A year into his first term, Gov. Mike Dunleavy’s administration set out on a mission to undermine public unions under a wildly expanded reading of the 2018 U.S. Supreme Court opinion in Janus v. AFSCME.
Even though that case dealt only with collecting union dues from nonunion employees, former Attorney General Kevin Clarkson argued that the state had to take it several steps further and intervene with collecting union dues from employees who voluntarily joined the union. Without any notice to the state’s largest public employee union, the Dunleavy administration launched a series of actions to make it easier for employees to leave unions at any time and discouraged them from joining in the first place.
Much of the changes seemed to be aimed at pushing the envelope of the Janus ruling, eyeing a possible run to the U.S. Supreme Court. While the state never contacted unions about the changes ahead of time, it did work with several Outside think tanks that were described in briefings as “anti-union.”
On Friday, the Alaska Supreme Court ruled that not only did the campaign violate several state laws but that it did so with what the court described as “abundant evidence of anti-union animus.”
The ruling was welcomed by the Alaska State Employees Association, which represents more than 8,000 public employees in Alaska and brought the lawsuit, in a statement on Friday.
“This decision makes it clear that the Governor, Attorney General and Commissioner of Administration were wholly motivated by political calculus and anti-union hostility, rather than sound legal footing. It backfired,” said ASEA Executive Director Heidi Drygas. “By pursuing this meritless legal action, the Governor and members of his administration wasted public resources to the tune of millions of dollars rather than invest in the critical public services and public employees that are needed to carry them out.”
The effort was launched with the legal direction of former Attorney General Clarkson, who argued that the federal ruling created the need for states to take a more direct role in protecting the associational rights guaranteed under the First Amendment. To accomplish this, Clarkson argued that employees must be allowed to opt out of union membership at any time for any reason rather than the annual window currently allowed in the collective bargaining agreements. Under an administrative order from Dunleavy, the state also created a union consent form that required employees to regularly confirm they were waiving their “First Amendment right not to pay union dues and fees.”
A superior court judge later found that the language in the forms was “not neutral.”
Those changes were announced in a campaign spearheaded by former Department of Administration Commissioner Kelly Tshibaka, which included directly providing a “Cease Union Dues Deduction” form to the dozen ASEA members who had expressed some interest in leaving the union early. Some members signed the form, an exchange that ASEA was never told about. The union argues that cost it about $186,000 in damages between staff time, lost dues and lost membership.
The state even went as far as preemptively suing ASEA to get a judgment that Janus required the actions. Instead, ASEA countersued and won throughout the process, with the courts not only finding that the actions were not justified by Janus or the First Amendment but were done so with malice toward the unions.
That finding of malice is essential because part of the state’s defense of its actions is that it can’t violate the state’s labor laws because there was no “anti-union animus” present. However, the Alaska Supreme Court found that line of thinking unconvincing, writing “that it is difficult to imagine how a public employer could attempt to dominate a union or interfere with the formation, existence or administration of a union without having an anti-union animus.”
Here’s the court’s assessment of the situation:
“The State nonetheless argues that there is no evidence in the record that it acted with an anti-union motive. But we see abundant evidence of anti-union animus: The State espoused its sweeping interpretation of Janus and began unilaterally changing dues deduction procedures only after a change in administration; the new administration consulted with Outside special interest groups but did not consult or negotiate with ASEA, with which it had a collective bargaining agreement; the State emailed all employees represented by ASEA to inform them (incorrectly) about their First Amendment rights and about union members’ (fictitious) rights to immediately stop payroll dues deductions, again without first consulting ASEA; the State made changes only to union dues deduction procedures, not to other union-related employee payroll deductions; and the State actually stopped collecting dues from ASEA members outside their contractual revocation windows and did not inform ASEA.”
Notably, the Alaska Supreme Court found that the agreement between unions and the employees who voluntarily become dues-paying members is a relationship between two private entities, and the state is little more than an accountant with no responsibility for the speech or association between the two (remember, the First Amendment only protects you from government-driven interference in your speech and associational rights, it doesn’t protect your speech from private actors).
Clarkson and the state had argued that the state had a far more expansive responsibility to guarantee free speech when it was collecting union dues.
“This framing of state action is unpersuasive,” the Alaska Supreme Court said in its ruling. “The state’s acquiescent role facilitating interaction and agreements between two private parties, the union member and the union, does not amount to state action. … Only those employees who join ASEA and sign forms authorizing the state to deduct their union dues from their paychecks will pay anything to ASEA. The state does not become responsible for its employees’ decisions … Rather, the state permits the private choice of private actors.”
The Alaska Supreme Court found that the state violated the collective bargaining agreement with the union and several provisions of Alaska’s Public Employment Relations Act. The decision affirms a Superior Court ruling that awards about $450,000 to ASEA and affirms the Superior Court’s permanent injunction barring the state from implementing Clarkson’s flawed legal opinion and Dunleavy’s administrative order.
Matt Acuña Buxton is a long-time political reporter who has written for the Fairbanks Daily News-Miner and The Midnight Sun political blog. He also authors the daily politics newsletter, The Alaska Memo, and can frequently be found live-tweeting public meetings on Twitter.