Janus Does Not Require Opt-Ins for Paycheck Deductions of Already Unionized Public Employees in Alaska

In June 2018, the United States Supreme Court issued its decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31.[1] In Janus, the Supreme Court overturned precedent that had permitted the collection of union dues from public employees who were not union members. The Supreme Court found that collecting such agency fees violated the First Amendment rights of employees by “compelling them to subsidize private speech on matters of substantial public concern.”[2] 

Since then, courts have been grappling with the implications of Janus for both union and nonunion members. The latest significant decision on the implications and limits of Janus is Alaska v. ASEA.[3]

The State of Alaska argued that under Janus, to prevent forced subsidization of speech with which employees may disagree, union members must affirmatively submit their consent to the state before their union may deduct dues from their paycheck. The Alaska Supreme Court disagreed, emphasizing that Janus does not apply to union members who have voluntarily chosen to enter into union membership.

The Alaska State Employees Association (ASEA) represents thousands of state employees—about half of the state’s public workforce.[4] Before Janus, the collective bargaining agreement between ASEA and the State of Alaska called for the automatic deduction of dues from the paycheck of union members, and for non-members to be charged an agency fee.[5] After Janus, the state and ASEA modified their agreement to no longer allow the collection of agency fees from non-union members, but to continue to automatically deduct union membership dues from the paychecks of union members.[6] Union members were required to sign a union-provided dues authorization form which included a commitment to pay dues for at least one year and provided union members a ten-day revocation period each year.[7]

In 2019, under a new administration, the State of Alaska took the position that Janus requires it to affirmatively seek the consent of public sector union members to continue to deduct dues, and to immediately stop the collection of dues if a union member requested it, without regard to the 10-day revocation period that the union already provided to its members.[8] The state reasoned that even though union members signed a written union membership agreement and a written dues deduction authorization when joining the union, it was possible that union members were being coerced or misled into joining.[9] It therefore began to require employees to fill out state-authored dues authorization forms submitted through a state-created and -managed online portal before dues could be deducted.[10] Furthermore, the state claimed that these waivers had to be renewed by the employee regularly.

At least a dozen union employees chose to opt out of union dues after the state gave them the option. Some of these employees were in the middle of a one-year commitment, but the state immediately stopped collecting their dues. ASEA suffered about $186,000 in damages as a result.[11]

The state sued ASEA, seeking a declaratory judgment that its actions had been legally required. ASEA brought a variety of counterclaims and third-party claims arguing that the state’s actions would breach the collective bargaining agreement and violate state law.[12] ASEA further argued that the state’s interpretation of Janus was precluded by two Ninth Circuit decisions finding that Janus does not extend a First Amendment right to avoid paying union dues.[13] After ASEA prevailed in the Alaska Superior Court, the state appealed to the Alaska Supreme Court.[14]

The Alaska Supreme Court affirmed, holding that Janus did not require the state to obtain the consent of public sector union members before deducting union dues.

The court refused to apply issue preemption because the State of Alaska had only been a third-party defendant in the two 9th Circuit cases and had therefore had only a limited opportunity to participate and present its arguments.[15] However, the court still rejected the state’s expansive interpretation of Janus for three reasons.

First, the court established that “Janus expressly dealt only with charging union agency fees to nonmember public employees.”[16] Indeed, the Supreme Court in Janus explicitly noted that “States can keep their labor-relations systems exactly as they are only they cannot force nonmembers to subsidize public-sector unions,” which cut strongly against Alaska’s interpretation.[17]

Second, after Janus, employees were no longer coerced into joining the union by having “to choose between a job or unwillingly subsidizing union speech.”[18] Here, union members voluntarily joined the union, so there was no basis for applying Janus’s compelled speech analysis.

Third, the court noted that a public employee can be said to waive or intentionally relinquish his First Amendment right to avoid subsidizing union speech when he chooses to join the union.[19] Indeed, the choice to join the union is an exercise of members’ First Amendment right to freedom of association.

The court also rejected the state’s appeal to “broader First Amendment principles.”[20] The court emphasized that the dues deduction agreement between an employee and the union was an agreement between two private parties, not state action.[21] That was so even though the state played a role in “facilitating interaction and agreements between two private parties,” because state employees are still ultimately able to freely choose whether to belong to the union. The state’s “accountant-like role” did not make it responsible for the “private choice of private actors.”[22] Therefore, the “constitutional deprivation that the State claims it is seeking to prevent is illusory.”[23]

Nor did the state violate the First Amendment by entering into a collective bargaining agreement that involved the collection of dues. The state had voluntarily entered into these contracts and had no “right to disregard promises that would otherwise be enforced under state law.”[24]

At oral argument, the state conceded it had no justification for its actions other than its interpretation of Janus.[25] The court, therefore, affirmed the Superior Court’s decision and found that the state had violated three provisions of Alaska’s Public Employment Relations Act by failing to deduct dues.[26] First, a  provision requiring the state to deduct dues when an employee authorizes the state to do so.[27] Second, a provision prohibiting the state from “interfer[ing] with the formation, existence, or administration of” a union organization.[28] The court also clarified that this provision did not require evidence of anti-union animus to find a violation. Third, a provision prohibiting an employer from “discriminating in regard to hire or tenure or employment or a term or condition of employment to encourage or discourage membership in an organization.”[29] The court held that this provision did require an anti-union motive, but that this motive was attested in the record, particular in the fact that the state had not consulted or negotiated with ASEA before implementing its sweeping interpretation of Janus.[30]

The Alaska Supreme Court’s decision will likely serve as a warning to states that Janus was limited to the First Amendment rights of non-union members, and that Janus will likely not justify efforts to interfere with existing collective bargaining agreements. The Alaska Supreme Court made it clear that the state will need to change it’s existing law, rather than take unilateral executive action, in order to give existing union members additional opt-out rights.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].