The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Union officials sued to overturn Foundation-backed rule creating opt-in system for union dues
“That was so un-American to us,” New Jersey teacher Susan Fischer told NJTV News of forced union fees in 2018. Two years after Janus, she is still fighting to remove illegal union boss-created restrictions on Janus rights in the state.
LANSING, MI – Relying on arguments presented by a National Right to Work Legal Defense Foundation legal brief, a federal court has denied an injunction against a new Michigan Civil Service Commission (MiCSC) rule designed to protect state workers’ First Amendment Janus rights.
The amicus brief was filed after lawyers from several major Michigan unions sued to overturn the protections, which block dues seizures ruled unconstitutional in the 2018 Right to Work Foundation-won Janus v. AFSCME Supreme Court decision.
The rule was finalized by MiCSC in July, following detailed comments submitted by the Foundation. The arrangement alters the state’s union dues deduction system to require the affirmative and knowing consent of workers before dues can be taken from their paychecks, as per the Court’s First Amendment standard laid out in Janus.
Michigan Public Servants Will Get Yearly Nudge About Janus Rights
MiCSC will now remind Wolverine State public servants annually that they have a right not to subsidize union bosses’ activities. Further, state employees who still want to have dues deducted must annually confirm that they want to waive that right and are voluntarily authorizing union dues deductions from their paychecks.
Under the new rule, union bosses are not able to siphon dues or fees from the paychecks of employees who aren’t aware of their right not to pay union dues, or on the basis of years-old dues authorization forms that may not reflect current consent.
In September of 2019, Alaska Gov. Mike Dunleavy signed an executive order creating similar Janus protections for Alaska state employees. Foundation staff attorneys are currently representing an Alaskan state vocational instructor seeking to enforce his First Amendment rights under Janus and that order. Additionally, Texas Attorney General Ken Paxton and Indiana Attorney General Curtis Hill both issued legal opinions earlier this year, urging public employers to notify employees that they have a First Amendment right to refuse to fund a union unless they opt in to such payments. This follows a Wall Street Journal op-ed last year by Foundation President Mark Mix and staff attorney William Messenger, which encouraged states to take action to proactively defend employees’ rights under the landmark decision. Messenger argued and won Janus before the Supreme Court.
New Jersey Teachers Battle Union-Backed Rights Restriction
The efforts by states to implement Janus rights safeguards come as public workers across the country continue to challenge schemes which block them from exercising their Janus rights outside a brief, union-created “escape period,” which is often just a few days a year, or even once every three years. New Jersey teachers Susan Fischer and Jeanette Speck are defending their rights and the rights of their fellow educators in a class-action case against the New Jersey Education Association (NJEA), now pending before the U.S. Court of Appeals for the Third Circuit. Fischer and Speck attempted to exercise their right to cut off dues to the union just days after the Supreme Court recognized this right in Janus. Union-label politicians, anticipat-ing the High Court’s ruling, had enacted a state law the month before Janus was decided, cutting the time a public servant could exercise his or her Janus rights down to just 10 days per year. Oral arguments in the case took place in late September with Foundation staff attorney William Messenger arguing the case before a three-judge panel. If Fischer and Speck’s lawsuit is successful, educators across New Jersey will be free to cut off dues at any time, and the state law limiting those rights to a 10-day window would be struck down as unconstitutional. Additionally, Fischer, Speck and their coworkers who also sought to exercise their Janus rights would get refunds of all dues that were extracted from their paychecks under the unconstitutional arrangement.
Decorated Las Vegas Officer Defends Her First Amendment Janus Rights
Elsewhere in the country, Las Vegas police officer Melodie DePierro sued both the Las Vegas Police Protective Association (PPA) union and the Las Vegas Metropolitan Police Department (LVMPD) for illegally seizing union dues from her paycheck using such an “escape period” scheme.
According to her complaint filed by Foundation staff attorneys in the U.S. District Court for the District of Nevada, in January 2020 she sent letters to both union officials and the LVMPD resigning her membership and requesting a stop of all union dues deductions. Her complaint reports that union and police department agents rejected that and a later request, citing a “narrow escape period between October 1 and October 20 each year.”
DePierro, in addition to bravely asserting her rights, stands up for her community. The Las Vegas Review-Journal reported that she helped protect a hospital during the October 2017 mass shooting at the Route 91 Harvest music festival in Las Vegas, springing into action despite being off-duty.
“Officer DePierro has an exceptional history of keeping Las Vegas safe. Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to impose an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” commented National Right to Work Foundation Vice President Patrick Semmens. “Fortunately, more and more states are beginning to grow wise to the fact that union boss-devised traps are widespread, and as such are moving to secure their public servants’ Janus rights.”