September 6, 2018 Print

Public unions throughout the country have been in upheaval since the June 27th decision in the Supreme Court case, Janus v. American Federation of State, County and Municipal Employees. Public union eligible employees now have the ability to opt out of union membership without fear of retaliation and are no longer required to pay “agency fees.” While several states had existing “right-to-work laws” prior to Janus, this overarching national policy gives the power back to the 5 million government employees in the 22 states without them.

In Washington state, a battle is brewing that seeks to determine how, or whether, the Janus ruling impacts union-member employees who opted in prior to the Supreme Court decision. The decision states that nonmembers cannot be forced to pay dues, but does not clearly lay out what options are available to union members who wish to leave.

Washington Governor Jay Inslee, Washington Attorney General Bob Ferguson, and the Washington Federation of State Employees contend that the Janus decision should not implicate union members who wish to withdraw their membership, as they chose to become members in the first place. The Freedom Foundation disagrees. According to the Washington state-based think tank, “the Supreme Court was very clear that public employees have a First Amendment right to refrain from supporting a union’s advocacy. Equally clear is that unions cannot take money from a government worker unless the employee has knowingly and voluntarily waived that right.”

The six individuals who are being represented by Freedom Foundation say they originally opted into the union because it did not really make a difference for them financially; they were going to be paying union dues whether they chose to opt in or to opt out. Some also claim to have felt “pressured” to join, fully aware that retaliatory tactics were not above the standards of some unions.  

The ruling “does not impact any agreements between a union and its members to pay union dues, and existing membership cards or other agreements by union members to pay dues should continue to be honored,” claims Attorney General Ferguson. This, Freedom Foundation argues, is in direct violation of the Janus decision, which states that employees must provide “affirmative consent” to become a dues-paying union member.

The lawsuit agrues that the Washington state government has disregarded the Janus decision for the time being and, in doing so, has violated the freedom of association guaranteed under the First Amendment to the Constitution. The Governor, Attorney General, and state unions claim that enabling existing union members to opt out could be detrimental to unions, but they do not mention the individual employees, who pay hard-earned dollars to overly political organizations with which they often disagree. 

The Freedom Foundation has been abundantly clear throughout its lawsuit that it is not working toward dismantling unions, duping union members, or lobbying against union membership; it is fighting for the ability of every union-eligible employee to make his or her own decision in regard to union membership and representation. 

In Ohio, a similar legal battle is underway. Jade Thompson, who is being represented by The Buckeye Institute, has paid $14,000 to the teachers union during her career.  

“The Janus decision was an important victory for hardworking public servants across the country,” said Robert Alt, president and CEO of The Buckeye Institute — as well as the lead attorney on the case, “but many of these same employees are still forced to accept their union’s representation that they didn’t ask for and do not want.” Thompson, a Spanish teacher at Marietta High School who has been fighting to get out of paying dues for several years, saw an opening following the Janus decision. In Ohio, a lengthy process is required to opt out of paying “agency fees,” a process that is only available during a 30-day span in the winter. The Buckeye Institute asserts that since the “burden of proof” now lies with the union, forcing Thompson to jump through these hoops is not just unfair, it is illegal. 

During her career, Ms. Thompson noticed the union dues deducted from each paycheck, but it was not until she received a letter in the mail that she realized she was supporting an organization with which she disagreed. In 2010, Thompson received a campaign advertisement financed by her teachers union, the Marietta Education Association. The advertisement was in support of a candidate running for Ohio Representative, against Thompson’s husband. 

“Imagine my dismay when I received political propaganda against my husband’s candidacy that was paid for and mailed by an organization related to my own union,” said Thompson. She immediately dropped her union membership, opening up a gauntlet of ridicule, harassment, and personal attacks.  

Thompson and The Buckeye Institute are not trying to shut down the Marietta Education Association; they are not demonizing union members, representatives, or the union itself. Thompson is not a “right-wing extremist” (as her former superintendent alluded to); she simply does not want to associate with an organization that she opposes. 

“The Buckeye Institute is calling for an end to the unconstitutional, and unfair, practice of compelled ‘exclusive representation,’” said Alt. “It is time to recognize that public servants have the right to speak for themselves and they should be released from forced association with unions and advocacy with which they disagree.”