Today’s News & Commentary — September 3, 2019


Published September 3rd, 2019 - 09.03.195


Yesterday, Mark Joseph Stern reported in Slate about Alaska Attorney General Kevin Clarkson’s plan to alter the process by which the state deducts union member dues from public employees’ paychecks. The plan was released last Tuesday in the form of a legal opinion on whether additional changes to the state’s payroll deduction system are needed in the wake of last year’s Supreme Court decision in Janus. Following the Supreme Court’s ruling that public sector agency fees violated the First Amendment, Alaska ceased collecting them. The state continued to allow public sector employers to deduct union dues from the paychecks of those employees who are members of a union, given that the employees have authorized the union to receive such funds. Now, following a request for comment from Alaska Governor Mike Dunleavy, the state’s attorney general is arguing that Janus ostensibly requires changes to the way state employers deduct union payments from union member’s paychecks. According to Clarkson, the “principle” of Janus extends beyond agencies fees and the speech of non-member employees: unless the state receives “clear and compelling” evidence that union members have consented to specific payroll deductions, the state risks compelling speech (in the form of monetary payments from the employee to the union) that those employees have not “clearly and affirmatively” consented to. In Clarkson’s view, the upshot of this legal argument is that, to ensure that employee consent is “freely given,” Alaska’s payroll deduction process must be overhauled via an administrative order. Proposed changes include requirements that the employees provide authorization directly to the state and continually “opt-in” to the system even after they have previously authorized deductions (purportedly to ensure that employee consent remains “up-to-date”).

These new procedural requirements would no doubt be a burden on the state’s public sector unions and their members, as members either miss opt-in opportunities or fail to go through the likely tedious process of giving authorization directly to the state. Stern analogizes these requirements to the regulations that some states have placed on abortion clinics, and questions whether these onerous requirements themselves might be in tension with the First Amendment, making it difficult for union members to exercise their own rights in support of their unions. Clarkson is the first state attorney general to conclude that Janus compels such a sweeping revision of state payroll deduction systems.

Yesterday, Craig Becker, General Counsel to the AFL-CIO, penned an op-ed in The Hill about how the current National Labor Relations Board (NLRB) exemplifies the most reactionary tendencies of the Trump administration. Among other things, Becker writes about how Trump’s NLRB has focused less (if at all) on advancing a coherent vision of labor law, and instead focused primarily on overturning Obama-era precedents. In his piece, Becker identifies several other ways in which the Trump Board is a mirror of the broader Trumpian administrative state, “reactionary, unfair and in the service of the rich and powerful.”

Yesterday, Kaiser Permanente employees in various states (most notably California) staged rallies to protest the healthcare company’s treatment of its workers and patients. As part of the Labor Day demonstrations, members of the Coalition of Kaiser Permanente Unions blocked an intersection in downtown Sacramento and marched in Oakland. Earlier in August, California members of the coalition voted overwhelmingly to approve a possible strike in October. Coalition members in five other states and Washington, D.C., will also vote on whether to authorize the strike. Were the strike to take place, it could involve more than 80,000 employees, and could be the largest strike in the United States in more than 20 years. The previous national contract between the company and the unions expired last September.

On the other side of the country, the Labor Day rally in Boston had a distinct theme: solidarity with immigrants. Attendees wore purple shirts and carried signs expressing support for immigration and the Temporary Protected Status (TPS) program, which the Trump administration has whittled away at, country-by-country. Many of the rally-goers wore white carnations on their clothing in memory of the late Héctor Figueroa, former president of SEIU Local 32BJ. Figueroa died in July – you can read some of our contributors’ reflections on Figueroa here, here, and here. Massachusetts Senator Ed Markey and Representative Ayanna Pressley made appearances at the rally.

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