Alaska may soon become the first state to require government workers to annually opt-in to union membership after a landmark Supreme Court case ruled that public-sector unions can no longer coerce payments from non-members.
The 2018 Janus v. American Federation of State, County and Municipal Employees ruling overturned a 41-year legal precedent that allowed government agencies to mandate union dues or fees as a condition of employment. The 5-4 decision ruled against the mandatory dues in part because it unconstitutionally forced non-union employees to financially support speech by unions that they did not agree with.
"Under Illinois Law, Public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities," Associate Justice Samuel Alito wrote for the Court's majority. "We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern."
The Janus decision prompted state governments across the country to examine the policies governing public-sector unions, including the automatic deduction of union dues from employee paychecks. Alaska attorney general Kevin Clarkson said in a Tuesday announcement that the state should no longer automatically enroll workers into union ranks without their consent. Rather than forcing objecting workers to resign their membership, public sector employees should have the choice to "opt-in" to memberships each year. Such a system would ensure that unions only collect dues from members who periodically and affirmatively consent to representation. Alaska had already stopped automatically deducting dues from government employees, but the attorney general said that the state should go further and seek affirmative consent from union workers before sending a portion of their paychecks to a third party.
"Requiring consent to be renewed on an annual basis would ensure that consents do not become stale (due to intervening events, including developments in the union’s speech that may cause employees to reassess their desire to subsidize that speech)," the legal opinion prepared by Clarkson's office says.
Alaska governor Michael Dunleavy signaled that he plans to change public-sector union policies to abide by Clarkson's recommendation, paving the way to a significant shift in union governance in the Last Frontier. Payroll policy falls under the executive branch in Alaska, meaning that Dunleavy can change the policy through an executive order, rather than legislation.
"[The] Attorney General opinion clearly articulates that the State of Alaska is not in compliance with the Supreme Court’s ruling in Janus v AFSCME," he said in a release. "My administration will be working to ensure the State is in full compliance of the law and that Alaskans are informed of their rights."
The National Right to Work Legal Defense Foundation, which argued the Janus case before the Supreme Court, welcomed Clarkson's approach to public sector unionism. Spokesman Patrick Semmens urged other U.S. states and the federal government to adopt similar policies.
"Alaska is taking an important step forward in proactively ensuring every single state employee's First Amendment rights are protected," Semmens said. "Other states, along with the federal government, should follow Alaska's lead because currently billions of dollars of union dues are being deducted annually in violation of the standard laid out by the Supreme Court in the Janus decision."
The attorney general's recommendations inspired sharp condemnations from Alaskan public-sector unions, with some labor leaders promising to fight any executive order in court.
"This is an attack on all of us, and we'll challenge it in the court at every step of the way to protect the Constitutional rights of Alaska's public employees in the workplace," said Jake Metcalfe, executive director of the AFSCME/ASEA Local 52, a labor union representing state employees.
Vincent Vernuccio, a labor policy consultant, argued that Clarkson's recommendations will actually be "protecting First Amendment of public employees."
"Attorney General Clarkson is the first in the nation to correctly recognize that no public employer should collect dues unless they have evidence that their employees wish to waive their First Amendment rights and consent to pay union dues," he said.
Dunleavy has pledged to release his administration's policy in the fall.