor of Plaintiffs and against Defendant in that Defendant is enjoined from any application of Pennsylvania’s Fair Share Fee Law, 71 P.S. § 575, against Plaintiffs as said law is unconstitutional under the Supreme Court’s decision in Janus v. AFSCME, Council 31. … Defendant shall pay to Plaintiffs’ counsel $20,000.00 in full satisfaction of any claim to attorney’s fees and costs.” 

According to The Center Square’s Anthony Hennen, “The judgment doesn’t repeal Pennsylvania’s fair share fee law, but it establishes a warning of sorts.”

The case name and number are Ladley v. Pennsylvania State Education Association (CI-14-08552).

Two federal cases in the U.S. District Court for the Middle District of Pennsylvania, Misja v. Pennsylvania State Education Association (filed in 2015) and Williams v. Pennsylvania State Education Association (filed in 2016), had been on hold pending the outcome of Ladley since 2017. The plaintiffs in both cases filed dismissal agreements on May 23.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 144 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
    • Democratic sponsorship.
    • Read third time in Assembly, passed, ordered to Senate May 26. Read first time in Senate, referred to Rules Committee May 27. 
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
    • Democratic sponsorship.
    • Referred to Assembly Public Employment and Retirement Committee and Judiciary Committee May 27. 
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship.
    • Referred to Assembly Public Employment and Retirement Committee May 27.
  • Colorado SB230: This bill would give certain county employees the right to organize and bargain collectively beginning in 2023. 
    • Democratic sponsorship.
    • Governor signed May 27. 
  • Maryland HB172: This bill would allow the amount of union dues paid in a year to be subtracted from taxable state income. 
    • Democratic sponsorship. 
    • Governor vetoed May 27. 


Department of Justice says National Guard members can unionize while on state active duty

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On May 17, the U.S. Department of Justice settled a lawsuit four unions filed asking a federal court to declare that a federal law prohibiting members of the armed forces from unionizing did not apply to members of the National Guard on state active duty. 

About the case

Four unions representing workers in Connecticut—American Federation of State, County and Municipal Employees Council 4, the Connecticut Police and Fire Union, the National Association of Government Employees, and Civil Service Employees International Union Local 2001—filed a lawsuit on Nov. 15, 2021, in the U.S. District Court for the District of Connecticut against U.S. Attorney General Merrick Garland and the U.S. Department of Justice (DOJ). Attorneys from Yale Law School’s Veterans Legal Services Clinic and Livingston, Adler, Pulda, Meiklejohn & Kelly represented the unions. 

A union representative said at the time, “We are bringing this lawsuit because Guard members on state orders should have the same opportunity to have a voice in their state workplace as the public employees with whom they work shoulder to shoulder.”

The unions’ lawsuit said

“While serving under the command of the Governor and pursuant to state law, Guard members work alongside other state and local employees. Yet unlike firefighters, healthcare workers, law enforcement, emergency medical technicians, and other state and local employees, members of the Connecticut National Guard have no labor organization that can represent them or advocate for their interests when in state status.

Section 976 of Title 10 of the U.S. Code makes it a felony for members of the armed forces—including members of the National Guard when activated to federal status—to join or attempt to form a labor organization. The same federal statute makes it a felony for unions such as Plaintiffs to support labor organizing in the armed forces, including by Guard members when activated to federal status.

“The plain language of this federal criminal statute, confirmed by its legislative

history, does not apply to members of the National Guard when they are mobilized by state governors under state law. 

“However, the statute’s serious criminal penalties—combined with the lack of

historical and legal precedent confirming that a Guard member in state service who joins or forms a labor organization will not be subjected to federal prosecution—has chilled the speech and associational activity of Guard members in state service, and of unions that they might otherwise seek to join.”

The unions asked the court to either declare the statute did not apply to Connecticut National Guard members attempting to organize while serving on state active duty, or to block the statute from being enforced against National Guard members on state active duty as a violation of the First and Tenth Amendments.

In January 2022, Garland and the DOJ sought to dismiss the case. Justice Department lawyers said, “Plaintiffs seek a declaration that ‘members of the armed forces’ does not include members of the Connecticut National Guard on state active duty or in the Inactive National Guard. But by its own terms, § 976 does not apply to Guard members on state active duty or in the Inactive National Guard. Indeed, at no point in the history of § 976 has any government entity ever interpreted the statute as such. Plaintiffs’ suit is thus not a case or controversy within the meaning of Article III of the United States Constitution.” 

Two settlement conferences were held in March, and Garland and the DOJ reached a settlement with the unions on May 17. According to a news release from Yale Law School, “As part of the settlement … the Department of Justice’s position on the ability of National Guard members on state orders to organize has been distributed to all 54 National Guard Human Resources departments.”

The case name and number are AFSCME Council 4 et al. v. Garland et al. (3:21-cv-01524).

What happens now

According to the Associated Press’s Dave Collins, “Connecticut Guard members were waiting for the agreement to be finalized before beginning unionizing efforts,” and National Guard officials said they were reviewing the case. 

However, Collins said, the DOJ’s statement in January encouraged a group of Texas National Guard members to join the Texas State Employees Union months before the case was settled. Jacobin’s Steve Early and Suzanne Gordon wrote, “Union goals include a guaranteed end date for all Guard members on state active duty, full restoration of tuition assistance slashed by [Gov. Greg Abbott (R)], and immediate access to the same health care coverage as other state employees, along with state subsidized coverage ‘for our families while on Texas Military state mobilization.’”  

According to Collins, “[A Connecticut National Guard spokesman] said he did not think the lawsuit settlement would have a major impact on the state Guard, because active duty state deployments are not common. But it could have a significant effect on other state Guards with ongoing state deployments, including Texas …” 

Perspectives

Support

A news release from Yale Law School said, “[U]nions around the country can now support National Guard members on state orders in organizing for better conditions of employment without fear of prosecution under federal law.” 

Opposition

The Freedom Foundation, which calls itself a “battle tank that’s battering the entrenched power of left-wing government union bosses,” said, “Unionization is fundamentally incompatible with military service of any kind. Unionizing National Guard units could erode discipline, dilute the chain of command, and undermine unit readiness.” 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 143 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB1577: This bill would allow state legislative employees to organize and bargain collectively.
    • Bipartisan sponsorship.
    • Senate read second time, amended, and sent back to Senate Appropriations Committee May 24. Sent to Senate Rules Committee May 25.
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership.
    • Democratic sponsorship.
    • Senate read third time, passed, ordered to the Assembly May 24. Assembly read first time, held at desk May 25.
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship.
    • Senate read third time, passed, ordered to the Assembly May 24. Assembly read first time, held at desk May 25.
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
    • Democratic sponsorship.
    • Senate read third time, passed, ordered to the Assembly May 25.
  • Pennsylvania HB844: This bill would ban public employee social security numbers and personal contact information as subjects of collective bargaining.
    • Republican sponsorship.
    • Removed from the table May 24, laid on the table again.
  • Pennsylvania HB845: This bill would require any proposed public employee collective bargaining agreement to be published on the public employer’s website at least 14 days before the agreement is accepted. It would also make documents from the collective bargaining process into public records subject to the state’s right-to-know law.
    • Republican sponsorship.
    • Removed from the table May 24, laid on the table again.
  • Pennsylvania HB2042: This bill would require public employers to provide non-union members with an annual notification that they are not required to make payments to a union and to provide new and returning employees with a notification that they do not have to join a union.
    • Republican sponsorship.
    • Removed from the table May 24, laid on the table again.
  • Pennsylvania HB2048: This bill would prohibit collective bargaining agreements from authorizing the deduction of political contributions from public employee wages.
    • Republican sponsorship.
    • Removed from the table May 24, laid on the table again.


CMS rule allows states to deduct union dues, benefits from Medicaid payments

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On May 12, the Centers for Medicare & Medicaid Services (CMS) issued a rule allowing states to make Medicaid payments to third parties, such as for union dues or benefits, on behalf of individual home care providers.

About the rule

The final rule “explicitly authorizes States to make payments to third parties on behalf of individual practitioners, for individual practitioners’ health insurance and welfare benefits, skills training, and other benefits customary for employees, if the individual practitioner consents to such payments on their behalf.” The rule was published in the Federal Register on May 16.

The rule “reinterprets the scope” of Section 1902(a)(32) of the Social Security Act, which says, “[N]o payment under the plan for any care or service provided to an individual shall be made to anyone other than such individual or the person or institution providing such care or service,” with certain exceptions.

According to Bloomberg Law‘s Christopher Brown, “Medicaid has become increasingly reliant on the home health workforce in recent years as federal health-care policy has shifted to encourage care in the home and community rather than in institutions. Over 50% of Medicaid spending on long-term care now takes place in the home and communities, up from less than 10% in the 1980s.” Brown said that of the 3.4 million individual practitioners in the country, at least 800,000 belong to a union. 

The backstory 

In a final rule document published in 2014, during the Obama administration, CMS said the goal of the statute in question was “not to preclude a Medicaid program that is functioning as the practitioner’s primary source of revenue from fulfilling the basic responsibilities that are associated with that role.” The 2014 rule made an exception allowing states to “enter into third party payment arrangements on behalf of individual practitioners for health and welfare benefit contributions, training costs, and other costs customary for employees.” 

In 2019, during the Trump administration, CMS published a final rule that removed the 2014 exception, saying, “[T]his provision [§ 447.10(g)(4)] is neither explicitly nor implicitly authorized by the statute, which identifies the only permissible exceptions to the rule that only a provider may receive Medicaid payments.“ 

Six states—California, Connecticut, Illinois, Oregon, Massachusetts, and Washington—challenged the 2019 rule with a lawsuit filed in the U.S. District Court for the Northern District of California. In November 2020, the court struck the rule and sent it back to CMS for further assessment. The defendant, then-HHS Secretary Alex Azar, appealed to the U.S. Court of Appeals for the Ninth Circuit. The case was temporarily suspended following the change in administrations and is currently on administrative hold through June 2022. 

In the May 2022 final rule document, CMS said

“Presently, as a result of the district court decision, the 2019 final rule is nullified and the 2014 final rule implementing § 447.10(g)(4) represents current policy. When the district court vacated the 2019 final rule and remanded the case to HHS for further proceedings, we had broad discretion as to how to address the remand. Because the vacatur reestablished the policy from the 2014 rule, we could have simply published a final rule in the Federal Register waiving notice of proposed rulemaking and public comment and informing the public that § 447.10(g)(4) was in effect due to the district court’s decision … We initially appealed, then chose to review the statute anew, eventually determining that the payments to third parties addressed in this rulemaking fall outside the scope of the statute.”

To read more about the rulemaking process and see comments CMS received about the most recent rule, click here.

About CMS

Part of the Department of Health and Human Services (HHS), CMS administers public healthcare programs including Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), and the health insurance marketplaces created by the Affordable Care Act.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 142 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances. 
    • Democratic sponsorship. 
    • Assembly Appropriations Committee hearing May 19. 
  • California AB2556: This bill would change the time frame for a local public agency employer to implement a final offer after a factfinders’ recommendation has been submitted in the case of a dispute between the employer and employee organization. 
    • Democratic sponsorship.
    • Referred to Senate Labor, Public Employment and Retirement Committee May 18. 
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership.
    • Democratic sponsorship.
    • Senate Appropriations Committee hearing May 19. 
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits. 
    • Democratic sponsorship.
    • Senate Appropriations Committee hearing May 19.
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
    • Democratic sponsorship.
    • Senate Appropriations Committee hearing May 19.
  • Colorado SB230: This bill would give county employees the right to organize and bargain collectively beginning in 2023.
    • Democratic sponsorship.
    • Speaker of the House and president of the Senate signed May 18. Bill sent to the governor.
  • Louisiana HB663: This bill would allow public employees to resign from union membership and revoke dues deduction authorizations at any time. It would require employees to annually renew dues deduction authorizations by signing a form described in the bill. The public employer would be required to confirm the authorization by email.
    • Republican sponsorship. 
    • House Labor and Industrial Relations Committee hearing May 19. 
  • 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.
    • Referred to House Workforce Development Committee May 13.
  • 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.
    • Referred to House Workforce Development Committee May 13.


U.S. House of Representatives votes to let staff bargain collectively

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U.S. House of Representatives votes to let staff bargain collectively 

The U.S. House of Representatives voted on Tuesday to allow staff to unionize and bargain collectively. 

About the resolution

Rep. Andy Levin (D-Mich.) sponsored House Resolution 1096, which was introduced and passed on May 10. The House voted 217-202 along party lines to adopt the resolution. 

H.Res.1096 says: “The requirements and exemptions of [United States Code, Title 5, Chapter 71] as made applicable by section 220 of the [Congressional Accountability Act of 1995 (CAA)], shall apply to covered employees who are employed in the offices listed in section H2472.1 in the same manner and to the same extent as those requirements and exemptions are applied to other covered employees.” 

The employing offices listed in section H2472.1 of the resolution include “the personal office of any member of the House of Representatives or of any Senator,” “a standing select, special, permanent, temporary, or other committee of the Senate or House of Representatives,” and six other categories of offices. 

Part of the law to which section 220 of the CAA refers—United States Code, Title 5, Section 7102—says the following:

“Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right— (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and (2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.” 

The American Prospect’s Jarod Facundo wrote that the resolution would allow “nearly 10,000 House staffers to organize under the 1995 Congressional Accountability Act (CAA) … The resolution implements a provision of the CAA that’s been dormant for congressional staffers since 1996, when lawmakers allowed federal employees to unionize, but not their staffers.” According to CBS News’ Rebecca Kaplan and Kathryn Watson, “Congress approved the framework for Hill staffers to unionize … but never followed up by formally passing a set of regulations to allow staffers to begin the process.” 

An organization of staffers called the Congressional Workers Union, which says it has a “dedicated organizing committee that is focused on organizing Congress,” supported the resolution. Ahead of the vote, the group said, “With this vote, every member of Congress will have the opportunity to grant their own workers the right to organize and bargain collectively, free from retaliation. … We expect that every member who has stood up for workers’ rights will vote for our right to form a union.” A member of the group said, “We came to the Hill wanting to get involved in good public policy. … In personal offices [the pay] is devastatingly low, and there are stories of folks living in affordable housing struggling to make ends meet. And then on top of that, with wild hours, you have this burnout… [and] there’s so much incentive because of that burnout to go into lobbying work.” 

Vox’s Li Zhou wrote, “While CWU has gotten interest from Republican staffers … its work has predominantly been driven by Democratic ones.” 

According to the Associated Press’ Kevin Freking, “Collective bargaining would take place at the employing office level, which means that it will be done separately between members and House committees and their staffs. There will not be one bargaining unit covering most or all House employees.” Roll Call’s Chris Cioffi wrote, “For House staff, the future is in the hands of [the Office of Congressional Workplace Rights (OCWR)], which would certify and supervise the results of a secret ballot election for the ‘bargaining unit’ seeking to unionize. The vote would require a majority of an office’s staff to be in favor of a labor organization becoming their representative. … Staffers might face limits on what they could negotiate on benefits and wages unless new legislation changing those stipulations were passed.” 

A simple resolution affects only the operation of the chamber that initiated it. According to Congress.gov, “A matter concerning the rules, the operation, or the opinion of either House alone is initiated by a simple resolution. … Simple resolutions are considered only by the body in which they were introduced. Upon adoption, simple resolutions are attested to by the Clerk of the House of Representatives or the Secretary of the Senate and are published in the Congressional Record.” 

Perspectives

Support

The Congressional Workers Union said the vote was an “historic moment for thousands of congressional workers who have won basic labor protections to organize and bargain collectively without fear of retaliation. … For 26 years, Congress has had the opportunity to pass this resolution but has failed to act, until our collective demands were too loud for them to ignore. Tonight is a reminder of the power of collective action and what the freedom to form a union truly means — democracy not just in our elections, but in our workplaces too.”

Everett Kelley, national president of the American Federation of Government Employees, said, “Just three months after announcing their efforts to organize a union, House congressional staff have won an historic vote by the U.S. House that grants them the right to form a union and bargain over working conditions. … While there is much work to do before House staff can begin reaping the benefits of unionization, this is a historic achievement that paves the way for House staff to begin that process.”

Opposition 

Americans for Fair Treatment senior writer and researcher Suzanne Bates said, “This expansion on Capitol Hill is about unions building their political capital. It isn’t about the working class and what they need. … Can you imagine what union meddling could mean for a congressional committee or office?” 

Rep. Rodney Davis (R-Ill.) said, “Not only do most congressional staff already have the benefits most unions fight for … [unionization] would create serious problems and lead to even more dysfunction in Washington. … Congress’ unique office structure, fluctuating partisan balance, unpredictable schedule changes, and unavoidable turnover due to elections make unions impractical in our offices and committees.” 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 142 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB2556: This bill would change the time frame for a local public agency employer to implement a final offer after a factfinders’ recommendation has been submitted in the case of a dispute between the employer and employee organization.
    • Democratic sponsorship.
    • Read third time in Assembly, passed, ordered to Senate May 9. Read first time in Senate, referred to Senate Rules Committee for assignment May 10.
  • Colorado SB230: This bill would give county employees the right to organize and bargain collectively beginning in 2023.  
    • Democratic sponsorship.
    • Appropriations Committee amended, referred to House May 6. House second reading passed with amendments May 6. House third reading passed with amendments May 11. Senate concurred with House amendments and re-passed May 11.
  • Maine LD449: Existing law requires public employers and collective bargaining agents to meet within 10 days of receiving written notice of a request for a bargaining meeting. This only applies if the parties have not otherwise agreed in an earlier contract. This bill would eliminate that exception.
    • Democratic sponsorship.
    • Enacted without the governor’s signature May 8.


Ninth Circuit panel issues decisions in three public-sector union cases

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On April 28, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued decisions in three cases we’re tracking related to public-sector union policy. In each case, the judges upheld the decision of the district court. 

About the cases 

The panel—Senior U.S. Circuit Judge Richard Paez, U.S. Circuit Judge Jacqueline Nguyen, and Chief U.S. District Judge for the District of Minnesota John Tunheim—heard oral arguments for all three cases on Feb. 8. The three judges also heard arguments in six other relevant cases in which decisions have not yet been issued. At least three other appellate cases are on hold pending the outcome of cases heard on Feb. 8.

Here’s a rundown of the three decisions: 

Cooley v. California Statewide Law Enforcement Association

  • Appeal from: U.S. District Court for the Eastern District of California 
  • Original complaint: Nov. 13, 2018
  • Plaintiff’s representation: Benbrook Law Group, Mitchell Law, and Talcott Franklin  
  • District judge: John A. Mendez
  • District court ruling: July 9, 2019
  • Summary of the appeal: “Appeal from the dismissal of an action alleging First Amendment violations in connection with plaintiff’s attempts to resign from his union membership.” 
  • From the panel’s decision: “The district court properly found that Cooley’s membership application met the essential elements of a contract. …The district court properly found Cooley was bound to maintain union membership until June 1, 2019 under the maintenance of membership provision in the CBA. … The district court properly concluded that Cooley does not have a First Amendment right to resign from his union. Although the freedom of association contained within the First Amendment includes the freedom against compelled associations, none of the cases cited to the district court or to this Court establish that there is a constitutional right to end voluntary contractual associations. … Cooley agreed to become a member of CSLEA subject to the stated membership resignation limitations and the First Amendment cannot and does not erase that voluntary Association.”  

O’Callaghan v. Napolitano

  • Appeal from: U.S. District Court for the Central District of California 
  • Original complaint: March 27, 2019
  • Plaintiffs’ representation: Law Office of Mark W. Bucher and Liberty Justice Center
  • District judge: James V. Selna 
  • District court ruling: Sept. 30, 2019
  • Summary of the appeal: “An appeal from the district court’s dismissal of an action brought by two employees of the University of California alleging that the continued deduction of their union dues violated their First Amendment rights.” 
  • From the panel’s decision: “The trial court correctly determined that the Defendants did not violate Appellants’ First Amendment rights. Although the First Amendment protects against compelled association, it does not permit one to renege on voluntary agreements. … Appellants affirmatively agreed to join the Union and authorized the University to deduct dues from their wages pursuant to the terms of their agreements, including terms limiting when they could withdraw authorization. … The district court correctly held that exclusive Union representation does not violate Appellants’ First Amendment right to freely associate. Janus prohibited the collection of agency fees from nonmembers; it did not render unions’ service as exclusive bargaining agents unconstitutional.” 

Savas v. California State Law Enforcement Agency

  • Appeal from: U.S. District Court for the Southern District of California 
  • Original complaint: Jan. 6, 2020
  • Plaintiffs’ representation: Freedom Foundation 
  • District judge: Dana M. Sabraw
  • District court ruling: Sept. 9, 2020
  • Summary of the appeal: “Appeal from the dismissal of an action alleging First Amendment violations in connection with plaintiffs’ attempts to resign from their union membership.” 
  • From the panel’s decision: “The district court correctly concluded that the holding in Janus applied to nonunion members only and because [the plaintiffs-appellants] are union members, Janus is inapplicable here. … The [plaintiffs-appellants] cannot escape this conclusion by arguing they become nonmembers once they make their resignation known to the union. A member of a union continues to be bound by the requirements of their membership application, including their duty to pay dues, even if they decide that they no longer want the benefits of union membership. … Though the [plaintiffs-appellants] had to choose, at the time they joined, between an agency fee and union membership, the [plaintiffs-appellants] still made the affirmative choice to become members.”

Once an appellate panel has published its decision, parties may file a petition for a panel rehearing or rehearing en banc within 14 days or a petition for certiorari to the Supreme Court within 90 days. 

President Bill Clinton (D) nominated Paez to the Ninth Circuit, and President Barack Obama (D) nominated Nguyen. Clinton nominated Tunheim to the U.S. District Court for the District of Minnesota.

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 Mary Murguia, an Obama appointee. Of the court’s 29 active judges, Clinton nominated five, George W. Bush (R) nominated three, Obama nominated seven, Donald Trump (R) nominated 10, and Joe Biden (D) nominated four.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 142 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
    • Democratic sponsorship. 
    • Senate Appropriations Committee hearing held May 2, bill placed on Appropriations Suspense File.  
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship. 
    • Senate Appropriations Committee hearing held May 2, bill placed on Appropriations Suspense File.
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship. 
    • Senate Appropriations Committee hearing held May 2, bill placed on Appropriations Suspense File. 
  • Colorado SB230: This bill would give county employees the right to organize and bargain collectively beginning in 2023. 
    • Democratic sponsorship. 
    • Senate Appropriations Committee hearing held April 29, adopted amendment, referred to Senate. Senate second reading April 29, passed with amendments. Senate third reading May 2, passed without amendment. Introduced in House, referred to House State, Civic, Military, & Veterans Affairs Committee May 2. Committee hearing May 5.
  • Minnesota SF4574: This bill would eliminate the requirement for the legislature to approve negotiated collective bargaining agreements and arbitration awards for state employees.
    • Democratic sponsorship. 
    • Introduced and referred to Senate State Government Finance and Policy and Elections Committee May 4. 
  • Oklahoma SB1579: This bill would allow school boards to grant unpaid leaves of absence for employees to hold office in an employee association if certain criteria are met. An employee organization would be required to comply with this law in order to be recognized as the representative of a bargaining unit.     
    • Republican sponsorship. 
    • Governor signed into law on April 29.


Colorado bill would give county employees collective bargaining rights

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The “Collective Bargaining by County Employees Act,” SB22-230, was introduced in the Colorado state Senate on April 25. 

About the bill

SB22-230 would give county employees the right to join a union and bargain collectively beginning in 2023. It would not permit employees to strike. 

The bill’s prime sponsors are Senate President Stephen Fenberg (D), Senate Majority Leader Dominick Moreno (D), and House Majority Leader Daneya Esgar (D). The Senate Business, Labor, & Technology Committee held a hearing on April 27 and referred the bill to the Senate Appropriations Committee without amendment. 

CPR News’ Andrew Kenney wrote that the bill “would grant collective bargaining rights to about 38,000 public-sector employees in Colorado,” allowing county employees “to form unions and — if they can gain enough members — enter into collective bargaining agreements with their employers. … Under the proposed bill, employees would no longer have to ask permission before organizing. It guarantees that workers have the right to associate with one another, talk about their concerns and present those concerns in a unified way to their bosses.”

While Democrats had “hoped to pass a sweeping new law to grant union organizing rights to hundreds of thousands of employees,” Kenney wrote, “[t]he initial proposal was gradually eroded over months of negotiations, facing intense opposition from local governments.” To read more about the circumstances leading up to the bill’s introduction, check out the Jan. 28 and March 25 editions of Union Station. 

Sen. Fenberg said, “At the end of the day … we can’t let the perfect be the enemy of the good. We didn’t take [other public workers] out because we didn’t have the votes. It was because of a deliberate conversation with workers and, honestly, some of the workers were split on how they wanted to proceed.”

According to Colorado Politics’ Marianne Goodland, county employees in four of Colorado’s 64 counties (Pueblo, Adams, Summit, and Las Animas) have collective bargaining agreements with the county. Rep. Esgar told Colorado Politics, “We’re saying as a state all county employees have this right. Just because there’s good acting counties already doesn’t negate the need for this in other areas where maybe there’s not good acting county commissioners.” 

Sen. Fenberg said, “The bill does not force a union on workers, and it does not force a contract on a county. This bill says that if they can’t come to an agreement on that contract, then they don’t sign a contract. So a contract is only if two sides are willing to sign that agreement, and the county can always walk away and say, ‘it’s just not reasonable. We just don’t have money to give those types of raises.’” 

Conor Cahill, a representative for Gov. Jared Polis’ (D) office, wrote, “While we are still looking at the latest version, we appreciate the sponsors’ work on this important issue and encourage them to continue working with the counties as well as our office on the final details of the legislation and we are optimistic that agreement can be reached on the few issues still open.” 

According to The Denver Post’s Alex Burness, “Lawmakers have until May 11, the scheduled final day of this year’s legislative session, to pass this bill. … Republicans in both chambers of the legislature say that while they don’t have the votes to kill the bill, they plan to fight it as ferociously as any bill pending in these final couple of weeks of the session.” 

Perspectives

Support

Rep. Esgar said, “We think that is a huge group of folks who have been literally standing in the middle of the pandemic and serving our communities every single day. … They deserve the right to come together and improve their workplaces.”

AFSCME Press Secretary Nick Voutsinos wrote, “SB22-230 would apply to child welfare staff, transportation workers, water treatment employees, emergency service workers, electoral workers, and all essential county personnel who keep Colorado’s communities running. With collective bargaining rights, county workers will be able to join together and gain a seat at the table with management, where they can work with the decision-makers of their respective departments to solve key workplace issues – whether those are related to workplace safety, the quality of public services, or the current staffing crisis plaguing many county governments.”

AFSCME Local 1335 president Josette Jaramillo said, “With collective bargaining rights, county workers can finally work with management to solve the staffing crisis and save our vital public services. Having a seat at the table will allow us to have crucial conversations with our managers about what would make county jobs more attractive, so we can not only recruit more folks, but also ensure great workers stick around for the long-haul. In fact, studies show when workers have a protected voice on the job, they are more likely to stay on the job — because when you have hope that you can improve things, you have a reason to stay.”

Opposition 

Communications Workers of America Local 7799 vice-president Alex Wolf-Root said, “At this point, the bill has been watered down not just for who’s in it but the conditions of the bill — to the point that our membership was not OK with the conditions. … If you have nothing with binding arbitration and you make it illegal for workers to flex their power (through strikes), you take any leverage they have for management and the bosses to accept any of this.”

Douglas County Commissioner Lora Thomas said, “The increased cost of collective bargaining will make the difficulty of dealing with rapidly rising costs even worse. … And our citizens will suffer in the form of reduced services.” 

Fremont County Commissioner Kevin Grantham said, “There’s going to be costs up front for every single county regardless of whether it goes to vote or not. Every county will have to prepare for the eventuality that it does. … If we talk about the no strike provision and the fact that we can just do away with it and just ignore it at the end. … why do we need to do this then in the first place? If  we can veto on the back end the only thing happens in that case is they force us to spend a lot of money on the front end for something that will never happen.”

Additional context

In 2018, Democrats gained trifecta and triplex control of Colorado’s government. Democrats currently have a 20-15 majority in the Senate, and a 41-24 majority in the House of Representatives. 

Local government employees have collective bargaining rights in over half of U.S. states. Twenty-six states require local government employers to bargain with employees. Of those states, 13 are Democratic trifectas, seven are Republican trifectas, and six are divided governments. Six states—four Republican trifectas and two divided governments—prohibit local government employees from bargaining collectively. In the remaining 18 states, local government employees are permitted to bargain, but employers are not required to bargain with employees. This includes 12 Republican trifectas, one Democratic trifecta, and five divided governments.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 141 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB2556: This bill would change the time frame for a local public agency employer to implement a final offer after a factfinders’ recommendation has been submitted in the case of a dispute between the employer and employee organization.
    • Democratic sponsorship.
    • Assembly Appropriations Committee hearing held April 27, committee recommends “do pass.”  
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
    • Democratic sponsorship.
    • Read second time, amended, and re-referred to Senate Appropriations Committee on April 21. Committee hearing scheduled for May 2.  
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship.
    • Read second time, amended, and re-referred to Senate Appropriations Committee on April 21. Committee hearing scheduled for May 2. 
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances. 
    • Democratic sponsorship.
    • Senate Appropriations Committee hearing scheduled for May 2.
  • Colorado SB230: This bill would give county employees the right to organize and bargain collectively beginning in 2023. 
    • Democratic sponsorship.
    • Introduced, referred to Senate Business, Labor, & Technology Committee April 25. Committee hearing held April 27, referred to Senate Appropriations Committee. 
  • Connecticut SB00209: This bill would recognize probate court employees as state employees for collective bargaining purposes. 
    • Introduced by the Senate Labor and Public Employees Committee
    • Reported out of Legislative Commissioners’ Office, favorable report from Senate Appropriations Committee, tabled for the Senate Calendar April 22. 
  • Maine LD449: Existing law requires public employers and collective bargaining agents to meet within 10 days of receiving written notice of a request for a bargaining meeting. This only applies if the parties have not otherwise agreed in an earlier contract. This bill would eliminate that exception.
    • Democratic sponsorship.
    • House and Senate passed to be enacted 4/25/2022
  • Oklahoma SB1579: This bill would allow school boards to grant unpaid leaves of absence for employees to hold office in an employee association if certain criteria are met. An employee organization would be required to comply with this law in order to be recognized as the representative of a bargaining unit.     
    • Republican sponsorship. 
    • House passed April 26, Senate sent to governor April 27.
  • Rhode Island S2244: This bill would establish a method of dispute arbitration for municipal employees, who are not allowed to strike. It would allow arbitration decisions to be petitioned to the Rhode Island Supreme Court.  
    • Democratic sponsorship.
    • Referred to House Labor Committee April 22.


Pennsylvania musician files suit related to Janus

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Musician Glen Wilkofsky sued the American Federation of Musicians, Local 45, and the Allentown Symphony Association on April 11, alleging that the Supreme Court’s 2018 Janus v. AFSCME decision should apply to symphony association employees. Depending on the outcome of the case, it could have implications for employees of other grant-receiving organizations who bargain under state public employment law.    

Parties to the suit

The plaintiff is Glen Wilkofsky, who joined the Allentown Symphony Orchestra as principal timpanist in 2001. Attorneys from The Fairness Center, which describes itself as “a nonprofit, public interest law firm that provides free legal services to those hurt by public-sector union officials,” represent Wilkofsky.   

The defendants are the American Federation of Musicians, Local 45, and the Allentown Symphony Association.

About the lawsuit

Wilkofsky filed his complaint on April 11, 2022, in the U.S. District Court for the Eastern District of Pennsylvania. According to the complaint, Wilkofsky is a tenured employee of the Allentown Symphony Association and became a member of the American Federation of Musicians, Local 45, in 2001.

The Pennsylvania Labor Relations Board certified the union under Pennsylvania’s Public Employe Relations Act (PERA) as the exclusive representative for certain Allentown Symphony Association employees. According to Wilkofsky’s lawyers, “Under PERA, a ‘public employer’ includes ‘any nonprofit organization or institution and any charitable, religious, scientific, literary, recreational, health, educational or welfare institution receiving grants or appropriations from local, State or Federal governments.’” 

According to the complaint, Wilkofsky “has chosen not to financially support the Union since approximately January 2020.”

The union suspended Wilkofsky in May 2021, and he was subsequently expelled. Since then, he has not been allowed to participate in orchestra performances. The symphony association says Wilkofsky will not be allowed to perform unless he rejoins the union and pays dues and that he may be terminated if he does not meet the requirements of his tenure. 

Wilkofsky’s lawyers say the symphony association and union are violating his First and Fourteenth Amendment rights. 

According to The Morning Call’s Peter Hall, “Bethlehem labor attorney David Deratzian said the case has the potential to affect many arts organizations that receive public funding if they have employees who are unionized under the state public employees labor law. Deratzian said the suit is clearly a test case and could end up before the Supreme Court.” 

Hall quoted Fairness Center president Nathan McGrath: “Our client’s goal is to make sure that Janus is expanded to all of the bargaining units that are covered by the Supreme Court decision. … The principle is that our client’s First Amendment right is protected — that he’s not compelled to be a part of and financially support a union he disagrees with.” 

According to Hall, “Symphony Executive Director Al Jacobsen said the association has no comment. He confirmed that the symphony does receive public funding but could not say what portion of the organization’s revenue is public because COVID relief payments in the last two years have increased the amount of public money it has received.” 

The case name and number are Wilkofsky v. American Federation of Musicians, Local 45 et al. (5:22-cv-01424).  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 139 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB2497: This bill would require state higher education employers to distribute union membership authorization forms to new employees during the orientation process and return completed forms to the exclusive representative.
    • Democratic sponsorship. 
    • Assembly Public Employment and Retirement Committee hearing held April 20.  
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
    • Democratic sponsorship.
    • Senate Judiciary Committee hearing held April 19. Committee recommends “do pass as amended” and send back to Senate Appropriations Committee.
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship.
    • Senate Judiciary Committee hearing held April 19. Committee recommends “do pass as amended” and send back to Senate Appropriations Committee.  
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship. 
    • Senate Judiciary Committee hearing held April 19. Committee recommends “do pass.” Bill sent back to Senate Appropriations Committee with the recommendation, “to consent calendar.”.  
  • Connecticut SB00209: This bill would recognize probate court employees as state employees for collective bargaining purposes.  
    • Introduced by the Senate Labor and Public Employees Committee.
    • Referred to Senate Appropriations Committee April 19.


Arizona Gov. Doug Ducey signs bill prohibiting public spending on union activities

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Arizona Gov. Doug Ducey signs bill prohibiting public spending on union activities  

On April 6, Arizona Gov. Doug Ducey (R) signed SB1166, prohibiting public-sector employers from spending public funds on a union’s political or lobbying activities. 

About the bill

Sen. Vince Leach (R) introduced SB1166 on Jan. 13, 2022. The bill states, “A public employer may not spend public monies for union activities.” Lawmakers wrote that the bill is intended to “restrict the use of public monies to public purposes and to prevent the diversion of public monies and public employees to private purposes.” 

The bill defines union activities as “political activities performed by a union that involve advocating for the election or defeat of any political candidate” and “lobbying activities performed by a union that involve attempting to influence the passage or defeat of federal or state legislation, local ordinances or any ballot measure.” It prohibits public employers from providing paid leave or other compensation while an employee performs such activities.  

The bill excludes police officers and firefighters from its definition of public employee.

The Arizona House of Representatives passed the bill 48-5 on March 24, with 17 Democrats voting in favor. The Senate voted 24-2 to pass the bill on March 31, with the support of 10 Democrats. Ducey signed the bill on April 6.

The Arizona-based Goldwater Institute, which describes itself as a free-market public policy organization, drafted the bill. The group called the legislation a “first-in-the-nation law that stops government workers from politicking on the taxpayer’s dime.” 

According to The Center Square’s Cole Lauterbach, a representative for the City of Phoenix said the city did not support the bill. The Arizona Police Association also opposed it. 

Political context

Ducey was first elected governor in 2014. Arizona Republicans have had trifecta control of the state government since 2009. The party holds a 31-29 majority in the House of Representatives and a 16-14 majority in the state Senate. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 139 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB2497: This bill would require state higher education employers to distribute union membership authorization forms to new employees during the orientation process and return completed forms to the exclusive representative.
    • Democratic sponsorship. 
    • Assembly Public Employment and Retirement Committee hearing April 20. 
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
    • Democratic sponsorship. 
    • Senate Judiciary Committee hearing April 19. 
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship. 
    • Senate Judiciary Committee hearing April 19.  
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship. 
    • Senate Judiciary Committee hearing April 19. 
  • Maryland HB90: This bill would extend collective bargaining rights to the deputy public defender, district public defenders, and assistant public defenders.
    • Democratic sponsorship. 
    • Governor vetoed April 8; legislature overrode veto April 9. 
  • Maryland HB580: This bill would extend collective bargaining rights to Maryland Transit Administration Police sergeants and supervisors.   
    • Democratic sponsorship. 
    • Governor vetoed April 8; legislature overrode veto April 9
  • Oklahoma SB1579: This bill would allow school boards to grant unpaid leaves of absence for employees to hold office in an employee association if certain criteria are met. An employee organization would be required to comply with this law in order to be recognized as the representative of a bargaining unit.     
    • Republican sponsorship. 
    • House Common Education Committee recommends “do pass” April 12.  
  • Rhode Island S2244: This bill would establish a method of dispute arbitration for municipal employees, who are not allowed to strike. It would allow arbitration decisions to be petitioned to the Rhode Island Supreme Court.  
    • Democratic sponsorship.  
    • Senate read and passed April 12.


Lawsuit claiming public-sector employees must be informed of Janus rights dismissed

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U.S. district judge dismisses Illinois teacher’s claim that public-sector unions must inform employees of Janus rights   

On March 28, Judge John F. Kness of the U.S. District Court for the Northern District of Illinois dismissed an Illinois teacher’s lawsuit claiming that, under the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME, public-sector unions are obligated to inform prospective members of their right not to join or pay fees to a union.

In Janus, the Supreme Court said, “States and public-sector unions may no longer extract agency fees from nonconsenting employees. … By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. … Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence. … Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”

Parties to the suit

The plaintiff was Ariadna Ramon Baro, a public school teacher who moved to Illinois from Spain in 2019 as part of an exchange program. The defendants were the Lake County Federation of Teachers Local 504 and Waukegan Community Unit School District #60.

About the case 

The Liberty Justice Center, which represented Baro, described the case as part of a “new line of workers’ rights cases … that seek to ensure that government employers and unions do not withhold union dues from employees unless they first ensure that such employees have knowledge of their Janus rights by informing them of such rights.”

Baro filed her lawsuit against the union and school district on April 3, 2020, in the U.S. District Court for the Northern District of Illinois. Baro’s attorneys alleged that “neither the District nor Lake County Federation of Teachers … informed her of her right not to pay dues or fees to Local 504. Instead, a presentation by representatives of Local 504 made at her orientation … left Ms. Baro with the impression that she was required to join and pay money to Local 504. She could not, therefore, have made a knowing and intelligent waiver of her right to not pay money to the union.” Baro also said she received an email in which a union representative said, “Just to clarify, you will pay union dues regardless of whether or not you are a member,” a statement which Baro did not realize was incorrect. “By holding Ms. Baro to the union card she signed without a knowing waiver of her rights,” the complaint said, “Local 504 and the District are violating her First Amendment rights to free speech and freedom of association.”

Baro asked the court to “[d]eclare that her signing of a union card cannot provide a basis for her affirmative consent to waive her First Amendment rights upheld in Janus because such authorization was given without knowing and intelligent waiver of her First Amendment rights.” 

According to the Cook County Record, “About 12 days [after Baro filed her lawsuit], the union sent her a letter confirming she was no longer a union member, and included a check for $829, representing all the dues she had paid to that point, plus $500. … Baro then amended her lawsuit, including a demand for unspecified punitive damages against the union.”

The union and school district filed motions to dismiss the amended complaint on Aug. 3, 2020. 

The court’s decision

Judge John F. Kness dismissed the case on March 28. Citing the U.S. Court of Appeals for the Seventh Circuit’s ruling in Bennett v. AFSCME Council 31 (2021), the Ninth Circuit’s ruling in Belgau v. Inslee (2020), and the Northern District of Illinois’ ruling in Troesch v. Chicago Teachers Union (2021), Kness wrote

“Even accepting Plaintiff’s erroneous beliefs as true, Plaintiff’s claim fails as a matter of law. As explained above, Plaintiff voluntarily joined the union. As for Plaintiff’s suggestion that her choice is not binding because it was ill-informed, the Court is aware of no authority (including Janus) that imposes a duty of informed consent to apply for membership in a union. Put differently, Janus did not mandate the workplace equivalent of Miranda warnings before an employee’s application to join a public-sector union could be presumed valid. … Plaintiff’s voluntary act of signing and submitting a union membership application card means that the concern in Janus—nonmembers being forced to pay union dues—is not present here.” 

“In sum, Plaintiff’s complaint does not raise a right to relief beyond the speculative level. … Plaintiff may now regret her earlier decision to join the Union, but that does not render her knowing and voluntary choice nonconsensual. Unlike the proscribed conduct by Janus’ employer, the District’s deductions of dues from Plaintiff’s earnings were made in compliance with Plaintiff’s explicit written instructions. … In the light of Plaintiff’s voluntary agreement to pay union dues, and in the absence of any legitimate claim of compulsion, Plaintiff has failed to state a First Amendment claim against Defendants.”

President Donald Trump (R) nominated Kness to the court in 2019.

Baro has 30 days from the judgment entered on March 29 to file a notice of appeal. 

The case name and number are Ramon Baro v. Lake County Federation of Teachers Local 504 et al. (1:20-cv-02126). 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 134 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship. 
    • Assembly Appropriations Committee hearing April 6, referred to suspense file. 
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
    • Democratic sponsorship. 
    • Senate Judiciary Committee hearing scheduled for April 19.  
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship. 
    • Senate Labor, Public Employment and Retirement Committee hearing held April 4. Committee recommends “do pass.” Re-referred to Senate Judiciary Committee April 5.  
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship. 
    • Senate Labor, Public Employment and Retirement Committee hearing held April 4. Committee recommends “do pass.” Bill re-referred to Senate Judiciary Committee with the recommendation, “to consent calendar.” Senate Judiciary Committee hearing scheduled for April 19. 
  • New York A00243: This bill would allow public-sector labor unions to reconsider and re-vote on written agreements that were initially voted down.
    • Democratic sponsorship. 
    • Enacting clause stricken April 5, meaning that the bill is dead unless another assembly member chooses to sponsor it.
  • Ohio HB612: This bill would amend the law to allow juvenile court and juvenile detention center employees who do not perform a judicial function to bargain collectively as public employees. 
    • Bipartisan sponsorship. 
    • Referred to House Commerce and Labor Committee April 5. 
  • Rhode Island S2244: This bill would establish a method of dispute arbitration for municipal employees, who are not allowed to strike. It would allow arbitration decisions to be petitioned to the Rhode Island Supreme Court.   
    • Democratic sponsorship. 
    • Senate Labor Committee hearing held April 6. 
  • Washington HB2124: This bill, which would give state legislative branch employees the right to bargain collectively, would create an office of state legislative labor relations to “[e]xamine issues related to collective bargaining for employees of the house of representatives, the senate, and legislative agencies” and to “develop best practices and options for the legislature to consider in implementing and administering collective bargaining.” A final report would be due to the legislature by Oct. 1, 2023. No collective bargaining agreement could take effect until July 1, 2025. Employees would not be allowed to strike. 
    • Democratic sponsorship. 
    • Gov. Jay Inslee (D) signed on March 31. Effective June 9, 2022.