State says it will oversee union agreements to ensure free speech

Alaska Attorney General Kevin Clarkson at a previous event.
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ANCHORAGE (KTUU) - Alaska Attorney General Kevin Clarkson released a formal opinion on Tuesday arguing that Alaska is not in compliance with a recent U.S. Supreme Court that curtails public sector labor union's power to collect dues.

According to the Alaska Policy Forum any action taken by the governor could affect 12,200 state employees.

In a press teleconference on Tuesday, the attorney general explained the Department of Law's opinion, which found that requiring public employees to opt-out of paying union dues is a violation of First Amendment free speech protections.

The opinion is based on the Supreme Court case Janus v. American Federation of State, County, and Municipal Employees Council 31 which was released in late June of 2018 and overturned a 1977 decision.

Clarkson said that the state will be overseeing the process of negotiating union dues in order to ensure that unions are complying with the Supreme Court decision.

“Our conclusion is that the state has to be involved with that process,” he said.

This would mean that the state provides a regular “opt-in” period, during which all public union-eligible employees would be able to decide whether or not they “want to waive their First Amendment rights” by agreeing to automatic payroll deductions for union dues. This period would be annual, which the opinion says the governor could identify as “the appropriate amount of time.”

Labor unions were less excited about the decision. The Alaska AFL-CIO called the opinion "unnecessary and a clear overreach," in a press release. The union represents 60,000 workers in 50 affiliated unions.

AFL-CIO president Vince Beltrami said he thinks the governor is overreaching.

"His end goal is obvious; he’s attacking public workers to lower pay and benefits for every worker in Alaska, and to slash the services Alaskans count on," said Beltrami in the release.

The opinion emphasizes several aspects of the Janus decision in relation to Alaska:

1. The U.S. Supreme Court’s decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31 significantly limits the manner by which the State can deduct union dues and fees from its employees’ wages

2. The Janus decision prohibits a public employer from deducting union dues or fees from a public employee’s wages unless the employer has “clear and compelling evidence” that the employee has freely waived his or her First Amendment rights against compelled speech.

3. The State’s existing system for payroll deductions of union dues and fees does not ensure “clear and compelling evidence” that every employee has “freely given” consent to the State to withhold those funds.

4. For an employee’s consent to be valid, it must be reasonably contemporaneous, free from coercion, and be accompanied by a clear explanation of the rights an employee is waiving.

As currently agreements about payment or non-payment of union dues are made between the employees and the unions, the State is unable to guarantee that these decisions are made free from coercion, according to the attorney general. “The State thus has no awareness of what information is (or is not) conveyed to an employee at the critical moment the employee is confronted with the decision whether to waive his or her First Amendment rights,” reads the opinion.

The attorney general said that the decision was not based on complaints from employees of being forced to pay union fees, but that it was a matter of constitutional principles.

“There’s no accusations in the opinion,” said Clarkson during the teleconference.

According to the attorney general's opinion, the state’s current opt-out option of public employees doesn’t adequately protect First Amendment rights. While some action was taken after the Supreme Court decision, Clarkson said it didn’t substantially change the operations of state contracts.

The State of Alaska under former-Gov. Bill Walker, “Immediately ceased deducting agency fees from non-member’s paychecks and executed letters of agreement with a number of unions modifying the terms of the collective bargaining agreements to account for Janus,” but this action didn’t change employees’ automatic payroll deduction agreements, according to the Attorney General’s opinion.

The AFL-CIO said that the current process initiated by Walker already sufficiently protect union workers.

"The current process in use, outlined under Janus, already includes a provision for all employees to voluntarily join the union," reads the AFL-CIO release.

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