Two cases have been filed in the U.S. District Court in Columbus seeking to challenge union’s collections of dues and fair share fees in light of the U.S. Supreme Court’s decision in Janus v. AFSCME. Both these cases are filed by attorneys for the National Right to Work Legal Defense Foundation and asks the court to certify the cases as class action lawsuits. If the court agrees that class actions are proper, the cases would address all similarly situated public employees in Ohio.
The first case is Ogle v. OCSEA and involves state of Ohio employees. In this case, plaintiff seeks damages for violations of their First Amendment rights. The plaintiff is asking for damages based on fair share fees he, and others similarly situated, were required to pay under collective bargaining agreements prior to the Supreme Court’s Janus decision. Plaintiff is alleging a constitutional violation that pre-dates the Janus decision but is based on the results of that case. Plaintiff claims OCSEA knew or should have known the collection of fair share fees violated the fair share fee payors’ First Amendment rights even before Janus was decided.
The second case is filed by employees in several counties in Ohio against AFSCME, Ohio Council 8. In this case, Smith v. AFSCME, plaintiffs are challenging what is commonly known as a maintenance of membership requirement. Many collective bargaining agreements have a provision that requires employees who voluntarily agree to pay union dues to continue paying those dues for essentially the entire term of the agreement even if they change their mind during the agreement. Usually there is a 15 to 30 day period just prior to the expiration of the agreement when dues paying members can cease paying union dues. In addition, AFSCME’s dues authorization card requires employees who agree to pay dues to commit to paying until the period of 30 to 45 days prior to the expiration of the collective bargaining agreement.
The named plaintiffs in this lawsuit all signed dues authorizations before the Janus case was decided. They now want to cease paying dues and requested AFSCME stop seeking those dues through payroll deduction. The plaintiffs allege AFSCME has refused to honor the request.
The issue presented by this case likely will help clarify the scope of the Janus decision. According to AFSCME, Janus only forbids fair share fees. The plaintiffs in this lawsuit claim Janus prohibits mandating public employees to financially support the union, whether through fair share fees or dues deductions. Employees can voluntarily support the union through union dues or refrain from doing so. According to the plaintiffs, the maintenance of membership requirement violates an important part of the Janus decision; the requirement that union dues must be voluntary. Plaintiffs argue public employees should be allowed to revoke their union dues authorization at any point.
An interesting aspect of these cases is the plaintiffs only have sued the unions. Normally, a constitutional claim can only be asserted against the government. Generally, a private entity, such as a labor union, is not bound by the constitution. In these cases, the plaintiffs claim the unions are acting in place of the government in their role of collecting union dues and therefore, the constitution (First Amendment) applies. It will be interesting to see if the various government entities that have AFSCME representing their employees will be pulled into these lawsuits.
These lawsuits are in their very early stages. Fishel Downey Albrecht & Riepenhoff, LLP will keep you apprised of developments. If you have any questions, please contact Marc Fishel at 614-221-1216 or mfishel@fisheldowney.com.