In June 2018, the United States Supreme Court held in Janus v. AFSCME, Council 31 that state governments violate the First Amendment when they deduct union dues or fees from non-consenting state employees. The court made clear that a union’s act of collective bargaining with the government is inherently political speech and that public employees therefore have a right to choose whether to participate in that speech. Specifically, the court ruled that by agreeing to pay union dues or fees, public employees are waiving their First Amendment rights. Such waiver must be freely given and demonstrated by clear and compelling evidence before the state can deduct any union dues or fees from employee paychecks.
Unfortunately, after the Janus decision was issued in 2018, the prior state administration made little effort to advise state employees of their constitutional rights as set forth in Janus. Under the Dunleavy administration, however, the state is taking steps to inform state employees of their constitutional rights as required under the Janus decision and to protect those rights. On Aug. 27, 2019, Attorney General Kevin Clarkson issued an opinion concluding an employee’s consent for dues deductions must be free from coercion, knowing and intelligent, and sufficiently contemporaneous to the time the deductions occur.
The governor also has issued an administrative order instructing the Department of Administration to prepare a system by which state employees can clearly and affirmatively choose to deduct union dues and fees from their paychecks. If they do not so choose, the state will not deduct those dues or fees from their paychecks. Until the department develops the new system, the state will continue to deduct union dues from employee wages. Once the new system is created and implemented, all employees will need to use the new system to affirm or reaffirm their consent to dues and fees deductions. Going forward, employees will be able to opt in or opt out of authorizing dues deductions from their paychecks at any time.
Some union leaders have alleged that designing this system is “union busting.” That argument presumes a significant number of their members will not consent to have dues deducted once given a choice. Why wouldn’t members want to support their union if their union was representing their interests and views?
Others have expressed concern that unions will need to represent non-paying employees in bargaining but will not receive financial support from them. So far, unions have expressed that they want to keep nonpaying employees as their members, but the state is open and willing to deal with nonpaying employees directly if unions want to remove them from membership.
To be clear, the state of Alaska is taking no position on whether an employee should choose to financially support a union. That is an individual decision, protected by the Constitution, and the state will fully honor an employee’s decisions in this regard. The state’s goal is simply to comply with the law and fairly and impartially protect employees’ constitutional rights.
Kelly Tshibaka is commissioner of the Alaska Department of Administration.