Last year, the Supreme Court emphasized in Janus v. AFSCME that public employees have a First Amendment right to refuse to pay a union, and “must choose to support the union before anything is taken from them.” Before the state can authorize a union to deduct dues payments from employee paychecks, workers must give their clear permission. After Janus, UC San Diego employees Mike Jackson and Tory Smith tried to exercise their rights by resigning their Teamsters membership. The union denied their demand, saying they were locked into membership until the collective bargaining agreement expires in 2022. And when Mike and Tory asked the university’s human resources department how to resign, they were told a California state law—a Gag Rule statute—expressly prohibits the university from talking to them about their constitutional rights related to union membership and dues. With help from Pacific Legal Foundation and the Liberty Justice Center, they’re fighting back.
In partnership with the Liberty Justice Center
The U.S. Supreme Court’s landmark decision in Janus v. AFSCME (2018) confirmed that public workers have a First Amendment right to refuse to join or subsidize a union. Because all public employee union activities—including collective bargaining—are inherently political, public workers have a First Amendment right to choose whether or not to support unions and pay for their activities. Public employees must affirmatively consent to pay a union, and employers must confirm their consent before any money is taken out of their paychecks. That is, silence is no longer consent.
As a new hire with the University of California, San Diego in 2006, Tory Smith joined the Teamsters union and never knew he had the option to decline. Mike Jackson took a job with Tory on the university’s parking staff in 2013 with the same understanding. After hearing about Janus, both men decided to exercise their rights and demand an end to their union membership, thinking that Janus cleared any legal hurdles that might prevent them from doing so.
But when Mike and Tory sent letters to the union noting their First Amendment rights as recognized by Janus and resigning their memberships, the union denied their requests, saying that under the terms of the registration card they allegedly signed in 2016, they can’t opt out until the union contract expires in 2022.
The coworkers also told the university’s human resources/payroll department that they wanted to resign from the union. There, they were told that SB 866—a California state law signed the same day that the Janus decision was made—expressly prohibits the university from talking to them about their union membership, dues, or even the Janus decision.
The university then told them that their sole recourse was to speak to the union itself.
In other words, California made it illegal for employers to tell their employees about their constitutional rights or assist them in exercising those rights. And the union has every financial incentive to retain members by keeping them ignorant of their rights.
California public employees have a right to truthful information about their constitutional rights and cannot exercise those rights without first knowing what those rights are. The state cannot undermine this right by erecting Gag Rule statutes between employers and employees.
Now, Mike and Tory are fighting back in a federal lawsuit to affirm their right to stop supporting a union against their will and to receive truthful information from their employer about constitutional rights that affect their employment.
Mike contacted the California Policy Center (CPC), which educates workers about their First Amendment rights. CPC referred them to PLF and the Liberty Justice Center, who agreed to jointly represent Mike and Tory free of charge. The Liberty Justice Center represented Mark Janus at the Supreme Court and, with PLF, continues to fight for the rights of workers to opt out of government unions, control how their dollars are spent, and know their constitutional rights.