Ohio Union Returns Improperly Seized Dues to Bus Driver

Union backs down after Supreme Court Janus decision

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November 14, 2019

An Ohio public school employee won a settlement against her former union, securing a refund of dues union bosses seized improperly.

Donna Fizer, a school bus driver, withdrew her membership from the Ohio Association of Public School Employees (OAPSE) in 2018. The union pushed back, arguing that she could not withdraw outside of a 10-day "escape period." OAPSE officials backed down after Fizer challenged the policy in federal court. The union agreed to return all dues taken from Fizer following her withdrawal in a settlement filed Monday.

The settlement comes as a blow to labor leaders' state-level counterattack against the Supreme Court's Janus v. American Federation of State, County, and Municipal Employees decision, which declared forced dues schemes for government workers unconstitutional. In an attempt to reduce the outflow of financial supporters following the decision, unions such as OAPSE imposed "resignation windows" that limit when workers can leave the union—in some cases giving workers only a few days to sever their financial support.

Mark Mix, president of the National Right to Work Foundation, which successfully argued the Janus case, said Fizer's win against one of Ohio's most powerful unions shows that labor groups should think twice before challenging public workers' rights.

"Ms. Fizer's win should serve as another reminder that public sector union bosses cannot legally limit public employees' First Amendment rights through 'escape periods' and other similar schemes," Mix said in a statement. "The Foundation will continue to offer free legal aid so workers can bring more lawsuits to ensure that public employees' Janus rights are fully enforced."

Fizer's case could deal a blow to union finances, leading more employees to leave the 34,000-member labor group. The union takes 2 percent of members' salaries and collected nearly $15 million in dues and agency fees from September 2017 to August 2018, according to OAPSE's most recent federal labor filing.

Any loss in revenue could also hurt Democrats in the swing state in 2020. OAPSE spent nearly $2.5 million in political activities and lobbying in 2018, according to its federal labor filings. The union's PAC has already spent over $270,000 in 2019 after spending about $1.3 million during the 2016 election cycle, according to state records.

Though OAPSE did not respond for comment, the union touted the support of a school employee weeks before settling Fizer's case.

Fizer's withdrawal request came a few months after the Janus decision in June 2018, according to her complaint. While Fizer's school district complied, stopping the union dues deductions from her paycheck, OAPSE hit back. Just weeks after Fizer's withdrawal, the union filed a grievance with the school district, arguing that she did not "provide her notice of opposition to financially supporting OAPSE within the 10-day time frame" dictated by the union's collective bargaining agreement.

When the district rejected OAPSE's grievance, noting that it would "honor the Supreme Court 'Janus decision,'" the union forced arbitration proceedings, ordering the district to continue its seizure of dues from Fizer's paycheck and even confiscate an additional sum to "make OAPSE whole" for lost dues following Fizer's withdrawal.

Fizer responded by suing OAPSE in federal court, arguing that the union's 10-day withdrawal period "significantly impinges on employees' exercise of their constitutional rights." Rather than fight the lawsuit in court, OAPSE officials backed down, agreeing to not only return improperly seized dues, but cover Fizer's legal fees.

The union's concession is another example of education unions' declining influence at the state level. Education unions in Oregon and Washington reported large drops in financial supporters since June 2018, with the Oregon School Employees Association accepting a $400,000 bailout from its parent organization to help make ends meet.

Union shortcomings in Oregon and Washington have come amidst an outreach campaign from the Freedom Foundation, a pro-free market group working to educate union members on their post-Janus rights. The group recently expanded its operations into Ohio. Fizer's willingness to stand up to politically powerful labor groups could embolden other union members to follow suit, according to Lindsey Queen, the foundation's state director in Ohio.

"Union bosses proved yet again that their first concern is for their bottom line—they don't care about providing a service people are willing to pay for," Queen said. "This case is just the beginning of a major worker freedom movement here in Ohio—there's a wave coming for these unions now that people are finding out about their rights to opt out."