On April 29th, the latest test of the Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) decision was filed. Janus made it unconstitutional to require public sector employees to become union members and pay union dues as a condition of employment and effectively eliminated union “fair share” fees.
In this latest challenge, three employees of Kent State University sued the Council 8 AFSCME, Kent State University, and University Trustees challenging the restrictions the union placed on members that limit when they can resign from the union and stop paying union dues. The case was filed in the United States District Court for the Northern District of Ohio and is captioned Annamarie Hannay, et al. v. American Federation of State, County, and Municipal Employees, Ohio Council 8, et al., Case No. 5:19-cv-00951-JRA.
Two of the employees at issue in Hannay signed union dues authorization cards from AFSCME. Those cards could only be revoked during a “window” period that begins 45 days and ends 30 days prior to each anniversary year of the union contract. A member had to provide notice of intent to resign from membership in order to stop union dues from being deducted from the paycheck during this narrow period. Assuming a three year contract, this would only permit resignation from the union during a 15-day period every three years.
Under Janus, an employee must affirmatively consent to union membership and a waiver of his or her free speech constitutional rights. Hannay is the most recent of many cases being filed to challenge AFSCME’s notice window to opt-out of the union. It is currently unclear whether this type of opt-out window will be permissible. Therefore, the District Court will be challenged to determine whether the union’s restriction is constitutional and whether it provides members with a fair opportunity to opt-out of the union and relieve themselves of the obligation to pay union dues.
Until this issue is finally resolved, the labor professional should exercise care in the drafting of dues check-off contract language.