The Honorable Michael J. Dunleavy
AGO 19-2
No. 19-002
Alaska Attorney General Opinion
August 27, 2019
The
Honorable Michael J. Dunleavy
Governor
State
of Alaska
P.O.
Box 110001
Juneau,
AK 99811-0001
Re:
First Amendment rights and union due deductions and fees
Dear
Governor Dunleavy:
You
have asked for a legal opinion on proposed changes to the
State’s current process for deducting union-related
dues and fees from employee paychecks in light of the United
States Supreme Court’s decision in Janus v.
American Federation of State, County, and Municipal
Employees, Council 31.1 As explained further
below, I have concluded that Janus requires a
significant change to the State’s current practice in
order to protect state employees’ First Amendment
rights.
I. The
U.S. Supreme Court’s decision in Janus v. American
Federation of State, County, and Municipal Employees, Council
31 significantly limits the manner by which the State
can deduct union dues and fees from its employees’
wages.
Alaska’s
Public Employee Relations Act (PERA) assigns public employers
the task of deducting from their employees’ wages any
union dues, fees, or other benefits and transmitting these
funds to the union, if the employee provides written
authorization to do so.2 The Act does not provide any details on
how an employee’s authorization must be procured or
provide any safeguards to ensure that the employee’s
authorization for the employer to withhold those funds is
freely executed with full awareness of the employee’s
rights.3 But the U.S. Supreme Court’s recent
decision in Janus v. American Federation of State,
County, and Municipal Employees, Council 31 places
important limitations on a public employer’s ability to
deduct union dues and fees from employee wages under AS
23.40.220.
In
Janus, the U.S. Supreme Court held that the First
Amendment prohibits public employers from forcing their
employees to subsidize a union.4 The Janus decision thus
invalidated a provision of PERA, AS 23.40.110(b)(2), which
previously authorized public employers to enter into
agreements with unions that require every employee in a
bargaining unit—whether a member of the union or
not—to pay an “agency fee” to the union as
a condition of employment. This agency fee, that even
non-members were required to pay, was calculated by the union
to compensate it for the cost of union activities ostensibly
taken on the employees’ behalves. But Janus
ruled that requiring public employees to pay an agency fee to
a union violates employees’ First Amendment right
against compelled speech, thereby invalidating laws like AS
23.40.110(b)(2).5 The Court further warned that going
forward, public employers may not deduct “an agency fee
nor any other payment to the union” from an
employee’s wages “unless the employee
affirmatively consents to pay.”6
In
response to the Janus decision, the State, under the
administration of then-Governor Bill Walker, began
discussions with state employee unions to address the effects
of the decision. For example, the State immediately ceased
deducting agency fees from non-member’s paychecks and
executed letters of agreement with a number of unions
modifying the terms of the collective bargaining agreements
to account for Janus. But the letters of agreement
left largely unchanged collective bargaining agreement
provisions regarding employees’ consent for automatic
payroll deduction of union dues, fees, or other benefits.
Generally speaking, these provisions leave to the unions the
power to elicit employees to authorize the State to deduct
union dues and fees from their paychecks and transmit those
monies to the unions.
The
State’s payroll deduction process is constitutionally
untenable under Janus, and the prior
administration’s preliminary steps did not go far
enough to implement the Court’s mandate. The Court
announced in Janus that a public employer such as
the State cannot deduct from an employee’s wages
“any . . . payment to the union” unless it has
“clear and compelling evidence” that an employee
has “freely given” his or her consent to
subsidize the union’s speech.7 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.
A
course correction is required. To protect the First Amendment
rights of its employees, the State must revamp its payroll
deduction process for union dues and fees to ensure that it
does not deduct funds from an employee’s paycheck
unless it has “clear and compelling evidence” of
the employee’s consent.
II. The
Janus decision prohibits a public employer from
deducting union dues or fees from a public employee’s
wages unless the employer has “clear and compelling
evidence” that the employee has freely waived his or
her First Amendment rights against compelled speech.
The
Court’s decision in Janus recognizes that
forcing individuals to subsidize the speech of any other
private speaker, including a union, burdens those
individuals’ First Amendment rights. The Supreme Court
has “held time and again that freedom of speech
includes both the right to speak freely and the right to
refrain from speaking at all.”8“Compelling individuals
to mouth support for views they find objectionable violates
that cardinal constitutional command” and burdens the
rights secured by the First Amendment.[9] Indeed, when the
government compels speech (as opposed to merely limiting
speech) it inflicts unique damage: it coerces individuals
“into betraying their convictions.”[10]
“Compelling
a person to subsidize the speech of other private
speakers raises similar First Amendment
concerns.”11 Thus “a significant impingement on
First Amendment rights occurs when public employees are
required to provide financial support for a union that takes
many positions during collective bargaining that have
powerful political and civic
consequences.”12 The Court acknowledged that an
employee’s financial support of a union will
effectively subsidize union speech not just on budgetary
issues, but on a range of significant and often controversial
matters in collective bargaining and related activities that
can include healthcare, education, climate change, sexual
orientation, and child welfare.13
With
these principles in mind, Janus considered an
Illinois law requiring even public employees who declined to
join the union that represented their bargaining unit to pay
the union an “agency fee”—a sum of money,
deducted from the employee’s paycheck, to compensate
the union for the costs of collective
bargaining.14 Because “the compelled
subsidization of private speech seriously impinges on First
Amendment rights,” the Supreme Court applied
“exacting scrutiny” to its review of the
law.15 Under exacting scrutiny, “a
compelled subsidy must ‘serve a compelling state
interest that cannot be achieved through means significantly
less restrictive’ of First Amendment
freedoms.”16 The Court concluded that neither of the
justifications proffered in support of the agency fee
requirement—promoting “labor peace” and
making non-members pay for the fruits of the union’s
efforts on their behalf to avoid “the...
