(CINCINNATI, Ohio) — It’s been almost four years since the U.S. Supreme Court, in Janus v. AFSCME, ruled that government workers can no longer be compelled to join a labor union or support one with dues or fees. But a court battle launched this week shows organized labor leaders feel no less entitled than before to share the paycheck of every American employed in the public sector.
On Feb. 24, attorneys for the Freedom Foundation and the National Right to Work Legal Defense Foundation jointly filed a federal class-action lawsuit in Cincinnati, Ohio, on behalf of city employee Margaret Lascano, who terminated her membership and dues payments in AFSCME Council 8 last July but continues to involuntarily support the union’s activities through the mandatory confiscation of her accrued vacation time.
The suit’s defendants are the union and the city of Cincinnati, which executed a collective bargaining agreement (CBA) in 2019 that included a provision requiring all city employees to donate up to four hours of their vacation time every year to a so-called “union release time bank.”
The vacation time would then be withdrawn from the “bank” for use by AFSCME officers when they transact union business on the taxpayers’ time — including “union business” such as attending union conventions, organizing activities and CBA administration.
According to the complaint, an official at her city employer told Lascano, “(Even) if the employee no longer pays dues, (he or she is) just a non-dues-paying member and … still required to donate because they are still represented by the union.”
“I must have missed the part in Janus that refers to ‘non-dues-paying members,’” said James Abernathy, an attorney with the Freedom Foundation. “You’re either a member or you’re not. And forcing either to financially support the activities of a union is a violation of their First Amendment rights.”
AFSCME does, indeed, still have to represent the interests of every worker in the bargaining unit — even those, like Lascano, who have opted out of membership and dues. But that’s only because unions have lobbied to pass exclusive representation laws that require every employee in the bargaining unit, even nonunion employees, to be represented by the union.
“It sounds counterintuitive, but unions routinely demand provisions that require them to represent even nonmembers,” Abernathy explained. “It costs them nothing, but it allows them to avoid competing with other unions or employees who would otherwise negotiate their own employment conditions.”
Unions then pretend it’s a huge burden and argue that workers who’ve opted out are benefitting from union contract negotiations without paying for the privilege.
The law allows unions to assume responsibility for every single worker, he said, but that doesn’t give them the right to demand payment from people who don’t want, and never asked for, the service being provided.
“It doesn’t matter whether we’re talking about cash or vacation time,” Abernathy said. “Both have monetary value to the employee, and Janus makes it crystal clear that no one can be compelled to give either to a union if they don’t want to.”
Under the scheme, AFSCME confiscated four hours of vacation time from Lascano last year and is on track to seize another four in 2022. And while the amount deducted on behalf of one worker isn’t necessarily substantial, the suit is a class action, which means hundreds of others could subsequently join the lawsuit with Lascano — potentially costing the union hundreds of thousands of dollars in the long run.
The complaint asks for a declaration acknowledging that mandatory donations to a vacation time bank are unconstitutional, in addition to repayment of vacation time and temporary and permanent injunctions to halt the practice immediately.
“Since the day the U.S. Supreme Court issued the Janus decision, rather than working to win the voluntary support of those they claim to ‘represent,’ government-sector union bosses have been relentlessly devising new schemes to trap workers into subsidizing union activities they oppose,” said Mark Mix, president of the National Right to Work Legal Defense Foundation. “Seizing vacation time for union officials from nonmember workers is just the latest tactic being used to violate workers’ rights as recognized in Janus, and we’re proud to stand behind Ms. Lascano and other public employees seeking to defend their First Amendment rights against Big Labor coercion.”
“The unions are desperate since Janus,” echoed Freedom Foundation CEO Aaron Withe. “Despite their lies, tactics like this are clear evidence they have to come up with new and innovative schemes to backfill the huge hole in their dues collections created by thousands of workers opting out every month.”
