New Hampshire Public Employees Ask U.S. Supreme Court to Hear Case Seeking Refund of Dues Seized in Violation of First Amendment
New Hampshire SEIU bosses seized dues from workers’ paychecks for years despite High Court warning that such seizures would face constitutional scrutiny
Washington, DC (May 3, 2021) – State employees in New Hampshire are petitioning the Supreme Court to hear their case against union officials who forced them to pay union fees as a condition of their employment in violation of the workers’ constitutional rights. The class action lawsuit was brought against the State Employees’ Association of New Hampshire (SEIU Local 1984) by government workers Patrick Doughty and Randy Severance with free legal aid from the National Right to Work Legal Defense Foundation.
The petition asks the High Court to hear the employees’ case seeking the return of union fees seized from Doughty and Severance, as well as countless other New Hampshire public employees who were not members of the union and had not agreed to those payments.
In the Court’s landmark ruling in Janus v. AFSCME, National Right to Work Foundation attorneys successfully argued that forcing public sector employees to pay dues to a union they did not support was a violation of their First Amendment rights to free speech and free association.
The Supreme Court’s ruling in Janus made it clear that public employees must affirmatively consent to union dues payments and knowingly waive their constitutional right not to pay. The Court also stated in its opinion that union officials had been on notice since the Foundation-won Knox v. SEIU case in 2012 that forced union dues in the public sector were likely a violation of the First Amendment.
Foundation attorneys argue that longstanding precedent allows victims of First Amendment violations to sue for damages. Because the court affirmed in Janus that forced dues violate public employees’ constitutional rights, they are entitled to sue for damages.
The workers’ lawyers ask the High Court to overturn lower court rulings that excuse union bosses’ past dues seizures and reject workers’ refund claims. As the petition argues, “if lower courts can manipulate constitutional claims to achieve what they feel is the best policy, many victims of civil rights abuses will be left remediless.”
If the Court decides to hear the New Hampshire workers’ case and rules in their favor, they could receive dues that were taken as far back as three years before their complaint was filed, as permitted by New Hampshire’s statute of limitations.
“Union bosses violated the rights of workers in New Hampshire and across the country for decades and now they must return a few years of those ill-gotten gains,” said National Right to Work Legal Defense Foundation President Mark Mix. “The Court should grant Doughty and Severance’s petition and make it clear that union bosses cannot simply pocket the proceeds of their unconstitutional forced dues scheme.”
“This case was only necessary because New Hampshire lacks a Right to Work law that ensures union membership and financial support are voluntary, not coerced,” added Mix. “Had union dues been voluntary during the period covered in the lawsuit, union officials could not have seized forced fees from unwilling workers to begin with.”
IUOE Union Officials Back Down, End Unconstitutional Dues Scheme and Refund Money Illegally Seized from Worker Who Sued
Union officials tried to mask forced fees outlawed by Janus Supreme Court decision as “agreement administration fees”
Cincinnati, OH (April 30, 2021) – City of Hamilton employee Timothy Crane has successfully defended his First Amendment right to refrain from funding the International Union of Operating Engineers (IUOE) Local 20 hierarchy in his workplace.
Crane, who is not a union member, filed a lawsuit in December 2020 with free legal aid from National Right to Work Legal Defense Foundation staff attorneys that challenged so-called “agreement administration fees” that IUOE officials forced him to pay as a condition of keeping his job. Legal documents now confirm that IUOE bosses have backed down from enforcing the deceptive dues scheme and have also refunded to Crane all dues that they seized from him under it.
Crane’s lawsuit maintained that the “agreement administration fee” requirement violated his rights under the Foundation-argued 2018 Janus v. AFSCME Supreme Court decision. In Janus, the High Court ruled that no public worker can be coerced into paying union dues or fees as a condition of getting or keeping a job. The Court also held that union dues or fees can only be deducted from a public employee’s paycheck if that employee clearly and affirmatively waives his or her constitutional right not to pay. Justice Alito wrote for the Court majority that “such a waiver cannot be presumed” by union or state officials.
According to Crane’s lawsuit, he sent letters to IUOE union officials in both August and September of last year attempting to exercise his First Amendment Janus right to end dues deductions from his paycheck. After sending these two letters, he discovered that an “agreement administration fee” was being taken from his pay by the City at the behest of IUOE union bosses.
The complaint contended that that this fee was just a so-called “agency fee” – a forced union payment charged to employees who refrain from formal union membership that was definitively outlawed by the Janus v. AFSCME decision – masquerading under a different name.
With this victory, Crane’s suit is now the fifth resolved favorably by Foundation staff attorneys for Buckeye State employees who have sought to defend their First Amendment Janus rights from union boss wrongdoing. This includes the July 2020 settlement in the Allen v. AFSCME case, in which nearly 30,000 Ohio public employees were freed from an “escape period” scheme imposed by Ohio Civil Service Employees Association (OCSEA) union chiefs, which limited to just a handful of days every few years the time in which a public employee could exercise his or her Janus rights.
“Once again, a Foundation-backed Ohio public employee has prevailed over a duplicitous attempt by union officials to keep worker money flowing illegally into their pockets while trampling workers’ First Amendment rights,” observed National Right to Work Foundation President Mark Mix. “Any Ohio public workers who are subjected to similar arrangements, or are coerced or intimidated by union bosses in any other way into funding a union agenda against their will should contact the Foundation for free assistance in defending their First Amendment Janus rights.”
National Right to Work Foundation Issues Special Notice for J. Ambrogi Food Distribution Employees Impacted by Teamsters Strike Order
Notice given after workers submitted majority-backed petition urging employer to drop union, details right to rebuff likely illegal union strike demands
Philadelphia, PA (April 29, 2021) – National Right to Work Legal Defense Foundation staff attorneys have issued a special legal notice to drivers, packers, warehouse staff, and other employees at J. Ambrogi Food Distribution (JAF) in West Deptford, New Jersey, affected by an impending strike that may be ordered by Teamsters Local 929 union officials.
The legal notice informs rank-and-file JAF workers of their rights to refuse to abandon their jobs and keep working to support their families despite the union-ordered strike. The notice discusses why workers across the country frequently turn to the National Right to Work Foundation for free legal aid in such situations.
The notice comes after JAF management filed a federal lawsuit against the Teamsters Local 929 union. The lawsuit maintains that the threatened strike order is illegal because the current contract brokered between JAF and union officials prohibits such “work stoppages.” Reports indicate that Teamsters officials have already engaged in aggressive tactics to prevent workers from doing their jobs, including blocking facility entrances and physically preventing individual drivers from unloading cargo, according to that lawsuit.
“This situation raises serious concerns for employees who believe there is much to lose from a union boss-ordered strike,” the notice reads. “Employees have the legal right to rebuff union officials’ strike demands, but it is important for them to be fully informed before they do so.”
The full notice is available at https://www.nrtw.org/ambrogi-legal-notice/.
The strike threat also follows JAF management’s announcement in February that it would withdraw recognition of the Teamsters union in one bargaining unit, after rank-and-file employees submitted a majority-supported petition asking the company do so once the current monopoly bargaining contract expires. A Foundation-won 2019 decision before the National Labor Relations Board (NLRB) called Johnson Controls permits the process by which employees can petition their employer to end recognition of an unpopular union after the expiration of a contract.
The legal notice outlines the process that JAF employees should follow if they want to exercise their right to return to work during the strike and avoid punishment by union bosses, complete with sample union membership resignation letters.
Further, the notice encourages employees to seek free legal aid from the Foundation if they experience union resistance as they attempt to exercise any of these rights.
“Rather than accept that a majority of employees want nothing to do with their so-called ‘representation,’ Teamsters union bosses are attempting to bully workers into complying with the union’s self-serving strike,” commented National Right to Work Legal Defense Foundation President Mark Mix. “With reports of union agents using dishonest and intimidating tactics to coerce workers into abandoning their jobs, rank-and-file JAF employees should immediately contact the Foundation for free legal aid in defending their rights against this coercive Teamsters boss campaign.”
New Jersey AG Employee Sues IBEW Union, State of New Jersey for Seizing Dues from Her Paycheck in Violation of First Amendment
Employee asserts that NJ law’s tiny “escape period” to stop dues deductions violates rights under Janus Supreme Court decision
Trenton, NJ (April 28, 2021) – With free legal aid from the National Right to Work Legal Defense Foundation, Heather Anderson, an employee of the New Jersey Attorney General’s office, is suing the International Brotherhood of Electrical Workers (IBEW) Local 33 union and the State of New Jersey for illegally restricting her and her coworkers’ First Amendment right to stop union dues deductions from their paychecks.
The class-action civil rights lawsuit was filed today in the United States District Court for the District of New Jersey and challenges a New Jersey law that forbids workers from ending financial support for the union except during a tiny 10-day “escape period” once per year. Anderson’s suit says the state-enforced restriction, which union officials endorsed in their contract with the state, violates her and her coworkers’ rights under the Foundation-won 2018 Janus v. AFSCME U.S. Supreme Court decision.
In Janus, the High Court ruled that no public employee can be forced to pay union dues or fees as a condition of getting or keeping a job. The Court also held that union dues or fees can only be deducted from a public employee’s paycheck if that employee clearly and affirmatively waives their right not to pay. Justice Alito wrote for the Court majority that “such a waiver cannot be presumed” by union or state officials.
Anderson is challenging New Jersey’s so-called “Workplace Democracy Act” (WDEA), which mandates 10-day “escape periods.” The WDEA was passed only months before the Supreme Court handed down its ruling in Janus, seemingly in a preemptive attempt by union-allied legislators to limit any rights the Court recognized in Janus to cut off union financial support.
According to her lawsuit, Anderson exercised her Janus rights in February of this year when she informed IBEW union bosses that she wished to terminate dues payments. New Jersey officials rebuffed her request, claiming it could only be accepted if she submitted it within an “escape period” that would not begin until August, and that the state would continue to seize dues from her paycheck until that time. The “escape period” was not mentioned in any dues checkoff authorization card she signed, according to her lawsuit.
Anderson’s lawsuit asks the federal District Court to declare the WDEA’s “escape period” scheme unconstitutional, and seeks refunds of all dues seized from her paycheck in violation of Janus after she invoked her rights.
Across the country, Foundation staff attorneys are currently representing public servants in more than a dozen cases where union officials have tried to confine their First Amendment Janus rights to an “escape period,” and have favorably settled 8 such cases. The pending cases include that of New Jersey public school teachers Susan Fischer and Jeanette Speck, who were trapped in a similar arrangement by New Jersey Education Association (NJEA) union officials.
“The ruling in the Janus decision was crystal clear: public servants have a First Amendment right to refuse to associate with union bosses whose so-called ‘representation’ they oppose,” commented National Right to Work Foundation President Mark Mix. “It is blatantly unconstitutional that the WDEA prevents public workers from exercising their constitutional right for more than 97 percent of the year.”
Union Backs Down after Attempting to Deny Healthcare to University of Puerto Rico Workers for Exercising First Amendment Rights
Union officials threatened workers with loss of access to employer-sponsored healthcare if they did not retroactively “authorize” illegally seized union dues
San Juan, PR (April 28, 2021) – Employees at the University of Puerto Rico (UPR) have received health insurance cards that were being withheld from them by union officials as retaliation for their refusal to sign union dues forms. Union officials and the university faced pressure to restore the dissenting employees’ healthcare coverage from a legal motion filed by National Right to Work Legal Defense Foundation staff attorneys.
Jose Ramos and Orlando Mendez filed a class-action suit in May 2020 against the University and the University of Puerto and its Workers Union for infringing on employees’ rights as recognized in the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus the High Court ruled that public employees cannot be required to pay union dues as a condition of their employment, and that union fees can only be taken from public employees if they affirmatively waive the right not to pay.
Ramos and Mendez never authorized union dues deductions and never signed membership forms, yet union officials continued to collect dues from their paychecks. In an attempt to make their years of unauthorized dues deductions legal, union officials demanded workers sign a document retroactively approving all previously deducted dues and consenting to an unspecified number of future deductions. Union officials said the workers would lose access to their healthcare plan if they did not comply.
Ramos and Mendez refused to sign the form, and union officials withheld the employee’s permanent insurance cards, forcing them to rely on temporary insurance certifications. The temporary certifications weren’t received consistently, and there were gaps when the workers were left uninsured. Foundation attorneys filed a motion for a preliminary injunction to immediately restore full access to the employees’ healthcare plan.
Union bosses finally backed down, and the plaintiffs received their permanent insurance cards, restoring access to on-the-job benefits the union threatened in an attempt to coerce workers into approving years of past illegal dues deductions.
The workers’ class action suit against the union and the university for the unlawful dues deductions will continue. The employees seek an order forbidding further enforcement of the unconstitutional dues deductions from nonconsenting employees, and a refund of the dues that were illegally seized “within the…15-year statute of limitations period for breach of contract.”
“Union bosses used their control over employees’ healthcare to try and cover their tracks after illegally seizing dues for years,” said National Right to Work Legal Defense Foundation President Mark Mix. “Instead of seeking workers’ voluntary support, union bosses threatened their healthcare hoping they would cave.”
“While we’re thankful these workers are no longer being illegally denied access to their healthcare plan, their Foundation staff attorneys will pursue the lawsuit until these workers’ First Amendment rights are fully vindicated,” added Mix.
The Federalist Society recently published a piece by veteran Foundation Attorney Glenn Taubman describing the “seismic policy shifts” at the National Labor Relations Board (NLRB) that have occurred in the first 100 days of the Biden administration.
Taubman explains the unprecedented nature of Biden’s decision to fire NLRB general Counsel Peter Robb, who had 10 months left on his Senate-confirmed term:
“No previous president had ever fired a General Counsel in the 75-year history of the agency, presumably out of respect for the Constitution’s “advice and consent” process for Senate confirmation, and Congress’ statutory provision of a four-year term for General Counsels that overlaps the staggered five-year terms of the Board members.”
Taubman also discusses how Biden replaced Robb with Peter Ohr, a longtime NLRB bureaucrat, who quickly and aggressively moved to undo efforts to protect workers from having their rights violated by union officials:
[O]nce installed, Acting General Counsel Ohr quickly set to work reversing the policies of his predecessor. Only days after being appointed he issued Memo 21-02, rescinding ten of General Counsel Robb’s guidance memoranda. Such a mass rescission of guidance memos is both astonishing and unprecedented. Moreover, General Counsel Robb had issued those memos precisely to protect individual employees from labor union abuses…
Acting General Counsel Ohr has moved to withdraw cases and briefs filed by his predecessor, all to prevent those issues from being decided by the current NLRB, which still maintains a majority of President Trump’s appointees. For example, Ohr ordered two cases challenging neutrality agreements withdrawn, just weeks before they were set for trial. He asked the Board to remand for dismissal a fully briefed case challenging a union’s refusal to give a copy of its neutrality agreement to an adversely affected employee, stating that he would have never issued that complaint. He successfully withdrew an amicus brief General Counsel Robb had filed in a case of nationwide importance concerning modifications to the “contract bar.” Most recently, Ohr has sought to enforce a last-minute unilateral settlement to moot a fully briefed case challenging the legality of a dues checkoff authorization that contained threatening “MUST BE SIGNED” language.
In sum, President Biden and his Acting General Counsel are working to benefit union officials, to the detriment of individual employee rights in the workplace. The speed of their policy shifts has been staggering to behold, and worker advocates are preparing for even more pro-union decisions from Biden’s upcoming appointees.
By firing Peter Robb, President Biden violated 75 years of precedent, and possibly the law, to enact an agenda that protects union bosses at the expense of rank-and-file workers
Read Glenn Taubman’s full Federalist Society article here.
Union officials made Facebook, Instagram posts criticizing teachers for supporting union removal
Los Angeles, CA (April 19, 2021) – Two teachers at The Gompers Preparatory Academy charter school in San Diego filed unfair practice charges against the San Diego Education Association (SDEA) teachers union for posts it made about the educators on the union’s social media accounts. The teachers filed charges with the California Public Employment Relations Board (PERB) with free legal aid from the National Right to Work Legal Defense Foundation.
Dr. Kristie Chiscano and Jessica Chapman are vocal advocates for a union decertification vote at Gompers, which would give teachers an opportunity to have a secret ballot election on whether to remove SDEA union officials as Gompers teachers’ monopoly bargaining “representative.” More than a year ago, Dr. Chiscano circulated a decertification petition and obtained well over the required number of signatures for a vote, but an election has been delayed because of union legal challenges.
When the SDEA obtained monopoly bargaining authority over the school’s teachers in 2019, Gompers teachers weren’t allowed to have a private, secret ballot election. The SDEA instead took advantage of the controversial “card check” unionization process, during which union organizers pressure individual teachers into signing cards that are counted as “votes” for the union.
According to the charges filed by Dr. Chiscano and Ms. Chapman, union officials are again using public pressure tactics, this time to stymie the decertification effort. In retaliation for their expressed opposition to the union, SDEA officials posted a slide presentation on its Instagram and Facebook accounts attacking the teachers for working with the Foundation to seek a decertification vote.
The slide presentation included pictures of both teachers, and examples of their calls for decertification. As the charges state, the union’s social media posts made it clear that union bosses were keeping tabs on the teachers’ decertification efforts. As their filing explains, under longstanding labor law precedent, it is illegal surveillance which unlawfully interferes with employee rights when an employer or union “openly engages in record-keeping of employees participating in protected activity.”
The SDEA’s posts about Dr. Chiscano and Ms. Chapman violated the law because they publically demonstrated that union officials knew about and were collecting evidence of the two employees’ opposition to monopoly representation.
Under PERB precedent, unlawful surveillance is considered an implicit threat that the information will be used to the detriment of those being surveilled. The teachers are seeking to have the posts removed, and for the SDEA to send a notice to all Gompers teachers acknowledging the posts violated the law.
“The posts SDEA officials made attacking Dr. Kristie Chiscano and Jessica Chapman are a blatant violation of their right to advocate for self-representation without union harassment,” said National Right to Work Legal Defense Foundation President Mark Mix. “These posts send a message to other teachers that if they speak out against the union, they could face similar online attacks.”
“The PERB should condemn these attacks on independent-minded teachers, and allow Gompers educators to have their long-overdue vote on whether to remove the union officials who are attacking the very educators they claim to represent,” added Mix.
Mountaire Farms Employee Leading Effort to Oust UFCW Union Bosses Seeks to Defend Employer Decision Not to Hand Over His Personal Info
Oscar Cruz Sosa moves to intervene in union case charging employer with refusing to help them surveil and harass him
Washington, DC (April 8, 2021) – Delaware Mountaire Farms poultry worker Oscar Cruz Sosa, who is spearheading a worker effort to vote United Food and Commercial Workers (UFCW) Local 27 union bosses out of the Mountaire Farms plant in Selbyville, DE, is now seeking to intervene in UFCW union officials’ case against Mountaire Farms management for refusing to hand over to them his private employee information.
Cruz Sosa filed a Motion to Intervene at Region 5 of the National Labor Relations Board (NLRB) in Baltimore today with free legal aid from National Right to Work Foundation staff attorneys. Foundation staff attorneys are also assisting Cruz Sosa and his coworkers in defending their right to oust UFCW officials from their workplace.
The new motion comes after Cruz Sosa himself filed federal charges last month against UFCW brass for illegally retaliating against him and attempting unlawful surveillance of his activities, by demanding from Mountaire Farms records of his activities in and around the plant.
Cruz Sosa’s charge incorporated information from a complaint NLRB Region 5 issued in the UFCW bosses’ case against the employer, which revealed that Mountaire Farms officials had rebuffed intrusive union requests for “[c]opies of the daily hours of work and the time and attendance records for employee Oscar Cruz Sosa between August 1, 2019 and March 15, 2020,” and “the daily admission log…for all access points to the Selbyville plant identifying by name” anyone who has accessed the plant since March 2020.
As Mr. Cruz Sosa’s filing points out, many “Board and federal court cases support [his] intervention to protect his rights to campaign for decertification without being spied upon.”
Meanwhile, Cruz Sosa and his coworkers are still waiting for the NLRB in Washington to rule in their decertification election case. In that case, the workers are defending their already-cast ballots from UFCW lawyers’ attempts to have those ballots destroyed. UFCW lawyers claim that a non-statutory NLRB policy called the “contract bar” should have blocked Cruz Sosa’s petition, even though it was signed by hundreds of his colleagues requesting the election. The non-statutory “contract bar” policy entrenches unions for up to three years after management and union officials broker a contract.
NLRB Region 5 ruled that the decertification vote should proceed because of an invalid forced dues clause in the contract, and UFCW lawyers quickly demanded review of that ruling by the full NLRB. The NLRB agreed to review the case, but also agreed with Foundation staff attorneys’ arguments that the entire “contract bar” policy should be re-evaluated, as it arbitrarily blocks workers’ right to remove unpopular union bosses for as long as three years.
Cruz Sosa and his coworkers are also fighting in another unfair labor practice case to get back dues collected under the illegal forced dues clause that blocked the contract bar and threw a wrench in UFCW bosses’ initial attempt to stop the vote. Just weeks ago, Cruz Sosa objected to a settlement proffered in that case by NLRB Region 5. According to his objections, that proposal “[sought] to ferret out for relief what is likely to be a minuscule handful of employees” even though all of his coworkers were harmed by the clause, which unlawfully compelled employees to pay dues immediately upon hiring or be fired. Federal law mandates a 30-day grace period on such demands. Cruz Sosa’s charge demands unit-wide dues refunds for all employees.
“UFCW union bosses’ campaign to thwart Mountaire Farms employees’ right to vote them out of their workplace is pernicious and far-reaching, and even includes the current attempt to twist the employer’s arm for personal information so they can unlawfully surveil an employee in retaliation for assisting his coworkers in exercising their rights,” commented National Right to Work Foundation President Mark Mix. “Mr. Cruz Sosa’s attempt to intervene in this case should serve as a reminder of his strong motivation to fight back, and highlights the lengths to which union officials will go to maintain their one-size-fits-all ‘representation’ against the will of the very workers they claim to represent.”