By BETHANY BLANKLEY
THE CENTER SQUARE CONTRIBUTOR
(The Center Square) – Orange County lifeguards are requesting the full Ninth Circuit Court of Appeals hear their lawsuit against the state of California and a state union, arguing both are violating their rights protected by the First Amendment.
The lifeguards are challenging a union rule they argue has forced them to remain members and pay full dues for nearly four years after they opted out. Doing so, they argue, is illegal and violates the U.S. Supreme Court’s landmark ruling in Janus v. The American Federation of State, County and Municipal Employees Council 31. In it, the court held that requiring public sector workers to pay union dues or fees as a condition of employment violates the First Amendment. It also held that public employees must opt-in with affirmative consent to any union payments before unions take any money out of their paycheck.
At issue are 23 lifeguards who’ve sued the state of California and the California Statewide Law Enforcement Association (CSLEA) union. Even though lifeguards aren’t law enforcement, CSLEA represents approximately 7,000 state employees in 110 different job classifications.
The lifeguards argue that the First Amendment protects them from being forced to be union members and paying dues. The lower courts disagreed and ruled against them, including a panel of three judges on the Ninth Circuit Court of Appeals. They argue the state and CSLEA haven’t violated the First Amendment.
The lifeguards are receiving free legal representation from the National Right to Work Legal Defense Foundation, the Freedom Foundation, and Mariah Gondeiro of Tyler Bursh, LLP.
California, which has no right-to-work laws, requires maintenance of membership, which the state has used to force the lifeguards to remain union members and pay full dues to the CSLEA against their will. The lifeguards submitted resignation letters and ending dues authorizations on or around September 2019. The union denied their requests, saying they had to remain full union members and pay dues until 2023.
Both Janus and the 1977 Supreme Court case it overruled affirm that forcing dissenting employees to pay full union dues is unconstitutional, the foundation notes.
“So-called ‘maintenance of membership’ requirements have been unconstitutional for decades,” National Right to Work Foundation President Mark Mix said. “It’s outrageous that courts have looked the other way and allowed CSLEA union bosses to infringe on” the lifeguards’ First Amendment rights, he added. A rehearing before the full court, he said, “is necessary so the plain meaning of Janus can be applied. Otherwise the Ninth Circuit will not only have ignored Janus, but turned back the clock over half a century on workers’ right to refrain from union membership.”
The Ninth Circuit panel ruled that the lifeguards “contractually consented to the maintenance of membership requirement,” which the lifeguards refute. The dues deduction authorization form they signed alludes to a “maintenance of membership” requirement but doesn’t explicitly state what the requirement is.
The lifeguards’ attorneys argue that Janus requires employees to voluntarily waive their First Amendment right not to make dues payments before the payments are taken out of their paychecks.
“A four-year prohibition on employees’ exercising their First Amendment rights under Janus is unconscionable,” their attorneys argue.
Since winning the 2018 Janus case, foundation staff attorneys have filed dozens of cases nationwide on behalf of public employees seeking to enforce their First Amendment rights under the Janus decision.
