Supreme Court May Take Up Case That Could Expand Non-Union Members’ Rights

“The Guardian” or “Authority of Law" statue by James Earle Frasier in front of the U.S. Supreme Court in Washington on Sept. 28, 2020. Al Drago/Getty Images

News Analysis

A good governance group called the Freedom Foundation is urging the U.S. Supreme Court to consider a case that they say would safeguard Alaska state employees’ free speech rights by preserving a requirement that makes unionized employees re-register with their union each year.

At stake, potentially, are union revenues derived from dues, which are often used to fund Democratic Party candidates and various left-wing causes.

The justices are scheduled to consider whether to grant the state of Alaska’s petition for certiorari, or review, in Alaska v. Alaska State Employees Association (ASEA), court file 23-179, on Dec. 1. ASEA is Local 52 of the American Federation of State, County and Municipal Employees (AFSCME).

If at least four of the nine Supreme Court justices vote to approve the state’s petition, oral arguments would follow. If that takes place, a decision in the case could come by June 2024.

The petition comes years after the court’s landmark 2018 ruling in Janus v. American Federation of State, County, and Municipal Employees (AFSCME), Council 31.

In Janus, the court held it was a violation of the First and Fourteenth Amendments to the U.S. Constitution for states to compel public employees to support, through their paychecks, union speech with which they disagree.

Maxford Nelsen, director of labor policy for the Olympia, Washington-based Freedom Foundation, said Alaska created an online system for its employees to authorize dues deductions from their paychecks.

The system “would allow cancellations at any time, and then the employees would need to reauthorize dues deductions on an annual basis, the idea being that consent can change over time and needs to be periodically renewed in order to be valid,” Mr. Nelsen told The Epoch Times in an interview this week.

But the union disagreed with the new policy and sued. It succeeded in persuading the state courts that there “was no constitutional imperative for the changes.”

This new case gives the Supreme Court an “opportunity to clarify and revisit and potentially expand the decision from 2018 that it issued in Janus v. AFSCME,” he said.

“At first blush, the cases deal with subject matter that would be obscure to most people—the public sector, collective bargaining and labor relations.

“The implications of these issues are significant, though, for policy debates and political contests around the country due to the outsized influence that government unions have on our policy process and their extreme partisanship,” Mr. Nelsen said.

Union Fee Structure Being Challenged

In the case at hand, Alaska is appealing a ruling by the Alaska Supreme Court that enjoined the state’s requirement of annual re-registration.

Labor unions oppose the requirement, saying it goes beyond what the Janus decision mandates, and is part of an anti-union push by Republican state officials.

In May, the Alaska Supreme Court upheld a permanent injunction against the state and ordered it to continue deducting dues using the old procedure.

The state supreme court affirmed a lower court’s ruling in favor of the union, saying the lower court was correct in finding that “the State breached the collective bargaining agreement and violated relevant statutes.”

“Neither Janus nor the First Amendment required the State to alter the union member dues deduction practices set out in the collective bargaining agreement” in place between the government and the union, it said.

The Alaska Supreme Court also said that the state’s changes to the labor relations framework showed “abundant evidence of anti-union animus.”

Alaska argues that the state supreme court ruled incorrectly. Alaska has also argued that some states have been resisting the Janus ruling and that the U.S. Supreme Court needs to step in and provide some clarity.

Alaska Attorney General Treg Taylor, a Republican, previously said: “The promise of Janus is unfulfilled.

“States across the country, including our own, continue to deduct money from the paychecks of state employees without clear and compelling evidence demonstrating the employees’ knowing consent. This needs to change, and we need the highest court in the country to step in.”

Lawyers for ASEA filed a brief (pdf) with the U.S. Supreme Court on Oct. 30 offering legal arguments as to why the court should refuse the state’s petition.

There are “multiple reasons why this case would not be an appropriate vehicle for review” of the question that the state wishes to present.

“The individuals whose First Amendment rights purportedly are being violated are not parties here” and they “lack standing to seek relief in this Court from having to comply with their own state laws,” they wrote.

“The collateral estoppel effects of previous federal court judgments also preclude petitioners from relitigating the First Amendment issue they seek to present.”

Collateral estoppel is a legal doctrine that prevents a party in a lawsuit from raising an issue that was previously decided in litigation.

The Freedom Foundation filed a brief (pdf) with the nation’s highest court on Sept. 29.

The case at hand is “an ideal vehicle for this Court to settle an important federal question: Must a state ensure it has clear and compelling evidence that its public employees have affirmatively, knowingly, and voluntarily consented to union dues or any other payment to the union before the state deducts money from the employees’ paychecks and transfers it to the union?”

Labor unions have engaged in problematic behavior, such as “refusing to acknowledge receipt of employee communications asking the union to stop certifying that the employee authorized dues deductions, asking the union to provide any evidence it may possess that demonstrates employee consent, and withdrawing previously-given consent because the union changed its political speech.”

Alaska Gov. Mike Dunleavy, a Republican, previously said that the government is looking out for the interests of its employees.

“Before we take any money from the paychecks of state employees, we need to ensure that the employees were properly advised of their rights and consented to the deduction,” he said.

“And if employees disagree with union speech, they need to be given an opportunity to opt out. Our payroll system does not adequately protect the constitutional rights of our employees and changes must be made.”

Heidi Drygas, executive director of ASEA Local 52, criticized the governor, saying the idea that he’s protecting the interests of public employees was “laughable.”

“This administration’s record is one of privatizing services, outsourcing jobs to other states, furloughing employees, and chronic understaffing among many other anti-worker policies,” she previously told the Alaska Beacon.

The Janus Ruling

The U.S. Supreme Court revisited an aspect of the Janus ruling in January 2021, refusing to grant litigant Mark Janus’s follow-up petition in which he asked for a refund of his agency fees. An agency fee is collected from a person who is not a member of the union where he works.

The decision not to hear the case left intact a ruling by the U.S. Court of Appeals for the 7th Circuit.

A federal district court found that the union enjoyed a so-called good faith defense that shielded it from damages when it acted under the Illinois agency-fee statute that, at the time, was considered valid. The 7th Circuit affirmed the lower court and held that “under appropriate circumstances, a private party that acts under color of law … may defend on the ground that it proceeded in good faith” and acted “reasonably” based “on established law.”

The Epoch Times reached out to Alaska’s attorney, J. Michael Connolly of Consovoy McCarthy in Arlington, Virginia, and the unions’ attorney, Matthew Murray of Altshuler Berzon in San Francisco, for comment but had not received any replies as of press time.