The state of Alaska has sued the Alaska State Employees Association to block the automatic collection of union dues from unionized state employees, citing the need to protect employees’ First Amendment rights. The lawsuit was filed Monday in Anchorage Superior Court.
Under Alaska law and the union’s collective bargaining agreement, unionized ASEA employees have 10 days per year to opt out of paying union dues. If an employee does not opt out during that period, he or she must pay dues for another year.
In its suit, the state argues that restricts employees’ First Amendment rights because if an employee fails to act within that window, “the employee must continue to subsidize the union’s speech for another year.”
The suit requests a judgement that allows the state to “timely stop deducting dues or fees from an employee’s paycheck when the employee informs the state that he or she no longer wishes to subsidize the union’s speech.”
“The state’s intent to honor employee requests to stop deducting dues from their paychecks applies to all public-sector unions,” wrote senior assistant attorney general Cori Mills by email. “At this time, the ASEA is the only union refusing to honor the opt-out requests of state employees.”
Jake Metcalfe, executive director of the ASEA said by phone he was served with the lawsuit about 3 p.m. Monday.
“We’re going to stand up and fight this the whole way through,” he said.
ASEA’s existing labor contract was signed by the Dunleavy administration in August and is effective through 2022.
“We have a contract that the governor signed. He doesn’t like it. It forces him to deal with us,” Metcalfe said.
Asked why the issue wasn’t a matter for contract negotiations, Mills wrote that the state “cannot wait to comply with the Constitution, and the First Amendment rights of public employees are not something that can be ‘bargained.’"
She said the lawsuit “provides an opportunity for both sides to get clarity around this issue and resolve the dispute about what the state can and cannot do when it comes to employees’ rights.”
According to the state’s 2018 workforce profile, Alaska has 14,546 public employees, and all but about 1,225 were represented by a union. ASEA represents about 8,000 of those employees and is the largest state public employee union. (The National Education Association has more members in Alaska, but teacher contracts are with school districts, not the state.)
Metcalfe believes the Dunleavy administration hopes to deter public employees from acting against the administration.
“I do think he really wants to shut down public service workers who do the work of Alaska,” Metcalfe said.
According to figures from the U.S. Bureau of Labor Statistics, 18.5% of Alaska’s workforce was in a union at the end of 2018, the latest year for which statistics are available. That was the fourth-highest rate in the country, behind only Washington, New York and Hawaii.
Monday’s legal action stems from a June 2018 U.S. Supreme Court decision that declared unions could not mandate fees from non-union public employees who enjoy union-negotiated benefits. The ruling said in part that there is “a significant impingement on First Amendment rights ... when public employees are required to provide financial support for a union that takes many positions during collective bargaining that have powerful political and civic consequences.”
After his election, Gov. Mike Dunleavy asked Attorney General Kevin Clarkson to analyze the decision and determine whether the state had appropriately applied the Supreme Court’s ruling and was allowing public employees to freely withdraw from paying union dues.
In late August, Clarkson published a legal opinion that said the state was not correctly applying the ruling and said it would be appropriate to have unionized state employees reaffirm their union membership annually.
The state’s public-sector unions called that opinion extreme and said they would sue if the state attempted to implement such a system.
Monday’s lawsuit by the state puts the state on the offense instead of the defense. It’s not unique across the nation. Similar lawsuits have been filed across the country. In a July column published in the Wall Street Journal, an attorney with the National Right to Work Foundation identified more than 40 lawsuits pending against “escape period” requirements.
Monday’s court filing indicates the state has hired a Virginia-based firm to work on the lawsuit. That firm, Consovoy McCarthy, filed a brief in support of the plaintiffs in the 2018 U.S. Supreme Court case and has represented a plaintiff in a similar Texas case. Consovoy McCarthy also supported John Sturgeon in his Supreme Court case about free travel on Alaska rivers.
“Given the importance of this issue to Alaskans, and the resources required to litigate these issues, the Attorney General determined that it made sense to acquire and benefit from the firm’s expertise on this important case,” Mills wrote by email. She said their contract with the state could be provided “in the next couple of days.”
“This administration is all about an ideology, and they’re getting pushed by national groups to try to do this,” Metcalfe said.