Puerto Rico – On September 25, 2018, a Superior Court in San Juan, Puerto Rico decided that Article 2 of Puerto Rico Law Number 134 of July 19, 1960, requires Puerto Rico Executive Branch employees to wait one year from their dues deduction authorizations’ effective date before they can exercise their rights under the First Amendment to the United States Constitution to resign from union membership, revoke their authorizations, and stop union dues payments. See Asociación Puertorriqueña de Profesores Universitarios, et al. v. Estado Libre Asociado de Puerto Rico, et al., Civ. No. SJ2018CV05688 (Sep. 25, 2018).

The Superior Court’s decision blocked government directives issued in July 2018 by the Puerto Rico Human Resources and Transformation Office and the Puerto Rico Department of Labor and Human Resources that enforced the United States Supreme Court’s decision in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018). Those government directives ordered all Executive Branch agencies, instrumentalities, and public corporations covered by Law 134 to accept immediately employees’ resignations from union membership and cancellations of union dues deduction authorizations.

The Foundation’s Staff Attorneys, who won the Janus case and are litigating numerous cases to enforce Janus, believe that the Superior Court’s decision was clearly erroneous. Public sector employees in Puerto Rico are entitled to the same First Amendment protections as any other public sector employee in the United States. See Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 331 n.1 (1986); Balzac v. Porto Rico, 258 U.S. 298, 314 (1922). Therefore, as a result of Janus, the First Amendment to the United States Constitution guarantees Puerto Rico’s public sector employees—members and nonmembers alike—the right to decline or resign from union membership and refrain from any payment of union dues or fees as a condition of employment, and any statute to the contrary is unconstitutional.

Although the Superior Court’s decision may temporarily block the government directives from enforcement in Puerto Rico’s superior courts, all Puerto Rico public sector employees have First Amendment rights under Janus that are enforceable in the federal courts.

Janus applies to all Puerto Rico public sector employees, members and nonmembers alike.

Contrary to the Superior Court’s ruling, the First Amendment protections recognized by the United States Supreme Court’s decision in Janus apply to all Puerto Rico Executive Branch employees—members and nonmembers alike. The idea that the Janus decision only affects non-union members who pay union “service fees” is mistaken. In truth, the First Amendment gives all Puerto Rico public sector employees the right to refrain from union membership, dues, and fees, even if they previously joined a union or signed a union dues deduction authorization form.

Every public employee in Puerto Rico who is currently a union member has a First Amendment right to resign from union membership and become a nonmember. Employees who become nonmembers are still fully covered by the union collective bargaining agreement negotiated with their employer, and the union is obligated to represent nonmembers “without hostility or discrimination.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). Any benefits provided by the employer pursuant to the collective bargaining agreement (e.g., wages, seniority, vacations, pensions, and health insurance) are equally available to members and nonmembers. Nonmembers might be excluded from receiving “members-only” benefits provided solely by the union. Nonmembers also might not be able to participate in union elections or meetings, vote in collective bargaining ratification elections, or participate in other “internal” union activities. However, nonmembers cannot be disciplined by the union for anything they do while they are not a member.

Law 134 cannot prevent Puerto Rico public sector employees from exercising their rights under the U.S. Constitution to resign from union membership at any time and immediately stop all union dues payments.

The Superior Court’s Asociación Puertorriqueña de Profesores Universitarios decision also upheld Puerto Rico Law 134, which requires Executive Branch employees covered by the law to wait one year from the effective date of their union dues deduction authorizations before they can end union dues payments. However, that requirement is an unconstitutional restriction on the public sector employees’ First Amendment rights to resign from union membership at any time and immediately stop union dues payments.

Even before Janus, public employees could not constitutionally be required to be union members paying full union dues as a condition of employment and could resign from membership at any time. McCahon v. Pa. Turnpike Comm’n, 491 F. Supp. 2d 522, 526-28 (M.D. Pa. 2007); see Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). Now, under Janus, public sector employees must “affirmatively” and “voluntarily” consent to paying union dues or fees for a deduction authorization to be effective: “States and public-sector unions may no longer extract agency fees from nonconsenting employees. . . . Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” 138 S. Ct. at 2486.

U.S. Supreme Court decisions, including Janus, make it clear “affirmative” and “voluntary” consent specifically require that any employee who signs a union dues deduction authorization agreement must knowingly, clearly, voluntarily, and intelligently waive his or her constitutional rights to refrain from union membership and payments for that waiver to be effective. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 682 (1999); D.H. Overmyer Co. of Ohio v. Frick Co., 405 U.S. 174, 185-86 (1972). To be effective, the waiver must also be shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U.S. 130, 145 (1967).

Few, if any, union dues deduction authorizations satisfy this high standard. At a minimum, the authorization would have to expressly inform the individual of the right he or she is waiving and explicitly state that the signatory is waiving that right.

Furthermore, union dues deduction agreements entered into by Puerto Rico public sector employees before Janus cannot be considered voluntary because, at that time, employees did not have the option of not paying money to a union. It cannot be presumed that deduction authorizations executed under those unconstitutional conditions were freely entered into or that First Amendment rights not then known to the employees were intelligently waived.

A public sector employee’s decision to waive his or her First Amendment rights, such as the right to refrain from union membership or union dues payments, cannot be presumed valid from the ordinary language of current dues deduction forms. Moreover, Law 134 cannot provide that validation or waiver for employees. Each individual employee must affirmatively make that decision. The First Amendment protects Puerto Rico public sector employees’ rights to resign from union membership at any time and immediately revoke any dues deduction authorization they might have signed. Even if Puerto Rico courts block government directives enforcing employees’ constitutional rights, Executive Branch employees covered by Law 134 and all other public employees can enforce their First Amendment rights in federal courts.

For over five decades, the National Right to Work Legal Defense Foundation has worked in the courts and administrative agencies, to expand and protect the rights of individual employees to choose to refrain from union membership, including most recently in Janus. It is the nation’s premier organization exclusively dedicated to providing free legal advice and assistance to employee victims of forced unionism abuses. Foundation attorneys, including attorneys fluent in Spanish, are available and willing to advise and provide legal representation to Puerto Rico public employees who wish to exercise their Janus rights.

If you want to learn more about your legal rights, or request the advice or assistance of a Foundation attorney, go to the Foundation’s MyJanusRights.org page or contact a National Right to Work Foundation staff attorney toll free at 1-800-336-3600, via email at [email protected] or by clicking here.