- The Washington Times - Tuesday, November 6, 2018

After the Supreme Court ruled in June that public-sector labor unions couldn’t force nonmembers to pay dues, Mark Smith quickly canceled his membership in American Federation of State, County, and Municipal Employees Local 2700.

But AFSCME said he has to keep paying, at least until his contract ends at the end of this month.

Although the high court’s 5-4 ruling in June in Janus v. AFSCME settled the big constitutional questions, finding that public-sector unions violated workers’ free speech rights by forcing them to pay dues, it left a number of questions about retroactivity unanswered.

Some workers have demanded back pay, saying they are owed hundreds or thousands of dollars they paid into unions over the years for a practice now deemed illegal.

Other workers say the court’s ruling should at least prevent workers like Mr. Smith, a clerk at the Contra County Superior Court in California, from having to pay anything in the future.

The union argues that the collective bargaining agreement between AFSCME and the superior court lasts through the end of November, so even though the practice may be illegal in the future, Mr. Smith is bound by his contract.

“An advance commitment by a union member to pay dues through payroll deduction for a set period of time serves important interests for the union. It provides increased funding predicability, allowing the union to prepare responsible budgets and make long-term funding commitments,” AFSCME said in court papers.

It’s not an isolated dispute.

Government employees in Ohio filed a class-action lawsuit last month saying they canceled membership in AFSCME Council 8 after the Supreme Court’s ruling, but they have continued to have fees deducted from their paychecks.

The union says employees can’t withdraw their membership fees until the last 45 days before the collective bargaining agreement ends. Collective bargaining agreements typically last about three years, according to the complaint.

The union has not responded to the lawsuit and declined to comment to The Washington Times.

Teachers in New Jersey last week also sued over dues — and challenged a state law enacted in May that allows workers to revoke union memberships within only a 10-day period each year.

The teachers said the Supreme Court’s ruling in June trumps that law.

In another lawsuit filed this year, New Jersey defended its law, saying the Supreme Court’s ruling doesn’t apply to contracts that have already been consented to.

“Authorizations for dues deductions, like plenty of other contractual agreements, can be for a set duration,” the state argued in court documents.

In the Supreme Court decision, the justices overturned a 1970s-era precedent and ruled that because public-sector unions’ activity is so intertwined with public policy — lobbying for more teachers in classrooms or cops on the street — that forcing people to pay dues amounts to forcing them to support political speech.

That would seem to rule out dues in the future, but the justices didn’t say what should happen to dues agreements already in place.

Some workers have asked for their dues to be paid back.

But the bigger legal fights currently are over contracts.

“Unfortunately, winning a Supreme Court decision isn’t the end of things, in many ways it’s just the start,” Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, told The Times.

His organization recently sent a letter to the Washington Metropolitan Area Transit Authority demanding that it stop automatically deducting union dues from workers’ paychecks.

A spokesman for Metro says it’s just following the list provided by the unions for automatic dues deductions.

Dan Stessel, chief communications officer for the transit agency, said the system has stopped distributing union information to new employees, saying that is now the role of the union and employees have the option of joining or not.

Mitchell Rubinstein, a New York lawyer, said the unions are correct about the binding contracts.

“You don’t have the right to withdraw once you gave your consent,” Mr. Rubinstein said. “They can’t change their mind because the law changed.”

But Daniel DiSalvo, a political science professor at the City College of New York, said courts could go either way on the issue.

“The presumption here is a little in favor of, you can opt out whenever because really it’s your free speech rights at stake,” he said. “This is a membership in a voluntary organization.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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