September 3, 2021
Last week, Landmark Legal Foundation filed a friend of the court brief with the Supreme Court in Troesch v. Chicago Teachers Union. Landmark’s brief urges the Court to hear the case this fall. This case is one of many that have arisen in the wake of the groundbreaking Supreme Court case from 2018, Janus v. AFSCME, Council 31. Janus ended long standing precedent allowing public-sector unions to take money from public employees without their consent to fund the costs of collective bargaining. The Court held that it was wrong to force people to support political speech against their will, so it set up a new framework. Before money could be taken from public workers who weren’t union members, there had to be proof of the workers’ waiver of their constitutional rights.
But many unions and union-friendly states were aware of the Supreme Court’s concerns with the old framework and took steps to protect their pocketbooks before the Janus opinion was issued. Some required union members to sign union membership agreements that stipulated they could resign whenever they wanted but held them to short opt-out windows for when they could stop paying dues.
In Troesch, the Petitioners, Joanne Troesch and Ifeoma Nkemdi, were union members who agreed to have union dues automatically deducted from their paychecks. But they signed their Membership Agreements in September 2017, before the opinion in Janus was issued. Their Membership Agreements were only revocable during the month of August. In October 2019, after learning about the Janus ruling, Petitioners gave notice to the Chicago Teachers Union and the Board of Education that they were resigning their union membership. CTU acknowledged their resignations the following month, but the Board of Education continued to deduct full union dues from their paychecks until September, 2020.
In cases around the country, many circuit courts of appeal have held that these types of contracts, the membership agreements, serve as the waiver of constitutional rights required in Janus. Public employees are still being forced to support unions financially under oppressive opt-out terms. But this is wrong. Under the law of constitutional waivers, they generally must be made freely and knowingly. Public-sector workers like the Petitioners, Ms. Troesch and Ms. Nkemdi, were put in an impossible situation. How could they knowingly waive a right granted in a Supreme Court case before the opinion was issued?
The harm to public-sector workers is widespread and the subject of litigation around the country. (In fact, Landmark supported a similar petition earlier this year in Belgau v. Inslee, out of Washington state, but the Court did not take it up.) Landmark urges the Court to accept this case and protect workers around the country from being forced to support a union even after they resign. Landmark’s brief is here.
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