Author: Nick Murray

What’s next for workplace freedom?

What’s next for workplace freedom?

Three employees of Kent State University on Monday, April 29 filed suit against the University’s Board of Trustees and the Association of Federal, State, County, and Municipal Employees (AFSCME) Council 8 because of the union’s refusal to recognize their resignation of membership.

In August 2018, Annamarie Hannay, Adda Gape and John Kohl, custodians for student residence halls at Kent State, resigned from their union expecting the automatic deduction of dues from their paychecks to cease.

The union refused to honor their resignation, maintaining that the plaintiffs could only resign within the union’s arbitrary opt-out window. The university has continued to deduct dues from the plaintiffs, who each pay almost $600 to AFSCME each year against their wishes.

The case filed on Monday by the Buckeye Institute and Liberty Justice Center seeks to reaffirm the First Amendment rights of public employees as established in the Supreme Court’s decision in Janus v. AFSCME last June. Unions engage in political speech, and as dues money is fungible, workers are compelled to support their union’s political speech whether or not they agree with it.

In Janus, the U.S. Supreme Court ruled that unions may not withhold dues or fees from employees’ paychecks without their affirmative consent, including agency fees. This should mean that any permission given to deduct dues before June 27, 2018 should be null and void because any affirmation would have been made before members’ were aware of their newly-recognized right to freely associate.

Kent State University’s refusal to acknowledge the plaintiffs’ request amounts to an unconstitutional assault on the free choice of public workers.

“I sent in my resignation to the union and Kent State in August 2018. Since then, not only has my resignation been denied, but I’ve also received confusing and contradictory messages from the union about when I could finally stop paying them money from every paycheck.”

Annamarie Hannay, Kent State University Employee and plaintiff

Per Janus, not only should public employees be allowed to resign from their union if they wish, they should not be forced to pay any dues to the union. One could conclude logically that given the freedom of workers to refuse to pay dues, they should also be allowed to forgo union representation if they wish. On the second page of the Janus decision, Justice Samuel Alito expressed skepticism of exclusive representation:

“Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union…”

This is the crux of another pending case relating to the First Amendment rights of public workers, Uradnik v. Inter Faculty Organization (IFO).

Uradnik will be argued in front of the U.S. District Court in Minnesota after the Supreme Court refused a request by the Buckeye Institute to hear it immediately. Kathy Uradnik, a professor of political science at St. Cloud University, is challenging her union — the Inter Faculty Organization (IFO) — and its rules that bar non-union faculty from serving on any faculty committee or even on the Faculty Senate. This scheme is currently written into the St. Cloud University faculty contract.

Ms. Uradnik is arguing that her First Amendment rights are being restricted because she is compelled to be represented by a union of which she has declined to join, and contends the current contract relegates her to second-class status among her colleagues because of her decision. A ruling in her favor could allow her and the University to negotiate wages and benefits independent of the union. This ruling would have implications for other public employees in Minnesota, as the IFO organizes multiple university faculty associations.

Of course, a union should not be forced to represent any worker that does not join its ranks, either. The principle applies both ways. Why should the union be forced to represent non-members? Would that be fair to those who gave their clear consent to become members and pay dues?

As these and other cases concerning the implications of Janus and the rights of public workers progress through the courts, expect to see these aspects of the First Amendment thoroughly explored. Between questions of opt-out windows, exclusive representation and the meaning of “affirmative consent” in determining membership, there is much to be answered as the legal relationship between public workers and unions continues to evolve.