Foundation Sues to Give Public Employees The Right Not to Pay Union Dues

September 1, 2020 Updated: September 1, 2020

Las Vegas Police Officer Melodie DePierro is the latest in a growing line of public sector employees suing in federal court to demand recognition of their rights under a 2018 Supreme Court decision.

DePierro’s action was filed in the U.S. District Court for Nevada against the Las Vegas Metropolitan Police Department (LVMPD) and the local Police Protective Association (PPA) union.

In Janus v. American Federation of State, County and Municipal Employees (AFSCME) decided by a 5–4 vote in June 2018, the high court ruled that public sector employees can’t be forced to pay union dues in the form of agency fees without being given a chance to consent or refuse the deduction.

DePierro noted in her suit that the department’s monopoly bargaining agreement with the union only allowed a 20-day window of opportunity to request agency fee refunds and that she had never agreed to the deduction in the first place.

Right-to-work advocates cheered Janus as a landmark decision that would prompt millions of employees at all levels of government to demand an end to hundreds of millions of dollars in agency fees that helped fund partisan union political activities with which they disagreed.

Data compiled by the Department of Labor’s Bureau of Labor Statistics (BLS) on union membership, however, showed little change from 2018 to 2019 in the immediate aftermath of Janus.

There was a minor drop in local government employee union membership, but totals for state and federal sectors increased slightly.

“However, employment in the public sector declined at almost the same rate, so the share of public-sector workers represented by a union held steady at 37.2 percent,” according to the Economic Policy Institute (EPI), a think tank associated with labor organizations.

DePierro’s lawsuit is one of many filed since June 2018 by attorneys for the National Right to Work Legal Defense Foundation (NRTWLDF) seeking enforcement of the Janus decision. It was NRTWLDF attorneys who won the Janus decision.

Getting a firm fix on union membership, however, is further complicated by the fact that “BLS data do not provide any information on whether workers are paying fair-share fees, simply whether they are members of a union or represented by a union,” EPI Director of Policy Heidi Shierholz told The Epoch Times on Aug. 31.

“As a result, it is difficult to determine the impact of Janus from BLS data. One thing that is clear, however, is that public-sector unions have not seen an unusual decline in membership since the Janus decision.”

“Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to keep imposing an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” NRTWLDF President Mark Mix said in a statement announcing the suit.

“The High Court made perfectly clear in Janus that affirmative consent from employees is required for any dues deductions to occur. Yet, PPA union bosses are clearly violating that standard here,” Mix said.

The rush to the union exits by public sector workers predicted by Janus advocates has been delayed by “many states failing to recognize that the rights affirmed by Janus are not self-executing,” Steve Delie, director of labor policy at the Michigan-based Mackinac Center for Public Policy, told The Epoch Times on Aug. 31.

“Janus clearly recognized that a union must obtain an employee’s clear, voluntary, and knowing consent to any paycheck deductions, but did not describe a particular infrastructure that would satisfy that standard,” he said.

“As a result, states have had to examine the law to develop an appropriate solution. We are now beginning to see the results of that process, with other states likely to follow suit in the near future.”

Officials in Michigan, Alaska, Indiana, and Texas are moving forward in their re-examinations, Delie said. Michigan is especially significant because, he noted in a recent Wall Street Journal opinion column, more than 8,000 of the state’s 34,000 public workers declined to pay union dues.

“If more states follow Michigan’s lead and adopt annual dues-deduction consent requirements, that exodus could accelerate, and union revenue could plummet,” Delie wrote.

“The National Education Association (NEA) — the nation’s largest government union — is projecting a decline of 128,410 members over the next two years, after already losing 103,176 dues- and fees-paying members since Janus,” he continued.

The NEA has made nearly $13 million in campaign contributions thus far in 2020.

To date in the 2020 campaign, government unions have contributed more than $11 million to Democrats, or 87 percent of their total political donations, according to opensecrets.org. Those figures don’t include non-cash contributions that unions routinely make to Democratic campaigns.

The pace at which other states clear the path for Janus recognition is likely to be strongly influenced by the NRTWLDF’s multiple lawsuits, especially those such as DePierro’s targeting “window periods.”

A week before the DePierro filing, NRTWLDF attorneys issued a special notice to more than 28,000 Ohio state employees advising them of their right not to pay agency fees. The notice was part of a settlement of the foundation’s suit against the state government and the Ohio Civil Service Employees Association, AFSCME Local 11 (OCSEA).

Other Janus suits currently working their way through the courts include NRTWLDF actions against the Chicago Teachers Union, the Alaska State Employees Association, the United Teachers of Los Angeles, California Service Employees International Union, the University Professional and Technical Employees union and the University of California, and the Township of Ocean Education Association, New Jersey Education Association, and the National Education Association unions. The latter suit has reached a federal appeals court.

Contact Mark Tapscott at Mark.Tapscott@epochtimes.nyc