by Tyler O’Neil
An Ohio teacher’s assistant who helps special needs students is suing her school district and former union because the district withheld union dues from her paycheck even after she left the union and formally asked it to cease taking her money.
“Using the coercion of government to take money from a government employee and give it to a union without the employee’s consent is not only egregious, but the Supreme Court has held that it’s unconstitutional,” Jeffrey Schwab, a senior counsel at Liberty Justice Center who represents the Ohio teacher’s assistant, told The Daily Signal in a written statement Monday.
Denise Cogar, an educational associate at Perry High School in Perry Village (35 miles northeast of Cleveland), had been a member of the union, Ohio Association of Public School Employees Local 367, since 2001. Cogar sent a formal notice rescinding her union membership on Nov. 18, 2022.
On Dec. 21, 2022, the union emailed Cogar to confirm that she had withdrawn her membership. The union added that it would ask Perry Local School District, her employer, to stop withdrawing union dues from her paychecks.
The collective bargaining agreement between the union and the school district requires the district to withhold dues from employees’ paychecks. According to that agreement, an employee may not rescind dues authorization except 10 days before the anniversary of the employee’s original decision to join the union.
Cogar’s application for union membership states that she couldn’t withdraw from the agreement except during the 10 days between Aug. 22 and Aug. 31.
Months after the union agreed to stop deducting dues from Cogar’s paychecks, the union informed her that it had made a mistake. The school district began withholding dues from her paychecks again, beginning with the pay period ending April 30, 2023.
Cogar sent a formal letter rescinding her authorization for dues withholding on Aug. 19, 2023, believing the letter would arrive during the opt-out window beginning Aug. 22.
Yet the union sent her a letter Sept. 6 stating that her request to opt out of dues “does not satisfy the requirements set forth on the membership application you signed.” The letter did not explain why.
Only later did the union tell Cogar that it rejected her request because her letter arrived Aug. 21, one day before the opt-out window. The union made no effort to inform her during the opt-out window, which would have allowed her to follow the proper procedure.
The Perry school district continues to deduct dues from Cogar’s paycheck.
Cogar sued the union and the school district Tuesday, claiming that both parties violated her First Amendment rights by withholding union dues from her wages without “affirmative consent.”
Her lawsuit cites the Supreme Court’s 2018 decision in Janus v. American Federation of State, County, and Municipal Employees, which states that “neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” The high court’s ruling also requires a union to demonstrate “clear and compelling” evidence of such consent.
In Janus, the Supreme Court ruled that mandatory union dues violates workers’ rights to free speech and free association, in part because forced dues require workers to support unions that often engage in political campaigning.
Cogar’s lawsuit claims the school district and the union either violated her rights by deciding to withdraw dues once again in April 2023, or in deciding to withdraw dues from her paycheck after the 10-day period elapsed in August last year.
The lawsuit sets forth two alternatives. First, since the union affirmatively noted that Cogar had ceased to be a member in December 2022, the union violated her First Amendment rights by withdrawing dues from her paychecks in April 2023. The lawsuit notes that “Cogar was not a union member, and she did not provide affirmative consent to either the union or the school district to withhold union dues from her wages.”
Second, since the union knew that Cogar wished her dues to stop after the end of her next window (from both the November 2022 and August 2023 requests), the union could have honored her request even though her formal opt-out letter purportedly arrived one day early. The union could have responded immediately, allowing her to correct any errors before the window closed. The union had already conceded that Cogar was no longer a member.
Therefore, the union violated her First Amendment rights under Janus by continuing to withdraw her dues after August 2023, according to Cogar’s suit.
“The lawsuit alleges two alternative counts because accepting the first count would obviate the need for the second,” Schwab, the lawyer, told The Daily Signal. “If the court accepts that the withholding of dues in April 2023 after Cogar was no longer a member and after dues had been stopped for four months [violates the First Amendment], and orders the union to stop withholding dues and return the money taken since April, then there is no need to address whether Cogar’s request to stop dues in August was unconstitutional, since the remedy there would be to stop withholding dues and return dues taken since August.”
Cogar’s lawsuit, filed in U.S. District Court for the Northern District of Ohio, Eastern Division, asks the court to declare that the withholding of dues violated her First Amendment rights. It also asks the court to prevent the union and school district from withholding more dues, to award her damages for all dues illegally withheld, and to award her attorney’s fees.
“Since Janus, unions have increasingly attempted to make it more difficult for public employees to resign union membership and stop the withholding of dues,” Schwab said, explaining the union’s focus on honoring the small opt-out window. “If unions truly were the voice of workers, they wouldn’t have to trick people into paying, or continuing to pay, union dues.”
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Tyler O’Neil is managing editor of The Daily Signal and the author of “Making Hate Pay: The Corruption of the Southern Poverty Law Center.”
Photo “Perry High School” by SilentMatt Psychedelic. CC BY-SA 4.0.
