The state of Alaska is asking the U.S. Supreme Court to preserve a program that would require unionized employees to re-register with their union annually.
On Wednesday, the Alaska Department of Law said it intends to appeal an Alaska Supreme Court decision that found the program unconstitutional. It has filed a petition asking the U.S. Supreme Court to take up the issue.
The court may refuse to take the case; a yes or no decision isn’t likely before winter. If the court rejects the petition, the state Supreme Court’s decision will stand. If the court accepts the case, months or years of written and oral arguments lie ahead.
The state has hired Consovoy McCarthy, a Washington, D.C.-based law firm, on contract to represent it.
For four years, Gov. Mike Dunleavy’s administration has argued that the First Amendment requires public employees to regularly opt into union membership. The administration has based its interpretation on Janus v. American Federation of State, County and Municipal Employees — a 2018 U.S. Supreme Court decision — and a subsequent analysis by the Alaska Department of Law.
Without that regular reaffirmation, the state argues, people who want to leave their union might have their rights violated.
The state’s position is similar to ones expressed by national political organizations that oppose union membership, but has been strongly opposed by both unions and pro-union politicians, who say that it goes beyond what’s required by the U.S. Supreme Court.
Alaska state judges have agreed, ruling against the Dunleavy administration and finding that it violated union contracts when it attempted to impose its preferred program.
Judges in other states have ruled against similar ideas in those states.
In Washington state, a federal judge ruled against a group of workers backed by an anti-union group, and the 9th Circuit Court of Appeals — which has jurisdiction over Alaska — also ruled against the workers. The workers attempted to appeal to the U.S. Supreme Court, which rejected their request in 2021, allowing the 9th Circuit decision to stand.
Here, both Dunleavy and Attorney General Treg Taylor said in a written statement that they believe an appeal is warranted.
“Before we take any money from the paychecks of state employees, we need to ensure that the employees were properly advised of their rights and consented to the deduction,” Dunleavy said in a written statement. “And if employees disagree with union speech, they need to be given an opportunity to opt out. Our payroll system does not adequately protect the constitutional rights of our employees and changes must be made.”
Heidi Drygas is the executive director of Alaska State Employees Association Local 52, one of two labor organizations that has challenged the state on the issue.
“The suggestion that Gov. Dunleavy is looking out for the interests of public employees is laughable. This administration’s record is one of privatizing services, outsourcing jobs to other states, furloughing employees, and chronic understaffing among many other anti-worker policies,” she said by email.
Joelle Hall is president of the Alaska chapter of the AFL-CIO, which has also opposed the state.
“I think I’m not surprised, but I’m sad that the governor would pursue this line to the U.S. Supreme Court to try to get a different interpretation of Janus,” Hall said.
If the state were to succeed in its argument, she said, it would put state officials in the position of deciding whether a union member and a union have filled out their paperwork correctly.
“That is a non-starter,” she said.
Though the U.S. Supreme Court has declined to hear similar cases, she said there’s no guarantee that the court will take the same action here.
“This Supreme Court makes a person nervous,” she said. “They’re willing to revisit a lot of things that you think they wouldn’t be willing to revisit. I hope they don’t hear it.”
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