THEY’LL LITIGATE UNTIL THEY CAN ELECT A DIFFERENT GOVERNOR
By ART CHANCE
SENIOR CONTRIBUTOR
I’ve been the bad smell in the Republicans’ ballroom ever since Janus v. AFSCME was handed down since I didn’t greet it with much enthusiasm. There is a lot less to it than meets the eye.
Yes, the U.S. Supreme Court held that compelling union dues as a condition of employment violated the First Amendment rights of public employees, but the court didn’t give out handy-dandy instruction books on how to implement its decision, an action that will be an existential battle with unions and Democrats.
Now Attorney General Kevin Clarkson has issued an opinion that labors to set out the obvious: the State’s labor agreements and payroll processes do not comply with the Janus decision. It has only been nine months since the Administration took office and a year since the Janus decision was handed down.
There seems to be the idea that the Governor can hand down an administrative order to make it right with the Constitution. And there’s the notion that the Divisions of Personnel and Labor Relations and Finance can put out some payroll standard operating procedures and the State will be in compliance with Janus and the Constitution.
Were it only so easy!
I don’t have insomnia this evening so I didn’t read all the labor agreements but I looked at the two big ones: the Supervisors and the General Government Unit, between the two covering about 10,000 State employees.
Both current agreements were negotiated under the union-owned Walker Administration and the union rights and union security language is very familiar; it is essentially identical to the language in them when I retired 13 years ago and not that different from what it was when I first started with State Labor Relations in 1987.
Not only does the language not comply with Janus, it barely complies with Abood, Hudson, and their progeny, the earlier authority on dues, now supplanted by Janus.
Additionally both have a veritable Mare’s Nest of contractual prohibitions against the employer interfering between the union and members of the bargaining unit it represents. Note that term “bargaining unit.” That means you are someone in a job class that the union’s certification covers and it doesn’t matter if you’re a union member or not.
Both as a matter of law (the unfair labor practices section of the Public Employment Relations Act) and of contract, there are stringent limits on an employer’s right to even the most basic and neutral communication with a member of recognized bargaining unit.
The Administration is going to make all well with the Constitution by promulgating an administrative order.
[Read: Attorney General puts guardrails on collection of union dues]
The unions can elect their route(s) to remedy. They can go straight to court, arguing that the administrative orders violates the Public Employee Relations Act. It wouldn’t be hard for the unions to find a friendly Superior Court judge who would find that s/he could and should decide the case strictly on State law grounds and not reach a constitutional question.
Then the State could take it to our Supreme Court or pursue the constitutional issues as a federal question in the US District Court.
No matter which party wins, that one is going to the Ninth Circuit and then on to the U.S. Supreme Court, if they’ll take it. The only exception is if the State is on the losing end, and the appeal becomes trade goods in the next gubernatorial election. If a Democrat wins, the State just says “never mind,” and the case and controversy go away until the next time there is a Republican willing to tilt with this particular windmill.
[Read: A conversation with Mark Janus on the Alaska decision]
Or, the unions can file an unfair labor practice with the Alaska Labor Relations Agency alleging that the changes are first an unbargained unilateral change in a mandatory subject of bargaining and further that the administrative order is an unlawful interference with the employees’ right to “form, self-organize, and join” a union.
The Labor Relations Agency really has no jurisdiction over constitutional questions. And as a State law question, the State loses.
And finally, the unions can file a grievance(s) on myriad contract terms that they can somewhat credibly allege are violated by the State inserting itself into the question of whether a bargaining unit member chooses to become a union member and pay dues. The advantage this has for the unions is that they can waste a year working through the grievance/arbitration process before the question can even get to the courts.
At bottom, from the day Gov. Michael Dunleavy issues a directive in any form, an administrative order or a simple memo, there is a minimum of a three- to five-year, maybe more, court battle ahead. The unions have nothing to lose but their economic life and their political power, so nothing will deter them from taking this question up until they run out of courts, and even if they run out of courts, if they can scrape some money together, they’ll be trying to buy a Democrat governor who will save them.
There is no simple, short, or easy path to resolution of this question. My strategy would be to take the quickest path because the unions are playing for time, their standard ploy on matters in the courts; they don’t have to win the case, they just need to win the next election.
In my time with the State I had some very meritorious fundamental bargaining rights cases sold right out from under me in gubernatorial elections, and you can rest assured that any Democrat running for governor would promise his/her union friends to take care of an inconvenience like this for them.
I would try to bundle it all together, the contract provisions and the sections of PERA that authorize them, and if possible get straight to the US District Court.
This path leads through the Ninth Circuit and there are no guarantees there. The Ninth proved willing to stand the First Amendment on its head trying to protect the union security arrangements in Washington State and fortunately the U.S. Supreme Court stepped in and reversed the Ninth. In any event were the State to lose in the Ninth, it has no assurance that the Supreme Court would take an appeal. This, too, is a multi-year process but is simpler than the other routes. If it goes past the next gubernatorial election and Gov. Dunleavy or another Republican wins, it can continue as far as necessary to get the desired result or until the State runs out of courts.
If the unions buy themselves a Democrat governor, or maybe even another “false flag” governor, the question ends there for the foreseeable future. And finally, if the Attorney General tries to handle the litigation with State staff, he should be aware that every State employee who touches this issue will be a former employee if a Democrat is elected Governor. They all know that, and it won’t just be assistant attorneys general and other appointees; the last time the unions faced an existential challenge, they elected a Democrat and purged employees who had been involved well down into merit system ranks.
I other words, if the administration really wants to take this on, it should consider contracting for outside counsel.
Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.
I abhor Unions. I was in the UAW back in 1993 and saw how they operate. I have seen the ugliness first hand. I have since turned down an Operator job with BP, because they were Union. When my son was 14, he worked at Safeway in Kenai as a Service Clerk (Grocery Bagger). He was restricted to working 2 hours a day during the weekdays so his paycheck was never very big. Sometimes his union dues were higher than his take home pay. I called the Union Representative and asked them, what the Union provided my son? They said, we make sure that he gets breaks, as safe work environment, good benefits and fair treatment. I said, The law ensures those things. Again… what benefits does the Union provide my son? What does he get for his Union dues? They said, everyone has to pay dues.
At 14, my son recieved zero benefits and the union dues were the largest deduction from his paychecks. I told the Union representative, If you want to change the reputation that unions are thugs and mobsters, you have to stop stealing from children that are trying to work.
Nobody should be forced to join a union in order to work. I would much prefer merit based employment, with the protections already established for employees, than EVER work under the heavy thumb of a union. Their day has come and gone. Now, they need to go.
Without unions the capitalist elites always decimate the lives of employees unless of course you drink their from their fountain of lies and become one of them.Then you no longer have to worry about what the peons who slave for the capitalists have to say about conditions in the workplace.Its so easy, isn’t it.
I’ll bet you even went to college to learn all that leftist cant. How many times did you have to recite the leftist catechism before they gave you your participation certificate?
Bruce, that is the communist manifesto. You are confused. Very confused.
Bruce, since you obviously love socialism so much, how about moving to Venezuela…it would be perfect for you.
Bruce, an old Lefty from way back, probably counts his own money every night, thanking Buddha, or whoever his Lefty god may be, for all of life’s pleasures that he can absorb into his pitiful selfish existence.
Hypocrite, like so many of his ilk.
Exactly. Many unions price themselves out of numbers. And guess what non-union workers get the same benefits. Indians aren’t what they used to be with child labor and slave labor and dangerous working conditions. That’s all gone by the wayside. In our teachers union, we get what the superintendent feels he wants to give us the union doesn’t get us anything. And we have a no-strike clause so can’t even do that. If you don’t like what you’re getting no one forces you to sign the contract don’t let the plane door hit you in the ass on the way out.
Art, thanks. Complicated indeed. Thanks for the analysis.
But I have to admit, if mandatory union membership & dues has been ruled unconstitutional by the Supreme Court then all the union contracts that require that are unconstitutional too. I’m not anti union but I am pro constitution. Based on that it seems the Gov could order payroll to just stop all union dues deductions forthwith and advise everyone to reapply if they want to stay in the union voluntarily. Whats wrong with stopping an Unconstitutional contract? Because if you can’t do that the Constitution is not worth a hill of beans. If I were Gov thats what I’d do and I’d say here’s my address for legal service if you have a problem with it.
Too many people have died or given up everything in the name of defending or upholding our Constitution for it to become meaningless.
The agreements have various styles of savings and severability clauses that give a means to deal with a provision being found by a court to be illegal. Generally they require the parties to negotiate to find an agreeable resolution to the clause being vacated. The law does not require agreement and the usual impasse proceedings are involved but the parties are not dealing with an impasse and expired contract and usually there is a no strike clause in effect until the expiration of the agreement and which survives expiration, at least arguably, until there is a valid state of impasse. In other words if a clause is vacated there is no way to replace it if one party doesn’t want it replaced, but there is all sorts of mischief to be made.
Assuming it is the employer who holds that the dues checkoff and union security clauses have been vacated by the USSC. The first question the union can raise is whether the court has indeed vacated the clause. Usually you must exhaust administrative remedies before going to court. If the union grieved, the employer would likely assert that the question cannot be answered by the grievance process or an arbitrator, but is a substantive question of arbitrability that can only be answered by a court. The union may contest that and try to use the ALRA or the Courts to force the State to submit to arbitration. This is really just the union being dilatory. What you wind up with is the year or so delay messing around with arbitrators, the ALRA, and the lower courts before you get the question to the AKSC or the US District Court where the actual question can be answered, then you have years of appeals. As I said, there is no short, simple, or easy way to deal with it. I agree with you that the USSC decision should on its own face answer the question, but really it will take years to answer the question no matter what route is taken.
Thank you Art!
Art, great explanation. What if a third party with two or more members with standing suedthe state in federal court?
I think only two state employees in a union represented bargaining unit would have an easy time getting standing to sue. Interested citizens would have a much rougher time.
Thanks for the analysis. Another great article.
Thank you for the kind words.
I hate the public sector unions. With that said I think the administration has set up a perfect atmosphere for people to want the protection of them. The Governor isn’t asking for sacrifices and providing a vision of a smaller State government, he’s just going to try to cram it down our throats. I’ll take the unions.
Affirmatively opting out pretty much guarantees union members these things:
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1) no chance to win a union executive seat during internal elections;
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2) dispatch hold-up by union bosses in trade unions.
The private sector/third sector trade unions aren’t covered by Janus – yet – so there is no opt-out issue there. With the State, only the marine unions and Local 71, the labor, trades, and crafts unit, have a dispatch system or any union control over hire. I’ve always thought that Local 71’s hiring hall system was illegal, but it was easier to put up with it and then holding taking the cash cow away over their heads than to have the fight to take it away. The marine unions are a thing unto themselves. One day some Governor is going to have to have the guts to meaningfully confront them; I haven’t met that one yet.
Another home run piece, Art. MRAK is lucky to have you, and your knowledge is much appreciated by the readers.
Art,
There is an “opt out” issue for workers not wanting to be union members. It’s called the ‘Beck Exemption’. Federal law. If a worker declines to pay dues under that exemption, they are only liable for ‘fees’ connected to collective bargaining. I don’t know if that is exempted for ‘public employees’ but I know it is applicable for all private sector union workers.
Speaking of marine unions, the reason the ‘negotiators’ from the west coast accepted the state’s position on the recent ‘strike’ and ensuing panic by the parent union is that the strike was an illegal job action, under federal law. If the state had sued the union under that scenario, for lost income and all other unfortunate circumstances that the illegal strike caused, the marine union would likely be bankrupt and gone. Instead of the state pursuing that path, with certain victory, they chose to give the union the agreement, with none of the union demands met. The west coast ‘negotiators’ from the parent union knew very well what the illegal strike would cost them. That’s why they went for any ‘contract’ with the state that would take away the threat of the state suing and winning (see Juneau Spruce decision in 1948). Too late for the state to recoup damages, etc., now. Actually, it was a win for the marine union because they got away with outrageous illegal actions and damages/costs to the state and all ferry users, including passengers, communities and businesses left harmed financially by the illegal strike. I thought our Governor had the intestinal fortitude to pursue that but I was wrong. Same with the PFD.
Yeah, and the first place you heard it was an illegal strike was right here in a piece I wrote. Wasn’t 20 minutes after that piece went live that the Administration that thinks I’m too nasty to union goons was calling. I practically gave them a paint by numbers to pursue it, but they took the gyppo agreement and ran for peace. I’d have made IBU’s life a living Hell and made them beg to get back to work. All the damage was already done so it was time to make them pay.
Beck is still good law but you could probably count on your fingers the private sector employees who take the exemption, which is the same as the old Hudson “agency fees” scheme in the public sector.
The reason more union shop employees who disagree with union dues do not take the Beck Exemption is that they are unaware of it. The unions are taught to never disclose any method or means available to workers to reduce payment to the unions. The unions go to great lengths to obscure things like ‘Beck Exemptions’.
Not withstanding Beck, trade unions have many tools to retaliate against union members who fall out of line. Try suing your union and asking for the union’s in house counsel to represent you in upholding your allegation of membership rights violations under the union’s constitution, bylaws, and LMRDA.
Unionism or communism. What’s the difference?
Unions are run by uneducated, slimeball mafia types. Commie leaders are ideologically educated, but become tyrannical through hunger and thirst for power. Common denominator: soulless with a stone cold killer’s mind.
Not much room for the Mafiosi thug type in the public sector; a few fake it for show and a few are maybe a bit that way, but mostly they’re either salesmen or ideologues, and some are some of both. I’ve sat across a bargaining table from a union team that was all carrying. My response was I went home at lunch and came back carrying, and my suit fit better with a shoulder holster because I had it tailored that way. I approached the union rep at the end of the day and asked him if we were going to do this tomorrow and he wouldn’t offer me any assurance. I thought I’d made my point and left mine in the car the next day, and when I came in none of them were printing. That was a sucker play; they thought since they wouldn’t offer me any assurance that I’d show up carrying, and I’m sure they had their phones already dialed for the various media outlets. These are the games you play; they have you watched, they actively spy on you and rat you off to your boss if you have a few drinks in a downtown watering hole or seem too friendly with some woman, and truth is optional. If I wanted to meet confidentially, I’d either meet them on my boat if we were in JNU or in some strip joint in Anchorage, either way to reveal the meeting they’d have to admit they were there.
Anyway, the only time I ever feared any of them was on election day. The rest of the time they threaten to huff and puff and blow your house down, and if you don’t run away screaming, they don’t know what to do next.
Art, what about internal union elections? Have you ever seen one that the incumbents didn’t try and rig?
I haven’t seen many that the paid staff or the International didn’t rig.
Good point, Art. Paid staff of the local unions and the incumbents have all sorts of tricks they employ in cheating:
1) pay off the accounting firm that certifies the election results; 2) pay off the ballot printer; 3) pay off the union attorneys; 4) calibrate the Diebold Accu-Vote machines for a desired outcome; 5) pay off the Election Committee chairman to disqualify all challengers; 6) pay off the DOL to look the other way. There’s more. When it comes to cheating in elections, union bosses and Democrats wrote the handbook.
Wouldn’t knocking off the challengers be easier and cleaner……?
Albert,
The difference in unionism and communism is the name. That’s about it.
Well said, Judie.
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