My name is Brian Beal, and I am tenured professor of marine ecology at the University of Maine at Machias (UMM). I attended UMM for four years after graduating from nearby Jonesport Beals High School in 1975, and received a B.S. in Biology in 1979. I have held several full-time positions at UMM since May 1985 and joined the faculty and the Associated Faculties of the Universities of Maine (AFUM) in September 1995. I resigned from AFUM in December 2020.
I certainly appreciate and benefit from the work that colleagues here and at the other six campuses in the University of Maine System (UMS) do to represent full-time faculty in collective bargaining and other activities. Numerous decisions related to collective bargaining have disappointed me over time (e.g., no substantive movement regarding merit pay or salary inequities between campuses; pay increases that fail to keep pace with changes in the cost of living). I have never voted in favor of an AFUM contract. Growing up in the local area, I knew if I remained on the clam flats for an additional hour, or fished 100 lobster traps instead of 75, the extra effort likely would translate into more income; yet, that simple formula that seems to work in the private sector does not translate to academe. Nonetheless, I paid dues to AFUM month after month since 1995 thinking, like most I presume, that my contributions would generate some overall benefit for faculty at UMM and across the UMS. And then, an incident occurred on October 21, 2020 that reminded me of the idiom “The Last Straw.”
I was at home watching Game 2 of the World Series between Tampa Bay and Los Angeles when I received a text message from my best friend Gene Nichols. Affectionately referred to as the “Music Man” by anyone who has had the privilege of seeing him perform (or performing with him), he wrote, “I guess I’m done here.” I immediately phoned him not knowing what he was talking about. Gene said he was in his office working on material for his upcoming classes when the head of campus knocked on his door and invited Gene to accompany him back to his office for a Zoom meeting in 10 minutes with human resources staff member from the University of Maine (UM). UMM is now a regional campus of UM, and many administrative duties, including HR, are now supported by people in Orono. Gene said the meeting was brief, and that he’d been fired. FIRED?!
“How can they fire you, you have tenure, you’ve been at UMM since September 1985 (35 years)?!” I said. “You’ve given your heart and soul to this institution, its students, staff, and faculty. You’ve served on faculty committees, taught courses both in and out of your comfort zone to accommodate colleagues, division chairs, academic deans, and presidents. Whenever anyone asked, you consented, whether that was to provide entertainment at every graduation since you first stepped onto this campus, for meetings when the UMS Board of Trustees were in town, or when community groups wanted to use the Performing Arts Center. You were always there. You are UMM’s fine arts icon!”
“They’re down-sizing,” Gene said. “We don’t have a lot of students in music classes anymore. They called it ‘retrenchment.'” UMM’s Interdisciplinary Fine Arts major was excised recently, leaving a B.A. in Creative Arts that contains 33 credits for its program requirements – courses with the acronym ART, ENG, CMY, or MAR, but none with MUS.
Amazingly, I’d never heard of retrenchment, so I went to the current AFUM contract to see if it was there. Sure enough, there on page 29, Article 17 – Retrenchment: “the discontinuance of a unit member with tenured appointment or continuing contract from a position at any time or a probationary or fixed length appointment before the end of a specified term for bona fide financial or program reasons including temporary or permanent program suspension or elimination.”
I thought surely this can’t apply to Gene. He’s been here for 35 years. While music courses are no longer required in any B.S. or B.A. program, MUS 115 and MUS 103 are still 3-credit and 1-credit options, respectively, in the Core Requirements, and 15 MUS courses still are listed in the 2020-2021 UMM Catalog.
Gene isn’t the kind of guy that gets upset about things, which is about 180 degrees in the opposite direction from me. I was mad! He wasn’t. My world is more black-and-white, and in my world, someone who has devoted 35 years of teaching and accommodating everyone who has asked him to give something with little in return should be able to bow out under their own terms. Gene has taught courses ranging from Chorale (MUS 101), Applied Music (MUS 301 Community Band/Pop Band/Chamber Ensemble), and Songwriting (MUS 223) to special topics and interdisciplinary, semester-long courses focused on the Beetles, the Circus, and Captain Beefheart. Name an instrument that Gene can’t play. He plays just about any brass instrument you could pronounce, as well as both percussion and stringed instruments (except the piano). He can play a Brahms Rhapsody in B minor on the theremin, and any other tune you can name on a saw! My nickname for Gene is “The Genius!”
I ultimately resigned from AFUM because the retrenchment of Gene Nichols is not just unfair, it’s ridiculous, disrespectful, and challenges the very fabric of the phrase “job security.” What is 35 years worth? Apparently, a 10-minute warning that everything that you’ve done to build your career, mentor students and colleagues through the EGBDF’s of music history, theory, listening, and performing, and represent UMM at countless events both on and off campus with the confidence of a maestro, is all discounted, finished, over, kaput!
I asked the AFUM representative on our campus how something like retrenchment is in the AFUM contract. The answer was that “retrenchment is not an AFUM measure but a university measure.” I decided that if, after all the years of negotiations and bargaining, the faculty union was not strong enough to allow the likes of Gene Nichols (or anyone else in his shoes) to decide for himself when the time has come to hang up his drumsticks and leave the academy, then I didn’t see any reason to continue contributing to the organization.
For some public employees, union membership feels compulsory. It seems everyone they work with is a member of the union, and therefore feel compelled to join as well. However, union membership is truly a choice thanks to the Supreme Court’s ruling in Janus v. AFSCME in June 2018. Because of the decision, public employees across the country can now choose to be a member or nonmember, and unlike before, nonmembers cannot be required to pay dues or fees to the union without their consent.
For workers who decide membership is right for them, they might be surprised to learn about the activities their union engages in that are not germane to its representational activities or the benefits it offers its members. Some of the largest unions in Maine, including the Maine Education Association and the Maine Service Employees Association (SEIU Local 1989), engage in a fair amount of political activity of which their members may not be aware or support.
Before we dive into the specifics, it’s important to note the limitations of this data. The Labor Management Reporting and Disclosure Act of 1959 requires unions representing private-sector employees to file disclosures annually with the Office of Labor Management Standards. These reports include information about the union’s membership, dues and fees, and accounting of how the organization spent its money over the past year.
As noted by the Freedom Foundation, the information contained in a union’s LM-2 report is only as trustworthy as the union reporting it. Some unions file obviously inaccurate reports that include rounded or approximated figures, while others report no change in union membership for several years in a row. In addition, state or local union affiliates representing only public employees do not have to file LM-2 reports, which can make it difficult to discern membership totals for unions in certain states. In addition, when a union files an LM-2 report, it means, by definition, that some private-sector employees are included in its membership totals, which makes it difficult to isolate and identify changes in the union’s public-sector membership rate.
According to the LM-2s filed by the Maine Education Association between 2017 and 2020, the organization spent more than $2.8 million to influence public policy in Maine. The organization routinely spends between $600,000 and $800,000 annually on politics and lobbying. Over the four-year period, the organization spent as much as $750,000 in 2019 on politics and lobbying and as low as $633,000 in 2018.
The Maine Service Employees Association (SEIU Local 1989) also engages in a considerable amount of political spending, though not to the same extent as the state’s largest teacher’s union. According to the LM-2s filed by the Maine Service Employees Association between 2017 and 2019 (the organization’s 2020 annual report has not yet been filed), the group spent more than $700,000 on politics and lobbying. Based on its recent annual reports, the organization spends between $200,000 and $300,000 annually on these activities. In 2019, the organization reported spending a high of more than $274,000 in 2019 and a low of $207,000 in 2018 over the period.
Both the Maine Education Association and the Maine Service Employees Association (SEIU Local 1989) are top donors to Rebuild Maine, a political action committee that is hyperactive in Maine politics. More information about Rebuild Maine’s involvement in Maine political campaigns can be found here. In addition, both organizations are members of “Maine Votes” whose partners include the Maine AFL-CIO, Maine Conservation Voters, the Maine People’s Alliance and Planned Parenthood Maine Action fund. Rebuild Maine calls itself the organization in Maine that “anchors independent expenditure activity in legislative races.” In short, the organization exclusively supports progressive political candidates and causes in Maine politics. My guess is many school teachers and state employees working in executive branch departments do not know the dues and fees they pay to their union are being used in this manner, to support political causes with which they may disagree.
Curious if your union engages in extensive political spending with which you disagree? Use the Union Search tool on the U.S. Department of Labor’s website to learn more.
In the 2018 court case Janus v. American Federation of State, County, and Municipal Employees (AFSCME), the U.S. Supreme Court ruled that mandatory union fees in the public sector violate public sector employees’ right to free speech. As a result, public sector unions, such as the AFSCME, cannot collect any fees associated with sustaining a union as a condition of employment. Despite this decision, many states continue to maintain rules that make it difficult for workers to choose whether they want to financially support a union. Alaska and Texas are changing this, and other states should join them.
The Janus v. AFSCME decision stated that government workers had to “affirmatively consent” before union fees could be deducted from their paychecks. But in many states, workers are not being clearly informed of their right to abstain from paying union fees. Additionally, workers who don’t want to support their union have been told they must wait until a limited period—sometimes as short as 10 days—after current collective bargaining agreements expire before they can opt out. These rules preclude workers from providing affirmative consent and are inconsistent with the Janus decision.
Jonathan Reisman, an associate professor of economics and public policy at the University of Maine at Machias, is appealing his case, Reisman v. Associated Faculties of the University of Maine (AFUM), to the U.S. Supreme Court.
On Friday, Jan. 2, The Buckeye Institute, the organization representing Reisman in his case, filed an appeal to SCOTUS calling for an end to laws in Maine and other states that force public-sector employees to accept compelled union representation. This process, called exclusive representation (a policy for which unions advocate), prevents nonmember employees in a bargaining unit from representing themselves in matters with their employer.
In 2018, the high court ruled in Janusv. American Federation of State, County and Municipal Employees (AFSCME) that public employees cannot be required to pay dues or fees to a labor union as a condition of employment. Before Janus, nonmember public employees were compelled to pay “agency fees” to a union for the cost of the organization’s representational activities concerning the employee, despite rejecting the union’s representation by refusing to join or opting out of membership.
SCOTUS ruled this practice violates the First Amendment rights of public employees. Reisman is asking the high court to consider exclusive representation laws under the same principle. If compelled payments to a union violate a public employee’s First Amendment rights, compelled representation must also violate employee’s rights.
“Professor Reisman is a hardworking public employee who has for many years been forced to associate with a union with which he disagrees and suffer it to speak for him,” said Robert Alt, president and chief executive officer of The Buckeye Institute and a lead attorney on the case. “If state law cannot compel public employees to financially support union advocacy — as the court ruled in Janus v. AFSCME — how can states require these same public employees to accept representation from unions that many of them have chosen not to join? These are serious questions about the constitutionality of exclusive representation — questions which the U.S. Supreme Court needs to address.”
“Despite resigning his union membership, Professor Reisman is required by Maine law be represented by a union with which he does not agree and of which he is not a member,” said Andrew M. Grossman, a partner at BakerHostetler in Washington, D.C., and counsel of record on the Reisman v. AFUM petition. “Following the Court’s landmark Janus ruling, it is clear that these laws are unconstitutional, and we hope the Court will recognize them as such.”
Reisman formerly served as a grievance officer with his union before resigning his membership after the Janus decision. His former union, AFUM, is affiliated with the Maine Education Association and the National Education Association, which has taken political stances that Reisman finds objectionable.
While the outcome of Janus freed him from the requirement of either joining the union or being forced to pay representation fees, Maine law still forces AFUM to be Reisman’s exclusive representative, meaning he is still associated with the positions the union takes.
If the Supreme Court agrees to hear Reisman’s case and rules in his favor, the First Amendment rights of public employees to represent themselves in matters with their employer would be restored. The end result is true freedom of speech and association, not compelled speech and association as required by state labor law.
In 2018, the Supreme Court of the United States ruled that requiring public-sector workers to pay dues or fees to a union without affirmative consent violates their First Amendment rights. In other words, the ruling in Janus v. AFSCME prohibited public-sector unions from collecting compulsory payments from workers. Since that time, public unions have relied on their allies in state legislatures across the country to bolster their control over public sector workers and undermine the Janus decision. Conversely, workers have taken a stand against their unions, through opt-outs and litigation, to try and gain control over their own employment.
In August 2019, the Commonwealth Foundation released a report that ranked states based on their public-sector labor laws. They used 11 policy measures to fairly assess states’ laws, administrative codes and regulations related to public-sector workers. Under the foundation’s assessment, Maine received a D grade (as seen to the left) because post-Janus general labor policy continues to adversely affect taxpayers. However, the report indicated there were 29 other states that earned a C grade or above. The criteria used to determine rankings can be found here and Maine’s assessment is illustrated in the table below.
While there are more than 100 pieces of legislation related to Janus that were or are being considered by state legislatures in 2019, workers have taken another approach to creating change. Public-sector employees have been inspired by the Janus ruling and are trying to achieve additional reforms that protect their First Amendment rights through litigation across the nation. The Commonwealth Foundation’s report tracked 73 lawsuits post-Janus. These new challenges come in the form of recovering lost dues and agency fees that were collected before or after the Janus decision, the constitutionality of opt-out windows, the availability of public employees’ information to the public, and challenging the idea of exclusive representation.
Dues and Agency Fee Recovery
Solomon v. AFSCME DC 37 — Filed July 23, 2019
Plaintiff Scott Solomon, a city planner in the New York City Department of City Planning, is seeking a refund of agency fees collected between July 23, 2016 and June 27, 2018. Prior to the Janus decision, the New York Public Employees’ Fair Employment Act gave unions that were certified as the exclusive representative of public employees in collective bargaining the ability to collect agency fees from public employees who were not members of the union. Solomon is seeking damages in the full amount of agency fees and assessments seized from their wages, plus interest, for violations of their First Amendment Rights.
Because Solomon was required to pay fair share fees as a condition of employment before the Janus decision ruled the practice unconstitutional, he may be entitled to recover the dues he paid to the union within his states’ statute of limitations.
Mattos et al., v. AFSCME Council 3 — Filed September 3, 2019
In this case, 19 plaintiffs filed a federal class-action lawsuit against their public sector union to recover non-member agency fees collected before the Janus ruling. More specifically, they want the dues collected between September 4, 2016 and June 27, 2018. The plaintiffs assert that AFSCME Council 3 collected agency fees prior to the Janus decision without affirmative consent and as a condition of employment. Because these funds were collected without the affirmative consent of the plaintiffs, they are seeking to be awarded damages or restitution in the full amount of agency fees and assessments seized from their wages, plus interest, for violations of their First Amendment Rights.
Halloran v. AFSCME Council 5 — Filed September 16, 2019
Susan Halloran, a senior account clerk at Inver Hills Community College, was pressured to join AFSCME Council 5 on April 15, 2019. During a training session, she was asked to sign a dues authorization form on a union representatives’ tablet. When she asked how much would be deducted from her paycheck, the union representative was unable to apprise her of the exact percentage that would be taken out. Halloran claims she felt pressured to sign the dues authorization form and was not told she had a choice to decline as a result of the Janus decision.
After calculating the cost of union dues annually, Halloran decided to contact the union representative to withdraw her registration, partially due to the cost of medical bills for cancer treatments. The union representative declined her registration and instead told her she is responsible for an entire year of dues. As a result, Halloran is seeking a declaration that the union card she signed under pressure cannot be used as a basis for affirmative consent because “such authorization was given without knowing and intelligent waiver of her First Amendment rights.” In addition, she wants the court to declare that the withdrawal of her waiver was timely, made in good faith and would not have caused substantial harm to other parties. Lastly, she wants to be awarded damages for the dues that have been collected since April 2019.
Because she felt pressured and was unaware of her rights under Janus, Halloran should have the ability to opt out of paying dues to the union, especially if it is going to hinder her ability to pay for essential medical bills.
Wenzig v. SEIU Local 668 — Filed w/ Amendment October 28, 2019
Janine Wenzig, an employee in the Pennsylvania Department of Human Services, paid approximately $440 in agency fees annually to SEIU Local 668 as a non-member. In this case, Wenzig and Catherine Kioussis are seeking to recover the funds they and other state employees paid to the union as non-members between August 7, 2017 and June 27, 2018. Again, this is a case whereby non-union public employees were compelled to fund their union without affirmative consent before the Janus ruling. Therefore, they may be eligible to recover damages in the amount paid in agency fees between August 2017 and June 2018.
Opt-Out Windows
Stroeder v. SEIU Local 503 — Filed July 30, 2019
Colleen Stroeder, an employee at the Oregon Department of Transportation, was told by her supervisor that she was required to become a member of SEIU Local 503 and pay union dues. As a result, around $800 was deducted from her paychecks annually. After the Janus decision, Stroeder learned that she was not required to join the union or pay compulsory dues. Thereafter, she sent a letter to the SEIU to resign her membership and cease dues deductions.
In response, the union directed her to an opt-out window codified in state law that had passed 10 days before she sent her union resignation letter. According to state law, employees had a mere 15 days to opt-out of their union annually. Therefore, the SEIU rejected her request to opt-out and cease dues deductions. As a result, Stroeder filed a lawsuit to challenge to the opt-out window and to recover dues paid to the union. According to the plaintiff, the opt-out window prevents her from freely associating or disassociating with the SEIU.
Public employees should have the option to join or leave their workplace’s union as they please. Oftentimes, labor organizations and public officials create opt-out windows to make it easy to join a union but extremely difficult to leave.
Jackson v. Napolitano — Filed July 30, 2019
Michael Jackson and Tory Smith, employees at the University of California, San Diego, believed they were required to join and pay dues to their union prior to the Janus decision. Once they learned about their rights under Janus, they tried to opt out of Teamsters Local 2010. Due to a gag rule (a law that prohibits employees from speaking with their employer and vice versa about payroll deductions, union membership and their rights under the Janus decision) on the books in California, Jackson and Smith are prohibited from discussing their membership or payments to Local 2010 with the university.
When they approached the union about withdrawing, they were told they would not be able to opt-out until a 30-day window before the expiration of their contract. For them, the contract is in effect until March 31, 2022. If Jackson and Smith chose to do nothing, they would pay approximately $1,850 and $1,950 to Teamsters Local 2010, respectively, before their union’s contract expires.
Both Jackson and Smith were not afforded the opportunity to give free and affirmative consent to waive their First Amendment rights before the Janus ruling. Before the Supreme Court’s decision, they were presented with a false dichotomy; either pay dues for membership or agency fees for non-membership. Before Janus, they did not have the choice to refuse having funds deducted from their paycheck and sent to the union. Therefore, both plaintiffs are seeking monetary damages for the amount of dues they paid to the union without valid, affirmative and freely-given consent.
In addition, the plaintiffs are seeking the gag rules be ruled unconstitutional when affirmative consent is not freely and expressly given. In other words, employees should be able to learn about their rights under Janus from their employer. Further, they want a declaratory judgement that the union membership cards signed before Janus cannot be considered valid, freely-given affirmative consent because Jackson and Smith were presented with a false dichotomy of choices.
Exclusive Representation
Uradnik v. Inter Faculty Organization — Filed December 4, 2018
Kathleen Uradnik, a political science professor at St. Cloud State University in Minnesota, decided to challenge the idea that the labor organization at her workplace is the sole representative for public employees and has the exclusive right to speak on their behalf. She made the choice not to join the Inter Faculty Organization because she opposes some of the stances the union takes during collective bargaining and when they advocate for political causes. In addition, the Inter Faculty Organization’s contract prevents Uradnik from serving on any faculty committees, including the Faculty Senate, because she is not a member.
Through Minnesota state law, labor organizations are granted the power of exclusive representation, or the ability to negotiate on behalf of all employees in a workplace, a provision unions fight for in labor law. Even employees who disagree with their unions’ stances during collective bargaining are silenced because of the unions’ “right” to exclusive representation.
Uradnik is seeking a preliminary injunction on designating unions as the exclusive representatives for public sector employees. On April 29, 2019, the Supreme Court of the United States declined to grant certiorari to Uradnik but gave her a chance to have the case heard before a U.S. District Court based on its merits.
Reisman v. Associated Faculties of the University of Maine — Filed August 10, 2018
Jonathan Reisman, an economics professor at the University of Maine at Machias and former grievance officer for his union, is also attempting to challenge exclusive representation in court. More specifically, he is challenging the Maine Labor Relations Act, which prohibits public employees from representing themselves in collective bargaining and other negotiations with the university. Like other workers across the nation, Reisman was unhappy with some of the political and policy stances taken by the state and national partners with whom his union is affiliated.
Because a portion of his dues were funding his union’s state and national affiliates, he decided to opt-out and resign from his position as a grievance officer. Despite his decision, the union still acts as the exclusive representative for his workplace and bargains on his behalf. When the Associated Faculties of the University of Maine (AFUM) speaks to the university about wages, hours, benefits and other conditions of employment, Reisman cannot contribute his input to that dialogue. In other words, this relationship with AFUM is non-consensual and Reisman wants it terminated.
In the lawsuit, Reisman is seeking a preliminary injunction to prevent AFUM from representing non-union employees. Last month, Reisman lost his battle with the 1st Circuit Court of Appeals in Boston when they upheld the U.S. District Court’s decision to dismiss the case. However, his attorney intends to appeal the decision to the Supreme Court of the United States. If the Supreme Court decides to grant certiorari, it may become a landmark case in the fight to protect workers’ First Amendment rights.
Information Sharing
Suhr v. New York State Department of Civil Service (NYSDCS) — Filed October 25, 2019
On April 24, 2019, Daniel Suhr filed a Freedom of Information Law (FOIL) request with the New York Department of Civil Service to obtain public employees’ names, home zip codes, hire dates, labor organizations, bargaining units and payroll deduction selections to inform them of their newfound rights under Janus. The NYSDCS released all of the information except zip codes attached to the names of individual public employees and cited Governor Cuomo’s Executive Order 183. After Suhr was denied upon appeal to the NYSDCS FOIL Appeals Officer, he filed a petition with the New York Supreme Court to declare the FOIL Appeals Officer is in error and that Executive Order 183 does not prevent the NYSDCS from administering the zip codes of public employees. In addition, Suhr wants the court to direct the NYSDCS to give him the information sought.
It is clear the Janus decision has sparked other public-sector employees to speak out against their unions to reaffirm their constitutional rights. While the list of litigation above is non-exhaustive, it illustrates how public sector workers feel about unions restricting their First Amendment rights in the workplace.
The Legislative Council on Wednesday met to vote on nearly 400 bills submitted by lawmakers for consideration in the second session. Despite a number of non-emergencies being admitted into the second session, lawmakers turned down a bill where an emergency case actually exists.
The bill request, LR 2828, sponsored by Rep. Dick Bradstreet of Vassalboro, would have brought state law into compliance with the Supreme Court’s 2018 ruling in Janus v. AFSCME. In Janus, the high court ruled that public employees cannot be compelled to pay dues or fees to a labor union without first affirmatively consenting to pay. The ruling states:
“The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
Currently, Maine law is at odds with the SCOTUS ruling. In the collective bargaining laws governing municipal public employees, state employees, University of Maine System employees and judicial employees, state statute says a public employee can refrain from joining a union, “except that an employee may be required to pay to the organization that is the bargaining agent for the employee a service fee that represents the employee’s pro rata share of those expenditures that are gemaine to the organizations representational activity.”
These four sections of law must be changed because, under Janus, an employee cannot be required to pay fair share fees. Fees, dues and other payments can only be deducted if a worker affirmatively consents to pay.
The legislative request failed on Wednesday by a 6-4 vote, with Reps. Kathleen Dillingham and Trey Stewart, and Sens. Jeff Timberlake and Dana Dow voting in favor while Reps. Matt Moonen and Ryan Fecteau and Sens. Nate Libby and Eloise Vitelli voted in opposition. House Speaker Sara Gideon and Senate President Troy Jackson also voted against the measure.
LR 2828 should be accepted into the second session and easily passed because conforming to federal labor law is not a partisan issue. State law currently violates the First Amendment rights of public employees, whose rights were also under assault in the first session. Public sector unions and their allies in the Maine Legislature are doing everything they can to prevent public employees from understanding their First Amendment rights under Janus, and by denying this request on Wednesday, are actually undermining constitutional protections for public employees.
Last month, Alaska Attorney General Kevin Clarkson released a formal opinion that said the state is not in compliance with the United States Supreme Court ruling in Janus v. the American Federation of State, County and Municipal Employees (AFSCME). This formal opinion was issued via a request from Alaska Governor Mike Dunleavy to ensure Alaska’s current process for deducting dues from employees’ paychecks is in compliance with the Janus decision.
The Janus ruling established that public sector workers cannot be required to pay dues or fees to a public-sector union without first giving affirmative consent for the funds to be withheld from their paychecks. The Court found that requiring employees to pay dues or fees without consent is a form of compelled speech and violates employees’ First Amendment rights. The ruling ended the deduction of agency or so-called “fair share” fees from public employees’ paychecks.
While the State of Alaska already stopped deducting agency fees from non-members’ paychecks, state statute does not describe how to obtain affirmative consent from employees. As a result, the state defers to the “union-sponsored” system of obtaining this permission whereby the state is not involved. This is problematic because the employee is faced with the decision to waive or retain his or her First Amendment rights against compelled speech, and the state is charged with deducting dues or fees from the employees’ payroll based on that decision.
Because the state doesn’t directly obtain consent from employees and isn’t involved in that process, it is impossible for the state to know if state government employees gave voluntary affirmative consent for dues deductions. In other words, the employer must have clear and compelling evidence that the waiver of the employee’s First Amendment right was given without coercion.
Since payroll deductions are a state-facilitated process and are created by state law, the Attorney General’s opinion recommends the state handle obtaining affirmative consent from employees to ensure there is clear and compelling evidence they gave it knowingly and without coercion.
In his opinion, Attorney General Clarkson said,
“By ceding to the unions themselves the process of eliciting public employee’s consent to payroll deductions of union dues and fees, and unquestioningly accepting union-procured consent forms, the State has no way of ascertaining—let alone by ‘clear and compelling evidence’—that those consents are knowing, intelligent, and voluntary. The State has thus put itself at risk of unwittingly burdening the First Amendment rights of its own employees.”
The attorney general recommends using a state-run affirmative consent, or opt-in system, rather than relying on the unions themselves to obtain approval from employees to ensure all consent forms are signed with “knowing, intelligent, and voluntary” consent. In addition, he recommends creating a renewable process annually to prevent the employee consent agreements do not become “stale.”
After the Attorney General released his opinion, the Alaska AFL-CIO came out against it, expressing that the Attorney General’s “end goal is obvious; he’s attacking public workers to lower pay and benefits for every worker in Alaska, and to slash the services Alaskans count on.”
Despite the union’s bullish rhetoric, their real concern is that greater transparency and choice would result in fewer public employees paying dues and agency fees. In other words, this move would take power away from public-sector unions and give it to the public employees in the form of understanding their constitutional rights and making informed decisions.
Maine should follow Alaska’s lead in taking on the role of obtaining affirmative consent for payroll deductions. In addition, the legislature needs to consider changing state statute to reflect the Janus decision by nixing the “requirement” for employees to pay agency fees. Put simply, it is no longer constitutional and needs to be fixed when they come back for their Second Regular Session.
This week marks the one-year anniversary of the U.S. Supreme Court’s decision in Janus v. AFSCME, in which the high court ruled that public-sector employees could no longer be compelled to financially support a union. While the ruling was a historic victory for First Amendment rights, many public workers are still unaware of how the ruling affects their employment and workplace.
Under Janus, public workers can no longer be required to pay agency fees (commonly referred to as “fair share” fees), or payments taken from a worker’s paycheck to compensate a labor union for its representational activities. Before Janus, these funds were deducted from workers’ paychecks, even though these workers were not members of the union.
Thursday, June 27, 2019 marks one year since the U.S. Supreme Court ruled in favor of Mark Janus, a former union employee who was aggrieved because the agency fees that he was forced to pay to the American Federation of State, County and Municipal Employees (AFSCME) were being used to promote political speech with which he disagreed.
Janus worked for the Illinois Department of Healthcare and Family Services as a child support specialist, and he disagreed with not only AFSCME’s political stances, but the tactics and positions that the union took toward collective bargaining. He believed the positions taken by AFSCME did not take the fiscal crises in Illinois into consideration, and therefore did not represent the best interests of Illinois citizens, himself or his colleagues in the department.
Agency fees are supposed to be a “proportionate share” of what union members pay for services and representation, covering activities “germane to [the union’s] duties as collective bargaining representative.” The agency fees deducted from Janus’ paycheck totalled $535 annually, and were used to conduct activities with which he disagreed.
The main argument in support of agency fees is that collective bargaining agents are required to represent all employees during negotiations, thus both members and non-members should be required to pay for these services. However, some employees, such as Janus, may not agree with the positions taken by their union during the collective bargaining process, yet they are forced to pay for a service they do not want. Before the Supreme Court’s ruling in Janus v. AFCSME, unions could coerce employees to pay agency fees, and have historically labeled workers like Janus as “free riders” for receiving the perceived benefit of these services without being dues-paying members. But consider the following quote from the Janus decision:
“Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage. Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?”
In addition to the quote above, the free rider argument was further scrutinized by the high court because public-sector unions desire the ability to represent all employees in order to have power over the collective bargaining process. The Supreme Court argued that the power gained by representing all employees outweighs the burden of representing non-members who do not pay dues, and concluded that agency fees are a violation of public employees’ First Amendment protections under the U.S. Constitution. In addition, the Court ruled that agency fees cannot be deducted from a non-union public employee’s paycheck without affirmative consent. While this is a clear benefit to public employees, there is still work that needs to be done to protect these rights.
My Pay My Say Maine, a project of The Maine Heritage Policy Center, is a new initiative in Maine dedicated to educating public employees on their right to opt out of union membership and stop subsidizing activities with which they disagree. According to the Bureau of Labor Statistics, the United States was estimated to have approximately 7.17 million public employees who are members of a union in 2018, or around 33.9 percent of public-sector workers overall.
While the Janus decision has freed non-union workers from paying agency fees, legislators this session rejected a bill, LD 1232, that would have removed provisions from state statute that require public-sector employees to pay dues, fees or assessments for collective bargaining. While this proposal included Right-to-Work reforms, the Labor and Housing Committee could have reported out an amendment that simply struck the existing provisions within state law that conflict with Janus decision. This change should be made because public-sector employees deserve to know they are no longer required to pay dues or agency fees to government unions, and these protections should be codified in state law.
The current statute reads, “an employee may be required to pay to the organization that is the bargaining agent for the employee a service fee that represents the employee’s pro rata share of those expenditures that are germane to the organization’s representational activities.” This begs the question: Are lawmakers actively working to conceal the rights of public employees under Janus?
These devious tactics are not new or unique to the state of Maine. Within two weeks of the Janus decision, Governor Andrew Cuomo of New York signed an executive order to prevent public entities from sharing public employees’ contact information with outside groups. In essence, he did not want outside groups to inform public-sector employees of their rights to opt out of their union. A bill with similar intent passed with legislative approval in Maine and was signed by Governor Mills on June 20.
LD 1451 mandates that public employers provide a collective bargaining agent with the name, job title, workplace location, home address, work telephone number, personal telephone number, work email address, personal email address and date of hire of new employees. In addition, this information cannot be disclosed to the public and cannot be obtained through a Freedom of Access Act (FOAA) request. In summation, this new legislation allows unions to bombard public employees with information about joining their union and prevents outside organizations from informing those same employees of their constitutional rights under Janus.
In addition to providing this information to unions, public employers are going to be required to provide a meeting space for an employee and collective bargaining agent to meet on the employer’s premises for at least 30 minutes, and permits bargaining agent to use the employer’s email system to communicate with employees. Public employees can only opt out of receiving communications from a collective bargaining agent or stop allow them from having further access to their information after the initial meeting and disclosure of private information is made.
In summation, public-sector unions will stop at nothing to continue suppressing public employees’ right to opt out of union membership and stop subsidizing the organization. The My Pay My Say Maine website and campaign will assist in the endeavor of educating public employees about their rights under Janus.
Regardless of one’s position of union membership, it is reproachable to prevent individuals from learning about First Amendment protections in the workplace. These attempts to suppress information only serve the interests of unions, not the workers they are supposed to represent.
Today marks the one-year anniversary of the U.S. Supreme Court’s ruling on Janus v. the American Federation of State, County and Municipal Employees (AFSCME). The Janus V. AFSCME decision is one of the biggest rulings in favor of the First Amendment in recent history. The ruling defends public workers from compelled speech in support of unions through the deduction of dues and fees from workers’ paychecks.
Prior to Janus, employees who did not wish to join a union were compelled by states and collective bargaining law to pay the union “agency fees.” Agency fees were long seen as a means for workers to compensate unions for their collective bargaining efforts—regardless of whether or not the worker wanted the organization to bargain on their behalf.
Unions had long fought to keep agency fees, often referring to tem as “fair share fees,” and contending that they are necessary to prevent “free riders”—a term for nonmembers that benefit from collective bargaining but don’t pay union dues. Hence why, during arguments before the high court, the union’s defense was that agency fees were not compelled speech and were instead fees for services from which nonmembers benefitted.
The Supreme Court did not agree with organized labor’s characterization of agency fees as non-political speech. In fact, when writing for the majority, Justice Alito explained that union speech is political speech because “it covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights.” Thus, Justice Alito dismantled AFSCME’s argument that agency fees are not associated with political speech.
The Janus decision makes clear that the deduction of agency fees from workers’ paychecks violates the First Amendment. In fact, the decision goes one step further by stating that, in order for a union to deduct fees or dues of any sort from a union’s paycheck, the public worker must give the organization affirmative consent.
In the year since the monumental Janus decision, many public sector employees have stopped paying agency fees. Union reports from 2018 show that AFSCME lost 98 percent of its agency fee payers after the Janus decision, while the Service Employees International Union (SEIU) lost 94 percent.
The Supreme Court’s ruling in favor of Mark Janus last June has freed hundreds of thousands of public sector employees from unwanted agency fees. However, the decision has not completely freed workers from union control.
Currently, many states have laws on the books that make government unions “exclusive representatives” of employees within a workplace. Such laws create a representational monopoly where only one union or organization is permitted to negotiate on behalf of the employees within the bargaining unit. In other words, individuals in a unionized workplace who are not members of the union are not allowed to negotiate on their own behalf. This is likely the next step for workplace freedom after Janus; workers who are not members of the union should be permitted to negotiate with their employer separate from the union.
One year after Janus, progress is being made towards allowing employees to work under the conditions they choose. However, much work is still needed to ensure employees are not being forced to associate with entities with which they do not wish to associate. Nevertheless, there are still many public employees who are unaware of what their rights are in the workplace under Janus.
