The Hill: California workers have constitutional rights — even if unions think they don’t matter

Years ago, when Mike Jackson and Tory Smith started working in the Parking Department at the University of California, San Diego, they assumed they were required to join the public employees’ union. Not that it made much difference whether they joined or not. At the time, 22 states, including California, required workers who didn’t join the union to pay “agency fees” — an amount of money just shy of full union dues — to cover the union’s costs for collective bargaining. Either way, the union would automatically deduct about $600 annually from their paychecks.

Last summer, the Supreme Court held in Janus v. American Federation of State, County, and Municipal Employees, Local 31, that public employees cannot be forced to pay agency fees. The court reasoned that collective bargaining with a government agency is inherently political because it involves tax dollars and government budgets. Workers have a First Amendment right to avoid being forced to subsidize political speech against their will. 

The key point is that public workers have a choice: join the union or don’t; pay union dues or don’t. Workers who value the union’s services will join; those who do not value those services will not. 

Most public workers don’t know they have this choice and the unions have every financial incentive to keep that information secret. But what about the employers? Can’t state agencies inform their workers that they have a constitutional right to work without union membership? Not in California.

Former California Gov. Jerry Brown signed a law on the day Janus was decided that forbids public agencies from communicating with their employees about union membership and dues. It allows only union representatives to address new employees at their orientation meetings and forbids the agencies from disclosing even the time and place of such meetings. California agencies can’t even send email to workers regarding union membership or dues without the union’s approval of the content. 

All these provisions, dubbed the “Gag Rule” statutes, are intended to keep public workers ignorant of their constitutional rights. Workers can’t exercise rights they don’t know they have.

Even when workers are fortunate enough to discover on their own that they have constitutional rights affecting their workplace, they run into additional roadblocks trying to exercise them. Both Mike Jackson and Tory Smith asked their employer to stop the union’s deductions from their paychecks; both were rebuffed and told to go talk to the union representative, as required by the new state law.

We don’t tolerate this type of behavior in other contexts. As everyone knows from cop shows, when a police officer wants to question a criminal suspect, the officer first explains that the suspect has the right to remain silent and the right to have an attorney present. It doesn’t matter that the suspect may know his rights, or that his friends may be advising him to keep quiet and call a lawyer. The state itself is obligated to inform the suspect of his constitutional rights so that they are not waived out of ignorance.

Jackson and Smith were simply lucky to hear about the Janus decision from news accounts. But it is far too precarious to wager constitutional rights on the probability of hearing a news report, especially when it’s based on a court decision that quickly becomes old news.

When Jackson and Smith wrote to the union representative to resign their membership and stop the deductions, the rep asked for a personal meeting and responded that, in any event, they were locked in to their union membership until the collective bargaining agreement expires at the end of March 2022. 

The union claims that both men signed union cards in 2016 that binds them to the collective bargaining agreement between the union and UC San Diego. The agreement allows only a 30-day window before the agreement expires as the time that workers can resign their membership. But in a post-Janus world, these restrictions place undue burdens on workers’ First Amendment rights.

Janus recognized that public employees may choose to join and pay dues to a union, but only when that choice is the result of knowing, freely given, informed consent. Any authorization made prior to Janus could not have been knowing because the rights were undefined prior to that decision. And California law made it unreasonably difficult to find out about their rights after the decision.

Pacific Legal Foundation and Liberty Justice Center represent Jackson and Smith in their effort to resign from the union, to end the union’s theft of dues from their paychecks and to strike down the California laws that prevent state agencies from communicating with their own employees about their constitutional rights. California labor leaders, and their enablers in state government, are going to have to recognize that the constitutional rights of workers matter, even if it’s inconvenient for the public employee unions.

Deborah J. La Fetra is a senior attorney with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow on Twitter @PacificLegal.

Jeffrey M. Schwab is a senior attorney at Liberty Justice Center, which litigates to protect economic liberty, private property rights, free speech and other fundamental rights in Illinois and beyond. Follow on Twitter @LJCenter.

This op-ed was originally published by The Hill on September 9, 2019.