State of Alaska v. Alaska State Employees Association/American Federation of State, County and Municipal Employees Local 52, AFL-CIO ( 2023 )

Notice: This opinion is subject to correction before publication in the Pacific Reporter.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA; GOVERNOR )
MICHAEL J. DUNLEAVY, in an ) Supreme Court No. S-18172
official capacity; ATTORNEY )
)
GENERAL TREG R. TAYLOR, in an Superior Court No. 3AN-19-09971 CI
)
official capacity; DEPARTMENT OF
ADMINISTRATION and ) OPINION
COMMISSIONER PAULA VRANA, )
in an official capacity, ) No. 7657 – May 26, 2023
)
Appellants, )
)
v. )
)
ALASKA STATE EMPLOYEES )
ASSOCIATION/AMERICAN )
FEDERATION OF STATE, COUNTY )
and MUNICIPAL EMPLOYEES )
LOCAL 52, AFL-CIO, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Gregory A. Miller, Judge.
Appearances: Jessica M. Alloway, Assistant Attorney
General, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for Appellants. Molly C. Brown, Dillon & Findley,
P.C., Anchorage, and Scott A. Kronland and Matthew J.
Murray, Altshuler Berzon LLP, San Francisco, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney, and
Henderson, Justices, and Eastaugh, Senior Justice.*
[Borghesan, Justice, not participating.]
WINFREE, Chief Justice.
INTRODUCTION
Alaska State Employees Association (ASEA) is a public sector union
representing thousands of State employees, including union members and nonmembers.
Prior to 2019, and pursuant to a collective bargaining agreement with ASEA, the State
deducted union members’ dues from their paychecks and deducted from nonmembers’
paychecks a mandatory “agency fee” — a percentage of full union dues to support
bargaining efforts on behalf of all employees — and transmitted the funds to ASEA.
In June 2018 the United States Supreme Court held in Janus v. American
Federation of State, County, & Municipal Employees, Council 31 (Janus) that charging
union agency fees to nonmember public employees violated their First Amendment
rights by “compelling them to subsidize private speech on matters of substantial public
concern.”1 The State and ASEA modified their collective bargaining agreement to
comply with Janus, and the State halted collecting agency fees from nonmembers.
In 2019, after a change in executive branch administrations following the
November 2018 election, the State took the position that Janus also required the State
to take steps to protect union member employees’ First Amendment rights. The State
contended that Janus required it to obtain union members’ clear and affirmative consent
to union dues deductions, or else they too — like nonmember employees — might be
compelled to fund objectionable speech on issues of substantial public concern. The
governor issued an administrative order directing the State to bypass ASEA and deal
directly with individual union members to determine whether they wanted their dues
deductions to continue and to immediately cease collecting dues upon request. Some
*
Sitting by assignment made under article IV, section 16 of the Alaska
Constitution.
1
138 S. Ct. 2448, 2460 (2018).
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union members expressed a desire to leave the union and requested to stop dues
deductions; the State ceased collecting their union dues.
The State then sued ASEA, seeking declaratory judgment that Janus
compelled the State’s actions. ASEA responded and brought counterclaims and third-
party claims, seeking to enjoin the State’s actions and recover damages for breach of
the collective bargaining agreement and violations of several statutes. The superior
court ruled in favor of ASEA, entering declaratory judgment that the State’s actions
were wrongful, enjoining those actions, and awarding damages to ASEA.
The State appeals. We affirm the superior court’s declaratory judgment
in favor of ASEA because neither Janus nor the First Amendment required the State to
alter the union member dues deduction practices set out in the collective bargaining
agreement. And because the State’s actions were not compelled by Janus or the First
Amendment, we affirm the superior court’s rulings that the State breached the collective
bargaining agreement and violated relevant statutes. We further affirm the superior
court’s permanent injunction prohibiting the State from unilaterally implementing its
wrongful actions.
CONSTITUTIONAL BACKDROP – ABOOD AND JANUS
In the late 1970s the United States Supreme Court decided Abood v.
Detroit Board of Education.2 In that case the Court held that public sector unions’
collective bargaining agreements could require nonmember employees to pay a portion
of what union members paid as union dues to support the unions’ collective-bargaining
activities on behalf of all employees, so long as those fees were used for “collective-
bargaining, contract administration, and grievance-adjustment purposes.”3 But the
Court concluded that such arrangements were unconstitutional if the agency fees were
2
431 U.S. 209 (1977), overruled by Janus, 138 S. Ct. at 2460.
3
Id. at 232.
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used “to contribute to political candidates and to express political views unrelated to [a
union’s] duties as exclusive bargaining representative.”4
In 2018 the Supreme Court overruled Abood in Janus, declaring that
Abood was poorly reasoned and that its constitutional dividing line was unworkable in
practice.5 The Court noted that during collective bargaining activities unions
sometimes engage in speech on “sensitive political topics” such as “climate change, the
Confederacy, sexual orientation and gender identity, [and] evolution.”6 The Court said
that such speech “occupies the highest rung of the hierarchy of First Amendment
values,” and “merits ‘special protection.’ ”7 The Court identified compelled speech as
the threat necessitating special First Amendment protections,8 stating that it raises First
Amendment concerns similar to those about “a law commanding ‘involuntary
affirmation’ of objected-to beliefs.”9 The Court reasoned that requiring nonmember
employees to pay agency fees could result in unions using those fees to fund collective
bargaining speech advancing opinions with which nonmember employees disagreed.10
Stating that such “compelled subsidization of private speech seriously impinges on First
4
Abood, 431 U.S. at 234.
5
Janus, 138 S. Ct. at 2460.
6
Id. at 2476.
7
Id. (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).
8
See id. at 2464 (“When speech is compelled . . . individuals are coerced
into betraying their convictions. Forcing free and independent individuals to endorse
ideas they find objectionable is always demeaning . . . .”).
9
Id. (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633
(1943)).
10
Id. at 2463-65, 2467.
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Amendment rights,”11 the Court applied exacting scrutiny12 to “public-sector agency-
shop arrangements”13 and held that charging mandatory agency fees to nonmembers
“violate[s] the First Amendment” by “compelling them to subsidize private speech on
matters of substantial public concern.”14 Janus thus made it unconstitutional to require
mandatory union agency fees for nonmember employees.
FACTS AND PROCEEDINGS
A. Facts
1. Background labor practices
The State has approximately 15,000 employees represented by 11 public
sector unions. Roughly 8,000 employees belong to a bargaining unit exclusively
represented by ASEA, the largest public sector union in Alaska.15 Union membership
is not a condition of employment, but about 7,000 employees represented by ASEA
chose to become union members.
ASEA engages in collective bargaining with the State on topics like
wages, benefits, employee discipline, and employment terms. Every three years the
State and ASEA execute a new collective bargaining agreement (CBA) that must be
approved by the legislature.16 CBAs may be modified during their three-year life spans.
11
Id. at 2464.
12
Id. at 2464-65 (considering level of scrutiny to apply to compelled speech;
declining to apply rational basis and strict scrutiny and holding that exacting scrutiny
applies).
13
Id. at 2477-78.
14
Id. at 2460, 2478.
15
See AS 23.40.100 (authorizing bargaining units to democratically elect
union as exclusive representative in collective bargaining).
16
AS 23.40.215 (explaining that monetary terms of CBAs are “subject to
legislative funding”).
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The two CBAs relevant to this appeal were in effect from July 2016 to
June 2019 and then from July 2019 to June 2022, respectively. Pursuant to statute, both
CBAs required the State to deduct union dues from ASEA union members’ paychecks,
upon members’ written authorizations provided by ASEA, and to transmit the money
to ASEA.17 And, also pursuant to statute, both CBAs required the State to “not in any
manner, directly or indirectly, attempt to interfere between any bargaining unit member
and [ASEA].”18 The 2016–2019 CBA also required the State to deduct agency fees
from nonmembers’ paychecks and transmit the money to ASEA. ASEA and the State
later modified that CBA to comply with Janus and eliminated the required agency fees
deductions from nonmembers’ paychecks. The 2019–2022 CBA did not contain a
requirement for agency fees deductions from nonmembers’ paychecks.
An employee who voluntarily chooses to join ASEA signs a written union
membership agreement and a written dues deduction authorization form authored by
ASEA. Since 2017 the dues deduction form has included a one-year commitment
automatically renewing if the member does not revoke the dues deduction authorization
17
See AS 23.40.220 (“Upon written authorization of a public employee
within a bargaining unit, the public employer shall deduct from the payroll of the public
employee the monthly amount of dues, fees, and other employee benefits as certified
by the [bargaining unit] and shall deliver it to the [bargaining unit].”).
18
See AS 23.40.080 (“Public employees may self-organize and form, join,
or assist [a union] to bargain collectively through representatives of their own choosing,
and engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.”); AS 23.40.110(a)(1)-(5) (prohibiting public employer from
interfering with public employee’s rights under AS 23.40.080; dominating union or
interfering with union’s formation, existence or administration; discriminating with
regard to employment to encourage or discourage union membership; discharging an
employee for exercising rights under AS 23.24.070-.260; and failing to bargain in good
faith with union).
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during an annual ten-day period.19 In 2020 ASEA changed its procedures so that when
a member submitted a resignation outside the revocation window, ASEA would hold
the request until the resignation period and then ask the State to stop dues deductions.
ASEA’s union dues authorization forms emphasized that employees do
not have to pay union dues, and forms used since 2018 emphasized that joining the
union is optional. For example, the version revised in September 2019, reads: “Yes, I
choose to be a Union member . . . . I understand my membership supports the
organization advocating for my interests . . . and paying union dues is not a condition
of employment.”
2. The State’s interpretation and application of Janus
Soon after the Supreme Court’s 2018 Janus decision, then-Attorney
General Jahna Lindemuth (under Governor Bill Walker’s administration) issued a
memorandum to executive branch employees explaining that while Janus invalidated
charging mandatory agency fees to nonmember employees, it had no effect on other
aspects of Alaska labor law and did not allow the State to disregard existing union
membership dues authorizations. But in August 2019, then-Attorney General
Kevin G. Clarkson (under Governor Michael J. Dunleavy’s administration) issued a
legal opinion to Governor Dunleavy asserting that Janus’s holding necessitated much
more than eliminating agency fees and instead “require[d] a significant change to the
State’s current practice in order to protect state employees’ First Amendment rights.”
19
The form version used when this controversy arose read: “This voluntary
authorization and assignment shall be irrevocable, regardless of whether I am or remain
a member of ASEA, for a period of one year from the date of execution or until the
termination date of the collective bargaining agreement . . . whichever occurs sooner,
and for year to year thereafter unless I give [the State] and [ASEA] written notice of
revocation not less than ten (10) days and not more than twenty (20) days before the
end of any yearly period.”
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Attorney General Clarkson wrote that, after Janus, “a public employer
such as the State cannot deduct from an employee’s wages ‘any . . . payment to the
union’ unless it has ‘clear and compelling evidence’ that an employee has ‘freely given’
his or her consent to subsidize the union’s speech.” He asserted that before the State
could constitutionally deduct union dues from public employees’ paychecks, those
employees needed to knowingly, intelligently, and voluntarily waive their First
Amendment rights. He contended that, because unions design payroll deduction
authorization forms and control the environment in which employees are asked to
authorize payroll deductions, the State would have “no way to ensure that its employees
are being told exactly what their First Amendment rights are before being asked to
waive them.” He expressed concern that employees were being coerced to sign
authorization forms when the process was “essentially a black box the State cannot peer
inside of.” He concluded that the only way to ensure that employees had knowingly,
intelligently, and voluntarily waived their First Amendment rights when agreeing to
join a union and pay dues would be for those employees to “provide that consent
directly to the State” using State-authored dues authorization forms submitted through
a State-created and managed online portal.
Attorney General Clarkson also asserted that Janus required the State to
do even more to protect public employees’ First Amendment rights. Drawing upon
criminal law, he noted courts have held that waivers of Miranda rights can grow stale
with the passage of time, “requiring the government to re-advise suspects of their
rights.”20 Applying this logic to union dues payroll deduction authorizations, he
20
In Miranda v. Arizona the Supreme Court held that, under the Fourth
Amendment, testimonial statements made during a custodial interrogation are not
admissible in evidence unless the government adequately informed the interrogee of
certain rights. 384 U.S. 436, 476 (1966). The Court’s holding was designed to address
the inherently coercive “pressures which work to undermine the individual’s will to
resist” divulging information in the context of a custodial interrogation. Id. at 467.
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concluded that union members must have regular opportunities to agree or disagree with
continued payroll deductions lest their initial waivers of First Amendment rights grow
stale.
The parties in this case later stipulated that when Attorney General
Clarkson wrote his opinion he was aware that other state attorney generals had
interpreted Janus differently and that other courts had issued decisions contrary to the
opinion. The parties also stipulated that Attorney General Clarkson did not consult with
ASEA or offer it the opportunity to provide its views before releasing his opinion, but
that State officials had consulted with certain Outside policy think tanks when the
opinion was crafted.
On the same day Attorney General Clarkson gave his legal opinion to
Governor Dunleavy, then-Department of Administration Commissioner Kelly Tshibaka
emailed all State employees, including ASEA members, with links to the Janus
decision, Attorney General Clarkson’s legal opinion, and a Frequently Asked Questions
(FAQ) document. Commissioner Tshibaka advised State employees that Attorney
General Clarkson had concluded the State currently was not in compliance with Janus.
The FAQ document informed employees that the State soon would be requiring union
members to submit new dues consent forms before the State would deduct union dues
from their paychecks. The parties in this case later stipulated that the State did not
consult with ASEA or give ASEA advance notice before Commissioner Tshibaka sent
the email. ASEA subsequently objected to these intended actions.
The next month the State sued ASEA, seeking declaratory judgment that
the intended actions were lawful and mandated by Janus.21 The day after ASEA
21
See Lowell v. Hayes, 117 P.3d 745, 755 (Alaska 2005) (explaining that
“declaratory judgments are rendered to clarify and settle legal relations, and to
‘terminate and afford relief from the uncertainty, insecurity, and controversy giving rise
to the proceeding’ ” (quoting Jefferson v. Asplund, 458 P.2d 995, 997-98 (Alaska
1969))).
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responded with its court filings, Governor Dunleavy issued Administrative Order 312
and a timeline for steps the State would take to comply with its new view of Janus. The
Order required the State to develop a new union dues authorization form telling
employees that by signing the document they were waiving their “First Amendment
right not to pay union dues and fees,” were “freely associating” themselves with the
union’s speech, and could “revoke [their] consent to future union dues or fees
withdrawal at any time and for any reason.” The Order also instructed State officials
to develop an online portal for employees to submit the updated form directly to the
State. The Order also stated: “Once the new procedures and forms are implemented
. . . all dues and fees deductions made under prior procedures will be immediately
discontinued, pre-existing employee authorizations will be deemed void, and any new
dues deductions” must follow the new process. And the Order stated that union
members could opt out of union dues payroll deductions “any time after this Order is
implemented” by submitting an “opt-out form.”
Governor Dunleavy’s office published a press release about his Order and
he held a press conference to discuss it the same day. Commissioner Tshibaka sent a
copy of the press release to all State employees in an email. The parties in this case
later stipulated that the State did not notify ASEA of the Order before releasing it, but
that the State had consulted with the same Outside policy think tanks it had consulted
prior to releasing Attorney General Clarkson’s legal opinion.
The State created a “Cease Union Dues Deduction” form and emailed it
to twelve ASEA members who had contacted the State in response to Commissioner
Tshibaka’s emails. Some of them, union members who had paid dues to ASEA through
payroll deductions and had signed dues authorization forms that included the one-year
commitment and the ten-day revocation period, requested that the State stop deducting
union dues from their paychecks. The State stopped collecting their dues and did not
inform ASEA of its direct contact with the members or the cessation of dues deductions
until after it stopped collecting the dues. The parties in this case later stipulated that, as
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a result of the State’s actions, ASEA suffered about $186,000 in damages comprising
staff time diverted to responding to the State’s emails and the Order, lost dues, and lost
memberships.
B. Proceedings
ASEA responded to the State’s lawsuit by opposing the requested relief
and filing a third-party complaint against Governor Dunleavy, Attorney General
Clarkson, and Commissioner Tshibaka (collectively the State).22 ASEA alleged that
the State had violated the CBA, resulting in a breach of contract; violated various
provisions of Alaska’s Public Employment Relations Act (PERA);23 violated the
separation of powers inherent in the Alaska Constitution (by infringing on legislative
functions); and violated Alaska’s Administrative Procedure Act (APA) by
implementing regulatory procedures without a lawful rulemaking process.24 Because
the State already had begun unilaterally implementing elements of its new labor
relations scheme, ASEA requested a temporary restraining order enjoining the State
from taking any action to implement Attorney General Clarkson’s legal opinion and
Governor Dunleavy’s Order.
Resolving ASEA’s request for a temporary restraining order, the superior
court ruled that “Janus does not support the State’s position” and that the State
“provide[d] no colorable explanation for why the existing dues authorization form’s
annual opt-out period is not sufficient.” The court noted that “[m]ost contracts are not
revocable at will” and saw no reason to treat a union member’s agreement to pay annual
dues any differently from other contracts, including employer-sponsored health
22
Under Alaska Appellate Rule 517(b), when public officials who have been
sued in their official capacity leave office, their successors are automatically substituted
as parties to an appeal. This is reflected in the caption for this appeal.
23
AS 23.40.070-.260.
24
AS 44.62.010-.950.
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insurance plans with defined opt-in and opt-out periods. The court granted a temporary
restraining order directing the State to stop implementing Attorney General Clarkson’s
legal opinion and Governor Dunleavy’s Order, and the next month the court converted
it to a preliminary injunction pending resolution of the lawsuit. When later resolving
the merits of the parties’ competing claims based on the parties’ extensive stipulation
of facts, the court denied the State’s request for declaratory judgment, permanently
enjoined the State from implementing Attorney General Clarkson’s legal opinion and
Governor Dunleavy’s Order, and awarded ASEA about $186,000 in damages.
The State appeals.
STANDARD OF REVIEW
We review a grant of summary judgment de novo, viewing the facts in the
light most favorable to the non-moving party,25 and we may affirm on any basis
appearing in the record.26 We use our independent judgment when reviewing
constitutional questions27 and interpreting statutes.28
DISCUSSION
A. We Decline To Apply Issue Preclusion, And We Consider The Merits
Of The State’s Appeal.
ASEA invites us to hold that the State’s argument about Janus’s reach is
precluded by two federal court decisions, Creed v. ASEA and Woods v. ASEA, in which
the Ninth Circuit Court of Appeals affirmed the District Court of Alaska’s decisions
25
Peterson v. State, Dep’t of Nat. Res., 236 P.3d 355, 361 (Alaska 2010).
26
Parson v. State, Dep’t of Revenue, Alaska Hous. Fin. Corp., 189 P.3d
1032, 1036 (Alaska 2008).
27
Forrer v. State, 471 P.3d 569, 583 (Alaska 2020).
28
Jerrel v. State, Dep’t of Nat. Res., 999 P.2d 138, 141 (Alaska 2000).
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that Janus does not extend a First Amendment right to avoid paying union dues.29
Although ASEA’s preclusion argument is not necessarily without merit, we decline to
apply preclusion because of the State’s third-party-defendant status and relatively
limited participation in the federal cases.30 The superior court evaluated the merits of
the State’s arguments, and we will do so as well.
B. Janus Did Not Compel The State’s Unilateral Changes To Alaska’s
Labor Relations System.
The State seeks to give Janus broad effect, arguing that it “placed
prohibitions on public employers generally, and they apply to [union] members and
nonmembers alike.” According to the State, Janus prohibits it from collecting union
dues from its member-employees unless it has clear and compelling evidence that the
union members waived their First Amendment rights. But the State’s interpretation of
Janus has three major flaws.
First, Janus expressly dealt only with charging union agency fees to
nonmember public employees.31 The labor practice challenged and ultimately
29
Creed v. Alaska State Emps. Ass’n/AFSCME Loc. 52, 472 F. Supp. 3d 518,
530-31 (D. Alaska 2020), aff’d, No. 20-35743, 2021 WL 3674742 (9th Cir. Aug. 16,
2021), cert. denied, 142 S. Ct. 1110 (2022) (mem.); Woods v. Alaska State Emps.
Ass’n/AFSCME Loc. 52, 496 F. Supp. 3d 1365, 1374-75 (D. Alaska 2020) (quoting
Belgau v. Inslee, 975 F.3d 940, 951 (9th Cir. 2020)).
30
See McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) (listing four
elements of collateral estoppel and noting that “existence of those elements provides
only the underlying basis for the trial court’s exercise of discretion to apply or not
apply collateral estoppel, and that ‘this discretion must be tempered by principles
of fairness in light of the circumstances of each particular case’ ” (quoting Misyura v.
Misyura, 242 P.3d 1037, 1040 (Alaska 2010))). Issue preclusion may not be
appropriate if the parties were not previously afforded an opportunity to “fully and
fairly” litigate the issue. Id.; Edna K. v. Jeb S., 467 P.3d 1046, 1051 (Alaska 2020).
31
See Janus, 138 S. Ct. 2448, 2460, 2478 (2018) (holding that agency-shop
arrangements “violate[] the free speech rights of nonmembers by compelling them to
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prohibited by Janus was that of charging compulsory agency fees to nonmember public
employees, as a condition of employment, to support union collective bargaining
activities.32 Janus did not address how union dues are collected from public employees
who voluntarily join public sector unions and agree to pay union dues. In fact, in Janus
the Supreme Court said: “States can keep their labor-relations systems exactly as they
are — only they cannot force nonmembers to subsidize public-sector unions.”33 The
State thus misunderstands when and to whom the Janus waiver requirement applies.
Second, the State’s reading of Janus imagines compulsion when none
exists. The State is correct that, under Janus, nonmember “state employees cannot be
compelled to subsidize the speech of a union with which they disagree.” But by the
time the State began unilaterally changing union member dues deduction procedures,
the compulsion that concerned the Supreme Court in Janus, charging union agency fees
to nonmember public employees, already had been eliminated from the CBA. After the
elimination of agency fees, no public employee had to choose between a job or
unwillingly subsidizing union speech. We agree with the Fourth Circuit Court of
Appeals that when “the employee has a choice of union membership and the employee
chooses to join, the union membership money is not coerced.”34
Third, the State conflates waiving First Amendment rights with exercising
them. Waiver is the “intentional relinquishment or abandonment of a known right.”35
subsidize private speech on matters of substantial public concern” and that “public-
sector agency-shop arrangements violate the First Amendment”).
32
Id. at 2460.
33
Id. at 2485 n.27.
34
Kidwell v. Transp. Commc’ns Int’l Union, 946 F.2d 283, 292-93 (4th Cir.
1991).
35
United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)).
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It may be that a public employee waives First Amendment free speech rights by
voluntarily joining a union and agreeing to pay dues; but, if so, that action itself is clear
and compelling evidence that the employee has waived those rights.36 Yet a public
employee also exercises a First Amendment right of free association by voluntarily
choosing to become a dues-paying union member.37 The State’s assertion that it needs
additional clear and compelling evidence of waiver before it can lawfully deduct union
dues from union employees’ paychecks pretends to value one First Amendment right
while actually impinging upon another.
The State’s interpretation of Janus is incorrect. We join courts across the
country that have rejected similar arguments38 and hold that Janus did not compel the
State’s actions set in motion by Attorney General Clarkson and Governor Dunleavy.
Janus addressed the threat of compelled speech, and the Supreme Court held that
requiring nonunion public employees to pay agency fees as a condition of employment
violated the First Amendment because those employees could be forced to fund union
36
See Ramon Baro v. Lake Cnty. Fed’n of Tchrs. Loc. 504, 57 F.4th 582,
586 (7th Cir. 2023) (“The voluntary signing of a union membership contract is clear
and compelling evidence that an employee has waived her right not to join a union.”
(emphasis in original)).
37
AFSCME v. Woodward, 406 F.2d 137, 139 (8th Cir. 1969) (“Union
membership is protected by the right of association under the First and Fourteenth
Amendments.”).
38
See, e.g., Ramon Baro, 57 F.4th at 586; Belgau v. Inslee, 975 F.3d 940,
950 (9th Cir. 2020); Bennett v. Council 31 of the Am. Fed’n of State, Cnty. & Mun.
Emps., 991 F.3d 724, 731 (7th Cir. 2021), cert. denied, 142 S. Ct. 424 (mem.);
Hendrickson v. AFSCME Council 18, 992 F.3d 950, 961 (10th Cir. 2021), cert. denied,
142 S. Ct. 423 (mem.); Fischer v. Governor of New Jersey, 842 F. App’x 741, 752-53,
753 n.18 (3d Cir. 2021), cert. denied, 142 S. Ct. 426 (mem.); Hoekman v. Educ. Minn.,
41 F.4th 969, 976 (8th Cir. 2022), reh’g & reh’g en banc denied, 2022 WL 3754006;
Allen v. Ohio Civil Serv. Emps. Ass’n AFSCME, Local 11, No. 2:19-cv-3709, 2020 WL
1322051, at *12 (S.D. Ohio Mar. 20, 2020).
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speech repugnant to their own opinions and beliefs to keep their jobs. 39 But by
November 2018 the State and ASEA had addressed that threat of compelled speech by
eliminating mandatory agency fees from the CBA and ceasing charging agency fees to
nonunion employees. Complying with Janus required nothing further.
C. Broader First Amendment Principles Do Not Justify The State’s
Unilateral Actions.
The State argues that even if Janus’s holding is not as far-reaching as the
State contends, “[t]he First Amendment controls” and necessitated the State’s actions.
The State is mistaken.
The First Amendment “constrains governmental actors and protects
private actors.”40 Unless the United States government or a state government41
unreasonably curtails a private actor’s right to speak or associate, no First Amendment
violation occurs.42 This is known as the “state action” requirement.43 The question at
the heart of the state action inquiry is whether the government is responsible for an
39
Janus, 138 S. Ct. 2448, 2464, 2478 (2018).
40
Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019).
41
The Fourteenth Amendment makes First Amendment protections
applicable against the States. U.S. Const. amend. XIV, § 1 (“No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”).
42
See Manhattan Cmty. Access Corp., 139 S. Ct. at 1928 (“The text and
original meaning of [the First and Fourteenth Amendments], as well as this Court’s
longstanding precedents, establish that the Free Speech Clause prohibits only
governmental abridgment of speech. The Free Speech Clause does not prohibit private
abridgment of speech.” (emphasis in original)).
43
See, e.g., id. at 1926; Belgau v. Inslee, 975 F.3d 940, 946 (9th Cir. 2020).
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alleged constitutional deprivation.44 That “deprivation must be caused by the exercise
of some right or privilege created by the State.”45 The government’s “[m]ere approval
of or acquiescence” to a private party’s decision is not enough to hold the government
responsible.46 To determine whether state action has occurred, courts consider whether
the government played a significant or coercive role in the activity47 and whether there
is a “symbiotic relationship” of mutual benefit between the government and the private
party.48
The State argues that it engaged in state action when “compelling
subsidies to unions” by deducting dues from members’ paychecks. This framing of
state action is unpersuasive. The State’s acquiescent role facilitating interaction and
agreements between two private parties, the union member employee and the union,
does not amount to state action. The dues deduction is authorized by a private
agreement; it is not a right or privilege created by the State even though a statute
requires the State to honor that private agreement.49 And the State plays no significant
44
Ohno v. Yasuma, 723 F.3d 984, 994 (9th Cir. 2013); see also Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982).
45
Lugar, 457 U.S. at 937.
46
See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
47
See Belgau, 975 F.3d at 947.
48
Id. at 948 (quoting Sawyer v. Johansen, 103 F.3d 140, 140 (9th Cir.
1996)).
49
See AS 23.40.220 (“Upon written authorization of a public employee
within a bargaining unit, the public employer shall deduct from the payroll of the public
employee the monthly amount of dues, fees, and other employee benefits as certified
by the [bargaining unit] and shall deliver it to the [bargaining unit].”).
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or coercive role in the relationship between the union and its members. 50 State
employees freely choose whether to join a union; membership is not a condition of
employment. Only those employees who join ASEA and sign forms authorizing the
State to deduct their union dues from their paychecks will pay anything to ASEA. The
State does not become responsible for its employees’ decisions “by requiring
completion of a form,”51 or through the “additional paper shuffling”52 it performs in its
accountant-like role.53 Rather the State permits the private choice of private actors.54
There also is no “symbiotic relationship” between the State and ASEA or
a substantial degree of cooperation between them.55 The State receives no benefit from
transmitting collected union dues to ASEA. Rather than acting in concert, the State and
50
See Belgau, 975 F.3d at 947; cf. AS 23.40.110(a)(1)-(5) (prohibiting
public employer from interfering with public employee’s rights under AS 23.40.080;
dominating union or interfering with union’s formation, existence or administration;
discriminating with regard to employment to encourage or discourage union
membership; discharging an employee for exercising rights under AS 23.40.070-.260;
and failing to bargain in good faith with union).
51
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 55 (1999) (quoting Blum,
457 U.S. at 1007).
52
Id. (internal quotation marks omitted).
53
See Belgau, 975 F.3d at 948 (explaining that “ministerial processing of
payroll deductions pursuant to [union agreement]” was not state action because
“providing a ‘machinery’ for implementing the private agreement by performing an
administrative task” does not establish state responsibility (quoting Am. Mfrs. Mut. Ins.
Co., 526 U.S. at 54)).
54
Am. Mfrs. Mut. Ins. Co., 526 U.S. at 55; see also, e.g., Hoekman v. Educ.
Minn., 41 F.4th 969, 977 (8th Cir. 2022) (“The unions are private actors, and their
conduct may be deemed state action only if that conduct is ‘fairly attributable to the
State.’ ” (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982))).
55
Belgau, 975 F.3d at 948 (quoting Sawyer v. Johansen, 103 F.3d 140, 140
(9th Cir. 1996)).
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ASEA oppose one another at the collective bargaining table every few years, and as this
case demonstrates, they also oppose each other in court. Put simply, there is no state
action giving rise to a First Amendment violation when a public employee joins a union
and directs the State to collect the employee’s union dues from paychecks and transmit
them to the union.56 The constitutional deprivation that the State claims it is seeking to
prevent is illusory.
The State also contends that the CBA’s provisions for collecting union
dues from state employees are unenforceable because they violate the First
Amendment. We disagree. The CBA’s method for collecting union dues does not
involve state action, and “[t]he First Amendment does not” give the State the right to
“renege on [its] promise” to collect dues on behalf of public employees who opt to join
the union.57 The State and ASEA voluntarily entered into the CBA’s contractual
relationship. “When ‘legal obligations . . . are self-imposed,’ state law, not the First
Amendment, normally governs.”58 The First Amendment does not “provide a right to
‘disregard promises that would otherwise be enforced under state law.’ ”59 The CBA
56
Hoekman, 41 F.4th at 978 (“[I]t is the terms of the employee’s union
membership, not any state action, that create the employee’s obligation to pay and the
union’s right to collect.”).
57
Belgau, 975 F.3d at 950.
58
Id. (quoting Cohen v. Cowles Media Co., 501 U.S. 663, 671 (1991)
(omission in original)); see also Ramon Baro v. Lake Cnty. Fed’n of Tchrs. Loc. 504,
57 F.4th 582, 586-87 (7th Cir. 2023); Bennett v. Council 31 of the Am. Fed’n of State,
Cnty. & Mun. Emps., 991 F.3d 724, 731 (7th Cir. 2021), cert. denied, 142 S. Ct. 424
(2021) (mem.).
59
Belgau, 975 F.3d at 950 (quoting Cohen, 501 U.S. at 671). As the Seventh
Circuit aptly put it: “[T]he First Amendment protects our right to speak. It does not
create an independent right to void obligations when we are unhappy with what we have
said.” Ramon Baro, 57 F.4th at 587.
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and union members’ dues collection authorizations do not violate the First Amendment,
and the State is bound to its bargained-for promises in the CBA.
D. Because Janus Did Not Necessitate The State’s Unilateral Actions,
The State Violated The CBA.
The State conceded at oral argument before us that if we disagree with its
interpretation of Janus, we should affirm the superior court’s ruling that the State
breached the CBA because the State has no justification for its unilateral actions
contrary to the CBA other than its reading of Janus. Because we hold that Janus did
not require the State to take the actions it did, we affirm the superior court’s ruling that
the State breached Sections 3.0160 and 3.0461 of the CBA and the implied covenant of
good faith and fair dealing.62 We accordingly affirm the award of compensatory
damages to ASEA.
E. Because Janus Did Not Mandate The State’s Unilateral Actions, The
State Violated PERA.
PERA aims “to promote harmonious and cooperative relations between
government and its employees.”63 In line with this goal, the Act protects public
60
Section 3.01 of the CBA prohibited the State from interfering between
ASEA and its members “in any manner.”
61
Section 3.04 of the CBA required the State to deduct dues from member’s
wages and forward those dues to ASEA.
62
The covenant of good faith and fair dealing is implied in all contracts in
Alaska. Lockwood v. Geico Gen. Ins. Co., 323 P.3d 691, 697 (Alaska 2014); see also
Jones v. Jones, 505 P.3d 224, 233 n.31 (Alaska 2022) (“The covenant, which is included
in every contract, concerns parties’ duty not to act in a way ‘which will injure the right
of the other to receive the benefits of the agreement,’ . . . and is intended to require the
parties ‘to do everything that the contract presupposes will be done in order to
accomplish the purpose of the contract . . . .’ ”(first quoting Guin v. Ha, 591 P.2d 1281,
1291 (Alaska 1979); then quoting Arizona v. Tohono O’odham Nation, 818 F.3d 549,
562 (9th Cir. 2016)).
63
AS 23.40.070.
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employees’ rights to collectively bargain, imposes requirements on how the State
interacts with organized labor, and prohibits the State from engaging in a number of
unfair labor practices.64 The superior court granted summary judgment in favor of
ASEA on its claim that the State violated PERA, but did not specify which PERA
provisions the State violated.65 We therefore affirm the superior court’s ruling as it
applies to three particular sections of PERA, as explained below.
When the State stopped collecting dues on behalf of some union members,
it ran afoul of AS 23.40.220, which states that “[u]pon written authorization of a public
employee within a bargaining unit, the public employer shall deduct from the payroll
of the public employee the monthly amount of dues . . . and shall deliver it to the . . .
exclusive bargaining representative.” No elaboration is necessary to see how the State
deviated from the statute’s command. Janus did not call for the State to cease honoring
union members’ dues authorization forms, to tell union members they could stop dues
deductions at any time, or to stop forwarding union members’ dues to ASEA. The State
had no justification for reneging on this statutory duty. We hold, based on the parties’
stipulated facts, that the State violated AS 23.40.220.
ASEA argues that the State interfered with its operations in violation of
AS 23.40.110(a)(2), which provides that a public employer “may not . . . dominate or
interfere with the formation, existence, or administration of” a union organization. The
State counters that an anti-union animus is required to violate AS 23.40.110(a)(2) and
64
AS 23.40.080 (providing that public employees may organize to bargain
collectively); AS 23.40.110 (prohibiting public employer from interfering with
organization under AS 23.40.080).
65
The temporary restraining order cites various PERA provisions but does
not make clear which claims ASEA was most likely to prevail upon. The preliminary
injunction similarly does not specify which sections of PERA the State may have
violated.
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there is no such evidence in the record. But neither the statute nor our previous holdings
contain anything resembling an intent or scienter requirement for subsection
.110(a)(2),66 and it is difficult to imagine how a public employer could attempt to
dominate a union or interfere with the formation, existence or administration of a union
without having an anti-union animus. Moreover, as discussed below, there is evidence
in the record of the State’s anti-union animus underlying its unilateral changes to the
labor relations framework. The State, a public employer, interfered with the
administration of ASEA, a union organization, when it unilaterally told ASEA members
they could stop deducting dues, and actually ceased collecting dues from some
members, in violation of the members’ dues authorization agreements with ASEA and
the State’s collective bargaining agreement with ASEA. We conclude, based on the
parties’ stipulated facts, that the State violated AS 23.40.110(a)(2).
Alaska Statute 23.40.110(a)(3) prohibits a public employer from
“discriminat[ing] in regard to hire or tenure of employment or a term or condition of
employment to encourage or discourage membership in an organization.” According
to the National Labor Relations Board, under Section 8(a) of the National Labor
Relations Act (NLRA), the federal analog to PERA, when “an employer ceases to
deduct and remit dues in derogation of an existing contract, it is in effect unilaterally
changing the terms and conditions of employment of its employees.”67 The superior
66
The State argues that we previously held that any violation of
AS 23.40.110(a) requires an anti-union motive, citing Univ. of Alaska v. Alaska Cmty.
Colls.’ Fed’n of Tchrs., Loc. 2404, 64 P.3d 823, 826 n.9 (Alaska 2003). But the relevant
footnote merely summarized another case, Alaska Cmty. Colls.’ Fed’n of Tchrs., Loc.
No. 2404 v. Univ. of Alaska, 669 P.2d 1299 (Alaska 1983), when we held only that an
anti-union motive was required under AS 23.40.110(a)(1) and (3); that case did not
discuss subsection .110(a)(2). Id. at 1307-08.
67
Shen-Mar Food Prods., Inc., 221 N.L.R.B. 1329, 1329 (1976); see also
Am. Needle & Novelty Co., 206 N.L.R.B. 534, 544-45 (1973) (affirming administrative
law judge’s finding that company’s failure to remit dues violated § 8(a)(5) of NLRA).
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court found “merit” to ASEA’s argument that “State control [of] the authorization forms
for union dues seems likely to discourage union membership.” The court described the
language the State proposed for its new dues authorization forms warning employees
that they were waiving their First Amendment rights as “not neutral” and capable of
“directly violat[ing] PERA.” The court stated: “[T]he State could describe union
membership in a hostile way on authorization forms it drafts,” and “[t]here is no
guarantee . . . that the State’s method and/or language would not discourage employees
from joining unions.” Based on this analysis, it appears that the court concluded, on
the parties’ stipulated facts, that the State acted with an anti-union motive and
discriminated with regard to a term of employment in a manner discouraging union
membership among state employees in violation of AS 23.40.110(a)(3).
The State nonetheless argues that there is no evidence in the record that it
acted with an anti-union motive. But we see abundant evidence of anti-union animus:
The State espoused its sweeping interpretation of Janus and began unilaterally changing
dues deduction procedures only after a change in administration; the new administration
consulted with Outside special interest groups but did not consult or negotiate with
ASEA, with which it had a collective bargaining agreement; the State emailed all
employees represented by ASEA to inform them (incorrectly) about their First
Amendment rights and about union members’ (fictitious) rights to immediately stop
payroll dues deductions, again without first consulting ASEA; the State made changes
only to union dues deduction procedures, not to other union-related employee payroll
deductions; and the State actually stopped collecting dues from ASEA members outside
their contractual revocation windows and did not inform ASEA.
There is evidence in the record, particularly in the parties’ stipulated facts,
supporting the superior court’s conclusion that the State’s actions were “not neutral”
but rather were “hostile” to ASEA, and we therefore reject the State’s argument to the
contrary. We conclude that the State violated AS 23.40.110(a)(3) by interfering with
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the statutory and contractual dues deduction process in a way that singled out and
discouraged union membership.
F. We Decline To Address The Parties’ Arguments About Constitutional
Separation Of Powers And The Administrative Procedure Act.
The superior court ruled in favor of ASEA on its claims that the State
violated the constitutional separation of powers doctrine and the Alaska Administrative
Procedure Act when it unilaterally made changes to the union dues authorization and
collection process. We decline to reach these issues because our other holdings provide
an adequate basis for affirming all forms of relief granted to ASEA.
CONCLUSION
We AFFIRM the superior court’s rulings that neither the Janus decision
nor the First Amendment required the State to unilaterally alter the union dues
deduction practices in place under PERA and the CBA prior to August 27, 2019, to
unilaterally take the steps set forth in Attorney General Clarkson’s August 2019 legal
opinion, and to unilaterally implement the steps set forth in Governor Dunleavy’s
Administrative Order 312. We AFFIRM the superior court’s rulings that the State
breached the CBA and violated provisions of PERA, as well as the superior court’s
damages award. And we AFFIRM the superior court’s permanent injunction barring
the State from implementing Attorney General Clarkson’s legal opinion and Governor
Dunleavy’s Administrative Order or otherwise unilaterally changing the CBA’s union
dues deduction practices.
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