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Union Station: Ruling on Oklahoma Bar Association membership and dues challenge

Tenth Circuit rules on Oklahoma Bar Association membership and dues challenge  

On June 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ruled on a challenge to the constitutionality of mandatory bar membership and dues, affirming in part and reversing in part the district court’s decision. A majority of states have mandatory bar associations. 

Parties to the suit

The plaintiff is Mark Schell, an Oklahoma attorney. The Goldwater Institute, which describes itself as a “free-market public policy research and litigation organization,” is representing Schell, along with Jones Day and Charles S. Rogers. The defendants are the justices of the Oklahoma Supreme Court and the Oklahoma Bar Association’s board of governors and executive director. Attorneys from Wilmer Cutler Pickering Hale and Dorr LLP, Whitten Burrage, Phillips Murrah P.C., and Maye Law Firm represent the defendants.        

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

Schell’s lawsuit, which was originally filed in March 2019, claimed that the Oklahoma Bar Association’s (OBA) compulsory membership and mandatory dues violated attorneys’ First and Fourteenth Amendment rights. Schell asked the court to “declare Oklahoma’s bar membership requirement unconstitutional and order Defendants to stop forcing attorneys to subsidize the OBA’s speech without their affirmative consent, or, alternatively, to order Defendants to adopt procedures to protect attorneys from being forced to subsidize OBA speech and activities that are not germane to improving the quality of legal services and regulating the legal profession.”

On Sept. 18, 2019, Judge Joe Heaton of the U.S. District Court for the Western District of Oklahoma dismissed two of the plaintiff’s claims. Heaton, a George W. Bush (R) appointee, wrote:   

In light of the Supreme Court’s decisions in [Lathrop v. Donohue (1961)] and [Keller v. State Bar of Calif. (1990)], plaintiff’s claims directed to compelled membership in the OBA and to the collection and use of mandatory bar dues to fund activities germane to regulating the legal profession and improving legal services fail. To the extent that plaintiff contends the recent case of [Janus v. AFSCME (2018)] requires a different result, the court is unpersuaded. Janus involved the payment of agency fees by non-members of a public employee union. While there are some parallels between Janus and the circumstances here, there are also differences. There is also no suggestion in Janus that either Lathrop or Keller were overruled or otherwise called into question. In such circumstances, the court is obliged to follow the cases which most directly control, and therefore declines to speculate as to whether the Supreme Court might reach some different result if it were to revisit either Lathrop or Keller

In March 2020, the district court dismissed a third claim as moot and terminated the case. Schell appealed to the U.S. Court of Appeals for the Tenth Circuit. 

How the Tenth Circuit ruled

On June 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit unanimously affirmed the district court’s ruling that mandatory bar dues were not unconstitutional and reversed and remanded the district court’s ruling on mandatory bar membership, saying that the lower court “erred by relying upon Lathrop and Keller to dismiss Mr. Schell’s freedom of association claim.”

Judge Carolyn McHugh, a Barack Obama (D) appointee, wrote

Neither Lathrop nor Keller addressed a broad freedom of association challenge to mandatory bar membership where at least some of a state bar’s actions might not be germane to regulating the legal profession and improving the quality of legal services in the state. … Thus, the district court was incorrect to conclude Lathrop and Keller necessarily foreclosed Mr. Schell’s Count I claim. …

We affirm the district court’s dismissal of Count II of Mr. Schell’s Amended Complaint but reverse the district court’s dismissal of Mr. Schell’s Count I freedom of association claim. On remand, the district court shall permit Mr. Schell an opportunity to conduct discovery on that claim relative to the two potentially nongermane Oklahoma Bar Journal articles published within the statute-of-limitations period.

Judge Harris Hartz, appointed by W. Bush, and Senior Judge David Ebel, appointed by President Ronald Reagan (R), joined McHugh’s opinion.

The case name and number are Schell v. Oklahoma Supreme Court Justices, et al. (20-6044).  

About the Tenth Circuit  

The U.S. Court of Appeals for the Tenth Circuit hears appeals from the district courts within its jurisdiction, which includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The chief judge of the Tenth Circuit is Timothy Tymkovich, a W. Bush appointee. Of the court’s 10 active judges, W. Bush appointed three, Obama appointed five, and Donald Trump (R) appointed two. The court has two vacancies.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 96 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • Delaware HB237: This bill would grant select law enforcement officers the right of organization and representation.
    • Democratic sponsorship.
    • Senate passed June 30. 
  • Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike.
    • Democratic sponsorship.
    • Sent to Gov. J.B. Pritzker (D) on June 28. 
  • Massachusetts H2038: This bill would amend the laws governing public-sector worker strikes.
    • Bipartisan sponsorship. 
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts H2060: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions. 
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.



Union Station: Federal appeals court rejects challenge to exclusive representation law

Federal appeals court rejects challenge to Minnesota exclusive representation law

A three-judge panel of the United States Court of Appeals for the Eighth Circuit rejected a Minnesota professor’s challenge to state law allowing unions to become exclusive bargaining agents for public-sector employees in a June 16 ruling.

Parties to the suit

The plaintiff is Kathleen Uradnik, a political science professor at St. Cloud State University. Attorneys from The Buckeye Institute and Baker & Hostetler represent her. The Buckeye Institute describes itself as “an independent research and educational institution—a think tank—whose mission is to advance free-market public policy in the states.” 

The defendants are the Inter Faculty Organization (IFO), St. Cloud State University, and the Minnesota State Colleges and Universities Board of Trustees. Attorneys from Cummins & Cummins and the state attorney general’s office represent the defendants. 

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

Uradnik’s original complaint, filed in July 2018 in the U.S. District Court for the District of Minnesota, claimed that by “designating the Union as the Plaintiff’s exclusive representative,

Minnesota law and the [IFO’s collective bargaining agreement] violate the Plaintiff’s rights under the First and Fourteenth Amendments to the United States Constitution.” Uradnik also claimed the union violated the First Amendment because it “[negotiates] special preferences for union members, including preferences that tilt the scales in union members’ favor in such matters as tenure and promotion decisions.”

Minnesota’s Public Employment Labor Relations Act allows for “an employee organization which has been certified by the commissioner … to meet and negotiate with the employer on behalf of all employees in the appropriate unit.”

In September 2018, the U.S. District Court for the District of Minnesota denied Uradnik’s motion for a preliminary injunction. Uradnik appealed the decision to the Eighth Circuit, which affirmed the lower court’s ruling in December 2018, and then to the Supreme Court, which denied the appeal in April 2019. 

The case then resumed in the District of Minnesota, and the court ruled in favor of the defendants on Dec. 5, 2019. Judge Paul Magnuson, appointed by President Ronald Reagan (R), cited the Supreme Court’s decision in Minnesota State Board for Community Colleges v. Knight (1984). In that case, a group of non-union community college instructors objected to a Minnesota statute allowing an exclusive representative to speak on behalf of all of a bargaining unit’s employees at “meet and confer” sessions. The Supreme Court ruled Minnesota had “in no way restrained [the instructors’] freedom to speak … or their freedom to associate or not to associate with whom they please.” Magnuson said, “Knight and [Bierman v. Dayton] foreclose Plaintiff’s claims. No genuine dispute of material fact exists, and she cannot prevail on this issue. Defendants are entitled to judgment as a matter of law.” 

Uradnik then appealed the decision to the Eighth Circuit. 

How the Eighth Circuit ruled

The three-judge appellate panel unanimously affirmed the district court’s decision on June 16. Judge L. Steven Grasz, who was appointed to the court by President Donald Trump (R), wrote:

We review the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to, and drawing all reasonable inferences for, Uradnik. … We review the district court’s decision to deny leave to amend for abuse of discretion and any underlying legal determinations de novo. … Because Uradnik properly concedes that the district court correctly rejected her compelled-speech claim (Count I), we affirm the district court’s grant of summary judgment on her Count I claims. Like the district court, we are bound by precedent, and only the Supreme Court can provide the relief she seeks. …

Otherwise, Uradnik mainly focuses her brief on challenging the district court’s holding that she did not properly plead an unconstitutional-conditions claim in Count II of her complaint. We affirm the district court. 

Judges Raymond Gruender, appointed by President George W. Bush (R), and Jane Kelly, appointed by President Barack Obama (D), joined Grasz’s opinion. 

The case name and number are Kathleen Uradnik v. Inter Faculty Organization, et al. (19-03749).

About the Eighth Circuit

The U.S. Court of Appeals for the Eighth Circuit hears appeals from the district courts within its jurisdiction, which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. The chief judge of the Eighth Circuit is Lavenski Smith, a Bush appointee. Of the court’s 11 active judges, Bush appointed five, and Trump appointed four. George H.W. Bush (R) and Obama each appointed one judge to the court.    

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 94 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • Delaware HB237: This bill would grant select law enforcement officers the right of organization and representation.
    • Democratic sponsorship. 
    • House passed June 22, assigned to Senate Corrections and Public Safety Committee. Hearing scheduled for June 29.  
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.
    • Democratic sponsorship. 
    • House speaker signed June 21.



Union Station: Indiana unions sue over payroll deduction law

Join us on Wednesday, June 30, at noon Eastern Time for a webinar marking three years since the Supreme Court’s ruling in Janus v. AFSCME. In this briefing, we will discuss how the ruling has affected union membership, the complexities involved in determining the ruling’s state-specific impacts, and how states are continuing to respond to Janus. Click here to register! 

Indiana unions sue over law requiring annual authorization for payroll deductions

Three Indiana teachers unions filed suit in the U.S. District Court for the Southern District of Indiana to block Senate Enrolled Act 251 (SEA 251), which would require teachers to authorize union payroll deductions on a yearly basis, from taking effect on July 1.  

Indiana Gov. Eric Holcomb (R) signed Republican-sponsored Senate Bill 251 on April 22. The law says, “Authorizations by a school employee for the withholding of school employee organization dues from the school employee’s pay shall not exceed one (1) year in duration and shall be subject to annual renewal.” The law requires school employees wanting to have union dues deducted from their paychecks to sign an authorization form acknowledging that union membership and dues are voluntary. Upon receiving an employee’s authorization form, the employer must email the employee and receive a response in confirmation of the authorization. 

About the lawsuit

The Anderson Federation of Teachers, Avon Federation of Teachers, Martinsville Classroom Teachers, and the three unions’ presidents filed their complaint on June 15. The unions claim the law violates the U.S. Constitution’s contract clause and the First Amendment. 

The complaint states

After July 1, 2021, SEA 251 forbids dues deductions from occurring without the authorizing process described therein, without exception for dues deductions performed through existing authorizations. SEA 251 therefore has the effect of terminating existing dues authorization contracts and related collective bargaining agreement obligations governing dues deductions. … SEA 251 therefore impairs the existing dues authorization contracts in violation of Article I, Section 10 of the United States Constitution. …

Members of teachers’ unions are the only individuals in the state required to go through the cumbersome process for dues deductions, as well as the only individuals in the state whose dues authorizations are limited to one year. Placing a burden on teachers when they band together to financially support their exclusive representative while placing none on all employees who make wage assignments for individual purposes is clearly a restraint on the First Amendment right of association.

By requiring teachers to use dues deduction authorization agreements that contain State-dictated language concerning their constitutional rights to refrain from joining a union or paying union dues, SEA 251 compels teachers to speak a content-based message in violation of their First Amendment freedom of speech.

According to the Princeton Daily Clarion, Magistrate Judge Debra McVicker Lynch will likely issue a ruling by June 30. 

The case name and number are Anderson Federation of Teachers et al. v. Rokita et al. (No. 1:21-cv-01767). 

Perspectives

Opposing the law

Jeff Macey, the plaintiffs’ attorney, said, “Why are teachers being singled out for these onerous restrictions? … No other union, no other charity, no other organization in the state has to do this to assign a portion of your wages to (them).” 

Avon Federation of Teachers president Suzy Lebo said, “It’s a stunt by the Indiana legislators to try to keep teachers unions from happening. … It’s not like we’re holding anybody hostage. I’m not sure what they’re after, except punishing us.”

Supporting the law

Attorney General Todd Rokita (R), a defendant in the suit, said, “Indiana’s status as a ‘right-to-work’ state was reaffirmed by the Indiana General Assembly this year with the passage of Senate Enrolled Act 251 … I will always stand up to protect the individual liberties of hard-working Hoosiers – and that includes fighting to defend teachers’ right to choose how they spend their hard-earned money.” 

Sen. Phil Boots (R) said, “If a teacher wishes to be a member of a union, this law will not hinder their ability to do so. … This legislation was introduced after lawmakers heard from teachers who felt they were not given an appropriate amount of flexibility.” 

Update to last week’s story: On June 15, a West Virginia circuit court temporarily blocked a law from going into effect that would have prohibited public-sector union members from having dues withdrawn from their paychecks after 12 unions filed a lawsuit claiming the law was unconstitutional.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 94 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • Maine 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 applies only if the parties have not otherwise agreed in an earlier contract. This bill would eliminate that exception.
    • Democratic sponsorship.  
    • Senate passed June 14, House passed June 15. 
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts. 
    • Democratic sponsorship.
    • Senate president signed June 15. 



Union Station: Missouri Supreme Court voids public-sector collective bargaining law

Missouri Supreme Court voids public-sector collective bargaining law 

On June 1, the Missouri Supreme Court voted 5-2 to uphold a lower court ruling overturning a 2018 state law that exempted public safety labor unions from new requirements applying to other public-sector unions. 

House Bill No.1413 was a Republican-sponsored public-sector collective bargaining law that exempted public safety and department of corrections unions and employees from regulations such as requiring unions to obtain annual authorization from employees before withholding union dues. The bill was enacted in June 2018 with an effective date of Aug. 28. 

On Aug. 27, 2018, seven public-sector unions sued to block the new law, arguing that it was unconstitutional. On Jan. 27, 2020, St. Louis County Circuit Judge Joseph Walsh declared the law void and prohibited the state from enforcing it. According to the Supreme Court’s summary:

The circuit court granted summary judgment in the labor unions’ favor, finding various provisions of HB 1413 violated public-sector employees’ constitutional rights to collective bargaining and free speech and could not be severed from the remainder of the bill. The circuit court, therefore, permanently enjoined enforcement of HB 1413 in its entirety.

The state appealed the decision to the Missouri Supreme Court in March 2020. The court heard arguments in November 2020 and issued its decision on June 1. Writing for the court, Judge Mary R. Russell said:

The exemption of public safety labor organizations violates principles of equal protection. The exemption of public safety labor organizations permeates throughout HB 1413 and reaches all provisions. The operation of this exemption forces this Court to declare HB 1413 void in its entirety rather than sever the offending provision. The circuit court’s judgment is affirmed.

Russell, who joined the court in 2004 after being appointed by Gov. Bob Holden (D), was joined by Chief Justice George Draper (appointed by Gov. Jay Nixon (D) in 2011), Judge Paul Wilson (appointed by Nixon in 2012), Judge Patricia Breckenridge (appointed by Gov. Matt Blunt (R) in 2007), and former Judge Laura Denvir Stith (appointed by Holden in 2001).

Judges W. Brent Powell and Zel Fischer dissented. Gov. Eric Greitens (R) appointed Powell to the court in 2017. Blunt appointed Fischer in 2008. 

Powell wrote:

This Court’s role is not to determine whether the solution raised by the legislature is perfectly suited to the problem it purports to solve; rather, as long as the reason for distinguishing between public safety and non-public safety unions is plausible, there exists a rational basis for treating these labor organizations differently under the law. … Here, the distinctions between the public employees the separate labor groups wholly or primarily serve provides plausible explanations and justifications for the dissimilar regulatory framework for public safety and nonpublic safety labor groups and is not unconstitutional.

According to research published in Ballotpedia Courts: Determiners and Dissenters, judges Powell and Fisher were the two judges who allied most often with each other in 2020, agreeing in 52 of the 58 cases the court decided that year. 

In Missouri, the governor, with the assistance of a nominating commission, appoints judges to 12-year terms. After serving at least one year on the court, appointed judges must stand for election to remain on the bench.

The case name and number are Missouri National Education Association, et al. v. Missouri Department of Labor and Industrial Relations, et al., Ferguson-Florissant School District, et al. (No. SC98412). 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 92 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike.
    • Democratic sponsorship.
    • House passed May 30.  
  • Maryland HB894: This bill would establish collective bargaining rights for certain community college employees.
    • Democratic sponsorship.
    • Gov. Larry Hogan (R) vetoed May 28. 
  • Maryland SB746: This bill would establish collective bargaining rights for certain community college employees.
    • Democratic sponsorship.
    • Gov. Larry Hogan (R) vetoed May 28. 
  • Maryland SB9: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.
    • Democratic sponsorship.
    • Gov. Larry Hogan (R) vetoed May 28. 
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.
    • Democratic sponsorship.
    • Second reading in House June 1. 



Union Station: Collective bargaining amendment on the 2022 Illinois ballot

Illinois legislature refers collective bargaining amendment to 2022 ballot  

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

About the amendment 

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.
  1. The provisions of this Section are controlling over those of Section 6 of Article VII.

Rep. Marcus Evans (D) said the constitutional amendment would prohibit right-to-work laws on the state and local level in Illinois and “[prevent] the passage of any future law or ordinance that may diminish collective bargaining rights.”

In Illinois, a legislatively referred constitutional amendment requires 60% of the members of both houses of the General Assembly vote to put it on the ballot. The amendment was introduced as Senate Joint Resolution 11 on May 7, 2021. The Senate passed the bill 49-7 on May 21. On May 26, the House passed the bill 80-30. No Democrats voted against the bill. In the Senate, Republicans supported the bill 11-7. Nine House Republicans supported the bill and 30 voted against it.  

For the amendment to be adopted, the ballot measure must be approved by 60% of those voting on the question or a majority vote of those who cast a ballot for any office in the Nov. 8, 2022, election.

Perspectives 

Support

Rep. Lance Yednock (D) said, “One of the most diabolical ways to limit collective bargaining is through so called right-to-work laws. … States that limit collective bargaining see declines in wages, benefits, training, and safety standards. And it’s a losing proposition for all workers.”

Sen. Robert Peters (D) said, “Labor rights are intertwined with race, class, and gender struggles, and we must always fight to preserve them. … Declaring a worker’s right to collective bargain as a fundamental right guaranteed to everyone who works in Illinois is a major step toward winning the real safety and justice in our communities that we’ve been fighting to secure for generations.”

Opposition

Rep. Deanne Mazzochi (R) said, “Normally at the federal level, managers who are employees don’t have the right to collectively bargain. … People who are CEOs don’t have the right to collectively bargain. People who are in very sensitive positions don’t have the right to collectively bargain. And yet here, we’re not doing the same sort of refined, nuanced type of meaning of employees that you have in a federal statute.”

Mailee Smith, staff attorney and director of labor policy at Illinois Policy, said, “A constitutional amendment enshrining current labor provisions as ‘fundamental rights’ would mean lawmakers are handing over power to unelected, unaccountable union bosses. … Illinois’ government workers don’t need this amendment. They are already granted broad rights through the Illinois Educational Labor Relations Act, for public education employees, and the Illinois Public Labor Relations Act, for other state and local government employees.” 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 92 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. 

  • Connecticut SB00908: This bill would require public employers to furnish unions with personal contact information of employees belonging to the bargaining unit the union represents. It would also require employers to grant unions access to new employee orientations.
    • Democratic sponsorship. 
    • House passed as amended. Senate in concurrence May 25. 
  • Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike.
    • Democratic sponsorship. 
    • Senate passed as amended May 26. House Rules Committee recommended adoption of Senate amendment May 27. 
  • Maine LD555: This bill would grant most public-sector employees the right to strike. Select public safety and judicial employees would not be allowed to strike. 
    • Democratic sponsorship. 
    • Carry over requested May 21. 
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.
    • Democratic sponsorship. 
    • House Business and Labor Committee work session held May 24. Recommended “do pass with amendments” May 27.


Union Station: Connecticut State Senate passes bill to increase union access to public employees

Connecticut State Senate passes bill to increase union access to public employees 

The Connecticut state Senate passed a bill on May 13 that would require public employers to provide unions with increased information about and access to public employees. It would also prohibit employers from discouraging union membership. 

About the bill

The Connecticut state Senate passed Senate Bill 908 on May 13. The vote was 22-13, with all 12 Senate Republicans and one Democrat voting against the bill. 

The bill would require public employers to provide unions with contact information for employees, give unions access to new employee orientations, and allow unions to meet with employees on workplace premises.  

The bill also says: 

A public employer shall not deter or discourage public employees or applicants for public employee positions from becoming or remaining members of a public employee organization, or from authorizing representation by a public employee organization, or from authorizing dues or deductions to a public employee organization. …

It shall be a prohibited practice for a public employer to: (1) Encourage an employee to resign or decline to obtain membership in a public employee organization, (2) encourage an employee to revoke authorization for a payroll deduction of dues to a public employee organization, (3) knowingly aid any such effort by any other entity, or (4) permit use of the employer’s electronic mail system by any entity to discourage membership in a public employee organization or discourage authorization of payroll deduction of dues to a public employee organization.

The bill would not repeal or amend existing law as it establishes these requirements for employers. To view a bill analysis from the Office of Legislative Research, click here.

Sen. Martin Looney (D), one of three Democratic co-sponsors of the legislation, said the bill is “an effort to mitigate as far as we can, as a matter of law, the unfortunate and corrosive U.S Supreme Court decision in Janus.”

The Labor and Public Employees Committee, a joint standing committee of the Connecticut General Assembly, introduced the bill. 

What comes next

The bill was added to the House calendar on May 14. Democrats have a 97-54 majority in the House. 

Perspectives

Supporting

Sen. Julie Kushner (D), another of the bill’s co-sponsors, said, “I believe the most important aspect of this bill is to ensure that every worker has equal opportunity to hear both from the employer and from the union. … [I]t is really important that people have information from the union to really understand what it is about.”

Sen. Jorge Cabrera (D) said, “This is a good bill that puts several needed standards in place for employees and unions and I am proud to support it. … It is one of my top priorities to support and empower workers and this legislation provides employees with information about union membership and improves communication between public employees and unions on several fronts.”

Opposing

The Connecticut Conference of Municipalities said, “Connecticut has been successful in achieving a positive working relationship between municipal employers and unions, and the requirements mandated in SB 908 harm the relationship between management and labor. The Janus vs. AFSCME Supreme Court decision has not eroded union membership and CCM views the bill as a terrible solution in search of a nonexistent problem.”

John Kalb, vice president of the National Right to Work Committee, said, “Instead of respecting the Supreme Court’s Janus decision, Big Labor’s allies in the Connecticut Senate are granting union bosses a host of privileges so they can manipulate more and more Connecticut public servants into paying them dues while keeping them in the dark about their First Amendment right to abstain from union financial support.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 92 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. 

  • Connecticut SB00908: This bill would require public employers to furnish unions with personal contact information of employees belonging to the bargaining unit the union represents. It would also require employers to grant unions access to new employee orientations.
    • Democratic sponsorship. 
    • Senate passed as amended May 13. Added to House calendar May 14. 
  • Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike.
    • Democratic sponsorship. 
    • Executive Committee hearing May 19. 
  • 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 applies only if the parties have not otherwise agreed in an earlier contract. This bill would eliminate that exception.
    • Democratic sponsorship. 
    • Labor and Housing Committee reported “ought to pass as amended” May 17. Moved to unfinished business on May 19. 
  • Maine LD52: This bill would allow educational policies related to preparation and planning time and transfer of teachers to be subjects of collective bargaining negotiations.
    • Democratic sponsorship. 
    • Senate passed as amended May 19.  
  • Maine LD555: This bill would grant most public-sector employees the right to strike. Select public safety and judicial employees would not be allowed to strike. 
    • Democratic sponsorship. 
    • Labor and Housing Committee hearing May 21. 
  • Maine LD1402: This bill would remove the authority to require public employees who do not join a union to pay service fees to the union.
    • Republican sponsorship. 
    • Labor and Housing Committee reported “ought not to pass” May 18. 
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.
    • Democratic sponsorship. 
    • House Business and Labor Committee work session scheduled for May 24. 



Union Station: A breakdown of public-sector union litigation in the federal courts

Today’s newsletter marks the third anniversary of Union Station. Our first edition launched in May 2018 in anticipation of the Supreme Court’s ruling in Janus v. AFSCME. Thank you for joining us as we’ve followed developments in public-sector union policy, litigation, and national debate since then.

A breakdown of public-sector union litigation in the federal courts

Since late 2019, Ballotpedia has tracked 130 federal lawsuits related to public-sector labor laws. Let’s take a quick look at the breakdown.

These lawsuits address one or more of the following types of questions (some cases are counted twice in the list below): 

  • Whether public-sector unions can be held liable for refunding agency fees paid before the Janus v. AFSCME ruling (82 cases), 
  • Whether public-sector unions may continue to collect union dues after union membership withdrawal if there is a pre-existing agreement for fees deduction throughout a given time period (58 cases), or 
  • Whether exclusive bargaining representation laws violate non-union members’ First Amendment rights (23 cases). 

United States federal courts decide disputes involving the Constitution and laws passed by Congress. There are 94 district courts, which are general trial courts that fall into 12 geographically-defined federal appellate circuits (the thirteenth court being the Court of Appeals for the Federal Circuit). Appeals courts can hear appeals from the district courts within their judicial circuits, and appeals court decisions can be appealed to the U.S. Supreme Court.

Of the 130 cases we’ve tracked, 43 are pending or were resolved in U.S. district courts, and 70 are pending or were resolved in appellate courts. Seventeen cases have been appealed to the Supreme Court, which has denied petitions in nine of those cases so far. Seven are pending, and Janus is the only case in which a ruling has been issued.  

The chart below compares the volume of lawsuits that have originated in each federal circuit. We’ve tracked 57 cases originating in the Ninth Circuit, compared to only one case in the Eleventh Circuit.

In the majority of cases that have been decided so far, rulings have favored union and state defendants.   

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 92 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

No relevant legislative actions have taken place since our last issue. 




Union Station: Biden creates labor organizing and collective bargaining task force

Biden creates labor organizing and collective bargaining task force

President Joe Biden (D) signed the “Executive Order on Worker Organizing and Empowerment” on April 26, creating a task force related to public- and private-sector union organizing. 

About the order

The executive order establishes a task force to “identify executive branch policies, practices, and programs that could be used, consistent with applicable law, to promote [the Biden Administration]’s policy of support for worker power, worker organizing, and collective bargaining.” The order states that the task force “also shall identify statutory, regulatory, or other changes that may be necessary to make policies, practices, and programs more effective means of supporting worker organizing and collective bargaining.”

The order asserts that “[i]n the past few decades, the Federal Government has not used its full authority to promote and implement [the National Labor Relations Act] policy of support for workers organizing unions and bargaining collectively with their employers.”

The task force has 180 days to submit recommendations “to promote worker organizing and collective bargaining in the public and private sectors, and to increase union density.”

Vice President Kamala Harris will chair the 24-member task force, with Secretary of Labor Marty Walsh serving as vice chair. 

The order revokes two executive orders signed by President Donald Trump (R): “Establishing the President’s National Council for the American Worker” (2018) and “Continuing the President’s National Council for the American Worker and the American Workforce Policy Advisory Board” (2020). The council and advisory board were set to terminate in September 2021. 

According to a White House fact sheet on the order, Biden and Harris “believe that the decline of union membership is contributing to serious societal and economic problems in our country,” including “economic inequality, stagnant real wages, and the shrinking of America’s middle class.”

This was the 41st executive order Biden has signed during his time in office.  

Responses

Support

  • Lee Saunders, president of the American Federation of State, County and Municipal Employees, said, “We commend President Biden for launching this task force to make it easier for workers to organize and join a union. As our nation continues to recover from this pandemic, ensuring that workers have a voice on the job to negotiate for fair wages, safer working conditions and better benefits will be key to building back better.”
  • White House labor advisor Seth Harris said, “In the past we’ve had very good-faith efforts by some presidents to do individual things, like executive order and regulatory actions [to help unions]. The question is, what about a whole-of-government approach? We never sit down and think about what it would be like if the whole government was organized around the principle that worker organizing was a good thing and not a bad thing.”
  • Jared Bernstein, a member of Biden’s Council of Economic Advisers, said, “There is a huge gap between the number of working Americans who want to be represented by unions and have collective bargaining and the number who are in unions. It could make a very big difference in this space to have a president who uses the bully pulpit to make this a front-and-center preference.”

Opposition

  • U.S. Rep. Virginia Foxx (R-N.C.), ranking Republican member on the House Education and Labor Committee, said the order “further solidified [Biden’s] cushy relationship with union bosses; the same people responsible for swindling workers’ hard-earned paychecks and pushing radical, unworkable policies that lead to lower economic growth.”
  • National Right to Work Committee President Mark Mix said, “This is yet another move by the Biden White House to give the president’s Big Labor political allies more power at the expense of the rights of rank-and-file workers who overwhelmingly have chosen not to affiliate or associate with a labor union.”
  • Sean Higgins, a research fellow at the Competitive Enterprise Institute, said, “President Biden seems to believe joining a union is an obligation that the federal government must prod workers to do. … This executive order is a harbinger of further aggressive sales tactics from this administration on behalf of its union allies.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 92 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike. 
    • Democratic sponsorship. 
    • Assigned to Senate Executive Committee May 4. 
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.  
    • Democratic sponsorship. 
    • Referred to House Business and Labor Committee May 4.
  • Tennessee SJR0002: A proposed constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization.
    • Republican sponsorship. 
    • Signed by speaker of the Senate May 3 and speaker of the House May 4. 



Union Station: Public-sector collective bargaining legal in Virginia as of May 1

Virginia to allow public-sector collective bargaining starting on May 1st

A change in Virginia law allowing for public-sector collective bargaining goes into effect May 1. In anticipation, the city of Alexandria adopted an ordinance allowing public-sector collective bargaining in the city on April 17.

About the law

The Virginia General Assembly approved legislation in March 2020 repealing Virginia’s prohibition of public-sector collective bargaining. The legislation allows local governments to bargain collectively with their employees upon adopting an authorizing ordinance or resolution. The final legislation was the product of a joint conference committee compromise between two competing bills: House Bill 582 and Senate Bill 939. Governor Ralph Northam (D) signed the bills on April 22, 2020. 

The amended text of Code of Virginia § 40.1-57.2 will now state, in part:

No state, county, city, town, or like governmental officer, agent, or governing body is vested with or possesses any authority to recognize any labor union or other employee association as a bargaining agent of any public officers or employees, or to collectively bargain or enter into any collective bargaining contract with any such union or association or its agents with respect to any matter relating to them or their employment or service unless, in the case of a county, city, or town, such authority is provided for or permitted by a local ordinance or by a resolution. 

In 1977, the Supreme Court of Virginia ruled that existing public-sector collective bargaining agreements were invalid under state law. 

Virginia was one of three states banning all public-sector collective bargaining, along with North Carolina and South Carolina. Some states prohibit public-sector collective bargaining but make exceptions for police, firefighters, or teachers.

Democrats gained trifecta control of Virginia state government in 2019. 

Alexandria’s ordinance

On April 17, the Alexandria City Council unanimously adopted an ordinance allowing collective bargaining in the city, becoming the first city to do so in light of the upcoming change in state law.  

According to the city: 

The ordinance was developed with the intent to promote orderly and constructive relationships between the City and its employees and ensure an uninterrupted, efficient government. … The ordinance defines bargaining units as police; fire and emergency medical services; labor and trades; professional; and administrative and technical. A Labor Relations Administrator will be appointed as the neutral to effectively administer the requirements established by the ordinance.

In support of the ordinance, city council member Mo Seifeldein said, “I want to point out, as many members have said — and we had people from Arlington come and speak — the importance of what we’re doing in Alexandria, which really demonstrates and shows that despite our differences, when it comes down to it that Alexandria is not afraid to lead and be the first and set precedent not only for ourselves but … for the Commonwealth as a whole.”

Opposing the ordinance, National Right to Work Committee president Mark Mix said, “Alexandria’s decision to grant union bosses the power to force public educators, police officers, firefighters, and other public employees under their one-size-fits-all so-called ‘representation’ not only deprives individual workers of their basic right to select their own representation, but will also saddle Alexandria taxpayers with an even more oppressive tax burden than what they already deal with.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 93 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

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

Recent legislative actions

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

  • Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike.
    • Democratic sponsorship. 
    • Sen. Robert Peters (D) added as alternate co-sponsor April 28. 
  • Maine LD52: This bill would allow educational policies related to preparation and planning time and transfer of teachers to be subjects of collective bargaining negotiations.
    • Democratic sponsorship. 
    • Education and Cultural Affairs Committee reported “ought to pass as amended” April 28.  
  • Maine LD97: This bill would bar public-sector and private-sector employers from requiring employees to join or pay dues to a union as a condition of employment.
    • Republican sponsorship. 
    • Died (placed in legislative files) April 28.  
  • Maine LD1402: This bill would remove the authority to require public employees who do not join a union to pay service fees to the union.
    • Republican sponsorship. 
    • Labor and Housing Committee vote April 26 (divided report). 
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.
    • Democratic sponsorship. 
    • First reading in the House, referred to speaker’s desk April 27.  
  • Tennessee HJR0072: A constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization.
    • Republican sponsorship. 
    • House substituted SJR 2 April 26. 
  • Tennessee SJR0002: A constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization.
    • Republican sponsorship.  
    • House concurred April 29. 
  • Washington SB5133: This bill amends the definition of a “confidential employee” for the purposes of collective bargaining.
    • Democratic sponsorship. 
    • Delivered to governor April 26. 

Thank you for reading! Let us know what you think! Email us at editor@ballotpedia.org with any feedback or recommendations. 



Union Station: Indiana bill covering union resignations and payroll deductions signed

Holcomb signs bill allowing Indiana teachers to resign from unions at any time, requiring annual authorization for payroll deductions

Indiana Gov. Eric Holcomb (R) signed Senate Bill 251 on April 22. The bill allows teachers to resign from their union at any time and requires teachers to authorize union payroll deductions on a yearly basis.  

About the bill

The Republican-sponsored bill states that school employees “[have] the right to resign from, and end any financial obligation to, a school employee organization at any time.” It also states, “Authorizations by a school employee for the withholding of school employee organization dues from the school employee’s pay shall not exceed one (1) year in duration and shall be subject to annual renewal.” 

The attorney general must notify schools of the law’s provisions, and provide them with the required authorization form, each year.

The bill passed the Senate 28-22 in February, with 12 Republicans voting against it. The House passed the bill 58-34 on April 6 and returned it to the Senate without amendments. Holcomb signed it into law on April 22. The bill goes into effect on July 1, 2021.   

Republicans have had trifecta control in Indiana since 2011. Holcomb assumed office in 2017 and was re-elected in 2020, defeating Woody Myers (D) 57-32%. 

A similar bill currently in the Florida state Senate would apply to all public employees. 

Perspectives

Supporting

Bill sponsor Rep. Chuck Goodrich (R) said the bill “gives all teachers a voice by empowering them to make their own decisions.” 

The Mackinac Center for Public Policy’s Workers for Opportunity initiative promoted the bill.  Senior fellow F. Vincent Vernuccio said, “Indiana is leading the nation in protecting the rights of school employees. … Sen. Philip Boots and Rep. Chuck Goodrich should be commended for ensuring that school employees across the state are made aware of their First Amendment rights and can exercise their rights at any time. This is a positive step towards protecting workers across Indiana.” 

Opposing 

Rep. Mike Andrade (D) said, “We continue to pass legislation that continues to hurt our teachers. … We are losing them by the droves in our state.”

Anderson Federation of Teachers Local 519 president Randy Harrison said, “It’s going to create more paperwork, to the tune of roughly 500 people in Anderson that are going to have to re-up as members every year. … So, it’s going to create an undue burden on not only the union office, but it will also create that on the payroll and the business office.” 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 93 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 AB1484: This bill would prohibit a public school employer from deducting the amount of a fair share service fee or alternative fee from a public school employee’s pay unless the employer has received permission from the employee. It would also require an employee’s authorization to only be valid for the calendar year in which it is given, unless terminated. 
    • Republican sponsorship.
    • Read second time and amended April 20. Re-referred to Assembly Public Employees and Retirement Committee April 21. 
  • Florida H0835: This bill would require that unions certified as bargaining agents for educational support employees include certain information in registration renewal applications. The bill would also require such unions whose full dues-paying membership is less than 50% to petition the state for recertification.  
    • Republican sponsorship.
    • Added to second reading calendar April 20.
  • Florida S1014: This bill would require that unions certified as bargaining agents for educational support employees include certain information in registration renewal applications. The bill would also require such unions whose full dues-paying membership is less than 50% to petition the state for recertification.  
    • Republican sponsorship.
    • Senate Rules Committee hearing April 20. 
  • Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike. 
    • Democratic sponsorship. 
    • House Labor and Commerce Committee recommended amendment April 22. 
  • Indiana SB0251: This bill would establish that a school employee can leave a union at any time. It would also require an employee to annually authorize any payroll deductions of union dues. 
    • Republican sponsorship.
    • Gov. Eric Holcomb (R) signed April 22. 
  • Maine LD97: This bill would bar public-sector and private-sector employers from requiring employees to join or pay dues to a union as a condition of employment. 
    • Republican sponsorship.
    • Labor and Housing Committee reported “Ought Not To Pass”/”Ought To Pass As Amended.”
  • Maine LD1402: This bill would remove the authority to require public employees who do not join a union to pay service fees to the union. 
    • Republican sponsorship.
    • Labor and Housing Committee hearing April 23. 
  • Missouri SB244: This bill would require employees to authorize deductions before public employers begin deducting union dues or fees from employees’ paychecks. It would also require “clear and compelling evidence that the authorization was freely given.” 
    • Republican sponsorship.
    • Placed on informal calendar for perfection beginning April 26. 
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts. 
    • Democratic sponsorship. 
    • Placed on calendar for a voice vote April 26. 
  • Tennessee HJR0072: A constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization. 
    • Republican sponsorship.
    • Placed on regular calendar for April 26.