The Ninth Circuit Court of Appeals today became the latest battleground in the war between government employee unions and workers eager to exercise their Constitutional rights not to belong to one.
But the issues at stake are so consequential it’s hard to imagine either side declining to appeal an adverse ruling to the U.S. Supreme Court, which has issued at least two landmark rulings in similar cases since 2014.
The latest lawsuit, Belgau v. Inslee, et al, was filed in August 2018 on behalf of seven Washington state employees who attempted to resign from the Washington Federation of State Employees (WFSE) shortly after SCOTUS affirmed two months earlier in Janus v. AFSCME that mandatory union membership and dues in the government workplace violate a worker’s First Amendment rights.
Rather than simply complying with the ruling, however, unions all around the country responded to Janus by making the opt-out process as difficult as possible. In the case of the Belgau plaintiffs, they were told by WFSE officials they could only cancel the deduction of union dues from their wages during an arbitrary 10-day escape window occurring during the coming year.
Not only do the union’s actions clearly flout the intent of Janus that workers be given every opportunity to decide for themselves questions about workplace representation but they completely ignore a provision in the ruling that would render all government dues deductions unconstitutional unless the employee clearly chooses to waive their First Amendment right not to pay dues.
Writing for the court majority in Janus, Justice Samuel Alito emphasized:
“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
This means a union cannot simply assume workers want to be union members — and pay dues for the privilege. It must first ask permission.
Further, Alito also noted:
“By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”
Thus, before a union can begin deducting dues from a worker’s paycheck, it must not only have the worker’s written consent, but it also must be able to show he or she fully understood that by paying dues they were waiving their right not to.
“Agreements to authorize state dues deductions require informed consent,” explained James Abernathy, senior litigation counsel for the Freedom Foundation, which is representing the Belgau plaintiffs. “But the key is, that standard applies not just to nonmembers, but to all employees, including those who at some point joined a union as members.”
The Supreme Court didn’t create a new right, he said. It affirmed a right that has always existed but had been violated for decades.
The distinction could have potentially wide-ranging ramifications for government employee unions going forward.
“The burden of proof has shifted,” Abernathy, who argued the case, said. “Because the unions have never informed employees of their right not to join or pay dues, virtually every union card authorizing state deductions is null and void under Janus.”
“Rather than expecting groups like the Freedom Foundation to give union members a good reason to stop paying dues,” he said, “Janus means that none of these people should be paying dues in the first place, and it’s up to the union to justify why they should.”
Judges at the trial court didn’t accept that argument, but the appeal is now in the hands of the Ninth Circuit Court of Appeals. Should Belgau reach the U.S. Supreme Court — and regardless of which side prevails at the Ninth Circuit, an appeal is all but inevitable — it will be heard by the justices who understand Janus completely.
Because they wrote it.
