In its eagerness to insulate Big Labor from the impacts of the U.S. Supreme Court’s landmark ruling in Janus v. AFSCME five years ago, the 9th Circuit Court of Appeals has allowed states to deduct dues payments whose only claim to authorization is a forged employee’s signature on a union membership card.
On Wednesday, a national public policy watchdog organization specializing in government employee unions bundled five of the most egregious forgery cases from the states of Washington, Oregon and California into a single appeal to the Supreme Court.
In the five years since the court’s ruling in Janus affirmed that compulsory union membership and dues violate the First Amendment rights of public employees, states and unions have passed legislation specifically designed to re-entrench Big Labor’s power by ignoring that case’s holding.
Specifically, states have put unions, not employees or government employers, in charge of deciding which employees have to pay dues and which do not.
To no one’s surprise, unions have abused this privilege by repeatedly instructing government employers to seize dues from the wages of employees who have not affirmatively consented to the payments, as articulated in Janus.
Fox, meet henhouse. And it can only happen when the government deliberately looks the other way.
“In order to justify its unjustifiable decisions, the 9th Circuit had to ignore the constitutional implications of these cases,” said James Abernathy, counsel of record for the Freedom Foundation. “We’re hopeful the Supreme Court will continue to protect public employees’ First Amendment rights, as it did in Janus.”
In its outreach work, the Freedom Foundation has uncovered over a dozen instances of forgery, Abernathy said, and its attorneys have appealed several to the Supreme Court individually only to be denied cert. Lumping five together underscores the scope of the problem.
The Freedom Foundation is requesting the court reinforce its 2018 ruling in Janus. Emboldened by a long list of decisions from lower courts, however, unions have consistently refused to comply with that ruling.
More pointedly, they have completely disregarded wording in Janus that unequivocally spells out under what circumstances a union can deduct dues from an employee’s paycheck. The ruling states:
“Neither an agency fee nor any other payment to the union may be deducted (by the state, which as the employer, controls its own payroll process) from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
Equally important, the ruling stipulates that:
“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.”
In Washington, Oregon and California, dues are taken from government employees’ paychecks by the state at the direction of the union designated to represent those workers. Even though the union benefits financially based on how many paychecks it can plunder, it is nonetheless given sole discretion in the matter.
Because of this cockeyed arrangement, the 9th Circuit was able to brush aside the forgery claims, holding that a union is not a so-called “state actor” to whom the Constitution applies when it instructs government employers to forward money from non-consenting employees’ wages to union political coffers.
“There are at least two fundamental problems with that reasoning,” Abernathy said. “First, there’s abundant case law showing that, in cases like this, the union is treated as a state actor and can be held accountable for its actions. And secondly, the Supreme Court had already ruled that dues can’t be deducted by either the state or the union without the employee’s consent. It doesn’t matter what state laws say. The U.S. Constitution takes precedence.”
The Supreme Court has declined to consider several similar cases in recent years, Abernathy said, but the justices can only tolerate the lower courts’ errors for just so long.
“Unless you enforce it, even a landmark ruling like Janus is just a piece of paper,” Abernathy concluded. “Unions and activist judges have been allowed to act as if Janus never happened since the day it was issued. At some point, the court has to demonstrate that it meant what it said and said what it meant.”
