August 28, 2018 — The Chicago-based Liberty Justice Center asserts that public employers are required to obtain written affirmation from union members that they wish to continue paying union dues.
The law firm that represented the plaintiff in the U.S. Supreme Court case that overturned mandatory union dues has sent cease and desist letters to state officials threatening litigation if they don’t immediately stop deducting dues from employee paychecks.
The Chicago-based Liberty Justice Center asserts in its letter that public employers are required to obtain written affirmation from union members that they wish to continue paying union dues in the wake of the Supreme Court opinion, Janus v. AFSCME.
“Any previous authorizations for the deduction of dues or fees that employees made before the Janus decision were based on a choice the Supreme Court has declared unconstitutional: become a member and pay dues, or pay fees to a union as a nonmember,” the letter states. “Any ‘consent’ based upon that unconstitutional choice was made under duress, not freely given, and is invalid because it does not satisfy the ‘clear and affirmative’ consent standard established by the Supreme Court in Janus.”
That argument conflicts with the Oregon Department of Justice’s interpretation of the Supreme Court opinion.
Under Janus, public employers are prohibited from deducting union fees or dues from a nonmember’s wages without the employee’s affirmative consent.
According to the Oregon DOJ, however, the opinion applies only to the payment of an agency service fee or dues by individuals who decline union membership.
“The Janus decision does not impact any agreements to pay union dues between a union and its members to pay union dues,” according to a July 20, 2018, advisory to public employers from Oregon Attorney General Ellen Rosenblum. “Existing membership cards or other agreements by union members to pay dues should continue to be honored.”
The letter was sent to Rosenblum, Oregon Gov. Kate Brown, and Katy Coba, director of the Oregon Department of Administrative Services (DAS), Portland Mayor Ted Wheeler, Portland City Attorney Tracy Reeve and two officials from Portland Public Schools.
“Pursuant to legal advice, DAS is complying with Janus by ensuring that state employers no longer collect fair share fees from employees who have not affirmatively consented to union membership,” said Liz Craig, a DAS spokeswoman.
“As of July, no one is paying fair share fees – employees are either members who pay dues or they are non-members. Anything related to an employee’s status with their union is handled between the individual and the union – not DAS; the unions then notify us when there are membership changes. Each contract also has its own provisions for opt-out windows, so data on how many people have opted out since Janus is not readily available.”
Similar letters from the Liberty Justice Center have been sent to a total of about 50 public employers in 13 states where mandatory dues were previously state law, said Jeffrey Schwab, the center’s senior attorney.
“The problem is that public employees basically had an unconstitutional choice of paying and being a member or still paying and not being a member,” Schwab said. “You can’t be forced to pay a union as a condition of your employment. Because union members given that unconstitutional choice, whatever they elected before Janus is void. In order to withhold union dues, public employers have to receive affirmative consent from each employee that by paying the union they are forgoing their First Amendment right to not pay the union.”
If public employers fail to comply with the center’s interpretation of the Supreme Court opinion, the Liberty Justice Center “may be forced to file a lawsuit to allow these people not to have to pay union dues,” he said.