1

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

2

THIRD JUDICIAL DISTRICT AT ANCHORAGE

3

4

STATE OF ALASKA,
Plaintiff/Counterclaim Defendant,

5

6

vs.

7

ALASKA STATE EMPLOYEES
ASSOCIATION/AMERICAN
FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
LOCAL 52, AFL-CIO,

8
9

10
~

r:.l6f::O
~

!3ffi
0

~

Defendant/Counterclaimant.

\0

~

'l'

l'

o"~~

~US ~

~ ~<~~ 13

z 6-s
~~
~~ Br!.

o~~.J6~--

~ ~~~~

~ Po<
~~

0
~

~<

~

.:Jriginal Received

11

~~~ .... ~
~O·B~!;;
~~g:~ 12
0

COPY

14

ALASKA STATE EMPLOYEES
ASSOCIATION/AMERICAN
FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
LOCAL 52, AFL-CIO,

17
18
19
20
21
22

Clerk of the Trial Courts

Third-Party Plaintiff,

15
16

SEP 2 5 2019

vs.
MICHAEL J. DUNLEAVY, in his
official capacity as Governor of Alaska; )
KEVIN G. CLARKSON, in his official
capacity as Attorney General of Alaska;
KELLY TSHIBAKA, in her official
capacity as Commissioner of the Alaska
Department of Administration; and
STATE OF ALASKA, DEPARTMENT
OF ADMINISTRATION,
Third-Party Defendants.
Case No. 3AN-19-09971 CI

23
24

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT

25
26

ASEA,S COUNTERCLAIMS AND THIRD~PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL~CIO
Case No. 3AN-19-09971 CI
Page 1 of36

 1

2

Defendant/counterclaimant/third-party

plaintiff

Alaska

State

Employees

Association I AFSCME Local 52, AFL-CIO ("ASEA") asserts the following

3

counterclaims against plaintiff/counterclaim defendant State of Alaska (the "State"), and
4

5

hereby files a third-party complaint against third-party defendants Alaska Governor

6

Michael J. Dunleavy, Alaska Attorney General Kevin G. Clarkson, Alaska Department of

7

Administration Commissioner Kelly Tshibaka, and the State of Alaska, Department of

8

Administration, alleging as follows:
9

INTRODUCTION

10

1.

ASEA seeks judicial relief to invalidate, and prevent the State and third-

party defendants from implementing, unilateral changes to the State's longstanding
practices for deducting union membership dues for thousands of State employees who
voluntarily authorized those payroll deductions to support their unions.
16

2.

On August 27, 2019, the third-party defendants announced that they will

17

implement a new policy by making radical changes to the State's union member dues

18

deduction practices. The third-party defendants' implementation of these changes

19

exceeds their authority under the Alaska Constitution, conflicts with statutes adopted by

20

21

the Alaska Legislature, and abrogates legally binding contracts between the State and

22

labor unions that represent State employees. The third-party defendants' implementation

23

of their new policy will interfere with the relationship between unions and their members,

24

25

26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 2 of36

 1
2

deprive unions of resources needed to fund their operations, and undermine the ability of
unions to effectively represent their members and bargaining units.

3

3.

The State and third-party defendants claim that they must implement their

4
5

new union dues deduction policy to comply with a U.S Supreme Court decision that

6

issued almost 15 months ago and did not involve the deduction of union membership

7

dues for employees who voluntarily joined unions and authorized the deductions. The

8

State and third-party defendants' claim of necessity is meritless. The Attorney General's
9
10

~z

~go
~ ~0

~
~

11

changes to the State's policies or practices for deducting union membership dues. The

12

third-party defendants' new policy is an illegal effort to use the authority of the State to

--,....._
N

~ 0-~~b
en

~
~

Z

s

~J5~~

0
u

~~~

!':

[.I;

~ ~ ~~~~ 13

~

...:l

z §~ t~

0

office already concluded, correctly, that the Supreme Court decision does not require any

\0

~~.d~r.I.1
ot-

~ ~~~~
~ Oo
P:::- b
0\
~p..

.._,

~<

,_j

retaliate against labor unions that have criticized the Governor's actions .

14

PARTIES

15

~

16
17

4.

Counterclaimant and third-party plaintiff ASEA is a labor organization that

serves as the democratically chosen collective bargaining representative of a General

18

Government Bargaining Unit consisting of approximately 8,000 State employees.
19
20
21
22

5.

Counterclaim defendant STATE OF ALASKA is a public employer.

6.

Third-party defendant MICHAEL J. DUNLEAVY is the Governor of

Alaska. He is sued in his official capacity.

23

7.

Third-party defendant KEVIN G. CLARKSON is the Attorney General of

24
25
26

Alaska. He is sued in his official capacity.
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 3 of36

 8.

1
2

Third-party defendant KELLY TSHIBAKA is the Commissioner of the

State of Alaska Department of Administration. She is sued in her official capacity.

3

9.

Third-party defendant STATE OF ALASKA, DEPARTMENT OF

4
5

ADMINISTRATION is the agency responsible for administering payroll for State of

6

Alaska employees. Through its agents, the State has entered into a collective bargaining

7

agreement with ASEA. The agency is bound, under this agreement, to honor voluntary

8

union dues deduction requests submitted by employees.
9

JURISDICTION AND VENUE

10
\0

Cl)

~z
~
11
~go t!.
~ E-<o ~
~--~
Q)Ot-~ o·-~o
z~~"'e 12

~J.l.< S: uog~~
= J.l.<
C)~ 4!~~~ 13

~

.....:l

z §~ t~
0 i2~,..o::::r-J.Li

or--

~ t)~~2~p:::=!

10.

This Court has jurisdiction over this state law dispute against the State of

Alaska, an executive branch department, and executive branch officers. 1
11.

Venue is proper in this Judicial District. 2

14

g

~ p..

'-'

~<

....i

15

BACKGROUND

16

Alaska's Public Employment Relations Act

~

17

12.

Alaska's Public Employment Relations Act ("PERA"), 3 establishes a

18

democratic system of union representation for State employees. Under PERA, a majority
19
20

of employees in a bargaining unit may, if they choose, select a union representative to

21
22
23
24
25
26

AS 09.05.010, 09.05.015, 22.10.020.
2

AS 22.10.030; Alaska R. ofCiv. P. 3(c), 4(d)(7), (8).

3

AS 23.40.070-.230.

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 4 of36

 1
2

4

negotiate and administer a collective bargaining agreement to cover their unit. If the
employees choose to be represented by a union, the public employer must "negotiate in

3

good faith" with the union "with respect to wages, hours, and other terms and conditions
4

5

of employment."5 The Legislature reviews "[t]he complete monetary and nonmonetary

6

terms of a tentative agreement" reached as the result of such negotiations, and implicitly

7

ratifies such an agreement by appropriating funds to cover the agreement's monetary

8

terms. 6 The resulting written collective bargaining agreement is binding on the State

9

10
~z

1.0

~
~

11

z 0~J5~~
o"~~

12

C) ~ ~~~,;

13

.....:!

14

~go
~ ~0
~

------~
~ 0·~~8

B~

~ ~ usKlJ:.I.<

~

z §~ t~
0 ~~'B~

~ ~~~~
~ Oo
~-

employer. 7
13.

employee's pay when the employee has authorized those deductions in writing:
Upon written authorization of a public employee within a bargaining unit,
the public employer shall deduct from the payroll of the public employee
the monthly amount of dues, fees, and other employee benefits as certified
by the secretary of the exclusive bargaining representative and shall deliver
it to the chief fiscal officer of the exclusive bargaining representative. 8

8

~p..

0'1
"-"

~~

...j

PERA requires that public employers must deduct union dues from a public

15

~

16
17

· 14.

PERA also requires that public employers must bargain in good faith with

18

certified employee representatives about the terms of member dues deductions. "PERA
19
20

21

specifically requires public employers to 'negotiate with and enter into written
4

AS 23.40.080-.100.

22

5

AS 23.40.250(1); see AS 23.40.070, .110(a)(5).

23

6

AS 23.40.215(a)-(b).

24

7

AS 23.40.210.

8

AS 23.40.220.

25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 5 of36

 1

2
3

agreements with employee organizations on matters of wages, hours, and other terms and
conditions of employment.' AS 23.40.070(2). Such matters are 'mandatory subjects of
bargaining. "'9 As part of that duty to bargain in good faith, PERA prohibits public

4

5

employers from making unilateral changes to mandatory subjects of bargaining. 10

6

Deduction of dues for union member employees is a mandatory subject of bargaining. 11

7

PERA thus prohibits public employers from changing how they process union member

8

dues deductions without first bargaining in good faith with the union.
9

15.

10

PERA further prohibits public employers from "interfer[ing] with,

restrain[ing], or coerc[ing] an employee in the exercise of the employee's rights
guaranteed in [PERA]," from "discriminat[ing] in regard to ... a term or condition of
employment to ... discourage membership in a[] [labor] organization," and from
"interfer[ing] with the formation,

existence, or administration of a[]

[labor]

16

organization." 12 "Implicit in Alaska's public union statutory rights is the right of the

17

union and its members to function free of harassment and undue interference from the

18

State." 13

19
20

9

21

Alaska Pub. Employees Ass 'n v. State, 831 P.2d 1245, 1248 (Alaska 1992)
(quoting Alaska Cmty. Colleges' Fed'n of Teachers, Local 2404 v. University of Alaska,
669 P.2d 1299, 1305 (Alaska 1983) ("Fed'n ofTeachers")).

22

10

Fed'n ofTeachers, 669 P.2d at 1305.

23

11

See In Re Wkyc-TV, Inc., 359 NLRB 286,288 (2012).

24

12

AS 23.40.11 O(a)(1 ), (2), (3).

13

Peterson v. State, 280 P.3d 559, 565 (Alaska 2012).

25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT

State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 6 of36

 ASEA and its Members

1

2

16.

ASEA is the democratically chosen collective bargaining representative of

3

the General Government Bargaining Unit, which consists of approximately 8,000 State of
4

5

Alaska employees. The General Government Bargaining Unit is the largest bargaining

6

unit of Alaska State employees.

7

17.

State employees in union-represented bargaining units are not required to

8

become union members as a condition of public employment. They are free to choose to
9

10

join or to not join the union.

\0

~z
~
~go ::::
~ E-<o
N
r/J

es

~-........
oOt~ o--~o
~~0\~

zo
~

o"~:x:

ti:: ~us~~

18.

11
·

12

Bargaining Unit have chosen to become members of ASEA.

t> ~ ~~~~ 13

~

....l

z §~ t~

0

~~..=~J.il
C)!'-

~ t>~~f;
~ ~8
~

g

0..

'-'

~<t:

....i

Approximately 7,000 of the employees in the General Government

19.

ASEA's members have voluntarily signed written membership agreements

14
15

authorizing the Union to collect dues through payroll deductions in exchange for union

~

16

membership and access to members-only rights and benefits.

17

20.

ASEA's current membership/dues authorization agreement states, above

18

the line for the employee's signature:
19

I hereby voluntarily authorize and direct my Employer to deduct from my
pay each pay period, regardless of whether I am or remain a member of
ASEA, the amount of dues as certified by ASEA, and as they may be
adjusted periodically by ASEA. I further authorize my Employer to remit
such amount monthly to ASEA. My decision to pay my dues by way of
payroll deduction, as opposed to other means of payment, is voluntary and
. . oif my employment. 14
not a con d ztzon

20

21
22

23
24
25
26

14

ASEA Membership Card (emphases added).

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 7 of36

 1

21.

2

ASEA's current membership and dues authorization card provides that the

3

dues authorization is valid "for a period of one year from the date of execution or until

4

the termination date of the collective bargaining agreement (if there is one) between the

5

Employer and the Union, whichever occurs sooner, and for year to year thereafter unless

6
7
8

I give the Employer and the Union written notice of revocation not less than ten (10) days
and not more than twenty (20) days before the end of any yearly period." 15

9
10

~z
~

8o

~E-<o

\D

~

t!.
l=:;

~--~
~ o:§~t;

22.

Many union members throughout the country execute similar membership

agreements that require the payment of membership dues through payroll deduction for a

11

one-year period, even if the employee resigns membership in the interim. Such

(B~o~rJ:!><
/) z ~J5~~

12

[:) ~ ~~~~

13

agreements provide financial stability to labor organizations and prevent employees from

14

becoming members solely to take advantage of a particular membership right or benefit,

~ ~ u a~~

~

...1

z §~
&~
~~.§f:

0

~ ~~~2~ ~8

~

~p...

'--'

~<

....j

15

~

such as to vote in a union election, only to immediately stop paying dues. Some of

16
17

ASEA' s members have signed such membership agreements.
ASEA's Collective Bargaining Agreement with the State

18
19
20

23.

ASEA and the State are parties to a collective bargaining agreement

("CBA") that governs the terms and conditions of employment for bargaining unit

21

employees. The CBA is effective July 1, 2019 to June 30, 2022.
22

24.

23

The CBA is a binding contract between ASEA and the State.

24
25
26

15

!d.

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEA/AFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 8 of36

 25.

1

2

The CBA explicitly provides that, "[u]pon receipt by the Employer of an

Authorization for Payroll Deduction of Union Dues/Fees dated and executed by the

3

bargaining unit member ... the Employer shall" deduct union dues each pay period and
4

5

forward those dues to the Union. 16
26.

6

7
8

The CBA specifically provides that "[b]argaining unit members may

authorize payroll deductions in writing on the form provided by the Union. Such payroll
deductions .will be transmitted to the Union by the state." 17

9

27.

10

The CBA also provides that "[t]he Employer agrees that it will not in any

manner, directly or indirectly, attempt to interfere between any bargaining unit member
and the Union." 18
The Janus Decision and Nonmember Agency Fees
28.
16
17
18

Prior to June 27, 2018, Alaska state law and U.S. Supreme Court precedent,

in a case called Abood v. Detroit Board of Education, 19 permitted public employers to
require non-union-members to pay fair-share fees (also known as agency fees) to their
union representatives. 20 Under Abood, fair-share fees could be collected to cover the

19
20

21

16

ASEA CBA Art. 3.04.A.

22

17

!d.

23

18

Id. at 3.01.

24

19

431

20

See AS 23.40.110(b)(2).

25
26

u.s. 209 (1977).

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEA/AFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 9 of36

 1

nonmembers' share of union costs germane to collective bargaining representation, but

2

not to cover a union's political or ideological activities? 1

3

29.

In Janus v. AFSCME, Council 31, 22 issued on June 27, 2018, the Supreme

4

5

Court held that Abood "is now overruled" and that, under Janus, the collection of

6

mandatory fair-share fees from nonmember public employees "violates the First

7

Amendment and cannot continue." 23 The Court in Janus explained, however, that its

8

holding was limited to the collection of fair-share fees from nonmembers: "States can
9

10

keep their labor-relations systems exactly as they are-only they cannot force
nonmembers to subsidize public-sector unions."24
30.

After Janus, the State and ASEA immediately stopped collecting fair-share

fees. 25
Alaska's Attorney General Recognizes that Janus Does Not Affect Public
Employers' Obligation to Deduct Authorized Union Dues
16

31.

After Janus was decided, Alaska's Attorney General Jahna Lindemuth

17
18
19

issued a legal memorandum explaining that Janus invalidated agency fee requirements
but otherwise "[a]ll other provisions of the State's PERA law remain in effect. In fact, the

20
21

431 U.S. at 235-36.

22

138 S.Ct. 2448 (2018).

23

!d. at 2486.

24

!d. at 2485 n.27.

21
22

23
24

25
26

25

Cf Crockett v. NEA-Alaska, 367 F.Supp.3d 996, 1003 (D. Alaska 2019) ("[I]t is
undisputed that the collection of fair-share fees ceased immediately after Janus .... ").
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 10 of36

 1

Supreme Court in Janus pointed out that its decision did not require the invalidation of

2

state labor relations laws such as PERA."26

3

32.

Attorney General Lindemuth specifically recognized that Janus did not

4

5

authorize public employers to make unilateral changes to existing collective bargaining

6

agreements and that Janus does not affect the validity of existing dues deduction

7

authorizations:

8

Does the Janus decision provide that a public employer may not continue to
honor existing union membership dues authorizations?

9

10

No. The Janus decision addressed the issue of payment of union dues by
non-union members. It does not require existing union members to take any
action; existing membership cards and payroll deduction authorizations by
union members should continue to be honored?7

'-0

~z

~go
~ ~0

~
~

11

--,.......
N

(~/) z~~ 0·~~8
~J5~e
o"~~

12

0

~ ~ u ~ ~""'

t5 ~ ~<~~ 13

~
~

z §~ t~

0

~~,.c::t-ot--

Ill

~ [:)~~2-

~ ~8
~ 0..

~~

~

'-'

....:i

3 3.

The Attorneys General or Departments of Labor of at least 13 other states

14
15

and the District of Columbia issued similar opinions, all agreeing with Attorney General

~

16

Lindemuth that Janus does not affect dues deductions for union members who have

17

previously authorized those deductions. See:

18

a. California Attorney General Opinion - Affirming Labor Rights and
Public
Workplaces,
available
at
Obligations
in
https :/Ioag.ca. govI system/files/attachments/press releases/A G%20Becerra
%20Labor%20Rights%20Advisoryo/o20FINAL.pdf;

19
20
21

b. Connecticut Attorney General Opinion- General Guidance Regarding the
Rights and Duties of Public-Sector Employers and Employees in the State

22
23
24
25
26

26

Alaska AG Memorandum at 2, Sept. 7, 2018.

27

!d. at 3.

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEA/AFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 11 of36

 of Connecticut after Janus v. AFSCME Council 31, available at
https://portal.ct.gov/AG/General/Guidance on Janus;

1
2
3
4
5
6
7
8
9
10

~z

"'
~

~go ::::
~ E-<o
N
~--r--

11

~ 0·~~8
z
~J5~~
Ej ~ af~~

12

C) ~ ~~<.~

13

C/1

0

ti: ~ u ~ ~~

~
~

z §~
&~
~~.§~

0

~ ~~~;;
~ ~~

§;
..._,

~<

...i
~

~p...

c. Connecticut, Illinois, Maryland, Massachusetts, New Mexico,
Pennsylvania, Vermont, and Washington Attorneys General and Oregon
Department of Justice Statement - Response to Liberty Justice Center
letter, October 5, 20 18;
d. District of Columbia Attorney General Opinion - Attorney General
Advisory: Affirming Public Sector Labor Rights and Responsibilities After
Janus, July 30, 2018 available at http://oag.dc.gov/sites/default/files/201807/Post Janus Advisory FINAL.pdf;
e. Illinois Attorney General Opinion - Guidance Regarding Rights and Duties
of Public Employees, Public Employers, and Public Employee Unions after
Janus v. AFSCME Council 31, July 20, 2018, available at
http://www .illinoisattorneygeneral.gov/rights/Janus Advisory 720 18.pdf;
f. Maryland Attorney General Opinion- General Guidance on the Rights and
Duties of Public-Sector Workers and Employers After Janus, available at
http://www .marylandattorneygeneral.gov/news%20docutnents/After Janus.

11M;

14
15
16
17
18
19
20
21
22
23
24

g. Massachusetts Attorney General Opinion - Attorney General Advisory,
Affirming Labor Rights and Obligations in Public Workplaces, July 3,
2018, available at https://www.mass.gov/files/docunlents/20 18/07/03/
Attorney%20General%20Advisory%20-%20Rights%20of0/o20Public%20
Sector%20Employees%20%287 -3%29 .pdf;
h. New Jersey Joint Opinion- Joint Guidance on the Rights of Public Sector
Workers and Employers After Janus, August 22, 2018, available at
https://nj .gov/labor/lwdhome/press/20 18/20 180822janus.html;
1.

New Mexico Attorney General Opinion - Attorney General Advisory,
Guidance for Public Sector Employers and Employees after Janus v.
AFSCME Council
31,
September
8,
2018,
available
at
https://www.nmag.gov/attomey-general-advisory-on-janus-decision.pdf;

J. New York Attorney General Statement - Response to Liberty Justice
Center letter, October 5, 20 18;

25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 12 of36

 k. New York Department of Labor Guidance for Public-Sector Employers and
Employees
in
New
York
State,
available
at
https://www.labor.ny.gov/formsdocs/factsheets/pdfs/janus-guidance.pdf;

1
2
3

I. Oregon Attorney General Opinion- Advisory: Affirming Labor Rights and
Obligations in Public Workplaces, July 20, 2018, available at
https://www.doj .state.or.us/wp-content/uploads/20 18/07I AG Advisory on
Janus Decision.pdf;

4
5
6

m. Pennsylvania Attorney General Opinion - Guidance on the Rights and
Responsibilities of Public Sector Employees and Employers Following the
U.S. Supreme Court's JANUS Decision, August 3, 2018, available at
https://www.attorneygeneral.gov/wp-content/uploads/20 18/08/2018-08-03AG-Shapiro-Janus-Advisory-FAQ.pdf;

7
8
9

n. Rhode Island Attorney General Opinion - Statement on Janus, September
4, 2018;

10

~z

~go
~ ~0

"'
~
~

--,......
~ 0·~~8

(/JZ~J5~e~ ~ 0 g~~
~

u

1':

11

N

o. Vermont Attorney General Opinion - Advisory: Public Sector Labor Rights
and Obligations Following Janus, August 9, 2018, available at
https ://ago. vermont.gov/wp-content/uploads/20 18/08/Janus-Advisory8.9.2018.pdf; and

12

"'~

~ ~ ~~<.~ 13

~
.-1

z §~
t~
~~i3[:::

0

~ ~~~~
~
~~
~p..

..._,

~<(

...i

14

~

p. Washington Attorney General Opinion - Attorney General Advisory:
Affirming Labor Rights and Obligations in Public Workplaces, July 17,
2018, available at https://www.atg.wa.gov/news/news-releases/attorneygeneral-ferguson-issues-advisory-affirming-labor-rights-and-obligations.

15

~

16
17
18

34.

Every federal court that has addressed the same basic issue, including the

19

District of Alaska, has similarly agreed that Janus does not affect the validity of

20

voluntary union membership and dues deduction authorization agreements. See:

21
22
23
24

a. Anderson v. SEIU Local 503, _ F.Supp.3d _ , 2019 WL 4246688, at *3
(D. Or. Sept. 4, 2019);
b. Seager v. United Teachers Los Angeles, 2019 WL 3822001, at *2 (C.D.
Cal. Aug. 14, 2019);

25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 13 of36

 c. Smith v. Superior Court, Cty. of·Contra Costa, 2018 WL 6072806, at * 1
(N.D. Cal. Nov. 16, 2018) ("Smith F'), subsequent order, Smith v. Bieker,
2019 WL 2476679, at *2 (N.D. Cal. June 13, 2019) ("Smith If');

1
2
3

d. Cooley v. Cal. Statewide Law Enforcement Ass 'n, 2019 WL 331170, at *3
(E.D. Cal. Jan. 25, 2019) ("Cooley F'), subsequent order, 385 F.Supp.3d
1077, 1079 (E.D. Cal. 2019) ("Cooley If');

4
5

e. O'Callaghan v. Regents of Univ. of Cal., 2019 WL 2635585, at *3 (C.D.
Cal. June 10, 20 19);

6
7

f. Babb v. Cal. Teachers Ass 'n, 378 F.Supp.3d 857, 877 (C.D. Cal. 2019);
8

g. Belgau v. Inslee, 2018 WL 4931602, at *5 (W.D. Wash. Oct. 11, 2018)
("Belgau f'), subsequent order, 359 F.Supp.3d 1000, 1016 (W.D. Wash.
2019) ("Belgau IF');

9
10
1,()

~z

~

~ Qo ~
~ ~0 N
~ o·<;:::.,...o
'";;Sr::-

(/) z o v~~

12

~ ~ ~ <r;~<.
"0

13

B
~
ti:: ~

~

gzJ5~~

u

a ~f.t;

z §~ t~

.-1 o~~,.d~-~

or--

~ ~~~~
~ ~8

§;

~<r;

,_j

~

p..

'-'

h. Bermudez v. SEIU Local 521, 2019 WL 1615414, at *2 (N.D. Cal. Apr. 16,
2019); and

11

14
15

~

16

1.

3 5.

Crockett v. NEA-Alaska, 367 F.Supp.3d 996, 1008 (D. Alaska 2019).
The state courts and labor relations agencies that have addressed the same

basic issue have also agreed that Janus does not affect the validity of union membership
and dues deduction authorization agreements and does not permit public employers to

17
18
19

unilaterally cease or alter the processing of member dues deductions. See:
a. Montana Fed'n of Public Emps. v. Vigness, No. DV 19-0217, Order
Granting PI (Mont. D. Ct. Apr. 11, 2019);

20
21
22
23

b. In re Woodland Township Bd. of Educ., and Chatsworth Educ. Ass 'n, No.
C0-2019-047, 45 NJPER ~ 24, 2018 WL 4501733 (N.J. Pub. Emp't
Relations Comm'n Aug. 31, 2018); and

c. AFSCME, Local 3277 v. Rio Rancho, PELRB No. 113-18, TRO and PI
(N.M. Pub. Emps. Lab. Relations Bd. Aug. 21, 2018).

24
25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 14 of36

 1 ·

2

36.

Labor arbitrators have also agreed that Janus does not affect un1on

members' dues authorization agreements and have sustained grievances brought by

3

unions challenging public employers that erroneously ceased making previously
4
5

authorized dues deductions based on a misreading of Janus. See, e.g. :

a. In re Ripley Union Lewis Huntington Sch. Dist. Bd. of Educ. and

6

OAPSEIAFSCME Local 4, AFL-CIO Local 642, Cessation of Union Dues
Collection Grievance, AAA File No. 01-180004-6755 (Arb. W.C. Heekin,
June 18, 2019); and

7
8
9

10

b. City of Madison (WI) and IBT, Local695, 48 LAIS 35, 2019 WL 3451442
(Arb. P.G. Davis, Feb. 13, 2019).

~
~

11

The State's Re-affirmation of its Obligation to Process Authorized Dues Deductions

~ 0·~~8
z
~J5~e
B ~Oaf~~

12

~ ~ z<oo
~ ~~.

13

~z

~ Qo
~ f-<o

\0

~

~...-<...-<,-.._

V)

ti:: ~ u s~~:.t.<

~

.....:l

z Q~
~~
~~,.s::t--

0

Ul

ot--

~

p.,

'-'

~<

~

~ i:.t.<~~~
~ Oo
8
~...-<
0'1

37.

The State negotiated its current collective bargaining agreement with

ASEA, covering the largest bargaining unit of State employees (the General Government
14
15

Bargaining Unit), after Janus was issued. Following legislative approval of the funding

~

16

necessary to implement the CBA, Department of Administration Commissioner Kelly

17

Tshibaka, the representative for the State of Alaska, signed the CBA on August 8,

18

20 19-more than a year after the Janus opinion was issued. The CBA is effective for the
19
20
21
22

period July 1, 2019 to June 30, 2022.
38.

The new CBA re-affirmed the State's contractual obligation to continue

processing dues deductions pursuant to the written authorizations that thousands of union

23

members have already signed. In the new CBA, the parties removed the agency fee
24
25
26

provisions that had been invalidated by Janus but otherwise obligated the State to deduct
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 15 of36

 1
2

dues in accordance with the dues authorizations contained in the membership agreements
signed by ASEA' s members.

3

39.

The CBA provides: "Upon receipt by the Employer of an Authorization for

4
5

Payroll Deduction of Union Dues/Fees dated and executed by the bargaining unit

6

member ... the Employer shall" deduct union dues each pay period and forward those

7

dues to the Union. 28 The CBA provides that "[b]argaining unit members may authorize

8

payroll deductions in writing on the form provided by the Union. Such payroll deductions
9
10

will be transmitted to the Union by the state."29 The CBA also provides that "[t]he

\J:)

~z
~

Qo

~ E-<o

~
~

11

Employer agrees that it will not in any manner, directly or indirectly, attempt to interfere

12

between any bargaining unit member and the Union." 30

N

~--,........
oOt-

~ 0·1::::~0
z
~J5o-~
B ~ o o-]~
CZl

ti:: ~ u aKJ~

~ ~ ~~<.~ 13

~

.....:l

z §~ t~

o~~..c:~~
ut-

~ ~~.;ef;
~
~

p::8

~

p...

'-'

~~

...i
~

40.

The Alaska Department of Administration's official summary of changes to

14
15

the CBA acknowledges that the CBA was "[u]pdated to comply with Janus decision."

31

The State's New and Erroneous Reading of Janus

16
17

41.

On August 27, 2019, apparently in response to a request from Alaska's

18

Governor, Alaska Attorney General Kevin G. Clarkson issued a new legal opinion letter
19
20

concerning the Janus decision. Attorney General Clarkson's letter reaches the opposite

21
28

ASEA CBA Art. 3.04.A.

29

!d.

30

!d. at 3.01.

22
23
24
25
26

31

See
http://doa.alaska.gov/dop/fileadmin/LaborRelations/pdf/contracts/training/
ASEASutntnary20 19 .pdf.
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 16 of36

 1
2

conclusion from Attorney General Lindemuth's September 7, 2018 legal memorandum
and from all of the court decisions, administrative decisions, and arbitration decisions

3

cited above.
4

6

7

Attorney General Clarkson's letter opines that Janus "goes well beyond

42.

5

agency fees and non-members," 32 and that Alaska statutes and collective bargaining
agreements that provide for public employers to deduct union dues in accordance with

8

authorizations voluntarily executed by public employees somehow violate the First
9
10

~z

"'~
~

11

z ~J5~~

12

~go
~ ~0

--,.....,~
~ 0·~~8
U)

B ~ ov~><
ti:: ~ U~gj~
tJ ~ ~~~.;

~

.....:l

z §~ t~

o~~..=r-i:.Ll
or--

~ [)~~2~ ~8

.__,

~<

...i

43.

According to Attorney General Clarkson's opinion letter: a) public

employers cannot continue to deduct dues based on the union membership agreements

13

and dues deduction authorizations already signed by public employees in Alaska;
14

g

~p..

Amendment rights of those same public employees.

15

b) public employers can only deduct union dues for union members who sign new

!:l

16

authorizations on forms created by the government after receiving a government warning

17

that they are "waiving" their First Amendment rights and may be agreeing to support

18

causes with which they disagree; c) all public employees can immediately terminate their
19
20
21

current dues deduction authorizations, even if their membership agreements provide for
the authorization to remain in effect for a one-year period; and d) all dues deduction

22
23
24

32

25

http://www.law.state.ak.us/pdf/opinions/opinions 2019/19-002 JANUS.pdf.

26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 17 of36

Alaska

AG

Letter

at

5,

Aug.

27,

2019,

publicly

available

at

 1
2

authorizations must expire after 12 months, so union members must continuously renew
them after receiving a government warning intended to discourage them from doing so.

3

44.

The Attorney General's August 27, 2019 opinion letter is based on an

4

5

egregious misreading of the Janus decision that has been rejected by every federal judge

6

to consider this issue. The Attorney General's August 27, 2019 opinion letter was issued

7

without offering public employee unions the opportunity to submit any legal briefing and

8

ignores the legal authority that uniformly rejects the Attorney General's erroneous
9

10

>z

~go
~ ~0

~
:::: 11

--,.....,

j:I.,

s

0

u

~"~~
=

12

~

z §~ t~

0

~~.d~~
ot-

~t:i~~~
~ ~8
~

The same day that the Attorney General issued his erroneous opinion letter,

Department of Administration Commissioner Kelly Tshibaka immediately notified every

«lj:I.,

t:i ~ ~~~~ 13
....l

45.

N

(/.) z~ 0·~~~
~tf.lO'I'-'
~

interpretation of Janus.

1.0

~

p..

'-'

~..:X:

...j

State employee by e-mail of the erroneous opinion letter and informed State employees

14
15

that the Attorney General had "conclude[d] that the State is currently not in compliance

16

with the U.S. Supreme Court's decision" in Janus and that "[t]he Department of

17

Administration will be working with the Office of the Governor and the Department of

~

18

Law on a plan to bring the State into compliance with the law, in short order, and that
19
20

plan will be rolled out in the next couple of weeks." Commissioner Tshibaka's e-mail

21

message to State employees attached a copy of the Attorney General's opinion letter and

22

of the Janus decision. The e-mail message was also accompanied by a list of "frequently

23

asked questions" that included multiple factually and legally inaccurate statements.
24
25
26

Commissioner Tshibaka sent the e-mail to all State employees without consulting ASEA.
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO

Case No. 3AN-19-09971 CI
Page 18 of36

 1

2

46.
immediately

The purpose and effect of third-party defendants' coordinated actions to
distribute the

Attorney

General's

erroneous

opinion

letter

and

3

accompanying erroneous information to all State employees, without any consultation
4

5

with ASEA, was to interfere with ASEA's relationship with its members, encourage

6

ASEA's members to resign their memberships, and cause ASEA to divert resources to

7

responding to the mass distribution of the erroneous information.

8

47.

The State and third-party defendants have already started to unilaterally

9

~z

~go
~ E-<o

~

10

change the State's longstanding practices for union dues deductions in order to

11

implement the erroneous Attorney General opinion letter. On September 9, 20 19, the

12

Alaska Department of Administration notified ASEA that the Department is dealing

10

~

t-!.
~

~--,-...

0 J~~8
z
~J5~~
a~ oar~~
r/J

~ ~ u a~~

C) ~

4! <(~<.•o 13

...4

j:il

~

z0~~-=r-§~ ~0

~ t)~~2~ ~s a::
~p...
'--'
~<

directly with some ASEA members about the cancellation of dues deductions, which

or-- 14
...i
~

15
16
17

violates PERA as well as ASEA' s CBA with the State.
48.

On September 13, 2019, when the Department of Administration processed

payroll for General Government Bargaining Unit members, the Department did not

18

deduct dues for some ASEA members or former members who had signed
19
20

membership/dues authorization agreements committing to pay dues through payroll

21

deduction for a one-year period that had not yet ended. This cessation of dues deductions

22

contrary to the authorization cards signed by ASEA members violates PERA as well as

23

ASEA's CBA with the State.
24
25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 19 of36

 ASEA's Grievance

1
2

49.

After Commissioner Tshibaka notified state employees on August 27, 2019

3

that the State would be implementing the Attorney General's erroneous opinion letter,
4

5

and the State began to change its past practice regarding the processing of dues

6

deductions, ASEA filed a grievance under its collective bargaining agreement

7

challenging the unilateral implementation of the Attorney General's opinion letter as a

8

violation of that agreement.
9

10

>z
~go

~ E-<o

"'~
~

;;z--'""'
~ 0·~~8

11

experience, ASEA predicts that it is likely to take many months to a year or more to

12

obtain an opinion from an arbitrator resolving this grievance.

~so~f~~
~
u r:: "'~
~ ~ ~~~~ 13
~

z §~ t~

0

~~,.c::tr.tl
ot-

~ ~~~2~ r:.::~
~

An arbitrator has not yet been selected to hear this grievance. Based on past

N

(/) z ~~~~
~

50.

~

p..

'-'

~<

....i
~

Irreparable Harm Caused by the Third-Party Defendants' Actions

14
15

51.

The third-party defendants' actions are already causing ASEA to suffer

16

irreparable harm, and ASEA will continue to suffer additional irreparable harm if the

17

State and third-party defendants are not enjoined from implementing the Attorney

18

General's erroneous opinion letter.
19
20

52.

By

incorrectly

instructing

ASEA's

members

that

their

written

21

authorizations of dues deductions are invalid, that they must "waive" their First

22

Amendment rights to authorize dues deductions, and that the State must control the

23

process of dues authorizations through imposing new, onerous, one-sided requirements
24
25
26

that make the continued deduction of member dues far more difficult, the third-party
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEA/AFSCME Local 52, AFL-C/0
Case No. 3AN-19-09971 CI
Page 20 of36

 1

2

defendants are discouraging prospective and current ASEA members from joining or
continuing their membership with ASEA and encouraging current members to withdraw

3

their memberships and dues deduction authorizations.
4

5

53.

The State and third-party defendants' actions also seriously harm ASEA's

6

status and authority in the eyes of ASEA's current and prospective members, causing a

7

loss of support and strength that cannot be easily recovered. The third-party defendants

8

are inaccurately informing State employees that ASEA is not collecting member dues in a
9

10

lawful manner, impugning ASEA's status and integrity in its own members' eyes. The
third-party defendants are also sending the message to all State employees that the
Governor can violate with impunity the collective bargaining agreement the Union fought
hard to negotiate, critically undermining ASEA' s standing, authority, and support among
those employees.

16

17

54.

These harms are already occurring. Following the release of the Attorney

General's opinion letter and the email to all State employees from the Commissioner of

18

the Department of Administration discussing that opinion letter on August 27, 2019,
19
20

ASEA has already lost members. ASEA will be required to expend substantial resources

21

to counteract the unlawful messages sent to all State employees by the Attorney

22

General's erroneous opinion letter and the Commissioner's email. Indeed, ASEA has

23

already had to expend resources to counteract the third-party defendants' messages.
24

25
26

These are all harms that will increase so long as the State and third-party defendants are
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 21 of36

 1
2

not enjoined from implementing their change in policy, and these harms cannot be
monetarily quantified or easily repaired following the resolution of this litigation.

3

55.

In addition, by implementing their new policy the State and third-party

4

5

defendants will cut off ASEA's primary source of revenue-dues from its own

6

members-harming ASEA's ability to operate on a day-to-day basis and to fulfill its

7

statutory representational duties. Implementation of the State and third-party defendants'

8

new policy will deprive ASEA of the operating funds that ASEA needs to keep
9

~z
~0

~

r:;:o
0

~
I

r--

z ~~~~

E3 ~ o.u~~
~ ~ u

functioning at its current level. If ASEA is not able to provide the full representational

11

services that it currently provides to all bargaining unit members while this litigation

12

remains pending, it will not be able to negotiate the same collective bargaining

t--

~--~
~ 0·~~8

rl)

10
\0

a ~J:I..

C)~~~~~ 13

~ 0z ~~
~~
~~..c:t--

~

~

ot--

~ t)~~f;
~
~

p::8
P-.

~<:

g

s
'-'

agreements and will not be able to enforce its current collective bargaining agreements to

14
15

the same extent as it would be able to do if its own members' dues payments are not cut

16

off. The resulting loss of collective bargaining strength and ability to enforce current

17

contracts on a day-to-day basis are harms that could not be monetarily quantified or

18

easily remedied following resolution of this litigation.
19
20

56.

The purpose and effect of the State and third-party defendants' new dues

21

deduction policy is to cause all these harms to ASEA and other public employee unions

22

across Alaska that have been critical of the Governor's policies-unlawfully attacking

23

their status and negotiating strength, their standing with their current and prospective
24
25
26

members, and their basic ability to function.
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEA/AFSCME Local 52, AFL-C/0
Case No. 3AN-19-09971 CI
Page 22 of36

 1

COUNT I

2

Violation of Separation of Powers and Public Employment Relations Act
(Alaska Const. art. II,§§ 1, 16, art. XII,§ 11; AS 23.40.070-.230)

3

57.

ASEA realleges and incorporates by reference all previous paragraphs.

58.

Alaska's Constitution vests the legislative power in the Legislature, not the

4
5
6

Govemor. 33 The Governor is "responsible for the faithful execution of the laws,"

7

has no authority to act contrary to state statute. 35

34

and

8

59.

PERA requires that public employers must deduct union dues from a public

9
10

>z

~ Qo
~ E'-<o

Cl)

U-1

~
~

.....:l

~----~ o.{:l5=n;
~ ~Jj~~
"til><:

z §~ ~~

0

~~,.<::!'U-1
0 r-

~ 1:)~~~
~ ~~
~A.

~<

Upon written authorization of a public employee within a bargaining unit,
the public employer shall deduct from the payroll of the public employee
the monthly amount of dues, fees, and other employee benefits as certified
by the secretary of the exclusive bargaining representative and shall deliver
36
it to the chief fiscal officer of the exclusive bargaining representative.

11

N

~ ~ 8 g~~
1J ~ ~~~~

~

employee's pay when the employee has authorized those deductions:

1.0

12
13
14

60.

~

'-'

....i
~

15

PERA also requires that public employers must comply with the collective

16

bargaining agreements they have reached with public employee unions. Under PERA,

17

"[u]pon the completion of negotiations between an organization and a public employer, if

18

a settlement is reached, the employer shall reduce it to writing in the form of an

19
20
21
22
23
24
25
26

33

Alaska Const. art. II, § 1; id. art. XII, § 11 ("law-making powers" are "assigned to
the legislature").
34

!d. art. III, § 16.

35

State v. Fairbanks N. Star Borough, 736 P.2d 1140, 1142 (Alaska 1987) ("The
doctrine of separation of powers is implicit in the Alaska Constitution.").

36

AS 23.40.220.

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 23 of36

 1
2

agreement. " 37 The Legislature implicitly ratifies each State collective bargaining
agreement by appropriating funds to cover the State's contractual commitments made in

3

the agreement after the "complete monetary and nonmonetary terms" of the agreement
4
38

5

are "submitted to the legislature . . . to receive legislative consideration .... "

6

collective bargaining agreement with the State, which was signed by representatives of

7

ASEA' s

the State and implicitly ratified by the Legislature, requires the State to deduct dues that

8

have been authorized in writing by union members.
9

61.

10

PERA requires that public employers must bargain in good faith with

certified employee representatives. Even if the issue of dues deductions were not already
covered by a binding contract (which it is), the procedures for the deduction of union
membership dues are mandatory subjects of bargaining, so PERA prohibits the State
from making unilateral changes to those terms. 39
62.

16

17

PERA also prohibits the State from "interfer[ing] with, restrain[ing], or

coerc[ing] an employee in the exercise of the employee's rights guaranteed in [PERA],"

18

from "discriminat[ing] in regard to ... a term or condition of employment to ...
19
20

discourage membership in a[] [labor] organization," and from "interfer[ing] with the

21
22

23

37

AS 23.40.210(a).

24

38

AS 23.40.215(a)-(b).

39

AS 23.40.070(2), .110(a)(5).

25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-C/0
Case No. 3AN-19-09971 CI
Page 24 of36

 1

2
3

formation, existence, or administration of a[] [labor] organization. " 40 "Implicit in
Alaska's public union statutory rights is the right of the union and its members to
function free of harassment and undue interference from the State."41

4

63.

5

The State and third-party defendants' implementation of the Attorney

6

General's erroneous August 27, 2019 opinion letter exceeds the executive branch's

7

authority in violation of the separation of powers enshrined in Alaska's Constitution

8

because implementation of that opinion letter: a) abrogates State employers' statutory
9

~:?;
~ ~

10

obligation to make dues deductions that have been authorized by members of public

11

employee unions; b) abrogates State employers' statutory obligation to comply with the

12

terms of the State's collective bargaining agreements; c) abrogates State employers'

\0

8

~
~

~ ~~~§'

~ ~ ~~"~~
~ ~ u ~ ~~

~ ~ ~~~~ 13

~
~

z §~ t~

0

~~-§[:::

statutory duty to bargain about dues deduction procedures; and d) abrogates the State's

14

~ ~~~f;
~
15
~<
~

:::3 ~~

16

statutory duty not to interfere with ASEA's and other public employee unions'
relationships with their members.

17

64.

The State and third-party defendants assert that their new policy is

18

necessary to comply with the First Amendment, but they are wrong, as every federal
19
20

21

court, state court or labor relations board, and other state attorney general that has
addressed the issue has agreed. None of the violations of state law and the CBA that

22
23
24

25
26

40

AS 23.40.110(a)(l), (2), (3).

41

Peterson v. State, 280 P.3d 559, 565 (Alaska 2012).

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 25 of36

 1

2

implementation of the Attorney General's August 27, 2019 opinion letter entails are
necessary to comply with the First Amendment.

3

65.

The State and third-party defendants' actions are therefore illegal, invalid,

4

5

and have no lawful effect, and ASEA is entitled to injunctive and declaratory relief

6

prohibiting them from implementing a new union dues deduction policy.

7

COUNT II
Violation of Contract Clause
(Alaska Const. art. 1, § 15)

8
9

10

66.

ASEA realleges and incorporates by reference all previous paragraphs.

67.

The Contract Clause of the Alaska Constitution prohibits the State from

"impairing the obligation of contract."42
68.

The State violates the Contract Clause where a "change in state law has

operated as a substantial impairment of a contractual relationship" and that impairment is
16

not "reasonable and necessary to serve an important public purpose. " 43

17

69.

The State and third-party defendants' implementation of the Attorney

18

General's August 27, 2019 opinion letter substantially impairs the State's contractual
19
20

relationship with ASEA by abrogating provisions of the CBA that require dues

21

deductions based on ASEA authorization cards. The State and third-party defendants'

22

implementation of the Attorney General's August 27, 2019 opinion letter also

23
24

25
26

42

Alaska Const. art. 1, § 15.

43

Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444, 451 (Alaska 2009).

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 26 of36

 1

2

substantially impairs the State's contractual relationship with ASEA by abrogating
provisions of the CBA that prohibit interference with the Union's relationship with its

3

members. The State and third-party defendants' implementation of the Attorney
4

5

General's August 27, 2019 opinion letter also substantially impairs the contractual

6

relationship between ASEA and bargaining unit employees who have signed membership

7

agreements that authorize the deduction of union dues in exchange for the rights and

8

benefits of union membership.
9

10

>z
~go

~ E-<o

~
~

11

t-

~--~

~

z~ 0·~~8
~J5~~

i:.Ll l-ol

~ ~

"C<l

:X:

12

8 g~~

Cl ~ ~~<.~ 13

~

....:!

z §~
t~
~~-5~

0

~ ~~~;;
~ ~~
~-o~P..

~<

70.

These substantial impairments of the State's contractual relationship with

10

ASEA and of ASEA's contractual relationships with bargaining unit employees are not
reasonable and necessary to serve an important public purpose. As explained above, the
State and third-party defendants' implementation of the Attorney General's August 27,

14

~
'-'
15
~

2019 opinion letter is contrary to multiple state laws and the important public policies

~

16

17

advanced by those laws.
71.

The State and third-party defendants assert that their implementation of the

18

August 27, 2019 opinion letter is necessary to comply with the First Amendment, but
19
20

they are wrong, as every federal court, state court or labor relations board, and other state

21

attorney general that has addressed the issue has agreed. None of the violations of state

22

law and the State's contract with the Union that implementation of the Attorney

23

General's August 27, 2019 opinion letter entails are necessary to comply with the First
24
25
26

Amendment.
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEA/AFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 27 of36

 72.

1
2

Because the State and third-party defendants' implementation of the

Attorney General's August 27, 2019 opinion letter violates the Alaska Constitution's

3

Contract Clause, ASEA is entitled to injunctive and declaratory relief prohibiting that
4

5

implementation.
COUNT III
Violation of Administrative Procedure Act
(AS 44.62.010-.950)

6

7
8

73.

ASEA realleges and incorporates by reference all previous paragraphs.

74.

Commissioner

9
10
~

~

~5 ~ 11
~ ~g ~
~--""'
~ o:~~8

U'J

z ~J5~~

B t-o(

0 a.f~>::

12

~ ~ u 6 ~~

C5

~

.....l

Tshibaka

and

the

Department

of Administration's

\0

implementation of new union member dues deduction procedures violates Alaska's
Administrative Procedure Act ("APA"). 44

~ ~~~~ 13

z §~ ~~
0

~~,.s::::tj:l.1
0 t-

~ ~~~~
~ Oo b
0\

~t-o( p...

~.:X:

..._,

--i
~

7 5.

The APA requires state agencies and departments to engage in a

14
15

deliberative rulemaking process that includes notice and public comment before adopting

16

or changing state regulation. 45 "Regulations that are not promulgated under AP A

17

procedures are invalid. "

46

18
19
20
21
22
23

44

AS 44.62.010-.950.

24

45

AS 44.62.180-.290.

46

Chevron U.S.A., Inc. v. State Dep't ofRevenue, 387 P.3d 25, 35 (Alaska 2016).

25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 28 of36

 76.

1

2
3

The APA applies to the Department of Administration's administration of

the "statewide personnel program, including central personnel services such as . . . pay
administration" for all State employees. 47

4

77.

5
6
7

8

"The APA defines a regulation as 'every rule, regulation, order, or standard

of general application or the amendment, supplement, or revision of a rule, regulation,
order, or standard adopted by a state agency to implement, interpret, or make specific the
law enforced or administered by it. "'48 Commissioner Tshibaka and the Department of

9

10

Administration's new rules for union member dues deductions constitute a regulation
under that broad definition.
78.

Even if the State and third-party defendants' implementation of the

Attorney General's August 27, 2019 opinion letter did not violate state statute (which it
does) or the Contract Clause (which it does), Commissioner Tshibaka and the
16

Department of Administration would still have to comply with the procedural

17

requirements for rulemaking under the APA, including but not limited to notice and

18

public comment periods before the implementation of new regulations.
19

79.

20

The State and third-party defendants assert that their implementation of the

21

August 27, 2019 opinion letter is necessary to comply with the First Amendment, but

22

they are wrong, as every federal court, state court or labor relations board, and other state

23
24

25
26

47

AS 44.21.020(8); see AS 44.62.640(a)(4).

48

Chevron, 387 P.3d at 35 (quoting AS 44.62.640(3)).

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 29 of36

 1
2

attorney general that has addressed the issue has agreed. None of the violations of state
law and the State's contract with ASEA that implementation of the Attorney General's

3

August 27, 2019 opinion letter entails are necessary to comply with the First
4

5

Amendment.
80.

6
7

Because the State and third-party defendants' implementation of the

Attorney General's August 27, 20 19 opinion letter violates the APA, ASEA is entitled to

8

injunctive and declaratory relief prohibiting that implementation.
9

COUNT IV
Injunction in Aid of Arbitration
(AS 23.40.070-.230)

10

"'~
~z
90
~
~ E-<o
N

11

Z

~JS~~
~ 0 JJ:!X

12

z<

13

~

~--~
~ 0-~~8
en

E5

~ ~ u §1{1~
t>~~~:cc.

~
...:!

JO

z Q$1 ~~
0 ~~-£::::

~ ~~~2~ ~8
~

'-'

....:i

ASEA realleges and incorporates by reference all previous paragraphs.

82.

Under established law, courts may issue a temporary restraining order or

14

~

p...

~<

81.

15

preliminary injunction to preserve the status quo and to protect the arbitration process

~

16

pending the arbitration of a labor dispute under a collective bargaining agreement

17

requiring arbitration of grievances. 49 Such a temporary injunction to preserve the status

18

quo pending arbitration is available under PERA. 50

19

83.

ASEA is entitled to injunctive relief to preserve the status quo because

20
21

( 1) its collective bargaining agreement with the State requires the State to arbitrate

22
23
49

24
25
26

See, e.g., Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970); Aluminum
Workers v. Consol. Aluminum Corp., 696 F.2d 437 (6th Cir. 1982); Lever Brothers Co. v.
Int'l Chern. Workers Union, Local217, 554 F.2d 115, 120 (4th Cir. 1976).
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 30 of36

 1
2
3

grievances arising out of disputes over the terms of the agreement, including the terms
governing dues deductions; and (2) at least one of the traditional equitable bases for
injunctive relief is satisfied here. 51

4

84.

5
6
7

The traditional equitable bases for injunctive relief are met because, as

alleged above, the State and third-party defendants' implementation of the Attorneys
General's August 27, 2019 opinion letter requires ongoing breaches of the State's

8

collective bargaining agreement with ASEA; if that implementation is not enjoined,
9

~:z;

~go

~ E-<o

10

ASEA will suffer irreparable harm from loss of membership, good will, and the ability to

11

function on a day-to-day basis, which cannot be remedied by an arbitration award; and

ID

~
~

N

~--~

~ O·~~b
z
~J5~~
B~oo~:x:
r/J

12

~~us~~
t) ~ ~~~~

13

~

14

~

z §~ t~
0
~~,_c:!'ot-

l:il

~r.r..~~~
~ Oo
P::- b
0\
~p..

'-'

~<x:

~

ASEA will suffer more from the denial of an injunction than the State or third-party
defendants will from its issuance.
85.

15

Because implementation of the Attorneys General's August 27, 2019

~

16

opinion letter before the resolution of the pending grievance would make arbitration of

17

that grievance a hollow exercise, ASEA is entitled to injunctive relief prohibiting that

18

implementation pending the resolution of arbitration of that grievance.
19

COUNTY

20

Declaratory Judgment Pursuant to the Declaratory Judgment Act
(AS 22.10.020(g))

21
22

86.

ASEA realleges and incorporates by reference all previous paragraphs.

23
24
25
26

50

See Fairbanks Fire Fighters Ass 'n, Loca/1342 v. City ofFairbanks, 934 P .2d 759,
760-61 (Alaska 1997); AS 23.40.210(a).
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CJO
Case No. 3AN-19-09971 CI
Page 31 of36

 87.

1

2

Alaska's Declaratory Judgment Act, codified at AS 22.10.020(g), provides

in relevant part: "[i]n case of an actual controversy in the state, the superior court, upon

3

the filing of an appropriate pleading, may declare the rights and legal relations of an
4

5

interested party seeking the declaration . . . . Further necessary or proper relief based on a

6

declaratory judgment or decree may be granted, after reasonable notice and hearing,

7

against an adverse party whose rights have been determined by the judgment."

8

88.

An actual controversy exists between ASEA and the State and third-party

9

10

defendants because the third-party defendants have already taken unilateral action to alter
the State's practice of administering employees' voluntary union membership dues
deductions.
89.

The State and the third-party defendants' actions have already caused injury

to ASEA, and these injuries are ongoing.
90.

16

17

ASEA has notified the State that its actions violate Alaska state law and the

State's CBA with ASEA.

18

91.

The Alaska· Supreme Court has recognized that disputes over statutory

19
20

requirements are suitable for declaratory judgment. 52

21

22
23
24

25

26

51

See AFSCME, Council 31 v. Schwartz, 343 Ill.App.3d 553, 561 (2003 ).

52

Jefferson v. Asplund, 458 P.2d 995, 999 (Alaska 1969) (declaratory judgment
appropriate "to determine ... construction of statutes and public acts").
ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 32 of36

 92.

1
2

3

The parties' dispute involves the rights and legal relations of the State and

ASEA, and a grant of declaratory judgment "would . . . terminate the controversy [and]
the uncertainty which gave rise to the declaratory proceeding. " 53

4

93.

5

Accordingly, ASEA is entitled to declaratory judgment that the State and

6

third-party defendants, by implementing the change in policy regarding union

7

membership dues deductions and other unilateral actions, have violated the Alaska State

8

Constitution's separation of powers clauses and contract clause, 54 PERA,

55

and the

9

10

>z

~

Qo
~ E-<o

APA.56

\0

~
r::

94.

11

ASEA is further entitled to declaratory judgment that implementing the

N

~------

~ O·~~g 12

c:n Z~c:na-.'-"
~ 0 o"~;x:

e3

ti:: ~us gj~

C)~~~~~ 13

~

...-4

z §~ ~~

0

~~..=r-~
ur--

~ C)~~2~ ~8

~

~p,

'-"

~<

....i

Attorney General's opinion letter violates the Alaska State Constitution's separation of
powers clauses and contract clause, PERA, and the APA .

14

95.

15

ASEA is further entitled to declaratory judgment that honoring employees'

!:l
16

voluntary written dues deduction authorizations does not infringe any rights under the

17

First Amendment to the U.S. Constitution, and that "the First Amendment does not

18
19
20
21

53
22
23
24
25
26

Jefferson v. Asplund, 458 P.2d 995, 998 (Alaska 1969).

54

Alaska Const. art. 11, §§ 1, 16, art. XII,§ 11 (separation of powers); id. art. I,§ 15
(contract clause).
55
AS 23.40.070-.230.

56

AS 44.62.010-.950.

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 33 of36

 1

confer ... a constitutional right to disregard promises that would otherwise be enforced

2

under state law. " 57

3

96.

ASEA is also entitled to declaratory judgment that the Supreme Court's

4
5

decision in Janus v. AFSCME Local 31-wherein the Court stated that public employers

6

may not require nonmembers to pay for their share of the costs of union collective

7
8

bargaining representation but that otherwise "States can keep their labor-relations
systems exactly as they are" 58-does not require changes to Alaska's payroll dues

9
10

deduction procedures for voluntary union members.

1,()

>z

~

~ E-co

N

~go

~

PRAYER FOR RELIEF

11

~--,....._

Cl)

z~ 0·~~8

gzblo-~

~~ov"~:x:
~ ~ u 1{!~

12

ASEA respectfully requests the following relief:

a

C)~~~~~ 13

~

.....4

z §~ ~~

o~~,.dt'I:.Ll
ot--

~C)~~~
~
~8
~p...
~<(

~

..._,

...i
~

1.

A temporary, preliminary, and permanent injunction restraining the State of

14
15

Alaska and the third-party defendants from taking any actions to implement the Attorney

16

General's August 27, 2019 opinion letter and from making any changes to the State

17

employee union dues deduction processes that were in place before that opinion letter

18

was issued.
19

2.

20
21

A declaratory judgment that implementation of the Attorney General's

August 27, 2019 opinion letter is unlawful.

22

3.

Such other and further relief as is equitable, just, and proper.

23
24
25
26

57

Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991).

58

138 S.Ct. 2448, 2485 n.27 (2018).

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 34 of36

 1

DATED this 25th day of September 20 19, at Anchorage, Alaska.

2
3
4
5
6

DILLON & FINDLEY, P.C.
Attorneys for Alaska State Employees
Association I AFSCME Local 52, AFL-CIO

By:--ryz~ ~. ~
Molly C. Brown, ABA No. 0506057

7
8

ALTSHULER BERZON, LLP
Attorneys for Alaska State Employees
Association I AFSCME Local 52, AFL-CIO

9
10

~z

~go

~ E-<o

\0

~
~

Z

~~~~
~ ~ oo~><
ii: ~ u a~~

(:) ~ ~ <:~~.
•o

~

.--4

z §~ t~

0

~~..t:lt--j:il
ot---

~ (:)~~2~ p::~
~

11

N

~ ~----oJ~~8

rn

Scott A. Kronland (Pro Hac Vice Admission Pending)
Matthew J. Murray (Pro Hac Vice Admission Pending)
Stefanie Wilson (Pro Hac Vice Admission Pending)

12
13
14

~

p..

'-"

~<

...l

15

~

16
17
18
19
20
21
22
23
24
25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 35 of36

 1

CERTIFICATE OF SERVICE

2

The undersigned hereby certifies that on September
25, 2019, a true and correct copy of the foregoing
document was served by:

3

5

[ vihand delivery
[ ~st class mail
[
email

6

on the following attorneys of record:

7

Tregarrick R. Taylor Deputy Attorney General
State of A*ska
1031 W. 4 Avenue, Suite 200
Anchorage, AK 99501
Email: treg.taylor@alaska.gov

4

8
9

~ ~~

~~~

10

>:z;
~go

~f-<o
~ .....

\0

~

::::

11

N

-,......_

~ 0·~~8
z
~~~~
e3~oa>~~

Cl)

12

iL: ~ ua~J.I..

1J ~ ~~~~ 13

~

..-1

z §~ t~

o~~..c::t-l:il
ut--

~C)~~~
~
~~
~p..

~
...._,

~~

.j

14
15

i:l

WilliamS. Consovoy J. Michael Connolly
Consovofs McCarthy, PLLC
1600 Wi son Blvd., Suite 700
Arlinfton, VA 22209
Emai : will@consovoytnccarthy.com
tnike@consovoymccarthy.com
...

~~~~

Lisa Kusmider
16
17
18
19
20
21
22
23
24
25
26

ASEA'S COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
State ofAlaska v. ASEAIAFSCME Local 52, AFL-CIO
Case No. 3AN-19-09971 CI
Page 36 of36