Court Strikes Down Ohio Law Forcing Public Employees to Pay Union Dues Unless They Join Certain Religions

**Columbus, OH (June 22, 2007)** — In a victory for employee rights and the freedom of conscience, a St. Marys-area teacher has successfully challenged the constitutionality of a statewide law denying public employees their right to accommodations of religious objections that they have to paying union dues unless the objecting employees belong to certain state-approved religions.

The decision issued by U.S. District Court Judge Gregory Frost struck down the offending law as a violation of the First Amendment’s Establishment Clause and permanently enjoined the Ohio State Employment Relations Board (SERB) from further enforcing the law against employees.

With free legal help from National Right to Work Foundation attorneys, Carol Katter, a 21-year veteran teacher in the St. Marys school district, filed the original complaint in January in the U.S. District Court for the Southern District of Ohio’s Eastern Division against top officials of the SERB for religious discrimination.

In her complaint, Katter informed the Court that, even though she is a lifelong Catholic with religious objections to the union’s agenda, she was denied her right to a religious accommodation. Katter believes that failing to divert her forced dues from the Ohio Education Association (OEA) union to a charity contradicts her beliefs due to the union hierarchy’s position on hot button political issues such as abortion.

Adding insult to injury, an OEA union official told Katter that she must “change religions” to receive a religious accommodation before SERB. Katter’s complaint challenged the state statute as an unconstitutional establishment of religion and an infringement of her religious free exercise rights. Because Judge Frost struck down the statute on Establishment Clause grounds, he did not need to decide the issue of whether the SERB had violated Katter’s free exercise rights.

The ruling in Katter’s case follows another federal court decree issued last fall that re-affirmed that all public sector employees who have sincere religious objections to union affiliation cannot be forced to associate with and pay dues to a union they find objectionable. That decree was in another Foundation-assisted case challenging similar systematic religious discrimination throughout Ohio. However, for technical reasons, Ohio’s SERB itself was not formally bound by that decree even though it was well aware of its existence.

“Carol Katter’s struggle is part of a pattern of OEA union officials’ willingness to trample on the religious beliefs of the very employees they claim to represent just to stuff their pockets with more forced dues,” stated National Right to Work Foundation Vice President Stefan Gleason. “While the ruling expands the rights available to employees of faith, abuses of forced unionism will inevitably continue until Ohio passes a Right to Work law making union membership and dues payment strictly voluntary.”

Katter also filed a related charge with the Equal Employment Opportunity Commission (EEOC) against the OEA union, a state affiliate of the National Education Association, challenging an attempt by union officials to divert her forced dues to the local union rather than a charity. Currently the EEOC is still investigating the charge.

Download the Federal Court's Ruling

Legal Counsel for Petitioners in First Amendment Battle Comment on Supreme Court Oral Argument

**Washington, DC (January 10, 2007)** – Mark Mix, President of the National Right to Work Legal Defense Foundation, made the following statement regarding today’s U.S. Supreme Court oral argument in *Davenport v. Washington Education Association*. The Foundation is a non-profit organization providing free legal aid to victims of compulsory unionism abuse, and whose staff attorneys filed the case in 2003 and successfully appealed the case to the Supreme Court on behalf of lead petitioner Gary Davenport and 4,000 other nonunion Washington State teachers.

“The *Davenport* case is a defensive battle that underscores how labor law is a stacked deck against the individual. In the 28 states without Right to Work laws, millions of employees are forced to choose between paying dues to a union they do not support and losing their job. Washington is one of these states.

“This case is a legal rescue mission that should have never been necessary. In responding to a law trying to limit this abuse, an activist ruling by the Washington State Supreme Court created from whole cloth a constitutional ‘right’ for union officials to spend dues taken from nonunion employees on politics. This precedent could cause sweeping damage to employee rights across America.

“The underlying campaign finance law – known as ‘paycheck protection’ – had been totally ineffective. Because of its fatally narrow definition of what constitutes a political expenditure, it cannot provide meaningful relief to employees forced to pay union dues.

“The real solution is to take away union officials’ special privilege to force employees to pay union dues just to get or keep a job.

“But we cannot allow the Washington court to use this ineffective law as a platform to cause sweeping damage to the First Amendment. If this activist ruling is upheld, even Right to Work laws could come under attack.

“Fortunately, there is a silver lining to this otherwise defensive battle. The Washington Court ruling has presented a major opportunity for the cause of employee freedom.

“National Right to Work Foundation attorneys representing the Petitioning teachers have asked the Justices to correct a problem flowing from a 45 year-old-ruling by this court. In a case that involved union members, this court said 45 years ago that employee ‘dissent is not to be presumed.’ Using this as justification, unions have set up cumbersome opt-out procedures to prevent nonunion members from paying anything less than full union dues.

“But the U.S. Supreme Court can now put a stop to it. National Right to Work attorneys are asking that the Supreme Court take the simple step of clarifying that when employees say no to union membership, they indeed ‘dissent’ from the union!

“This simple clarification – that ‘no’ indeed means ‘no’ – would sweep away the union objection procedures, and nonunion members would be entitled to an automatic reduction in their dues by several hundred dollars. Where employees do not enjoy the protections of a Right to Work law, they could still legally be forced to pay the cost of union bargaining.

“Since there are at least a million nonunion members in America that are forced to pay dues – a ruling on this point would nevertheless be a major breakthrough for employee rights.

“We hope the U.S. Supreme Court gives employees the help that they need in protecting their rights against the tyranny of compulsory unionism.”

An Astounding 35 Groups Sign Briefs Supporting Washington Teachers in U.S. Supreme Court Controversy Over Union Dues

**Washington, DC (November 15, 2006)** – A diverse group of 35 legal foundations, public policy groups, and federal government agencies this week filed supporting briefs asking the nation’s highest court to reverse a novel Washington State Supreme Court decision that found a constitutional “right” for union officials to spend on politics the forced dues extracted from nonunion employees. A failure to overturn the activist Washington ruling might jeopardize America’s 22 state Right to Work laws which ban forced union dues altogether.

The 35 parties from across the country filed 14 amicus (or “friend of the court”) briefs in *Davenport v. Washington Education Association (WEA)* and *Washington v. WEA*, which are scheduled for oral arguments on January 10, 2007. In the Davenport case, National Right to Work Foundation attorneys are representing approximately 4,000 nonunion Washington State teachers. A list of the amici, as well as their underlying briefs, is available on the Foundation’s website.

In addition to asking for a reversal of the Washington State Supreme Court’s novel finding of a constitutional “right” for union officials to spend the compulsory dues of nonunion members, lead counsel Milton Chappell, a 30-year Foundation veteran in assisting union-abused employees, asked the U.S. Supreme Court to clarify that it had never approved a pervasive union procedure designed to force nonunion members to pay full union dues, including hundreds of dollars per employee which are spent for a wide array of activities unrelated to collective bargaining.

While seeking to overturn the Washington State court’s dangerous precedent involving the First Amendment, Foundation attorneys are going on the offensive by asking the High Court to clarify its 45-year-old “dissent is not to be presumed” statement. Union officials have exploited that phrase from a 1961 ruling to force employees who resign union membership to take the additional affirmative step of objecting annually to cut off the use of their forced dues on politics and other non-bargaining functions. A victory on this argument would dramatically increase the impact of previous U.S. Supreme Court rulings won by Foundation attorneys establishing that nonunion employees cannot be lawfully compelled to pay for politics, lobbying, organizing, and a wide array of other non-bargaining activities.

Surprisingly, the Evergreen Freedom Foundation – a longtime proponent of Washington’s well-meant, but ineffective, “paycheck protection” law – argued in its amicus brief that the funds covered by the law were “miniscule… less than ¼ of 1% of the WEA’s total expenditures.” The law only governs a small fraction of union officials’ state and local electioneering expenditures.

“While there may now be nearly universal agreement that the underlying campaign finance statute has been ineffective, all agree that it is indefensible to use it as a springboard to create an even larger problem – a perversion of the long-standing interpretation of the First Amendment,” said Stefan Gleason, vice president of the National Right to Work Foundation. “The Washington ruling cannot be allowed to stand because of the collateral damage it is already causing to employee rights nationwide. Only weeks ago, a Colorado court relied on it in a similar ruling.”

Foundation attorneys and Steven O’Ban of Ellis, Li, and McKinstry of Seattle filed Davenport in 2001 for more than 4,000 Washington teachers who are not union members, but are still forced to pay dues or be fired. In recent days, Washington Attorney General Robert McKenna also filed arguments for the state in a related case, *Washington v. WEA*.

Key Legal Documents

Merits brief filed by National Right to Work Foundation Staff Attorney Milton Chappell and Steve O’Ban (Davenport v. WEA)

Merits brief filed by Washington State Attorney General Robert McKenna (Washington v. WEA)



*Amicus* Briefs

13 Public Policy Groups (Evergreen Freedom Foundation,Cascade Policy Institute, Commonwealth Foundation for Public Policy, Excellent Education for Everyone, Grassroot Institute of Hawaii, Georgia Public Policy Foundation, James Madison Institute, John Locke Foundation, Nevada Policy Research Institute, Pacific Research Institute, Pioneer Institute for Public Policy Research, Small Business Hawaii & Competitive Enterprise Institute)

Association of American Educators

American Legislative Exchange Council

Cato Institute, Reason Foundation & Center for Individual Freedom

States of Colorado, Alabama, Idaho, Ohio, Utah & Virginia

Mackinac Center for Public Policy

Religious Objector Members of the Northwest Professional Educators & Pacific Justice Institute

Pacific Legal Foundation

Institute for Justice

National Federation of Independent Business Legal Foundation & James Madison Center for Free Speech

United States Solicitor General, US Department of Labor, US Department of Justice & Federal Election Commission

Campaign Legal Center

Mountain States Legal Foundation

Teachers File U.S. Supreme Court Arguments Seeking Limits on Union Officials’ Access to Forced Dues

**Washington, DC (August 24, 2006)** —National Right to Work Foundation attorneys took additional steps today to secure U.S. Supreme Court review of a controversial Washington State Supreme Court ruling which struck down a state law requirement that union officials obtain the prior consent of nonunion public employees before spending mandatory union dues for politics. The Foundation attorneys representing Washington teachers filed a reply brief with the U.S. Supreme Court to correct the record after union lawyers attempted to mislead the High Court so that it would not take up the case.

Specifically, the Right to Work brief takes the Washington Education Association (WEA) union to task for deliberately mischaracterizing the Washington Supreme Court’s ruling in order to make it appear justified. Specifically, the union claimed that the Washington law had attempted to ban unions from spending any money on politics, rather than simply banning the use of funds collected from non-union members without their affirmative authorization.

The teachers’ brief also responded to the union lawyers’ assertion that the campaign finance law had somehow placed unfair burdens on the union, even though union officials enjoy extraordinary legal privileges and immunities under Washington State law. As the Foundation’s brief points out, “Who, trying to obtain money from another, would consider it a burden to have to actually ask for the money?”

Foundation attorneys – working jointly with Steven O’Ban of Ellis, Li, and McKinstry of Seattle – originally filed the suit, Davenport v. Washington Education Association, for more than 4,000 Washington teachers who are not union members, but nonetheless forced to pay union dues or fees.

But much to the dismay of nonunion Washington employees, the long-awaited ruling in Davenport by the state supreme court in mid-March struck down the last remaining union dues provisions in I-134, Washington’s troubled “paycheck protection” law, and in the process created a precedent that could be used to attack Right to Work laws across America.

Though the Foundation believes the decision is wrongheaded, the ruling brings into focus how difficult the paycheck protection regulatory approach is, and how ineffective it has been in protecting employees laboring under forced unionism. Even if the state supreme court had upheld the law, I-134 would still only result in individual refunds of $10 per year, on average. Ultimately, only the passage of a Right to Work law in Washington would ensure that union dues are not misused.

“The real solution is to attack forced unionism at its root, rather than try to regulate its ill effects,” said Stefan Gleason, vice president of the National Right to Work Foundation. “The Foundation has no choice but to help mop up the damage to the First Amendment being caused by courts responding to these ‘paycheck protection’ laws.”

The brief can be found here.

Teachers File U.S. Supreme Court Appeal of Ruling Granting Union Officials Right to Nonmembers’ Dues

**Washington, DC (June 14, 2006)** — Responding to a 6-3 Washington State Supreme Court ruling striking down a state law requirement that union officials obtain the prior consent of nonunion public employees before spending mandatory union dues for politics, the National Right to Work Foundation filed an appeal yesterday with the U.S. Supreme Court on First Amendment grounds.

Foundation attorneys – working jointly with Steven O’Ban of Ellis, Li, and McKinstry of Seattle – originally filed the suit, *Davenport v. Washington Education Association (WEA)*, for more than 4,000 Washington teachers who are not union members, but nonetheless forced to pay union dues or fees. Thurston County Superior Court Judge Daniel Berschauer ruled that the teachers had an implied right of action under Initiative-134 to recover the fees the WEA had used – without their authorization – for political purposes. The trial court also certified the case as a class action for the thousands of nonmember teachers.

But a long-awaited ruling in Davenport by the State Supreme Court in mid-March upheld an appellate court’s decision to overturn the trial court – thereby striking down the last remaining union dues provisions in I-134, Washington’s troubled “paycheck protection” law.

The State Supreme Court’s ruling directly conflicts with a decision of the U.S. Court of Appeals for the Sixth Circuit, noted Justice Richard B. Sanders’ three-member dissent. Justice Sanders said: “The majority turns the First Amendment on its head. . . . [T]he suggestion that a legislative choice to protect dissenting nonmembers by requiring affirmative authorization before using their agency shop fees to influence an election . . . violates the First Amendment . . . ‘borders on the frivolous.’”

Though the Foundation believes the decision is wrongheaded, the ruling brings into focus how difficult the paycheck protection regulatory approach is, and how ineffective it has been in protecting employees laboring under forced unionism. Even if the Supreme Court had reinstated the Thurston County court’s rulings, I-134 would still only result in individual refunds of $10 per year, on average. Substantially greater relief is available to teachers under a settlement of a First Amendment lawsuit brought earlier by Foundation attorneys. Under that settlement, nonmember teachers may annually object and reclaim more than $200 each. Ultimately, however, only the passage of a Right to Work law in Washington would ensure that union dues are not misused.

“The real solution is to attack forced unionism at its root, rather than try to regulate its ill effects,” said Stefan Gleason, vice president of the National Right to Work Foundation. “The Foundation has no choice but to help mop up the damage to the First Amendment being caused by courts responding to these ‘paycheck protection’ laws.”

Seattle, WA (March 16, 2006) — Responding to today’s 6-3 Washington State Supreme Court ruling striking down a state law requirement that union officials obtain the prior consent of nonunion public employees before spending mandatory union dues for politics, the National Right to Work Foundation announced that its legal team is preparing an appeal to the U.S. Supreme Court on First Amendment grounds. Foundation attorneys – working jointly with Steven O’Ban of Ellis, Li, and McKinstry of Seattle – originally filed the suit, Davenport v. Washington Education Association (WEA), for more than 4,000 Washington teachers – who are not union members but who are forced to pay dues or fees – in Thurston County Superior Court. Judge Daniel Berschauer ruled that the teachers had an implied right of action under Initiative-134 to recover the fees the WEA had used, without their authorization, for political purposes. The trial court also certified the case as a class action for the thousands of nonmember teachers. But the long-awaited ruling today in Davenport upheld an appellate court’s decision to overturn the trial court – thereby striking down the last remaining union dues provisions in I-134, Washington’s troubled “paycheck protection” law. But, the State Supreme Court’s ruling directly conflicts with the U.S. Court of Appeals for the Sixth Circuit, noted Justice Richard B. Sanders in his three-member dissent. “The majority turns the First Amendment on its head…The suggestion that asking people to check a box once a year unduly interferes with the speech rights of those contributors borders on the frivolous…There is no indication that any state has been held to have violated union members’ rights by foreclosing mandatory collection of fees from nonmembers.” “While there is hope that the law can be salvaged, this situation shows how so-called paycheck protection laws are ineffective in halting the practice of forcing employees to function as ATM machines for union political operatives,” said Stefan Gleason, Vice President of the National Right to Work Foundation. “The only way to ensure employees are protected is to strip Washington union officials of their legislatively granted power to seize union dues as a job condition.” Even though the WEA admits it spends millions of dollars each year on political activities, the much-hyped paycheck protection law has ultimately offered no relief to teachers. Even if the Supreme Court had reinstated the Thurston County court’s rulings, the law would still only result in individual refunds of $10 per year, on average, under I-134. Substantially greater relief is still available to teachers under a settlement of a First Amendment lawsuit brought by Foundation attorneys in recent years. Under that settlement, nonmember teachers may annually object and reclaim more than $200 each.

Knoxville, TN (February 3, 2006) – In a significant procedural victory, the Supreme Court of Tennessee has cleared the way for a circuit court trial in a case in which a Tennessee teacher is asserting that full union members have the right to withhold union dues spent on ideological activity without losing their right to vote on the collective bargaining agreements that bind them. With free legal assistance from National Right to Work Foundation attorneys, Dewey Esquinance filed suit against the Polk County Education Association (PCEA) and Tennessee Education Association (TEA) unions, affiliates of the National Education Association (NEA), in April 2003 in the Circuit Court of Polk County. After the Court of Appeals of Tennessee agreed with arguments made by Foundation attorneys that the trial court improperly dismissed the lawsuit, the state’s highest court rejected a union petition for review – clearing the way for a full investigation and trial. As a result, Esquinance will be able to make his case in the Tennessee Circuit Court of Polk County that teachers statewide have the constitutional right to remain full union members and withhold dues spent on union political activities with which they disagree. Union officials currently require teachers to exercise their rights under Tennessee’s Right to Work law to resign from union membership in order to stop the use of their dues money for objectionable political activities. In doing so, however, those teachers are barred by union officials from voting on ratification of collective bargaining agreements that determine the terms of their employment, control sick bank donations, and affect access to teacher training. “This ruling shuts down teacher union officials’ desperate, last-ditch attempt to prevent a full investigation into their practice of spending teachers’ dues on politics,” said Stefan Gleason, Vice President of the National Right to Work Foundation. In September 2002, Esquinance joined the PCEA union and began paying full union dues, even though he objected to the NEA union’s political agenda. When Esquinance notified union officials that he wanted to remain a full union member but only pay for union expenses related to collective bargaining, union officials informed him that his union membership was terminated and that there was no appeals process. Like many educators, Esquinance objects to numerous aspects of the union’s agenda for religious and political reasons, including the NEA’s stances promoting abortion, gun control, and special rights for homosexuals. Every year, the NEA and its affiliates spend tens of millions of dollars in compulsory dues in support of political views and candidates that many teachers find objectionable. Esquinance is challenging union membership dues based on the rights established by the Foundation-won U.S. Supreme Court decision in Abood v. Detroit Board of Education. Under Abood and subsequent rulings, employees have a constitutional right to refuse to pay for union non-collective bargaining activities, such as politics.

Sacramento, California (November 4, 2005) – Stefan Gleason, Vice President of the National Right to Work Foundation, made the following statement in response to this morning’s U.S. District Court ruling not to extend previous injunctive relief to protect roughly 27,000 California government employees from financing union political activities. At the same time, to avoid a preliminary injunction as to the 8 named plaintiffs, union officials agreed in court today to give the entire forced dues increase back to those individuals. “In declining to take swift action to protect 27,000 forced-dues-paying nonmembers of the California State Employees Association (CSEA) union, the ruling will, for now, permit union officials to spend those workers’ forced dues on politics over their objections and without their permission. “In their lust to preserve and expand their power, union officials are thumbing their noses at employee rights and basic fairness. No employee should have to get a lawyer simply to protect their freedom of speech. “Unfortunately, current California law stacks the deck against individual employees objecting to union activities. As a matter of practice, union officials force employees to jump over a series of hurdles designed to discourage employees from objecting. “Today’s ruling forces roughly 27,000 California state employees to endure an ongoing violation of their most basic constitutional rights while their class action suit winds through the legal system. “While the Court has chosen not to immediately stop the ongoing violation of CSEA nonmembers’ constitutional rights, we are confident that the public servants fighting for their rights will ultimately win their legal case. Supreme Court precedents are on their side. “No one should have to pay dues to an unwanted union, especially when union officials continually abuse that government-granted special privilege.”

Sacramento, California (November 3, 2005) – Acknowledging irreparable harm to government employees’ constitutional rights, a federal judge issued a temporary restraining order from the bench late Wednesday against the State of California and the California State Employees Association (CSEA) union, halting the use and further collection of a mandatory dues increase for politics from eight nonmember state employees. At the same time, Morrison C. England Jr., U.S. District Court Judge for the Eastern District of California, scheduled a hearing tomorrow morning to consider an immediate statewide injunction that would bar union officials from seizing forced dues for politics from roughly 37,000 similarly situated CSEA nonmembers who are not already named plaintiffs in the case. The civil rights complaint, filed by nine state government employees (union members and nonmembers) on Tuesday with free legal assistance from the National Right to Work Foundation, seeks a ruling that would require union officials to give over 100,000 union members and non-members due process, including proper financial disclosure, a formal notice that they may reclaim the forced dues spent for electioneering, and rebates, plus interest, to all who request it. Since September 30, CSEA (Local 1000, Service Employees International Union) officials have been collecting a 25-36 percent (or more) mandatory dues increase earmarked to influence this year’s special election. The “Emergency Temporary Assessment to Build a Political Fight-Back Fund” was imposed on government employees for a broad range of political and other non-collective bargaining activities. Union officials openly admit the “Fund will not be used for regular costs of the union,” but for political advertising, direct mail, and get-out-the-vote activities. According to the California Secretary of State, the CSEA union and affiliates have forwarded more than $22 million to various ballot proposition committees. A related suit, filed by Foundation-assisted teachers in September, forced California Teacher Association (CTA) union officials to allow forced dues paying nonmembers to reclaim a $60 dues increase. Similar claims on behalf of actual members of the teacher union are still pending before the court. CTA union officials, like the CSEA union, implemented their dues increase to fund electioneering to defeat several of Governor Schwarzenegger’s propositions on the November 8 ballot. “This ruling shows that these forced dues seizures are occurring in violation of the law – and it raises questions as to the legality and legitimacy of Big Labor’s entire political campaign,” stated National Right to Work Foundation Vice President Stefan Gleason. “Union officials are fleecing public employees to finance a political agenda with which many disagree, while fighting tooth-and-nail to keep these employees in the dark about their rights.” In the Foundation-won U.S. Supreme Court ruling in Chicago Teachers Union v. Hudson, the high court ruled that public employees have due process rights under the First and Fourteenth Amendments to be notified of how their forced union dues are spent, and how to prevent the spending of their dues for union political activities. However, CSEA union officials have not given public employees any opportunity to object to the dues increase. A hearing on the statewide injunction will occur tomorrow morning at 10 a.m. in the U.S. District Court for the Eastern District of California in Sacramento, in Courtroom Three.