Still Paying Coerced Labor Dues, Even After Janus

(The Wall Street Journal)—A year after Janus, Ms. O’Callaghan isn’t the only public employee finding it difficult to cut ties with a union. Dozens of workers have crashed into obstacles set by unions and their allies in state government. Many are turning to lawsuits. Ms. O’Callaghan enlisted the help of the nonprofit Liberty Justice Center. Along with the California Policy Center, LJC sued the Teamsters, the president of the University of California, and the California attorney general on behalf of Ms. O’Callaghan and another frustrated union member this spring.

The opt-out window is a favorite post-Janus union tactic for retaining members. More than 40 lawsuits against these “escape period” requirements are pending across the country, according to Bill Messenger, an attorney with the National Right to Work Foundation who argued Mark Janus’s case at the Supreme Court.

The opt-out windows are stingy: They are generally open for between 10 and 30 days, and occur either a year after a member signs a contract or at the end of a collective-bargaining agreement, which may be every few years. Employees are often told they may not file paperwork to leave the union or rescind dues before the opt-out window opens, giving them in some cases as few as 10 days to do so. In Ms. O’Callaghan’s case, the terms of the Teamsters’ collective-bargaining agreement stipulate she must send written notices via U.S. mail to her employer and to the union within the 30-day period. Notices sent before are invalid.

Mr. Messenger and lawyers at LJC argue that these opt-out window requirements flout the Janus ruling, which clarified that a worker must give affirmative consent to become a union member. Before Janus, they argue, workers couldn’t give free, knowledgeable consent because they faced an unconstitutional choice between being a member or an agency-fee payer. Unions are violating the free-speech rights of members like Ms. Callaghan, who joined before Janus, by forcing them to wait for opt-out windows to leave.

In several states, legislators have backed the unions’ trapping tactics. In New Jersey, Delaware and Hawaii, new laws have enshrined opt-out windows in statute. In California lawmakers cleared the way for opt-out windows by mandating that employers defer to unions if there is a question about when a member may leave. Other state legislation, some of it pending and much of it rammed through by Democrats around the time of Janus, includes mandatory union orientation sessions for new public employees and requirements that employers provide workers’ contact information to unions.

More than 80 lawsuits are challenging union efforts to hang on to unwilling members. Often handled by nonprofits like the LJC and NRTW Foundation, these suits fall into four main camps: challenging opt-out window restrictions, seeking compensation for pre-Janus agency fees paid by nonmembers, fighting exclusive union representation, and extending Janus to the private sector. These cases aren’t litigating the merits of unions; they’re seeking to codify workers’ freedom to choose whether they want to be in one.

As Ms. O’Callaghan waits for responses from the defendants in her case, she says she isn’t upset about the $41 monthly financial ding. She’s offended by the principle of it. She was strong-armed into joining the union before Janus. The Supreme Court changed the game, but somehow she got trapped in the old one.