Until a little over a year ago, public sector unions across the United States frequently employed the practice of collecting “fair share provisions” or “agency fees” from employees who had opted out of full union membership.  These payments amounted to a prearranged sum of money designed to correspond solely to the costs of the union’s non-political activity (i.e. contract bargaining and administration or grievance resolution). The practice was struck down as unconstitutional by the United States Supreme Court in its Janus v. AFSCME ruling in June of 2018, but as The Complete Colorado’s Scott Weiser reported on September 8, one Colorado school district seems to be running afoul of the decision.

Alamosa’s School District RE-11J was, until a year ago, one of a handful of Colorado school districts that collected agency fees, and although it and all other such districts did revise its contract in response to Janus, Alamosa’s new collective bargaining agreement adopted this summer appears to contain provisions that make it questionable at best.

In perhaps its most egregious provision, the agreement currently in force in Alamosa seems to assume that all employees who are members of the union’s bargaining unit (i.e. all teachers in the district) are members of the union and must therefore submit opt-out forms—and they must do so annually.  Such practice may be unconstitutional because the Janus ruling clearly states that affirmative consent is necessary for union dues or fees to be deducted from one’s paycheck. It would hardly seem reasonable to hold that union membership which kicks in automatically unless it is revoked within a relatively restrictive window of time constitutes affirmative consent to pay and to thus waive one’s First Amendment rights—key to Janus was the argument that all public sector union speech is inherently political.

Moreover, the above provision of the Alamosa contract may in fact be interpreted as illegitimate under Colorado law.  Although Colorado is not a “right to work state” for all employees, it is one for public school teachers. Code 22-61-102 of Colorado Revised Statutes states that “no contract or other employment arrangement executed or made by and between any school district and teacher shall require by inference or otherwise that said teacher become a member of or belong to any group or organization.” It stands to reason that in requiring district employees to opt out on an annual basis, the Alamosa contract could in fact be in violation of the above law: if an employee, including a new hire, is required to opt out of their union membership every year, are they not, by inference, presumed to be members of the union?