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State is infringing on Alaskans’ rights, not protecting them

  • Author: Andy Josephson
    | Opinion
  • Updated: October 1
  • Published October 1

Attorney General Kevin Clarkson speaks at a press confernce on September 26, 2019. Gov. Mike Dunleavy, right, issued a new administrative order requiring all unionized public employees to “opt in” to their union if they want to continue being a part of the union. (Marc Lester / ADN)

Earlier this month, Gov. Mike Dunleavy’s attorney general, Kevin Clarkson, sued an Alaska chapter of the American Federation of State, County and Municipal Employees (AFSCME), implying that AFSCME may coerce public employees into joining unions, and without being apprised of their First Amendment rights. On Thursday, Gov. Dunleavy issued an anti-union Administrative Order based on the same logic as Clarkson’s lawsuit. This suit errs in multiple ways.

First, it questions whether, when public employees sign a form to voluntarily join a union, they freely waive their First Amendment rights — and if they know what they’re doing. The existing form to join ASEA-AFSCME, the public employees’ union sued by Dunleavy, says twice that an individual “chooses” to join. Six times it says the individual “authorizes” the union to exercise collective action. Three times it notes that joining is “voluntary." All told, enrollees are alerted 11 times that they need not choose to join, need not authorize some action, and need not feel that something is involuntary. How much more of a waiver does Clarkson need?

Second, Clarkson’s suit misreads two recent U.S. Supreme Court decisions, Knox and Janus, which hardly apply, since they concern nonmembers — public employees who do not join their unions. In a sleight of hand, the administration expands Knox and Janus to cover members as well.

The Knox decision mentions nonmembers 58 times and members five times. Janus mentions nonmembers 50 times and members 13 times, mostly by contrast. These decisions are about nonmembers — a small minority of all public employees — not members. Author of the Janus opinion, conservative Justice Samuel Alito wrote, “(b)y agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.” Yet Clarkson asserts that every public employee, including union members, is at issue.

Alito wrote, “(n)or does our decision require an extensive legislative response. States can keep their labor-relations systems exactly as they are — only they cannot force nonmembers to subsidize public-sector unions.” Ignoring this completely, Clarkson does backflips to undermine public employee unions and expand the Janus ruling to refer to employees who have freely, voluntarily and repeatedly asked to join and stay in their unions, even though Janus does not require the state’s response. Indeed, no other state in the union is responding to Janus this way.

Clarkson argues that Miranda cases (“you have the right to remain silent…”) are analogous to union membership waivers. Really? Is your right to a properly stated Miranda warning of the same gravity as your true, free and repeated decision to join your union? If you don’t get a good Miranda warning, you could spend years in prison. If you get a flawed union membership application, you pay union dues for a year and enjoy improved working conditions. Are these the same?

Clarkson’s arguments patronize and belittle. He implies that no workers in their right mind could possibly want the benefits that come from union membership, if they simply understood the alternative. By asking the courts to require a continual and repeated showing of clear and compelling evidence that members want to join their union, the Dunleavy administration is trying to establish itself as the gatekeeper of the voluntary consent of each union member, thus inserting itself into a private contract to which it is not a party.

If allowed to stand, the Dunleavy administration’s position would amount to the state infringing on employees’ First Amendment rights of free association. Clarkson’s proposed membership test would constitute an unfair labor practice and violate the rights of public employees – rights expressly protected in statute. In short, this lawsuit aims to undercut state law, as well as the U.S. Constitution.

Clarkson’s is not an Alaska-inspired lawsuit. Like Donna Arduin, it’s from Outside, driven by national, far-right, Koch-funded think tanks. Ironically, the administration that trampled on exempt employees’ First Amendment rights by requiring them to swear allegiance or be fired, is now presenting itself as the Great Defender of the First Amendment.

For me, this is personal. My grandfather founded and presided over AFSCME from 1936–1964. I was present when AFL-CIO chief John Sweeney posthumously inducted him into the Laborer’s International Hall of Fame, where he joined luminaries like Eugene V. Debs and Mother Jones. After sanitation workers were crushed to death in 1968, Dr. Martin Luther King, Jr. joined AFSCME’s fight for life and safety benefits. His presence in Memphis, advocating for public employees, explains why his assassination occurred there.

A few years later, my father authored the Senate version of what would become Alaska’s Public Employment Relations Act. Now, it’s my turn to stand up for workers. If AFSCME was worthy of King’s limited time and ultimately, his life, it’s worthy of my support — and Alaska workers’ support.

Fortunately, treating public employees with respect and basic decency aligns with my personal connection, since it is good public policy to have dedicated workers making sure the trains run on time. Public employees operate our airports, plow our roads, care for abused and neglected children, protect us from crime and safeguard our health and safety, among many, many other beneficial duties. They deserve our respect, something Clarkson’s suit doesn’t afford them.

Rep. Andy Josephson was elected to the Alaska State House of Representatives in 2012 and represents residents in Midtown, the university area, and East Anchorage.

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