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Friday, October 18, 2019
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Which way is the courthouse?

Art Chance

By ART CHANCE

We now have dueling lawsuits and dueling op-eds in Pravda, excuse me, the Anchorage Daily News, about the State’s actions to implement the US Supreme Court’s ruling in Janus v. AFSCME. This pertains to compulsory union dues in the public sector. 

The Alaska State Employees’ Association’s Jake Metcalfe is the former head of the Alaska Democrat Party.   ASEA has been the cash cow of the AFL-CIO and the Saul Alinsky wing of the Democrat Party since their parent, the American Federation of State, County, and Municipal Employees (AFSCME), AFL-CIO, came to Alaska in 1988 looking to take over a local union and buy a member or two of the Alaska congressional delegation.   

They were able to buy a governor in 1994, but it took them until 2008 and some help from the US Justice Department to buy a member of Congress — Mark Begich.  

I have the standard ASEA screed about union busting memorized; God knows they said it about me enough times.   

Commissioner of Administration Kelly Tshibaka is assuring the unions and the citizenry that the Administration wants to work with the unions to implement the Janus decision.  

That is so sweet! I’ve said silly stuff like that too, but I didn’t mean it; I hope she doesn’t either.

Compulsory union dues are the life blood of unions and union money and power are the life blood of the Democrat Party.  The 23 states that allow compulsory union membership are deeply blue and no matter what they do, the Democrat hold on those states is relatively secure.   The number is down from a peak of 27 union states.  De-industrialization in the Midwest has dramatically reduced the number of industrial and trades union members there.  

Public employees are much less sympathetic characters than are working class heroes so there has been some erosion of union power in the last decade or so, but they are far from dead.   

Here in Alaska changing demographics and conservative/Republican disunity have given unions power they haven’t had since before oil.   They aren’t going gently into that good night.

Today the two most powerful interests in Alaska politics are unionized public employees and government funded healthcare. Both care only for keeping their hooves firmly in the operating budget trough.   

Environmental and anti-development interests are natural allies because they too are foremost leftists and the particular interest is merely a vehicle.   Those of us of Boomer age remember how seamlessly the US left moved from opposition to the draft and the Vietnam War to environmental issues and opposition to development in the early Seventies.  

 The oil industry is hardly a player unless the issue directly affects the industry.  Like the oil industry most of the “private” sector is corporate and based Outside, so they don’t care — unless the issue directly affects them.   

Basically, the Alaska res publica is composed of unorganized individual citizens and highly organized powerful interests. It is remarkable that Alaska isn’t a Socialist workers’ paradise like the other Left Coast states, but that day isn’t far away if the current course continues.

I’ve been pretty open about my skepticism towards the Dunleavy Administration’s approach to this issue. Some close to and in the Administration seemed to think that implementing Janus would be their salvation in opposing union power. My reaction was, “yeah, right.”  

I became the State’s director of Labor Relations in 2003 almost 20 years after union shops in the public sector were made illegal by the US Supreme Court; half of our labor agreements still had union shops.  I told the unions they had to go, and I was on the front page labeled a “union buster.”  The unions will give up compulsory union dues in the public sector when they are wrested from their cold, dead fingers.

Some of my conservative/ Republican friends have questioned me, saying, “How do Alaska law and labor agreements trump the US Constitution and the Supreme Court?”  To which I reply, “nothing is illegal if nobody enforces the law.”  

For almost 20 years nobody had the courage to take on the more powerful State unions regarding their blatantly illegal union shops and union hiring hall systems, and I’ll admit I wouldn’t take them on over the hiring halls because we didn’t have time to get it to the Supreme Court before the end of the term.

If Gov. Dunleavy was going to have this fight, he should have started it as soon as his hand came off The Bible.  Now, he is almost a year into his term.

The issue is raised in State courts, where a Republican administration generally and this one particularly can expect to be roughly handled.   

The State can expect to be enjoined from making any change in its practices regarding dues collections; that keeps the union cash cow working.   If the Superior Court judge is a Democrat s/he’ll let the case drag out as long as possible and ultimately rule for the union on grounds that the current agreements and withdrawal processes don’t violate State law – which they don’t, and that is the real issue.   If the judge is a Republican or apolitical, why should s/he put a laser dot on his/her forehead by ruling against the unions/Democrats when s/he can just take a pass, rule on current State law, and buck the issue to the Supreme Court.   

There goes at least another year, so we’re now in year three of the Dunleavy Administration.   It is easy to kill a year even getting a case before the Alaska Supreme Court and that means it is argued and set for decision in a gubernatorial election year.

The Dunleavy Administration can expect no love from the Supreme Court and the justices can read the paper.   Anyone with a brain knows that the Left will pull out all the stops to elect a Democrat or a quisling and if they are successful the whole unpleasantness about union dues will go away as soon as the new Governor takes his/her hand off The Bible.   Why should the court make a decision before the election when if the unions win no decision will be necessary.

I don’t believe that the Dunleavy Administration has any real hope of getting this issue decided in State courts before the next gubernatorial election and I further believe that if they don’t, it is extraordinarily unlikely that they or any other Republican candidate will win the next gubernatorial election; the unions/left are too strong and organized and the conservatives/Republicans too divided and disorganized to prevail.

The real issue is why is the question in State courts?  Compulsory union dues and dues collections by the employer in accordance with union rules are both perfectly legal under the Alaska Public Employment Relations Act.  

There is no question that the Dunleavy Administration’s attempts to change State policy and procedures regarding dues payments and collections violate both State law and the majority of the labor agreements currently in effect.   

The problem is that the State law and the labor agreements violate the federal Constitution. So, why is the State in the Alaska Superior Court rather than the federal Alaska District Court?  Maybe somebody who knows more about standing and jurisdictions of federal courts than I do can give a satisfactory answer, but it seems to me that a federal question should be in the federal courts.

As I said in my column on Aug. 28, the federal route isn’t an easy one and the Ninth Circuit has shown itself willing to stand the Constitution on its head to protect leftist interests, but if Alaska can get the matter to the US Supreme Court, it will prevail. 

Somebody persuade me that the State isn’t in the wrong courthouse.

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. 

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  • Art,
    I’ll agree with your presumption that our current administration will be a one term show. While Alaska is a red State, I truly believe the bulk of the voters lean moderate and are not fans of this administrations direction. I was left with a few questions after reading, they are as follows:

    1. As a self proclaimed conservative, are you stating that you would prefer the federal government get involved on an issue that should be handled at the State level?

    2. You stated that unions and health care are the biggest players (meaning cash invested I’m assuming) in Alaskan politics, but I was under the impression that no one entity spent more cash this last election cycle than the brother to the man who currently holds the office of Governor. Am I ill informed?

    • There is a reason that old saw about how it is better to be silent and be thought a fool than to start typing and remove all doubt is still current. You need to be smart to be a smartass.

      1. Don’t try to play like you’re a conservative or know anything about conservatism; it is almost as dumb as lefties trying to quote scripture to Christians. You must have read in HuffPo or some other leftie organ of enlightenment that conservatives didn’t like federal “over-reach.” Well, genius, applying and interpreting the federal Constitution is for the federal courts. State courts can do it and are obligated to adhere to the federal Constitution in many areas but they aren’t entitled to any deference from the federal courts. Try again.

      2. You are ill-informed. The Governor’s brother did give a substantial sum to the Governor’s campaign. That sum pales in comparison to the comprehensive political activity of both the unions and the healthcare racket, which both engage in political action at all levels. APOC reports only give an inkling of union political activity because much of what they do isn’t reported because they style it member education rather than political action.

      • Way to go, Art!

      • Another non answer from the Bloviator, who doesn’t realized Dunleavy’s brothers are Koch, to a legit question from someone who wonders who’s in whose pocket.
        And he doesn’t even realize that it is “Democratic” and not “Democrat.” Try using “Republic” the next time you, sir, refer to the Republican Party (once an honorable institution).

        I await your vituperation.

        • Another one that needs to learn that the necessary predicate of being a smartass is being smart.

          Actually, I just be factual and go ahead and call them the Communist Party rather than the Democrat Party.

          • Perhaps you should learn how to proofread your own comments.

            It’s really not that diffikult.

            Then again, after three bourbons…

            C’mon Art, you can do better than this.

    • That’s not true. The bulk of Republicans voted against Lisa Murkowski. We knew back then that she was a RINO and stuck on the fence. A native population eager to have a lobbyist, was in turn elected. Now a Advocate for Pebble Mine. A supporter of baby killing, choosing words like “women’s health” to defend it. I think the jury is still out on the term limit. We have to be fiscally responsible and accountable. Continuing to throw money at the UAA problem and be satisfied with an 8% graduation rate over 4 years, all the while they nest on grant properties and rape Alaskans out of there misguided or misspent PFD. Things aren’t perfect, but you must know they seldom are. If you spent more money than you take in, would you rob money from your family members to pay the bills, or would you stop spending so much and balance your budget? Maybe you would just file bankruptcy.

      • OK..”.RINO”…show me the horn.

        Have you EVER considered that what you think is not the final word in how the universe works?

        False analogies won’t do it.

  • Good article Art. Implementing the Janus decision aggressively like the Dunleavy administration wants to do will be a long process. Probably all the way to the SCOTUS.

    • Now, this guy is probably right.

      • Unfortunately,\.

  • Art, I have never made a comment on this site or anywhere for that matter where I alluded to being a conservative, not sure where that remark came from. It’s true I’ve never been a fan of the far right, nor the far left, both sides have a sky’s falling mind set that most only listen to or read for nothing more then entertainment purposes.
    After reading your response to my second question it’s apparent I need to rephrase it a little to receive a direct answer, so here goes my second attempt. I was asking who specifically, during our last election cycle spent more dough then Francis Dunleavy? If there is one specific Union or Healthcare company that out spent the worlds greatest brother, please provide their name. Grouping multiple entities together and saying they out spent Mr. Dunleavy is an unfair comparison and not the answer I was looking for. I await your sure to be entertaining retort.

    • Who spends the most on lobbists?

      • Pharmaceuticals and Insurance company’s I reckon.

    • Quit trying to pick a fight. What difference does it make? Anyone currently connected to Washington is dirty I don’t care who they are. It’s just the way things are.

    • What makes the comparison unfair, genius? Union spending is monolithic as is healthcare spending.

      • Oh, and you might still be able to get your money back on that reading comprehension class. I didn’t say anything about you being a conservative; it is obvious you’re a smartass lefty who thought he could be cutesy with the federal overreach line of thinking. Try again.

        • Just a troll venturing a little too far to the right of center. We welcome all comers though.

      • As is monolithic thinking.

    • As do I await. The false flag screeds need to be shown the light of day.

  • Forum shopping. Whether it gets appealed in state court, or in FDC, it can still make it all the way to the US SC. The strategy is in the path it takes. BTW, whatever happened to Union hero Glenn Olds?

    • Didn’t Olds run for Senate against Frank Murkowski in 1986?

    • He was visible a bit in the Hickel Administration but after that sorta’ faded to gray. He was getting up there so I don’t know if he’s still with us.

  • OK, I’ll bite at “:convince me I’m wrong.” I see this as a blatant attempt to get Dunleavy et al some National recognition in order to fundraise against the recall. Not a coincidence that it got announced at the same time as “StandTallWithMike” filed with APOC. I can see the ads now “Stand Tall with Alaska’s Dunleavy against Union Intimidation” etc. etc. Yeah, I’ll admit this is concern trolling, this Administration is a sad joke, and you dodged a bullet by not working for them. Still, how can this possibly end well for the State. In the States that have implemented Janus in some form, there has been little or no reduction in Union membership (I think you stated this yourself in your last article.) The Law can require that an employee be able to opt in/out at any time, but they can’t insist that other employees be willing to chat with you at coffee break, give you a ride to work when the car is in the shop, or write anything more than a bare bones job reference. Social pressure means that only the most dedicated would opt out. Second, while Janus requires choice, it doesn’t dictate method. One could make the argument that 10 days per year is not enough time for an opt out, but, there is no court in the Country that would sustain that *this* particular type of remedy is *required*. Given a three year contract already in place, the State would have to prove this is the minimum remedy required under Janus. It’s idiotic. If the Administration actually wanted this, they would negotiate it for the next contract. Otherwise it’s just another lost lawsuit added to the pile.

    • I note that you condone discrimination against employees for their position in opposition to union issues; that is as much an unfair labor practice as discrimination against them for supporting the union.

      I believe the SC would find things like the ten day window offensive to the Constitution. I don’t think that even a thoughtful employer would countenance an open season for opting in and out whenever the employee chose; the administrative burden is too great, but there is some mean position that is adequate to protect the employee’s rights yet not impose too great a burden on either the union or the employer.

      The fact that the contract is in place is irrelevant; the Dunleavy Administration had no choice but to forward it to the Legislature as the Walker bunch left it. If the terms are illegal, they’re illegal and the existence of an otherwise viable contract won’t protect those terms. The contracts have savings and separability clauses for just this purpose.

      To your point below, to uphold ASEA’s position the 9th would have to once again stand the Constitution on its head as it did with the WEA case a few years ago. The USSC had no truck with that foolishness and granted cert. I suspect that John Roberts has had about enough of Left Coast judges giving the SC the finger.

      • Naaah, I don’t condone it, more that I just take human nature for what it is. I am a gen-u-yine long time former Conservative (feel free to check my donation history, writing history etc.) and one of the things that I hated about the Left is that they seemed intent on remaking people in their image. No matter where I’m at politically, I try to never make that mistake. For the record, while I am pro union, I believe Janus was decided correctly. I also think the 10 day window doesn’t meet the “spirit” of the ruling, though the “letter” of it will be decided through Case Law. I agree with you that the answer is somewhere in between. I may not be correctly understanding the sequence of legal events. If ASEA challenges it on the basis of “10 days meets the requirement” I would personally agree that is false, a 9th District Ruling could go either way. I’m not going to pretend that they don’t have an agenda. As for the SC, here is how I see it. There are three “genuinely Conservative Justices” (meaning judically modest), Roberts, Alito, & Kavanaugh. There are four “Liberal Activists,” Kagan, Sotomayor, Breyer, & Ginsburg. There is one definite “Conservative Activist,” Thomas, and one that is looking that way, Gorsuch. You need four Justices to grant Cert. The Liberal Activists won’t go near anything on the subject if/until there is a chance to overturn Janus, and the Genuine Conservatives, while it is not impossible, try to stay out of controversy as much as they can. There is also the concept of “ripeness.” There are exceptions, but the SC is much more likely to grant cert when a subject is “ripe,” which in this definition, means appeals courts have come to contradictory conclusions on a subject meaning SC has to resolve the differences. That would be at least a few years up the road.

  • Oops, left out one more thing. I’d bet a decent amount of money that the 9th Circuit would rule against SOA in short order, and the SC would deny cert. Janus is a new ruling, and the SC made it clear it’s up to the States. It will be some years before they take up any other cases on this subject.

    • Art……you can write as clear as you think. Keep on writing. And thinking. Luving it!

      • Thank you for the kind words.

      • Art, on his best days, is a genuine writing talent beyond what most folks here see. Sort of a William Faulkner meets Hunter S. Thompson. More the shame he so often (after a few too many adult beverages) wastes his talents on “Drop Dead Lefty” ad hominems.

        • I agree, and thank you for the insight.
          As much as I bait him, I also have grudging admiration.
          And you, sir, have piqued my interest.

          • You can criticize Mr. Chance because you might not agree with his opinion or his directness in taking on Left wingers and Democrats. But his is not a wasted talent. He uses his decades of wisdom with sarcasm and a keen sense of humor……. just what this jaded world needs……and I love it. Keep producing…..Mr. Chance.

          • Art…….?

  • This is a reply to Naomi. I don’t see a reply link under her posting. I didn’t say his life was one of wasted talent! He has clearly had an adventure. Here is the thing, Art has a couple of really good books in him. I could see him as an Alaskan equivalent to Jim Webb. I wouldn’t be shocked if he’s at least started on them. He’s got the gift of story telling. It just strikes me as a shame to get in the muck of “I’ll f**k your girlfriend Lefty” when there is so much better stuff waiting to come out. Hey it’s his shtick I guess. I’ll also tell you another *secret* .. I have a few friends who have worked for SOA and were active Union people who Art bailed out.

  • A sign of intelligence, being able to hold two conflicting ideas in your head at the same time and being able to act appropriately on each of them.

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