National Right To Work Legal Defense Analysis:
Re: Legality of Union Deduction Authorizations Executed Before Janus v. AFSCME.
Is it permissible under the First Amendment for government employers to deduct union dues or fees from employees’ paychecks pursuant to deduction agreements signed in agency fee jurisdictions before the Supreme Court’s decision in Janus v. AFSCME Council 31, __ S. Ct. __, 2018 WL 3129785 (June 27, 2018)?
Such deductions are constitutionally impermissible because employees could not have knowingly, clearly, or voluntarily waived their First Amendment right not to subsidize union advocacy before the Supreme Court recognized the existence of that right in Janus.[i]
Before June 27, 2018, the Supreme Court had held it constitutionally permissible for governments to compel employees to pay union agency fees as a condition of their employment. See Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977). In jurisdictions with agency fee requirements, public employees had to choose between paying full union dues or agency fees, generally set at roughly 75-95% of union dues. Union dues were usually deducted from employees’ paychecks pursuant to dues deduction agreements employees had signed. Agency fees were also usually deducted from employees’ paychecks, sometimes without the employees’ authorization, depending on the applicable public-sector labor relations statute or collective bargaining agreement.
On June 27, 2018, the Supreme Court in Janus overruled Abood and held agency fee requirements unconstitutional under the First Amendment. The Court ruled in relevant part that:
Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see also [Knox v. SEIU, Local 1000, 567
U.S. 298, 312–313 (2012]. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388
U.S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
Janus, slip. op. at 48.2[ii]
Janus plainly renders unconstitutional all unauthorized deductions of union dues or fees from public employees’ paychecks. But what of deductions that were authorized by public employees in agency fee jurisdictions before Janus? Do these pre-Janus authorizations constitute “clear and compelling’ evidence,” id., that the signatory employees agreed to waive their First Amendment right not to subsidize union advocacy? This question has yet to be addressed by the courts. However, a strong argument can be made that those deduction authorizations are invalid.
The Supreme Court has repeatedly held that, to be effective, a waiver of constitutional rights must be knowingly, clearly, and voluntarily made. See College Savings Bank, 527
U.S. at 682; Edwards v. Arizona, 451 U.S. 477, 482, (1981); D.H. Overmyer Co. of Ohio v. Frick Co., 405 U.S. 174, 185–86, (1972). A union deduction agreement signed before Janus does not satisfy any of these three prerequisites.
First, it is well established that “an effective waiver must . . . be one of a ‘known right or privilege.’” Curtis Publishing, 388 U.S. at 143 (quoting Johnson, 304 U. S. at 464) (emphasis added). Employees could not have knowingly waived a constitutional right before that right was recognized to exist. On point is the case that Janus cited to for the proposition that employee waivers must be clear and compelling: Curtis Publishing. There, the Supreme Court held that a defendant did not knowingly waive, by not raising at trial, a First Amendment defense because the Court only recognized that defense after his trial had concluded. 388 U.S. at 143-45. The logic of Curtis Publishing controls here: employees could not have knowingly waived their First Amendment right not to subsidize union advocacy before the Supreme Court recognized that right in Janus.
Curtis Publishing also dispatches any contention that union deduction authorizations signed after 2012 constitute a knowing waiver because employees should have foreseen the result of Janus due to a series of decisions, starting in 2012, in which the Court expressed “misgivings about Abood.” Janus, slip. op. at 45. A similar argument was made in Curtis Publishing: that the defendant should have seen “‘the handwriting on the wall’” that the Supreme Court would likely recognize in the near future a First Amendment defense relevant to his situation. Curtis Publishing, 388 U.S. at 143. The Court rejected that argument. Id. at 143-45. Among other reasons, the Court found it “inadvisable to determine whether a ‘right or privilege’ is ‘known’ by relying on information outside the record concerning the special legal knowledge of particular attorneys.” Id. at 144. If the attorneys in Curtis Publishing could not have been expected to have predicted a future development in the law, certainly public employees—the vast majority of whom are not constitutional lawyers—cannot be expected to have done the same. No union deduction authorizations signed before June 27, 2018 can be considered knowing waivers of the First Amendment right recognized that day in Janus.
Second, the Supreme Court requires “‘clear and compelling’ evidence” that employees’ agree to waive their First Amendment right not to pay union dues or fees. Janus, slip op. at 48 (quoting Curtis Publishing, 388 U.S. at 145); see Fuentes, 407 U.S. at 95 (holding that “a waiver of constitutional rights in any context must, at the very least, be clear” and that courts need not consider “the involuntariness or unintelligence of a waiver when the contractual language relied upon does not, on its face, even amount to a waiver.”). This is an exacting standard. Not only can “a waiver [ ]not be presumed,” id., but courts must “’indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Zerbst, 304 U.S. at 464 (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937); accord College Savings Bank, 527 U.S. at 682; see Knox, 132 S. Ct. at 2290.
Few, if any, union deduction authorizations satisfy this high standard. Although the terms of these authorizations vary to some degree, the author is unaware of any authorization that contains the kind of express language that could potentially be considered a clear and compelling waiver. At a minimum, the authorization would have to: (1) expressly inform the individual of the right they are waiving and (2) explicitly state that the signatory is waiving that right. The vast majority, if not all, union deduction authorizations that existed before Janus do not contain such language.
That the relevant union deduction agreements are contracts of adhesion drafted by unions, and were entered into when agency fee requirements provided unions with inordinate (and unlawful) bargaining leverage to cajole employees to agree to deductions, further weighs against these agreements being considered effective waivers of First Amendment rights. Compare Fuentes, 407 U.S. at 95 (holding that a consumer who signed a sales contract to purchase a stove did not waive her right to due process because that agreement was a contract of adhesion, the waiver was not clearly expressed, and there was an inequality of bargaining power).
Third, Janus held that “to be effective, the waiver must be freely given . . .” Slip. op. at 49 (emphasis added). In other words, a waiver of a constitutional right must be “voluntary, knowing, and intelligently made.” D.H. Overmyer, 405 U.S. at 185–86 (emphasis added); see Edwards, 451 U.S. at 482 (citing cases). Union deduction agreements entered into before Janus in agency fee jurisdictions cannot be considered voluntary because, at that time, employees did not have the option of paying no monies to a union. Their options were either paying full union dues or paying union agency fees. It cannot be presumed that deduction authorizations executed under these unconstitutional conditions were freely entered into or intelligently made.
It is irrelevant that some employees might have been willing to agree to the deduction of union dues or fees even absent an agency fee requirement. The reason is the presumption against waivers of constitutional rights. See Janus, slip. op. at 48; College Savings Bank,
527 U.S. at 682; Zerbst, 304 U.S. at 464. Because of this presumption, deduction authorizations are presumptively invalid unless the union or public employer seeking to enforce them can affirmatively prove that the authorizations were entered into
voluntarily. In other words, unions and public employers bear the burden of proving voluntariness. If they cannot meet this burden, a deduction agreement is not an effective waiver. Speculation that some employees may have wanted to pay union dues or fees is insufficient to establish that each employee actually voluntarily chose to waive their First Amendment rights when they signed a union deduction authorization.
For these reasons, union deduction authorizations, either for dues or agency fees, signed by employees before Janus in agency fee jurisdictions should not constitute knowing, clearly made, or voluntary waiver of those employees’ First Amendment right to not subsidize a union. The deduction of union dues or fees from such employees pursuant to pre-Janus authorizations violates their First Amendment rights to free speech and association and must cease.
/s/ William L. Messenger
(National Right To Work Legal Defense Foundation Staff Attorney and Mark Janus’ Lead Attorney)
[i] This is not intended to constitute legal advice to any particular individual or entity. Whether any particular union deduction authorization is valid will require an analysis of the applicable law in light of the language of the agreement at issue.
[ii] Citations to Janus are not to the version of the decision found on the Supreme Court’s website at https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf.