- The Washington Times - Thursday, February 11, 2021

The U.S. Supreme Court ruled nearly three years ago against requiring public-sector employees to pay union fees in its landmark Janus decision, and now seven Washington state workers want the court to enforce it.

Attorneys for the employees on Thursday asked the Supreme Court to take up their case against Washington Gov. Jay Inslee and the Washington Federation of State Employees, arguing that state and union officials violated Janus by erecting barriers to leave the union and stop the automatic payroll deductions.

“The justices have a golden opportunity here to reinforce their clearly stated intent in Janus — that public employees can freely choose to pay, or not pay, government unions,” said Aaron Withe, national director of the conservative Freedom Foundation.

The foundation, which represents Melissa Belgau and six other state employees in Belgau v. Inslee, filed a request for certiorari after a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled against them in September.

The Washington workers are not alone. Public employees in at least 11 states have challenged post-Janus restrictions on exiting unions, but the foundation’s case, Belgau v. Inslee, marks the first to reach the Supreme Court since the 2018 decision in Janus v. American Federation of State, County and Municipal Employees (AFSCME).

The court ruled in favor of Illinois state child support specialist Mark Janus, holding that nonunion public employees cannot be compelled to pay fees in lieu of union dues and spurring predictions that union clout would plunge as workers quit the public-sector collectives in droves.

While union membership dipped after the decision, the exodus of union workers has yet to materialize. Union officials attribute that result to enhanced benefits and perks, and critics point to efforts to make it more difficult and less appealing to give up union membership.

“With the help of politicians corrupted by dues money, unions have suppressed public employees’ First Amendment rights by restricting their ability to decline union association altogether,” Mr. Withe said.

In Washington, Ms. Belgau and six other state employees sought to leave WFSE, the state arm of AFSCME, after the Janus decision came down in June 2018, but were reminded that they had recently signed payroll deduction authorization cards, “which for the first time restricted when employees could stop subsidizing WFSE,” the petition said.

Labor leaders knew an unfavorable high court decision on membership fees was likely, but WFSE never disclosed that to the workers even as it worked with state officials beforehand to amend the collective bargaining agreement, the lawsuit said.

“The cards said nothing about a (then) soon-to-be acknowledged First Amendment right not to subsidize union speech or the Janus case pending in this Court at that time,” said the petition. “On the contrary, the cards explicitly stated that, should employees decline union membership, they would be compelled to pay a nonmember fee as a condition of employment.”

The membership changes gave state employees a 10-day annual window to leave the union, pegged to their hiring date. Those who opted to resign outside of the “escape window” had their membership benefits withdrawn immediately but were charged union fees until the end of the window period, said foundation legal counsel James Abernathy.

“Belgau isn’t some radical new idea,” Mr. Abernathy said. “It’s just a corollary to Janus — and it wouldn’t even be necessary if the states and unions had complied with the ruling to begin with.”

Attorneys for the Washington Federation of State Employees countered that the workers “each voluntarily agreed to join a union and pay dues through payroll deduction for a one-year period in exchange for membership rights and members only benefits,” and so far that argument is winning in court.

The 9th Circuit held that the Janus decision “did not extend a First Amendment right to avoid paying union dues, and in no way created a new First Amendment waiver requirement for union members before dues are deducted pursuant to a voluntary agreement.”

The Freedom Foundation cited Justice Samuel A. Alito Jr.’s majority opinion in Janus, which said no dues or fees may be deducted “unless the employee affirmatively consents to pay.”

“In such cases, unions take the position that every worker is a dues-paying member until he or she successfully negotiates a deliberately complicated opt-out process,” the foundation said in a Thursday press release. “Alito made it clear, however, that public employees cannot be charged any union dues or fees until they knowingly and affirmatively consent to the deduction.”

Judge M. Margaret McKeown of the 9th Circuit said the card-signing met the test, ruling that the employees “do not offer a serious argument that they were coerced to sign the membership cards; they voluntarily authorized union dues to be deducted from their payrolls.”

Public-sector union enrollment held steady at about 7 million from 2019 to 2020 as union membership as a percentage of total employment increased by 0.5 percentage points to 10.8%, largely because private-sector employment fell during the pandemic, according to the Bureau of Labor Statistics.

After Janus, pro-union blue states sought to boost labor’s prospects with laws and executive orders allowing unions to offer certain benefits such as insurance and grievance representation only to members.

“Within two weeks of the Janus ruling (and, in some cases, anticipating the ruling), about a third of the 22 affected states passed laws to help shield unions from its full impact,” the Manhattan Institute said in a 2019 report.

Several states, including California, Maryland, New York and Washington, “now assure unions access to new employees so that they can make the case for union membership,” said the Manhattan Institute report.

In 2019, Illinois Gov. J.B. Pritzker signed a bill that gave union representatives the right to meet with employees on company time, required employers to provide unions with the names and addresses of workers, and forbade employers from discouraging union membership.

Meanwhile, pro-union state legislators have sought to pass restrictions on giving out union members’ names to others, thwarting efforts of conservative groups to contact union workers directly about their Janus rights.

Mr. Janus said he hoped the Supreme Court would put a stop to what he described as the unions’ “illegal acts limiting employees’ free-speech rights.”

“The Supreme Court’s decision in my case set out clearly that government unions can no longer force public employees to pay them money as a condition of their job,” Mr. Janus said in a statement. “Sadly, the unions have stood in the way of the Janus decision at every opportunity.”

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