Alaska announces opt-in membership for public-sector unions

Alaska officials announced the enactment of an opt-in membership procedure for public-sector unions representing state employees. Previously, Alaska had set an annual 10-day period during which public-sector employees could opt out of union membership. Alaska Governor Mike Dunleavy (R), Attorney General Kevin Clarkson (R), and Commissioner of Administration Kelly Tshibaka announced the change, made via administrative order, on September 26. 

This policy change involves important aspects of both public-sector union policy (which we cover in our weekly newsletter, Union Station) and administrative and regulatory practice (which we cover in our monthly newsletter, Checks and Balances). In today's special newsletter, we discuss how it intersects with each of these topics. 

Public-sector union policy

In a statement announcing this policy change, Dunleavy said, "As Governor of Alaska, I am legally obligated and compelled to ensure state employees’ free speech rights are protected." Dunleavy directly cited Janus v. AFSCME, a 2018 decision in which the Supreme Court of the United States held that public-sector unions and employers cannot compel employees to become members of or give any financial support to unions as a condition of employment. The Supreme Court held that such requirements infringe upon employees' free-speech and associational rights as guaranteed by the First Amendment. 

The administrative order establishing this policy change applies to the approximately 15,000 workers employed by the state government; it does not apply to municipal government workers. The Department of Administration expects to deploy the new opt-in system by December 2. Thereafter, employees will be able to opt in or out of union membership at any time. The opt-in system appears to be the first of its kind issued in the wake of Janus.   

Implementing policy through executive action

Dunleavy announced the policy change through an administrative order. This type of executive action is called an executive order at the federal level and in many other states. Article III, Sections 1 and 24 of the Alaska Constitution grant the governor the authority to issue administrative orders as part of his exercise of executive power and his duty to supervise the departments and agencies of the executive branch. 

Administrative orders are legally binding but are substantially different from laws. Unlike state laws, which institute statutory changes and are passed by the state legislature through its exercise of legislative power, administrative orders issue directives to the executive branch that fall in line with existing laws. These two approaches to implementing policy exemplify the separation of powers—a system of government that distributes the powers and functions of government among separate and independent entities.

Dunleavy’s administrative order features instructions for the executive branch on how to enforce the law post-Janus. The order directs the state Department of Administration to work with the Department of Law and other state agencies to develop and implement procedures for Alaska state employees to both opt-in and opt-out of paying union dues. The order also requires the Department of Administration to provide Dunleavy with quarterly progress reports detailing the steps taken to implement the order.

Reactions

The following is a sample of initial reactions to the policy change: 

• "Imagine an organization you disagree with and do not want to support. Then imagine being told by your employer, the State, that you are required to join and financially support that organization as a condition of employment. That is what Alaska has been doing to some employees." – Attorney General Kevin Clarkson (R) via Twitter

• "Imagine being forced to register with the gov’t to join an organization you support. Forced to sign biased gov’t statements before you can join. The gov’t shredding a contract to do it. That’s [Clarkson's] proposal for your right to free association & Art. 1, § 15 of Alaska’s Constitution." – State Sen. Jesse Kiehl (D) via Twitter

• "We applaud the governor for standing up for workers and First Amendment rights. Alaska is the first state to actually enforce the decision at this level." – Erica Jedynak, director of Employment Initiatives for Americans for Prosperity, via Anchorage Daily News

• "While the governor’s stated motivation is to protect state workers, some would argue that the move is designed to push the envelope as far as possible (and perhaps beyond the lawful boundaries of Janus) in order to weaken public unions." – Pamela Wolf, a senior employment law analyst at Wolters Kluwer, via Anchorage Daily News

• "Alaska is proactively ensuring workers are not relinquishing their First Amendment rights absent the clear and knowing voluntary waiver required by the Janus precedent. We urge other states to follow Alaska’s lead and prioritize the constitutional rights of state employees under the Janus precedent." – Mark Mix, president of the National Right to Work Foundation, via a press release

• "We're going to fight it. We're going to use every legal tool we have to oppose it." – Brian Penner, business manager of the Alaska Public Employees Association, via Anchorage Daily News

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