In the wake of the U.S. Supreme Court’s landmark 5-4 Janus decision last June, which barred public-sector unions from forcibly exacting dues from nonmembers, various states have gotten creative in circumventing the ruling. Oregon is emerging as a leader. Early in the year, a state lawmaker, acting on a request by a school employees union, introduced House Bill 2643, authorizing the establishment of a special fund from which public employers would collect dues and then pass them along to unions. A dissenting worker would have no way to opt out. Aside from showing contempt for worker liberty, the measure runs contrary to the law. The bill for now is in committee, but given the Democratic Party (i.e., pro-union) majority in both legislative houses, passage is a distinct possibility.
Janus v. American Federation of State, County and Municipal Employees (AFSCME) was the most significant Supreme Court decision on public-sector labor relations in decades. Since 1977, following the Court’s ruling in Abood v. Detroit Board of Education, state and local government employee unions have had the authority to automatically deduct partial dues payments (“agency fees”) from dissenting nonmember employees covered in a collective bargaining unit. The majority opinion in Janus, written by Justice Samuel Alito, clearly stated that if a worker does not wish to join a union, or pay agency fees in lieu of joining, the union cannot deduct dues without that worker’s affirmative consent. Nor can a government agency function as a third-party collection agent for a union. Public-sector monopoly bargaining was destined for oblivion.
Or so it seemed. In a number of states, political leaders and their allies in organized labor – in some cases, in anticipation of ruling being handed down – have been figuring out how to avoid compliance. In New York, where Democratic Governor Andrew Cuomo makes no secret of his partisan union views, the state’s Labor Department has begun to classify certain government workers as “union members” for the purpose of deducting dues from their wages and salaries even if the union cannot (perhaps more accurately, will not) confirm that a worker is a member. And the legislature has come up with a proposal that would enable unions to bill the state to cover the cost of their core functions. In California, then-Gov. Jerry Brown, prior to Janus, in 2017, as part of a “trailer bill,” signed a measure requiring public agencies to give contact information about their new employees to unions every 120 days for the purpose of holding orientation sessions touting the benefits of membership; the state provided an encore last year by prohibiting government agencies from disclosing information about the site and time of such orientations. And in open defiance of the Supreme Court, California public-sector unions have begun to include deceptive language in contracts designed to induce unsuspecting employees into signing away their Janus rights. In this scheme, union dues aren’t really dues; they’re “voluntary service fees.”
In that same spirit, certain Oregon lawmakers are rising to the occasion in the form of House Bill 2643. Introduced late in January by Rep. Paul Holvey (D-Eugene) on behalf of the Oregon School Employees Association, the measure would set up a special Employment Relations Protection Account from which state and local agencies would pay unions the equivalent of an employee’s monthly dues. In effect, the state would represent management and labor at the same time. Perhaps even more disturbing than this conflict of interest, the law would deny dissenting public-sector workers any recourse in seeking to recover deductions. Employers simply would reduce their wages or salaries, dollar for dollar, and forward dues payments to the appropriate union. Two writers from the Olympia, Wash.-based Freedom Foundation, Aaron Withe and Ashley Varner, illustrate: “Rather than paying a state employee a salary of $50,000, for example, from which $1,000 in agency fees would be deducted, the bill proposes to simply alter the arrangement on paper so that the employee’s revised salary is $49,000, with the state diverting the remaining $1,000 to the union itself.” A more brazen method for filling union coffers hardly can be imagined.
The measure is illegal as well as brazen, contradicting the letter and intent of Janus v. AFSCME. The essence of that decision was to ensure that government employees had the right to decide for themselves whether to furnish funds to a union. If a given union cannot secure a worker’s voluntary consent, the Supreme Court concluded, then it has no right to help itself to that worker’s paycheck. Supporters of House Bill 2643 somehow have concluded differently. The bill also contravenes the Oregon law. Article XI, Sections 7 and 9, of the state constitution, in the words of Appalachian School of Law professor Dale Rubin, “prohibit the State and its political subdivisions from pledging their credit in aid of any public or private person, company or corporation, or making any donation or grant to such persons or entities.” More specifically, Oregon statutes (ORS 243.668 and ORS 243.672) explicitly bar public employers from using public funds either to assist or discourage union organizing. HB 2643 does not repeal these statutes, but it does state that “the payment of an assessment under this section is not a violation” of the statutes. That might make for a difficult argument in court.
Supporters of the bill are assuring the public that money from the Employment Relations Protection Account will be spent on core union functions, and not on political purposes such as parties, candidates, ballot initiatives and political action committees. Such a claim strains the imagination. Public-sector unions are self-interested organizations as much as their private-sector counterparts. They have every incentive to support candidates and political causes favorable to their interests, even if they resort to disguising such support under neutral-sounding terminology. A local Oregon newspaper editorial put it this way a few months ago: “(T)he very nature of a union bargaining with the state over pay, health care, retirement benefits and working conditions is a political question about how the state should be run.”
There probably will be more efforts like these in states across the country to force dissenting government workers and/or taxpayers to support unions. To unions and their backers, the Supreme Court’s ruling last June in Janus was nothing short of a disaster. Overturning that ruling for now is not an option, thus the attempts to circumvent in ways deceptive and illegal. Let it be said again that public employees have a right to decide for themselves whether to support a union. In Oregon and certain other non-Right to Work states, unfortunately, they’re getting the shaft.