The potential Supreme Court case that could be the next Janus for labor unions

What good is a right if you don’t know you have it? What if you know about your right but are blocked from exercising it?

That’s the situation for millions of public workers. They have a constitutional right not to pay dues to government labor unions, yet unions are furiously trying to prevent workers from realizing it. The Supreme Court will decide any day whether to hear a case from Alaska that would ensure that all of America’s nearly 15 million teachers, police officers, firefighters, and other public workers have the information and opportunity they need to exercise their fundamental rights.

Alaska’s request has its roots in the Supreme Court’s 2018 ruling in Janus v. AFSCME. The justices recognized that the First Amendment rights to free speech and free association mean public workers can’t be forced to support labor unions. That was the correct decision, yet unions quickly subverted it. At the time, unionized public workers nationwide had to opt out of union membership proactively. Unions have made that process as difficult and opaque as possible, with the goal of keeping as many members as possible. Such union roadblocks have made Janus far less impactful than it should have been.

The union tactics are as obvious as they are unjust. In many states, government unions simply fail to tell workers that they have the right to opt out of membership, giving the impression that membership is mandatory. Some states have passed laws that ban employers from telling workers about their rights. And in other states, unions make the opt-out process so burdensome, few if any employees can navigate it.

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The Supreme Court building in Washington, D.C. (AP Photo/J. Scott Applewhite, File)

Examples abound. In Oregon, one government union requires members to opt out between 45 and 15 days prior to the anniversary of the day they signed their membership cards. But the union doesn’t provide a copy of the card, making the window difficult to determine. In Michigan, the main teachers union only allowed opt-outs in August, when teachers are least likely to think about it due to summer break. When that was ruled illegal in 2015, the union required opt-outs to be sent to an obscure P.O. Box. In Alaska, state employees can only leave a union during a 10-day period in June.

Alaska tried to end this injustice in 2019. Gov. Mike Dunleavy revoked government unions’ control over membership and dues deduction, instead putting the state in charge of getting workers’ consent. Under the governor’s plan, Alaska would inform public workers on an annual basis about their right not to join a union or pay union dues. Workers would have the opportunity to decide on union membership and dues payments every year – replacing opt out with opt in.

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Sadly, Alaska’s plan never went into effect, after state courts issued injunctions and the state Supreme Court struck it down on questionable grounds. Other states have had more luck. In 2020, Michigan began requiring annual direct consent from most state employees before unions get a cent of their paychecks. Turns out, huge numbers of workers didn’t know they had the option to leave their union, since no one told them, union or otherwise.

In the two years since Michigan’s policy went into effect, more than 10,000 state employees have decided to opt out of union membership. Overall, the share of state employees in government unions has fallen nearly 10 percent, to just over two-thirds of the workforce. Clearly, many workers had been paying union dues when they didn’t want to, likely never knowing they didn’t have to.

What if all public workers knew their rights and had a clear path to exercise them? If Michigan’s experience is any indication, an estimated 1.75 million workers would leave their government union in the next year or two. They would finally avail themselves of their rights to free speech and free association, despite union attempts to keep them in the dark. Unions should respect workers’ wishes, yet even if they don’t, they should be compelled to respect workers’ constitutional rights. The evidence shows that most workers would likely still choose to remain union members. That’s their choice, and they should be able to make it, without the union tipping the scales.

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Only the Supreme Court can free America’s public workers. The justices should fully apply the logic of their 2018 Janus decision. If public workers can’t be forced into government unions, then they should be fully informed of their rights and given the chance to opt into union membership on a regular basis. Anything less will let unions continue to deprive public workers of the information they need and the freedom they deserve. It’s long past time to fully respect public workers’ rights.

Bethany Marcum is the Alaska State Director for Americans for Prosperity. Steve Delie is Director of Labor Policy at the Mackinac Center for Public Policy.