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Judge orders Dunleavy administration to halt plan to change union opt-in procedures

  • Author: Alex DeMarban
  • Updated: October 4, 2019
  • Published October 3, 2019

An Alaska Superior Court judge on Thursday ordered the Dunleavy administration to temporarily halt any effort to implement an administrative order that seeks to establish new opt-in procedures for state workers joining unions.

Gov. Mike Dunleavy, Attorney General Kevin Clarkson and other state employees “are enjoined from taking any actions to implement” the attorney general’s Aug. 27 opinion on the matter, or the related Sept. 26 administrative order, Anchorage Superior Court Judge Gregory Miller said in a temporary restraining order.

The judge said the state’s actions are “causing and will continue to cause irreparable harm” to the Alaska State Employees Association, which sought the order in a court fight against the state.

ASEA has about 8,000 members.

Molly Brown, an attorney representing the union, called the 23-page order a “really good” first-round decision.

“This is good news for working Alaskans, union members and people who live in this state,” Brown said. “It’s an example of the judge reaching the correct conclusion and telling the state they can’t re-create or weaponize a U.S. Supreme Court decision.”

Clarkson characterized the temporary order as a minor issue.

“This Superior Court decision is just the first — a speed bump — in a much longer legal battle which will likely reach the U.S. Supreme Court,” he said in a statement.

The judge’s decision came one week after the governor issued the administrative order that would require all unionized state employees to opt in by communicating with the state if they want to continue being union members.

Union officials called it an overreaching attempt to hurt their organizations, a charge denied by Clarkson. Observers said it puts Alaska at the front of a national legal battle over union power and worker rights.

Conservative organizations such as Americans for Prosperity, a national anti-tax and anti-regulation advocacy group, have praised the governor’s order. They’ve said Alaska is on track to become the first state to enforce a clause in the Supreme Court’s 2018 Janus decision that says employees must “clearly and affirmatively consent” to pay union dues before the dues are deducted from paychecks.

The Janus decision determined whether non-union members should be required to pay dues or so-called agency fees. In Clarkson’s interpretation, the decision applies to union members as well. Clarkson has said he wants to comply with the ruling and protect the free speech rights of workers who don’t want to fund union activities they don’t agree with.

“We have interpreted the plain implications of the U.S. Supreme Court’s Janus decision to apply to all monies the state collects from employees and pays to unions, whether agency fees or dues,” Clarkson said Thursday.

The administration has recently stopped automatically deducting union dues for about a dozen employees who said they no longer wanted to be part of ASEA.

Miller, in his temporary order, called for a halt to that action as well. Miller said the state is prohibited from “making any changes to the state employees dues deduction practices that were in place before” Clarkson issued his opinion in August.

The governor’s administrative order calls for the creation of an electronic and mail-in system that will give employees the ability to opt in or opt out of paying union dues and fees at any time. Existing union members will have to re-affirm their decision to pay dues to the union.

The state would collect opt-in authorization forms stating that the form has been signed freely and without coercion, and that the worker understands they are waiving their First Amendment rights not to pay union dues and fees. State officials said they hope to launch the system in early December.

The judge’s order said that proposed system could discourage employees from joining unions. The state could “arguably” require that union members reaffirm their union membership every two weeks before each paycheck, Miller said.

“Not only is the state’s new policy unsupported by applicable case law, but this court finds merit to ASEA’s argument that the state’s insistence that the state control the authorization forms for union dues seems likely to discourage union membership,” Miller wrote.

The judge wrote that the “state’s conduct … seems directly at odds” with state law and the three-year collective bargaining agreement the state signed with ASEA in August, in that the state is interfering with the formation, existence or administration of a union.

Miller added: “The state advances a position contrary to the express wording of Janus, contrary to the memorandum opinion issued by his predecessor in office, contrary to all known opinions from other states’ attorneys general, and contrary to nine federal court decisions, two administrative agency decisions, and two arbitration awards.”

Jake Metcalfe, executive director of ASEA, said all unions will benefit from the judge’s position because it shows the state can’t unilaterally alter procedures it agreed to in collective bargaining agreements.

Under the collective bargaining agreement, unionized ASEA employees have 10 days per year to opt out of paying union dues, a step workers can take by communicating with the union, not the state. If an employee does not opt out during that period, he or she must pay dues for another year.

“This should be a message to the governor that the contract that his administration signed means something, like it does in any business relationship, and you don’t get to shred that contract just because you disagree with it,” Metcalfe said.

Miller, appointed by former Republican Gov. Sean Parnell in 2011, said the temporary restraining order is effective immediately.

As a next step in the case, ASEA is seeking a preliminary injunction and a broader halt to the state’s actions on the same grounds as the union sought with the temporary restraining order, Brown said.

Read the order: