The Supreme Court recently declined to hear a case involving a union forging public employees’ signatures on union membership cards so it could collect dues from them. A federal court has ruled that the employees have no redress. If the ruling is allowed to stand, could public employees elsewhere be forced to pay dues to unions they don’t want to join?
The Supreme Court recently declined to hear the case of Wright v. SEIU Local 503, a consolidation of two cases involving two Oregon public employees who had their signatures forged on union membership cards.
The decision to not hear the cases not only fails to redress the harm caused by falsifying signatures on a legal document but also adds to the swirling confusion about public employees’ constitutional rights.
Two Supreme Court cases, Harris v. Quinn in 2014 and Janus v. AFSCME in 2018, dramatically changed public-sector unions’ ability to collect dues from workers who do not want to join them.
In each case, the court held that state laws requiring public employees to give money to unions they did not want to join violated the First Amendment by, as the court held in Janus, “compelling them to subsidize private speech on matters of substantial public concern.”
Government unions take the money they receive from workers and use some of it for political activity, so workers should not be forced by state law to give their money to political causes they may not support.
The Janus decision, written by Justice Samuel Alito, makes clear that union members must provide “affirmative consent” of their desire for union membership before the union can deduct dues or fees:
By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
That is the precedent the high court itself set just a few short years ago.
One may be left wondering then how public employees who intentionally never signed up for union membership found themselves bound to membership contracts they never agreed to.
That is the story of Jodee Wright and Christopher Zielinski.
After noticing union dues being deducted from their paychecks and assuming a payroll mistake, they asked to see the authorization forms that gave the union the authority to garnish their wages. What they found was something that had never even crossed their minds—their signatures had been forged.
In the case of Zielinski, he was sent two separate authorization forms, each with a different forged signature.
Regardless, the federal Ninth Circuit Court of Appeals ruled that the state of Oregon, as the employer, was not allowed to consider whether the consent was genuine. The state, it concluded, was blameless because it deducts dues based solely on information provided by the union. Meanwhile, the union couldn’t be sanctioned because it wasn’t a state actor.
The fact that the United States Supreme Court even had to be asked to review these cases is troubling—until one remembers they came out of the Ninth Circuit Court of Appeals, the most overturned circuit court in the country.
In the eyes of this court, a state has no legal or constitutional obligation to take even minimal steps to ensure the integrity of its dues-gathering procedures.
The Ninth Circuit found no First Amendment conflicts, even when confronted with facts showing the state’s system produced repeated instances of unions forging dues authorization agreements in addition to the instances in this case.
According to the court, as long as the state is simply following the instructions of a private organization (i.e., the union), the state has no duty to protect its employees.
Unfortunately, the Ninth Circuit has more union dues forgery cases working their way through the judicial system. If allowed to continue with these head-scratching decisions and if not reversed by the Supreme Court, it could sound the death knell of First Amendment protections for public employees.
Worse, it gives states a roadmap to dispense with any constitutional duty by merely offloading it to a private entity and then claiming there was no duty in the first place.
Under this approach, no constitutional right is safe.
A scary thought, isn’t it?
The Freedom Foundation, a national union watchdog group, has filed about a dozen cases where unions allegedly forged people’s signatures in order to keep taking money from their paychecks.
It’s an issue that has become so pervasive the Supreme Court must eventually step in and correct the Ninth Circuit’s decision.
States must take affirmative actions to protect the constitutional rights of those for whom they bear responsibility.
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