Alaska attorney general: Court ruling requires public employee union members to reaffirm membership annually

In a legal opinion released Tuesday, Alaska Attorney General Kevin Clarkson says a 2018 U.S. Supreme Court ruling requires the members of Alaska’s public employee unions to reaffirm or reject their union membership annually.

The office of Gov. Mike Dunleavy declined to definitively state whether it will implement an annual opt-in system, but several state unions said they believe the state will do so.

Jake Metcalfe, director of the Alaska State Employees Association, was asked by text message if he believes the state would implement an annual opt-in program.

“Yes,” he wrote, “And we will sue.”

“I believe this would be the most aggressive and interventionalist interpretation of this (Supreme Court decision) in the country,” said Joelle Hall, operations manager for the AFL-CIO in Alaska. “Obviously we will be taking action to prevent this from taking place.”

A statement from Dunleavy’s office followed the release of Clarkson’s legal opinion and said in part that “In the coming days and weeks, my administration will be working to ensure the state is in full compliance of the law and that Alaskans are informed of their rights.”

A similar email was sent to all state employees shortly afterward.

Dunleavy spokesman Matt Shuckerow, in response to questions by phone, said, “It is safe to say that action is going to be taken. What that action looks like has not been determined.”

Specifically asked whether the Alaska Department of Administration has begun preparing for an annual opt-in program, Shuckerow said, “The short answer is no.”

In 2018, the U.S. Supreme Court ruled that non-union public employees cannot be forced to pay fees in order to receive benefits negotiated by unions representing their coworkers. The ruling is known as the Janus decision after Illinois public employee Mark Janus, who brought the case.

At the time of the decision, it was thought that public employee unions would lose members, because workers could still receive the benefits of union negotiations without paying for them.

“A person can be in the union and not pay any of the representational fees and still be in the union,” Hall said.

That downturn hasn’t happened yet. According to figures from the U.S. Bureau of Labor Statistics, 18.5 percent of Alaska’s workforce was in a union at the end of 2018, the latest year for which statistics are available. That was the fourth-highest rate in the country, behind only Washington, New York and Hawaii. That’s up from 18.1 percent at the end of 2017.

“The first thing Gov. Dunleavy did was fire everybody who wasn’t in a union, so it didn’t take very long for people to figure things out,” Hall said, referring to the administration’s late-2018 request for resignation notices from hundreds of at-will state employees.

Metcalfe said he believes the administration’s shift is to make it “easier to fire (state employees) and cut their pay and benefits.”

“He wants to be able to fire them for any reason. He wants to cut their pay and benefits and send them back to the 19th century,” Metcalfe said of Dunleavy.

In a response emailed from assistant attorney general Cori Mills, Clarkson responded to that statement.

“This is a ridiculous assertion. The Governor’s earlier request and my opinion place no concern on whether public employees continue to join or support unions. That choice belongs, as it always has, to the employees,” Clarkson wrote.

After receiving the email from Department of Administration Commissioner Kelly Tshibaka, state employee Jed Smith took to social media to say he wished he could reply-all to the announcement. “I’ll be opting in, thank you,” he wrote on Twitter.

Clarkson said Tuesday there was no ulterior motive. The Department of Law, after working for months, determined that the state was not adequately following the U.S. Supreme Court’s decision.

Under the state’s current procedure, union-eligible public employees — at the time of their hiring — are asked whether or not they want to be part of the relevant union for their position. They are required to sign a card indicating their preference. Those who say yes can later withdraw at any time.

In Clarkson’s opinion, that isn’t enough, because the employee might change their mind and not know their ability to withdraw.

“Requiring consent to be renewed on an annual basis would ensure that consents do not become stale,” Clarkson wrote.

By phone, he said the legal opinion doesn’t determine what the choice might be, just that employees should be given the option.

“The state’s current opt-out process does not comply with the constitution,” he said.

Unions contacted Tuesday said they believe no other state has required union members to opt in annually. Clarkson wrote by email, “Some other state and local jurisdictions have already adopted some form of an opt-in requirement for union dues. The Janus decision is still relatively new, and states all over the U.S. are grappling with its requirements. Regardless of what other states have done at this time, the requirements of the Janus decision are clear.”

Tim Parker, president of the National Education Association-Alaska, said that isn’t true.

“Attorneys have assured us we are completely in line with the way Janus came down,” he said.

Parker’s union represents more than 10,000 of the state’s teachers and assistants at K-12 schools across the state. While its membership is larger than ASEA’s, teachers have contracts with individual school districts, and it will be up to those districts to decide whether they will follow the attorney general’s opinion.

Parker said he worries the announcement will be a distraction for teachers, who are returning to classrooms across the state this week.

“It’s going to be harder for people to get in their classrooms and get down to business,” he said.

Correction: An earlier version of this story incorrectly reported Tim Parker’s position at the National Education Association-Alaska.