National Right to Work Foundation Files Comments Asking CMS to Stop Union Bosses from Skimming from Medicaid Funds
Comments: Big Labor’s $100 million a year scheme violates Medicaid statute’s prohibition on diverting payments intended for caregivers
Washington, DC (August 13, 2018) – The National Right to Work Legal Defense Foundation has today submitted formal comments to the U.S. Centers for Medicare & Medicaid (CMS) in support of the agency’s proposed rule to clarify that the diversion of Medicaid payments from providers to third parties, including unions, violates federal law.
The Foundation’s comments demonstrate how schemes enacted by roughly a dozen states have resulted in well over $100 million per year being diverted from health-care providers to union officials, in violation of federal law. The comments call on CMS to finalize a rule that definitively states that siphoning off union dues or fees from taxpayer-funded payments intended for healthcare providers violates the prohibition on assigning benefits to third parties under Section 1396a(a)(32) of the federal Medicaid statute.
As a gift to the Obama Administration’s political backers, in 2014 that administration promulgated a new regulation to give legal cover to ongoing schemes by the SEIU and other unions that have to date siphoned off over $1 billion in Medicaid funds. However, as the Foundation’s comments to CMS point out, agency rules cannot conflict with the underlying statute, which is why CMS should both repeal the Obama rule and replace it with explicit language to give states notice that continuing to divert payments puts their Medicaid funding at risk.
National Right to Work Foundation President Mark Mix issued the following statement about the filing of those comments in response to the CMS rulemaking notice:
“It is long past time that this outrageous attempt to create another exemption in federal law for union officials be ended. We encourage the CMS to expeditiously issue a final rule to stop the illegal siphoning off of funds from Medicaid providers. Despite the wishes of the politicians they back, union officials are not exempt from federal law. All the current proposed rule change would do is close the illegal loophole the Obama Administration attempted to create.
“Our 2014 National Right to Work Foundation-won 2014 Harris decision made it illegal for states to require these providers pay fees to union officials, but the current scheme to deduct union fees from Medicaid payments is part of union bosses’ attempts to undermine that ruling. Nothing in the proposed CMS rule would stop providers from sending truly voluntary dues to union officials with a check or credit card each month. It would merely stop union bosses from using public payment systems to intercept tax dollars intended for providers caring for those in need.”
Background: The 2014 Foundation-won Harris v. Quinn Supreme Court decision held that it is unconstitutional for states to force home care providers paid through Medicaid programs to pay union fees. That case still continues as 80,000 providers seek the return of over $30 million in funds seized from them in violation of their First Amendment rights.
Despite the Supreme Court’s ruling, the illegal dues skim has not stopped. That is why in 2017 the National Right to Work Foundation sent a letter to the Department of Health and Human Services to bring their attention to this issue. Additionally, Foundation President Mix personally raised the issue with Trump Administration officials at the White House earlier this year.
National Right to Work Foundation Attorney to Defend Kentucky’s Right to Work Law at Kentucky Supreme Court
Foundation staff attorney William Messenger, who successfully argued Janus Supreme Court case, will argue for Kentucky workers
Frankfort, KY (August 10, 2018) – This morning, National Right to Work Legal Defense Foundation staff attorney William Messenger will argue before the Kentucky Supreme Court, representing Kentucky workers as interested parties in Zuckerman v. Commonwealth of Kentucky, which Big Labor officials brought as a challenge to the Commonwealth’s Right to Work legislation.
William Messenger was the counsel of record for Mark Janus, whose case at the United States Supreme Court, Janus v. AFSCME, made headlines for ending forced dues for public-sector workers nationwide. Messenger argued before the Supreme Court for Mr. Janus.
Messenger’s upcoming oral argument is on behalf of three Kentucky workers, who filed for and were granted intervention in the case. Although the workers were not originally named as parties to the case, the trial court deemed that because they will be significantly affected by the case’s outcome, they should be allowed to participate in the defense of Kentucky’s Right to Work legislation.
The union officials’ case was dismissed by the Franklin County Circuit Court, which ruled that their claims lacked merit because Right to Work is constitutional. Union lawyers then appealed the case to the Commonwealth’s Supreme Court.
“Union bosses’ arguments against Kentucky’s Right to Work law were rejected in the past by every appellate court to hear them. They should be rejected again by the Kentucky Supreme Court,” said Mark Mix, president of the National Right to Work Foundation. “The Bluegrass State has seen record economic growth since the enactment of Right to Work. It is shameful that Big Labor wants to undo that just to keep siphoning dues from workers against their will.”
The arguments will be heard on the morning of August 10, 2018 at the Kentucky Supreme Court in Frankfort.
A worker at a muffler plant in Indiana has filed federal charges against his employer and local union after being told he couldn’t work if he refused to wear union regalia
Columbus, IN (July 30, 2018) – An Indiana muffler plant employee has filed federal unfair labor practice charges against both his employer and the International Brotherhood of Electrical Workers Union Local 1424 for violating his workplace rights. Marshall Hobson filed the charges with the National Labor Relations Board (NLRB) with free legal aid from the National Right to Work Legal Defense Foundation.
Hobson, who resigned his union membership two years ago, filed the charges after he was ordered to purchase and wear shirts at work emblazoned with the union logo. When he refused to buy and wear the union logo shirt, his employer Faurecia – which manufactures mufflers – ordered Hobson to clock out and leave. According to the charge, the decision to send Hobson home was made at the behest of an IBEW union official.
Hobson discovered that union officials and the company had created a contract that explicitly requires even non-union employees to wear union shirts featuring the union logo. Indiana, a Right to Work state, prohibits making union financial support a condition of employment.
As the charges point out, requiring non-union workers to purchase and wear uniforms with union logos unlawfully interferes with the workers’ right to refrain from union activities. The charges will be investigated by the NLRB Region 25 office in Indianapolis, which can prosecute the union and employer for violating federal labor law.
“This case shows that even in Right to Work states, union bosses will use any sneaky tactic to extract money from workers who oppose the union,” said Mark Mix, President of the National Right to Work Foundation. “It is outrageous that, despite Mr. Hobson’s wish to remain a non-member, union officials have required him to act as a billboard for the very union he opposes.”
Oregon Civil Servant Wins First Refund of Forced-Fees under Janus Precedent as SEIU Returns Two Years of Fees
SEIU officials forced to settle federal lawsuit and return nearly $3,000 in illegal forced fees as a result of Foundation-won Janus precedent
Eugene, OR (July 30, 2018) – A federal First Amendment lawsuit brought by National Right to Work Legal Defense Foundation staff attorneys and the Gibson Law Firm for Oregon public employee Debora Nearman against Service Employees International Union (SEIU) Local 503 has ended with a settlement agreement that will return nearly $3,000 in forced dues to Nearman. The refund represents the first return of forced fees as a result of the Foundation-won U.S. Supreme Court Janus v. AFSCME decision, which held that the First Amendment prohibits mandatory union fees.
Nearman, an employee at the Oregon Department of Fish and Wildlife, filed the lawsuit in April challenging the constitutionality of mandatory union fees as a condition of government employment. After the Janus decision was issued, the writing was on the wall for SEIU officials, who quickly moved to settle the case and return more than two years of forced fees to Nearman.
In her complaint, Nearman objected to being required to financially support and associate with SEIU Local 503 because the organization actively opposes her personal views, including her religious beliefs and her husband’s public service.
In the 2016 general election, Nearman’s husband, Mike Nearman, successfully ran for State Representative in the Oregon Legislature. During the campaign, the SEIU local union that she was forced to fund spent over $53,000 to run an aggressive campaign against him, including distributing disparaging fliers. Additionally, the complaint noted that the SEIU hierarchy takes positions on political issues that conflict with Nearman’s sincerely held religious beliefs.
The Foundation-won Supreme Court Janus v. AFSCME decision in June overturned the erroneous 1977 decision in Abood v. Detroit Board of Education that public-sector workers could be compelled as a condition of employment to pay union fees for bargaining-related purposes. In Janus, the Court ruled that it is unconstitutional to require government workers to pay any union dues and fees as a condition of employment. Additionally, the Court clarified that no union dues or fees can be taken from workers without their affirmative consent and knowing waiver of their First Amendment right not to financially support a labor union.
SEIU officials will return to Nearman over two years of forced fees amounting to nearly $3,000. They also will not collect any dues or fees from Nearman’s future wages unless she affirmatively chooses to become a member of SEIU and authorizes such deductions. In compliance with Janus, SEIU Local 503 and the state of Oregon have also removed their forced fees provision from their collective bargaining agreement.
“This is a great example for the countless public-sector workers across the country who seek to have their First Amendment rights respected in light of the Foundation’s Janus Supreme Court victory,” commented National Right to Work Foundation President Mark Mix. “Nearman’s refund represents the first of what should ultimately be hundreds of millions of dollars or even more returned to public employees for union fees seized from them in violation of the First Amendment.”
The Foundation has created a special website, MyJanusRights.org, to assist public employees in exercising their rights under Janus, which was successfully argued by National Right to Work Foundation staff attorney William Messenger.
Labor Board Sets Trial to Prosecute Missouri IBEW Union for Making Illegal Forced Dues Demands from Nonmember
IBEW officials violated nonmember worker’s rights by demanding non-chargeable union dues and failing to provide legally-required disclosures
Neosho, MO (July 23, 2018) – The National Labor Relations Board (NLRB) has issued a complaint in response to unfair labor practice charges filed by an employee of New-Mac Electric Cooperative against the International Brotherhood of Electrical Workers (IBEW) Local 53. After James Feagins objected to paying full union dues beyond what he could be legally required to pay, union officials failed to provide him with information on union dues and spending. They also demanded that he pay about 94% of the full dues rate just to keep his job, including illegal charges for expenses outside the local bargaining unit.
With free legal aid from National Right to Work Foundation staff attorneys, Feagins, who works in New-Mac’s accounting department, filed charges with the NLRB against Kansas City-based IBEW Local 53. The charge states that union officials violated Feagins’ rights by failing to provide him with legally required information of union expenditures, such as an independent audit, and charging him for union activities unrelated to bargaining.
Missouri’s Right to Work law is pending a voter referendum in August. Because the law is not yet in effect, employees like Feagins can be required to pay some fees to union officials as a condition of employment. However, even without Right to Work protections workers cannot legally be required to fund activities unrelated to union bargaining, such as political action, and unions must follow certain procedures to justify the amount of the compulsory fee. As Feagins’ case shows, enforcing such rights absent a Right to Work law can be difficult.
In November 2017, Feagins, who is not a union member, objected to paying any fees to IBEW beyond the legal requirements. However, union officials failed to provide Feagins with a detailed explanation of union expenses to justify the amount they were charging him. Further, union officials continue to charge Feagins for non-bargaining activities. The fees they have demanded include organizing expenses from outside Local 53’s competitive market, which is illegal.
To protect his rights, Feagins turned to the National Right to Work Foundation for free legal assistance. Following a charge filed for him by Foundation staff attorneys, the NLRB Regional Director issued a complaint, and has now scheduled a trial for October.
“Feagins chose to hold IBEW union officials accountable for their greedy neglect of employees’ rights,” said Mark Mix, president of the National Right to Work Foundation. “As long as union officials have the power to force financial support from the workers they claim to represent, these types of violations will continue as union bosses seek to line their pockets with illegal forced dues.”
“This case underscores the need for Missouri workers to have the protections of a Right to Work law to make union affiliation and union financial support completely voluntary,” continued Mix. “Each and every Missouri worker deserves the freedom to decide for him or herself whether union officials deserve part of their hard-earned money.”
Majority of workers wanted union out in 2014, but Obama Labor Board blocked UNITE-HERE union’s removal for over four years
Sausalito, CA (July 17, 2018) – Workers at Scoma’s of Sausalito, a California restaurant, held a decertification election last Monday, July 10, to remove the UNITE HERE union from their workplace, resulting in a 37-12 landslide vote against the union. The successful election is a culmination of over four years of employee efforts to remove the union’s presence at the restaurant. The restaurant employees received free legal aid from National Right to Work Legal Defense Foundation staff attorneys in their efforts to exercise their rights to remove the union.
In 2014, restaurant employee Georgina Canche and a majority of her fellow coworkers successfully petitioned their employer to withdraw recognition of UNITE HERE as their monopoly bargaining representative. Despite that a majority of the employees signed the petition and the employer followed procedure established by longstanding labor law, the union filed a federal charge against the employer with the National Labor Relations Board seeking to reinstate its monopoly bargaining powers, regardless of the workers’ petition.
Eventually, the notoriously pro-forced unionism Obama Labor Board sided with union lawyers, and even issued a “bargaining order” that would block attempts by the workers to hold a secret ballot vote to decertify and remove the union. Scoma’s then appealed the case to the D.C. Circuit Court of Appeals, which unanimously overturned the “bargaining order” and remanded the case to the Labor Board so that an election could proceed.
Last Monday, following additional delay, the NLRB Regional Director finally conducted a secret ballot decertification election, in which the workers voted 37-12 to remove UNITE HERE from their workplace, making it clear that a vast majority of Scoma’s employees do not accept UNITE HERE’s monopoly representation.
“After years of dilatory legal challenges by union lawyers, the workers of Scoma’s restaurant are finally able to have a say in their own workplace representation,” said Mark Mix, president of the National Right to Work Legal Defense Foundation. “Union officials ought to ask themselves why they refuse to accept election results, and why they spent so much time trying to invalidate the wishes of an overwhelming majority of the workers they purport to represent.”
Janus v. AFSCME Supreme Court Victory Leads Union Lawyers to Drop Lawsuit Seeking to Overturn Idaho’s Right to Work Law
Following the National Right to Work Foundation’s victory in the US Supreme Court Janus v. AFSCME decision, International Union of Operating Engineers (IUOE) Local 370 union officials have withdrawn a case pending at the 9th Circuit Court of Appeals that sought to overturn Idaho’s longstanding Right to Work law.
Just hours after the Supreme Court released the landmark Janus v. AFSCME decision, declaring that public-sector workers cannot constitutionally be forced to pay union fees, the Court of Appeals asked that briefs be submitted by the parties in IUOE v. Wasden on the impact of Janus on the lawsuit.
Yesterday, prior to the deadline for that brief, union bosses notified the Court that they were withdrawing their legal challenge to Idaho’s popular Right to Work law which protects workers from being forced to fund a labor union as a condition of getting or keeping a job.
In addition to successfully arguing the Janus case at the U.S. Supreme Court, National Right to Work Foundation staff attorneys filed an amicus curiae brief in the in the IUOE v. Wasden case to defend Idaho and other state’s longstanding legal right to pass Right to Work laws to protect workers from forced union dues.
In response to the end of this particular legal attack on Right to Work, National Right to Work Foundation President Mark Mix issued the following statement:
“This development is a huge victory for independent-minded workers, not just in Idaho but across the country. IUOE officials tried to push their outrageous legal theory to overturn over 60 years of precedent which, had it been accepted could have wiped out Right to Work protections for millions of workers. Thankfully, their attempt to end Right to Work laws has failed, and Idaho workers still have the liberty to choose whether or not to financially support a union.”
The Centers for Medicare & Medicaid Services (CMS) proposed a rule to cease the diversion of Medicaid payments from providers into union dues. Their press release can be found here.
National Right to Work President Mark Mix issued the following statement in response:
“Today’s announcement by the Centers for Medicare and Medicaid Services is a vital first step in ending the illegal dues skim that diverts public funds away from the care of Medicaid recipients and into union officials’ coffers. For years, aided by a compliant Obama Administration, Big Labor has siphoned off hundreds of millions of tax dollars in violation of federal law, which is why this rulemaking is now needed make it clear that states cannot legally divert Medicaid funds into the bank accounts of politically-connected union bosses.”
The 2014 Foundation-won Harris v. Quinn Supreme Court decision found that it was unconstitutional for the state of Illinois to force home care providers paid through Medicaid programs to be forced to pay union fees. That case now continues as 80,000 providers seek the return of funds seized from them in violation of their First Amendment rights.
However, despite the Supreme Court ruling the dues skim has not stopped, which is why in 2017 the National Right to Work Foundation sent a letter to the Department of Health and Human Services, bringing their attention to this issue. Additionally, Foundation President Mix personally raised the issue with Trump Administration officials earlier this year.
Janus Ruling Means Class-Action Lawsuit Challenging Union Opt-Out Requirement Could Return Over $100 Million to California Workers
Foundation-backed Hamidi v. SEIU class action lawsuit for over 40,000 nonmember workers seeks refunds of monies taken in violation of the First Amendment
Sacramento, CA (July 9, 2018) – The recent Foundation-won U.S. Supreme Court ruling in Janus v. AFSCME strengthens the legal case brought for 40,000 California state employees seeking refunds of dues seized by Service Union International (SEIU) union officials.
Hamidi et al. v. SEIU Local 1000 is a class-action lawsuit challenging SEIU Local 1000 union officials’ opt-out policy that required workers to affirmatively opt-out of the portion of union fees that workers cannot be legally required to fund. In 2015, a federal District Court Judge certified National Right to Work Legal Defense Foundation staff attorney W. James Young as the attorney for the class of over 40,000 nonmembers who have been forced to fund SEIU union officials as a condition of employment.
On the same day Janus was decided, Young wrote a Rule 28(j) letter to the 9th Circuit Court of Appeals formally notifying the Court of the Janus decision and its relevance to the Hamidi case. The High Court’s opinion in Janus, written by Supreme Court Justice Samuel Alito, makes several points that bolster the legal claims of lead plaintiff Ken Hamidi and the other tens of thousands of other workers who seek damages for improperly seized “non-chargeable” union fees going back to June 2013.
In Janus the Supreme Court not only made it clear that the First Amendment protects public sector workers from being required to make any payments to a union as a condition of government employment, but also that workers cannot be required to opt out of such payments. According to the Supreme Court, “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 Court also held that, since at least 2012 when the Supreme Court ruled in favor of a similar class of tens of thousands of nonmember employees forced to pay money to SEIU Local 1000 in the Foundation-won Knox v. SEIU Local 1000, unions “have been on notice” about the dubious legal grounds for requiring workers to pay any union fees.
Because SEIU Local 1000 did not adjust its policy of forcing workers to opt-out of non-chargeable fees after the Knox decision, the Supreme Court’s Janus decision means the union could now be required to refund all non-chargeable fees (determined by the Supreme Court in Janus to be all fees) seized since June 2013 from over 40,000 class members, an amount likely well over $100 million.
“Around the country, the effect of the Janus decision is just starting to be felt,” said Mark Mix, President of the National Right to Work Foundation. “Thanks to this landmark ruling, tens of thousands of California government employees are now a step closer to finally receiving recompense for years of being forced to hand over their hard-earned money to an SEIU union they choose not to join.”
Worker’s labor board charges say union and company violating the law to impose unionization, ask for secret ballot vote to remove union
Seattle, WA (July 5, 2018) – Today, housekeepers at the Embassy Suites Hotel in Seattle, Washington filed a petition with the National Labor Relations Board (NLRB) asking for a decertification vote to remove the UNITE HERE Local 8 union from their workplace. The union was installed through an abuse-prone “card check” drive, which bypasses an NLRB-supervised secret ballot election. The petition was filed with free legal assistance from National Right to Work Legal Defense Foundation staff attorneys.
In a card check drive, union organizers can pressure, intimidate or mislead workers into signing cards, which then are counted as “votes” in favor of unionization. In the case of the UNITE HERE card check at Embassy Suites Seattle, company officials created further pressure by assisting union organizers in collecting cards before utilizing them to install the union as the workers’ monopoly bargaining “representative.” Because the state of Washington lacks a Right to Work law, even workers who choose not to be voluntary union members can be forced to pay dues or fees to union officials, or else be fired.
Foundation staff attorneys also filed federal unfair labor practice charges with the NLRB against the union and hotel management for housekeeper Gladys Bryant, who helped lead the drive to remove UNITE HERE.
Her charge against the union states that union officials illegally misled her about how to revoke the card union organizers had her sign. After learning more about the union’s activities and deciding she did not want UNITE HERE in her workplace, she asked a union agent how to withdraw her support. Contrary to the law, she was told she would need to drive to the union hall to revoke. When she did drive hours to demand her card in person, union officials had locked her out.
Bryant’s charge against the company alleges that hotel management violated federal labor law by assisting UNITE HERE with the card check campaign. That assistance included granting union organizers access to the workplace, turning over employees’ personal information to union organizers, and agreeing to silence any opposition to unionization from managers.
The charges ask the NLRB to either invalidate the card check unionization due to illegal conduct, or hold a decertification election to let the workers vote out the union they oppose. If the NLRB Regional Director applies the controversial Obama Labor Board decision Lamons Gasket to block the workers from holding a secret ballot vote to remove the union, Foundation staff attorneys will appeal and ask the newly composed five-member Board to overturn the decision, which prevents votes for one year after a card check recognition.
“This situation demonstrates the coercive, and often collusive, environment that accompanies a card check campaign, and demonstrates why the new Trump Labor Board should promptly abandon the disastrous Lamons Gasket decision, which locks workers into forced dues ranks even when a majority opposes a union,” said Mark Mix, president of the National Right to Work Foundation.
“This case uniquely spotlights one of the many double standards in federal labor law, which rigs the system in favor of forced unionism,” added Mix. “Although past Labor Boards have frequently declined to prosecute companies for assistance given to union organizers, they would prosecute the company for giving exactly the same type of assistance to workers seeking to remove a union. It is long past time this inequity in enforcement be eliminated.”