Oregon State Penitentiary in Salem in June 2022. Prisons Oregon Corrections Department (Photo by Ron Cooper/Oregon Capital Chronicle)
The U.S. Supreme Court on Monday turned down a right-wing group’s lawsuit aiming to strike down an Oregon union’s policy that allows it to charge correction workers who opt out of joining for the costs of representing them.
Tracy Cox, Mark Cox, Yvonne Williams and David Davies sued the state of Oregon and the Association of Oregon Corrections Employees in June 2022 for damages and an end to a union policy requiring workers who opt out of the union to sign a membership cancellation document. The form acknowledges the Association of Oregon Corrections Employees’ right to charge nonmembers for representation services such as grievances, investigations, disciplinary hearings or contract negotiations.
Oregon law allows for the deduction of union fees from an employee’s paycheck with their consent. But the four staff with the Oregon Department of Corrections alleged the policy violated their First Amendment and due process rights, with the union informing two members they would be required to pay a $500 sign up fee on top of dues should they decide to rejoin. One staff member alleged that they would have to pay up to $500 per hour should they require counsel for a labor dispute.
The conservative Seattle-based Freedom Foundation filed the suit, and cited a June 2018 U.S. Supreme Court decision ensuring that Illinois’ public employees without union membership could not be required to pay union fees involving negotiation costs despite benefiting from collective bargaining practices. The Oregon corrections union, which represents around 700 workers, was unable to justify its policy in the wake of this decision, the suit alleges.
“Every public employee has a protected right to choose whether or not to be a union member,” Rebekah Millard, an attorney with the group, said when filing the suit. “The union cannot make the exercise of this right dependent on giving up the right to fair representation.”
U.S. District Court Judge Ann Aiken, however, dismissed the case in March 2024 for lacking standing, noting that the allegations “give rise only to an inference that the state occupied no more than a ministerial role in processing dues.” That decision was affirmed by the 9th Circuit Court of Appeals in April after it found that any harm from having to pay a union fee in the future was “too speculative to confer standing.”
Representatives for the Oregon Department of Justice, Freedom Foundation and Association of Oregon Corrections Employees did not immediately respond to a request for comment Monday. Lawyers for the corrections union asserted that they were not a state actor and the case should either be dismissed or sent to Oregon’s Employment Relations Board for more specific questions around contract rights.
“Plaintiffs allege their injury is ongoing even though all dues have stopped,” wrote Becky Gallagher, an attorney for the corrections association, in an August 2022 court filing. “There is no reasonable probability they will be subject to payroll deductions for AOCE dues in the future because there is no reasonable probability Plaintiffs will re-join AOCE.”
Attorneys for Oregon officials did not directly respond to the Freedom Foundation’s Sept. 8 petition for a hearing in front of the U.S. Supreme Court. Oregon Solicitor General Benjamin Gutman in a Sept. 26 court filing waived the state’s right to respond on behalf of the Oregon Department of Corrections and Department of Administrative Services. That is a tactic often deployed in cases where a respondent believes the complaint is frivolous or without significant legal merit.
Oregon is known for some of the strongest labor protections for workers in the nation, and about 15.9% of workers in the state are union members, according to 2024 data from the Bureau of Labor Statistics. Those protections have made it a prominent target for groups like the Freedom Foundation, which sought to derail the union and Democrat-backed House Bill 3789 this past legislative session.
The law creates statutory penalties of more than $6,000 per incident when an individual falsely represents themselves as a union representative, though the group claimed it was an “open-ended invitation for unions to target the Freedom Foundation.”
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