After SCOTUS ruling, AG urges Dunleavy to limit public employees’ unions

Gov. Mike Dunleavy and Attorney General Kevin Clarkson at the Capitol in January. (Photo by Skip Gray/360 North)

In a legal opinion published today, Alaska Attorney General Kevin Clarkson is urging Governor Mike Dunleavy to pursue steps that could curtail union membership among public employees. The move undoes an approach implemented by the previous administration, and is seen by some as a prelude to a more contentious approach toward organized labor.

The 12-page document addresses the Supreme Court’s ruling last year in Janus v. American Federation of State, County, and Municipal Employees, Council 31, known simply as the Janus Decision. In it, the court’s conservative majority overturned a 1977 ruling that allowed public employees unions to receive collect dues through payroll deductions overseen by employers for both members and non-members alike. Union and labor groups argued that even if employees did not belong to a union, they still benefited from collective bargaining agreements negotiated on their behalf, and so were obliged to pay an “agency fee.”

The Supreme Court’s 2018 decision reversed that interpretation, and reframed the issue as one of First Amendment rights. It argues that employees who may disagree with political stances taken by unions have a right not to contribute to advocacy efforts, and may opt out of union membership or contributing financially. The decision was seen as a blow to organized labor groups representing public employee unions like teachers, laborers, and civil servants. Now, the state is signaling it will pursue a stricter interpretation of Janus that has potentially big implications for labor in Alaska.

Proponents of organized labor and critics of the governor’s administration are displeased.

“The effect is that it makes it harder for employees to have union representation, it makes it harder for unions to represent the employees,” said Jake Metcalfe, Executive Director for Alaska State Employees Association Local 52 in Anchorage. 

“If he follows through with an administrative order, then we’re going to go to court and fight him from beginning to end on this,” Metcalfe said, adding he is disappointed with a move he sees as antagonistic and “legally incorrect.”

In a press release Tuesday afternoon, the AFL-CIO, the state’s largest union, said it finds “the actions recommended by the Attorney General to be unnecessary and a clear overreach.”

Clarkson’s legal brief, which was initiated earlier in the year at the request of the governor,  argues that when the Walker Administration addressed the Janus, it left the unions with too much of a say in collecting dues from employees via state withholdings. 

“Unfortunately, our review revealed that the state is not fully complying with the Supreme Court’s Janus decision,” Clarkson said during a teleconference call with members of the Alaska press.

“The prior administration’s preliminary steps did not go far enough to implement the Court’s mandate,” Clarkson wrote in the memo. 

The crux of the argument from the State of Alaska is that union groups have too much authority over setting terms for employees about whether they want to contribute part of their paychecks to support collective bargaining, advocacy, and other organized union efforts. The memo reiterates that these kinds of contributions equate to political speech, and as such are a civil rights issue that the state to take a more active role to protect employees from “coercion or improper inducement.”

“The state must control the process by which employees affirmatively opt in to union deductions,” Clarkson said in remarks Tuesday.

To that end, the opinion advises that in order to more strictly implement Janus, “the Governor may determine to exercise his executive authority under Article III, Sections 1 and 24 of the Alaska Constitution and issue an administrative order.”

“It is safe to say that action is going to be taken, what that action looks like has not been determined,” said administration spokesperson Matt Shuckerow. 

The opinion recommends that public employees provide their consent to contribute union dues directly to the state, rather than through union representatives. And that they be required to renew that decision on an annual basis. 

In an email sent to state employees Tuesday, Department of Administration Commissioner Kelly Tshibaka wrote, “The Department of Administration will be working with the Office of the Governor and the Department of Law on a plan to bring the State into compliance with the law, in short order, and that plan will be rolled out in the next couple of weeks.”

“The Attorney General is once again making things up to reach an extreme ideological conclusion,” said Democratic Representative Zack Fields, who works for a union representing construction and healthcare workers.

Fields points to past decisions by Clarkson that he criticizes for narrowly interpreting the law to match the administration’s political objectives. State employees already sign cards consenting to withhold part of their paychecks for union dues, Fields said, and this ruling invites a more restrictive or onerous execution of that process.

“What the attorney general and governor here are doing is trying to disrupt a legal and functional process,” Fields said.

And he points to Tuesday’s Janus opinion by the attorney general as part of a national conservative approach to diminish the efficacy of organized labor.

According to state figures, as of June 2018 there were 16,581 public employees, most of whom are represented by a recognized union, and in professions ranging from civil servants and correctional officers, to tradesmen and pilots.