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Union members who authorized dues deductions can’t claim First Amendment violations after Janus

By Harold S. Berman J.D.

Union members who agreed to dues deduction as stipulated by state law and a collective bargaining agreement could not later claim that the state and the union deprived them of their First Amendments rights. They were not coerced into agreeing to the deductions.

Union members who brought a class action against the State of Washington and their union, could not prevail on their First Amendment claims in light of the U.S. Supreme Court’s recent decision in Janus v. AFSCME, Council 31, a federal district court in Washington ruled. The court dismissed the employees’ claims against the state, finding that they were not coerced and voluntarily authorized dues deductions. The union, in determining the terms for authorizing dues deductions, did not act at the state’s direction (Belgau v. Inslee, February, 15, 2019, Bryan, R.).

Dues deductions. The State of Washington entered into a collective bargaining agreement with the union representing state employees. The CBA included for the collection of agency fees for non-union members. Under state law, the state was obligated to deduct payment for dues required for union membership. State employees were not required to become union members. In 2017, union members were offered a membership agreement, which stipulated the dues structure, including a one-year dues commitment. Several state employees, who later brought suit, signed the agreement, forgoing their opportunity to opt out of union membership.

Non-members not required to pay fees. In July 2018, following the Supreme Court’s ruling in Janus v. AFSCME, Council 31, the state and the union amended the CBA to stop compulsory agency fees for non-union members. Under the amended terms, the state would now deduct fees equal to the amount of union dues only upon receipt of the employee’s written authorization, which an employee also could revoke in writing.

Several state employees notified the union and the state that they no longer wanted to be union members. The state continued to deduct from their pay an amount equal to dues in accordance with the 2017 membership agreements. For three of the employees, their one-year term under the 2017 agreements expired in November 2018, at which time the state stopped deducting payments in lieu of dues from their wages. The state intended to stop deductions for the other employees when their one-year commitments lapsed in April 2019.

Class actions. The employees filed a class action against various state officials, and the union, alleging the state and the union violated their First Amendment rights by deducting union dues or fees from their wages after the Janus decision, even though they did not clearly and affirmatively consent to deductions by waiving the Constitutional right not to fund union advocacy. The parties filed cross-motions for summary judgment.

First Amendment claims against union. The court dismissed the employees’ First Amendment claims against the union, after concluding that those claims against the union pursuant to 42 U.S.C. § 1983 failed because they did not involve state action. The employees’ alleged deprivation did not result from the exercise of any right or privilege, or rule of conduct imposed by the state.

The employees acknowledged that the First Amendment did not prohibit the state from deducting union fees from a valid dues agreement. Although they disputed whether the agreements they signed were valid, and contended they were harmed because the agreements did not properly waive their Constitutional rights, were not supported by consideration, or were obtained by duress, the employees did not show that the contents of the agreement were attributable to the state. It was undisputed that the state officials played no role in drafting the agreements. Rather, the union as a private entity drafted the agreements and asked the employees to sign them, and state law prohibited the state from interfering in the formation or administration of the union.

Union not state actor. Nor was there evidence that the union was a state actor. The state officials’ obligation to deduct fees under the authorization agreements did not transform decisions about membership requirements concerning dues into a state action. The employees did not show that the union was endowed by the state with governmental functions or powers, as the evidence showed that the union was functioning simply as a union. Neither state statute nor the CBA challenged by the employees gave the union authority reserved to the government.

Similarly, there was no evidence that the substance of the agreements were the product of joint action between the union and the state officials. Rather, the state officials were prohibited from working on the content of the agreements between the employees and the union. Although the employees contended that, in additional to post-Janus dues deductions, they also sought recovery for deductions of compelled agency fees authorized by Washington statute before Janus, the employees could not show that Janus should be given retroactive effect.

No state power over union. Additionally, the employees could not show the state exercised any coercive power over the union concerning the agreements. Rather, the agreements were made by private parties, and did not conform to any standards established by the state. Nor was there a close nexus between the state and the content or validity of the agreements such that the agreements could be considered as actions of the state.

Because the employees’ Constitutional claims failed regarding state action, the court did not need to consider whether the 2017 membership agreements violated the First Amendment.

First Amendment claim against state. The court also dismissed the employees’ First Amendment claims against the state officials. Neither state statute nor the CBA compelled involuntary dues deductions, and so did not violate the First Amendment. The employees signed the membership agreements, which they were not required to do as a condition of employment. The state played no role in determining the membership agreements’ terms, and was prohibited from doing so by state law. The state deducted dues from the employees’ pay in accordance with their written instructions in the 2017 agreements. That the employees now challenged the constitutional validity of the underlying agreements did not create state liability, particularly because the state was barred from interfering with union activity.

The employees’ assertions were without merit that the agreements were not valid because they did not waive their First Amendment rights under Janus because they did not yet know of those rights. Although the employees sought to broaden Janus’ holding, Janus did not apply to the employees’ claims. Unlike the employees, Janus was not a union member and did not agree to a dues deduction. The relationship between unions and their voluntary members was not at issue in Janus.