It’s bad enough when public-sector unions by themselves flout the clearly expressed will of the Supreme Court, but it’s even worse when they get an assist from lower courts.
In a disappointing ruling issued this past week, Oregon District Judge Marco Hernandez held that the fine print in “membership agreements” blandly describing the terms of the arrangement constitutes adequate notice to workers that when they opt out of union dues they are also waiving their First Amendment rights not to.
In the court’s landmark 2018 ruling in Janus v. AFSCME, the right of government employees to decline to support a union with dues or agency fees and still keep their jobs was affirmed once and for all.
Justice Samuel Alito, writing for the majority, further stressed that, “By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”
Clearly, he meant workers must be told in no uncertain terms what they are signing away when they agree to join a union. And the union must be able to document its actions.
But many, including SEIU 503 and AFSCME 75 — two of the largest public-sector unions in Oregon — insist on fudging that requirement by putting fine print in their membership cards that requires members to keep paying dues until the anniversary of the date they signed up for membership, even if they opt-out of membership in the meantime.
Ten Oregon public employees who were told they would continue to have dues deducted from their paychecks brought a class-action lawsuit last fall against SEIU 503 and AFSCME 75, seeking an end to the practice and a refund of their illegally confiscated dues.
In Anderson v. SEIU 503, the workers — represented by the Freedom Foundation — cite the unambiguous language of Janus that a public employee cannot be forced to pay money to a union absent clear consent and a valid waiver of constitutional rights.
The court got around this requirement by opining that Janus does not apply to employees who’ve chosen to become union members. This reasoning somehow manages to conclude the union satisfied the court’s clearly expressed mandate by telling the worker nothing at all.
Nevertheless, the court sided with the union’s specious arguments, holding that whether or not you are aware of your rights, you can give them up by signing a membership agreement.
The case will be appealed to the 9th Circuit, where it will join other cases arguing for greater protection for the First Amendment rights of public sector employees.
For employees such as lead plaintiff Lori Anderson, the ruling is maddening. When she signed up for membership, she was told she would have to pay whether or not she became a member. She wouldn’t have signed up for membership if not for the “agency” fees held over her head.
This is a public scandal. The union is enforcing an agreement signed prior to Janus notwithstanding subsequent changes to the law.
“Despite my clearly expressed wishes,” Anderson said, “SEIU 503 wants to keep taking money from me for another year. That’s a lot of money to pay for nothing.”
