Public Sector “Paid Union Release Time” Survives Constitutional Scare

Sherman & Howard L.L.C.

Sherman & Howard L.L.C.

In the public and private sectors, employers regularly include “paid union release time” within their bargaining agreements. With this practice, an employer pays certain employees their regular wages to perform services ostensibly on behalf of the union. So, for example, while an employee holds the title of Machinist, she actually works full-time on union matters, prosecuting grievances and the like, engaging in the collective bargaining process on behalf of the bargaining unit, and even engaging in pro-union lobbying, all while getting paid by the employer as though she is doing the work of a Machinist. Proponents of paid release time maintain that this practice better facilitates labor/management relations for a variety of reasons.

Paid union release time is unremarkable in the private sector. But in the public sector, it can walk a fine line with respect to the U.S. Constitution, state right-to-work laws, and state constitution anti-gift clauses. In Gilmore et al. v. Gallegos et al., two City of Phoenix employees challenged this practice, as set forth in the collective bargaining agreement (“CBA”) governing their bargaining unit, on precisely these grounds.  The employees were not union members but were represented by AFSCME Local 2384 by virtue of its role as exclusive bargaining representative for all employees in their bargaining unit. The employees argued that; (1) the City bargains its CBAs by creating a total pot of compensation to be allotted to a given CBA; (2) roughly $500,000 per year is taken from that total pot to pay for paid union release time for this particular bargaining unit; (3) the $500,000 of paid union release taken from the pot of total compensation has the effect of reducing the total wages and compensation available to union and non-union bargaining unit members overall; and (4) even non-union members like these plaintiffs are effectively being forced to subsidize the union and its speech activities against their wishes and their constitutional and statutory rights. 

From this lengthy syllogism, plaintiffs argued that paid union release time had the effect of infringing on their First Amendment rights to be free from being forced to endorse union speech activities, and to be free from being forced to associate with the union. The plaintiffs relied heavily on the recent U.S. Supreme Court decision, Janus v. AFSCME, which held that a government employer can never compel a public employee to subsidize a union, even through mandatory agency fees, because it violates the employee’s rights to free speech and free association under the First Amendment. The plaintiffs also argued that, because they were effectively forced to subsidize the union, the arrangement violated Arizona’s constitutional and statutory right-to-work protections. Finally, plaintiffs argued that, because employees on paid union release time do the work of the union and not the employer, the arrangement amounted to a subsidy or gift from the City to the Union that violates Arizona’s constitutional Gift Clause. 

The complexity of these challenges to paid release time cannot be understated. While the legal theories were nuanced, they fell apart because plaintiffs were unable to prove the most critical element of their syllogism—a trial court found that the plaintiffs failed to demonstrate that they were actually compelled to subsidize the Union. Both the City and the Union defendants argued that the redirection of a part of the total pot of compensation to pay for union release time did not mean that these plaintiffs necessarily experienced a reduction in their own compensation.  Because reduction of their compensation was not a given, they were not compelled to subsidize the Union.  As a result, the trial court entered summary judgment against the plaintiffs and in favor of the City and the Union.

This is good news for public sector employers and unions, alike, as it reinforces the constitutionality of a practice that has been long-favored in the public sector on both sides of the collective bargaining table. The result is also consistent with a number of recent cases reaching the same or a similar conclusion. However, this decision is subject to appeal, and given that plaintiffs are represented by public interest firm The Goldwater Institute, an appeal could be looming on the horizon. 

The case is Gilmore, et al. v. Gallego, et al., Maricopa County Superior Court CV 2019-009033 (July 14, 2021).  [Sherman & Howard attorneys represented the City in this matter.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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