Federal Court Asked to Order NLRB to Rule in Nine Year Old Case Attacking Forced Union Fees for Lobbying
Case pending at Labor Board for more than five years also challenges union bosses’ failure to adequately disclose how they spend compulsory union fees
Washington, DC (January 2, 2019) – Today, National Right to Work Foundation staff attorneys have filed a petition seeking an order that the National Labor Relations Board (NLRB) take action on a nine-year-old case that has been awaiting a decision for more than five years. The case was brought by nurse Jeanette Geary after union officials kept her and her colleagues in the dark about how their forced union fees are spent.
Foundation staff attorneys filed the mandamus petition at the U.S. Court of Appeals for the District of Columbia Circuit seeking a court order that the NLRB promptly decide Geary’s case. The Board had issued a decision in 2012, but after the U.S. Supreme Court ruled that President Obama had violated the Constitution by making three illegal recess appointments to the Board, that decision and many others were invalidated. Of those invalidated, Geary’s case is among a few cases, if not the only one, still pending without a decision.
Geary, then a nurse at Kent Hospital in Warwick, Rhode Island, filed an unfair labor practice charge in 2009 with free legal aid from Foundation staff attorneys. Her charge stated that United Nurses and Allied Professionals (UNAP) union officials unlawfully spent her forced union fees and failed to meet financial disclosure requirements as to the amount of the compulsory fees required as a condition of employment.
Geary and other nurses informed UNAP union officials that they were exercising their right to refrain from formal union membership and from the payment of “non-chargeable” fees for activities unrelated to union bargaining, including politics, lobbying and member-only events.
UNAP union officials failed to provide Geary and other nonmember nurses with a disclosure of the part of union fees the workers are forced to pay, claiming Geary could be charged for union lobbying activities. According to the charge, union bosses failed to provide any evidence of an independent audit “beyond a mere assertion.” Moreover, union officials provided no breakdown of expenditures from a so-called “Defense Fund” despite claiming they included chargeable expenses.
In the Foundation-won Supreme Court Beck decision, the Court held that private-sector employees can only be forced to pay, as a condition of employment, union dues related to specific union activity. Additionally, union officials must provide employees with an independently verified breakdown of union expenditures showing how much objecting employees must pay to keep their jobs.
In 2012, President Obama’s illegally-appointed NLRB rejected Supreme Court precedent and granted union bosses power to charge nonmember workers for union political lobbying, including lobbying in other states. However, that decision was invalidated by the Court’s holding in NLRB v. Noel Canning that the Board lacked a valid quorum because of three unconstitutional “recess appointments” President Obama made.
“UNAP union bosses should be held accountable for their blatant refusal to respect the rights of the workers they claim to represent,” said National Right to Work Foundation President Mark Mix. “Justice delayed is justice denied, and it’s long past time the NLRB issues a decision that affirms workers’ protections from union boss coercion.”
Of the over 250 cases litigated by National Right to Work Foundation Legal Defense Foundation staff attorneys in 2018, no case attracted more attention than Janus v. AFSCME, which resulted in a landmark victory at the U.S. Supreme Court on June 27, 2018.
Foundation staff attorney William Messenger argued before the High Court in February that civil servants like Illinois public employee Mark Janus could not legally be forced to subsidize union activities as a condition of working for the government. On June 27, the Supreme Court agreed, issuing a ruling that forcing any public school teacher, police officer, firefighter or any other public employee to fund a union violates the First Amendment.
News outlets across the country took notice of the important victory for Right to Work. Among the major outlets that covered this win were the Associated Press , USA Today, CNN, The New York Times, and many others. The Wall Street Journal profiled William Messenger, the Foundation staff attorney who successfully argued the Janus case at the Supreme Court.
One the day of the Janus ruling, Fox News interviewed National Right to Work President Mark Mix about the case live from the steps of the Supreme Court. “It’s a great day for individual employees, independent-minded employees, not only in Illinois but across the country,” Mix told host Bill Hemmer:
Since the Foundation-won Janus case, Foundation staff attorneys have already pursued 20 lawsuits to enforce the Janus decision across the country, with more requests for legal assistance pouring in from public employees every day.
One of these cases is Fischer v. NJEA, which is a class action lawsuit filed by two New Jersey teachers who were not allowed to cut off union dues because of an unlawful “window period” scheme. One of the teachers, Susan G. Fischer, explained the case during a television interview with NJTV.
The Foundation continues to receive requests for assistance from workers whose First Amendment rights are being violated by union bosses. To assist workers, the Foundation set up a special website for public employees seeking to exercise their rights: MyJanusRights.org
New Mexico State Worker Files Class Action Lawsuit to Recover Unauthorized Dues Seized by CWA Union Officials
Constitutional rights of hundreds of public employees likely violated by CWA union “window period” scheme to deduct dues by force despite Supreme Court’s Janus ruling
Santa Fe, NM (December 27, 2018) – A New Mexico state employee has filed a class action lawsuit in federal court because union officials violated his First Amendment rights through a scheme to require him and other state employees to pay money to the union as a condition of employment.
IT technician David McCutcheon, employed by New Mexico’s Department of Information Technology (DoIT), filed the lawsuit in the U.S. District Court for the District of New Mexico against the Communication Workers of America (CWA) union, CWA Local 7076 union, and New Mexico Personnel Office Director Justin Najaka on December 20 with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
McCutcheon’s suit states that CWA officials seize unauthorized membership dues out of his paycheck and refuse to allow workers to opt out of union payments except during a union dictated “window period.” The lawsuit asks the court to end this scheme and seeks a refund of union membership dues and fees for all New Mexico public workers who were similarly victimized.
Union officials forced McCutcheon to pay nonmember union fees to keep his job beginning in April 2017. However, in Janus v. AFSCME on June 27, 2018, the U.S. Supreme Court ruled it unconstitutional to require any public employee to pay union membership dues or fees without his or her explicit consent.
Following the Janus ruling, McCutcheon informed union officials in writing that he did not consent to any deduction of union fees. Union officials responded that his request had been “submitted for processing.”
But, instead of halting deductions, union officials began seizing full membership dues, rather than the lesser nonmember fees, from McCutcheon’s wages without his permission starting in September. According to union officials, under the union contract McCutcheon could only stop these larger deductions by again revoking authorization during the annual two-week December “window period.”
Because union officials refused to respect his legitimate request, McCutcheon has asked the district court to recognize his First Amendment rights to free speech and free association in accord with Janus and strike down this unconstitutional “window period” scheme. McCutcheon also seeks a refund of membership dues and fees seized from himself and the likely hundreds of other public employees in New Mexico who have been similarly victimized during the past three years.
“Contrary to the wishes of New Mexico union bosses and their allies in state government, First Amendment rights cannot be limited to just a couple of weeks per year,” said Mark Mix, president of the National Right to Work Legal Defense Foundation. “All civil servants should be able to exercise their rights to free speech and free association by cutting off union payments whenever they choose without interference by union officials.”
“Unfortunately, even after the Foundation-won Janus decision by the Supreme Court, it appears more legal action is necessary to force union officials to end their ‘massive resistance’ and respect the rights of the very workers they claim to represent,” added Mix.
Homecare Providers Seeking to Recover Seized Union Fees File Petition at Appeals Court for Rehearing
Full 7th Circuit asked to review decision blocking return of $32 million in union fees seized from 80,000 providers in violation of First Amendment
Chicago, IL (December 20, 2018) – National Right to Work Legal Defense Foundation staff attorneys have filed a petition asking the full U.S. Court of Appeals for the Seventh Circuit to rehear their case in which Illinois homecare providers seek the return of over $32 million in union fees seized by SEIU officials in a scheme the U.S. Supreme Court declared unconstitutional.
The case, Riffey v. Rauner, is a continuation of the 2014 Foundation-won Supreme Court Harris v. Quinn case. In Harris, the Court ruled that a scheme imposed by the State of Illinois, in which over 80,000 individual homecare providers were forced to pay union fees out of the state funding they receive, violated the providers’ First Amendment rights.
Earlier this year, Foundation staff attorneys successfully petitioned the U.S. Supreme Court to review and reverse the Appeals Court’s ruling. The High Court did so the day after it issued the landmark Janus v. AFSCME case, ordering the Appeals Court to reconsider the case in light of the Janus ruling, which struck down public sector forced union fees as violating the First Amendment.
In Janus, which was argued by the same National Right to Work Foundation staff attorney who is lead counsel in the Riffey case, the Supreme Court clarified that any union fees taken without an individual’s informed consent violate the First Amendment. That standard supports the Riffey plaintiffs’ claim by that all providers who had money seized without their consent are entitled to refunds.
However, on December 6 a three-judge panel of the Appeals Court affirmed its previous ruling that no class can be certified from the over 80,000 providers whose money was seized in violation of their First Amendment rights. The panel based its decision on the ground that each individual homecare provider would have to prove that he or she objected to the taking of the fees when the seizures occurred.
In 2014, the case was re-designated Riffey v. Rauner and remanded to the District Court to settle remaining issues, including whether or not tens of thousands of providers who had not joined the union would receive refunds of the money taken from them unlawfully by the SEIU.
In June 2016, the District Court denied a motion for class certification. The ruling allowed the SEIU to keep the over $32 million in unconstitutional fees confiscated from union nonmembers who never consented to their money being taken for union fees. Foundation staff attorneys appealed that ruling to the Appeals Court.
Now Foundation staff attorneys have petitioned the Appeals Court to rehear the case en banc. The petition argues that Janus requires that the lower court’s class certification order be reversed. Foundation staff attorneys point out that the Janus precedent does not require a worker to prove his or her subjective opposition to forced union fees. Rather, Janus held that the First Amendment is violated if union dues or fees are seized without the worker’s clear affirmative consent.
The petition argues that the case is of exceptional importance because it concerns the return of more than $32 million seized from some 80,000 homecare providers in violation of their First Amendment rights.
“The U.S. Supreme Court ruled that SEIU had illegally confiscated union dues from thousands of Illinois homecare providers, but the ruling challenged by this petition denies those same caregivers the opportunity to reclaim the money that never should have been taken from them by SEIU in the first place,” said Mark Mix, president of the National Right to Work Foundation. “If SEIU’s bosses are not required to return the money they seized in violation of homecare providers’ constitutional rights, it will only encourage similar behavior from union officials eager to trample the First Amendment to enrich themselves with the money intended for the care of individuals who need it.”
Grocery union officials violate the rights of nonmember nurses with “opt-out” scheme of the kind that was held unconstitutional by U.S. Supreme Court
Seattle, WA (December 18, 2018) – A labor union best known for representing grocery butchers is facing federal charges from a Bellingham, Washington nurse who says United Food and Commercial Workers (UFCW) union bosses are butchering her legal rights.
Nurse Diana Miller, who works at Providence Regional Medical Center Everett in Washington State, filed unfair labor practice charges with the National Labor Relation Board (NLRB) with free legal assistance from National Right to Work Foundation staff attorneys. Miller lives in Bellingham and works in Everett, both of which are located outside of Seattle, Washington, where the charge was filed.
Miller’s charge says UFCW Local 21 union officials violated her rights by unlawfully requiring that she “opt out” of paying full union dues instead of asking her to opt in.
In the U.S. Supreme Court’s Janus v. AFSCME case – argued and won by National Right to Work Foundation staff attorneys earlier this year – the court ruled that union schemes that require workers who are nonmembers to opt out of dues payments violates the First Amendment. Miller’s charge states that UFCW union officials are violating her rights under the National Labor Relations Act (NRLA) by imposing an opt-out requirement.
In addition, UFCW union officials failed to adequately inform Miller of her rights to pay less than full dues as a nonmember, unlawfully added “reinstatement” penalties on top of illegally demanded full union dues, and refused to provide any audited financial disclosure about the union’s political and other non-bargaining activities.
Repeatedly over the course of six months, Miller informed union officials that she was not a union member and wished to exercise her legal right not to pay full union membership dues. However, union officials continued sending Miller threatening bills and demanding that she pay full membership dues.
Miller charged the union with violating her rights under the NLRA by compelling her into participating in union activity, despite her legal right to choose to refrain from doing so.
“There is simply no legal justification for requiring workers to opt out twice: first from union membership and then again from subsidizing union spending on politics and lobbying,” said Mark Mix, president of the National Right to Work Foundation. “The NLRB should promptly prosecute union officials who use such schemes to compel nonmember workers to pay full dues in violation of clearly established legal rights.”
“Nurses like Diana and other medical professionals should be allowed to do their jobs, caring for sick and injured patients, free from coercive tactics by union bosses,” continued Mix. “This case shows why Washington State workers need the protection of a Right to Work law to stop these legal games and ensure all union payments are strictly voluntary.”
U.S. Supreme Court Asked to Hear Case Challenging Forced Union Affiliation as Violation of First Amendment
Minnesota home-based personal care providers argue being forced under SEIU union monopoly ‘representation’ violates their freedom to associate
Washington, D.C. (December 13, 2018) – Today, with free legal aid from National Right to Work Legal Defense Foundation staff attorneys, a group of Minnesota home-based home care providers filed a petition asking the U.S. Supreme Court to review a case challenging a Minnesota state law used to force tens of thousands of home care providers under union monopoly “representation.” The providers, who work at home caring for disabled family members as part of a state-run Medicaid program, oppose union affiliation.
The case’s lead plaintiff, Teri Bierman, filed the suit with seven other home care providers to challenge a 2013 Minnesota state law used by the Service Employees International Union (SEIU) Healthcare Minnesota to force home care providers to associate with it as a condition of providing care under the state Medicaid program.
Teri Bierman and the other home care providers provide critical care to their family members who receive state assistance to help pay for their care. Bierman provides care at home for her daughter, who suffers from cerebral palsy and requires care throughout the day. The other plaintiffs in the case care for children diagnosed with severe autism, epilepsy, Rubenstein-Taybi syndrome, or other significant disabilities. Like the other plaintiffs, Bierman receives aid from a Minnesota program similar to Medicaid, which provides funds to families to care for disabled relatives.
On August 27, 2014, the SEIU “won” a controversial mail-in unionization vote for Minnesota caregivers. Even though only 13 percent of the state’s 27,000 home care providers indicated support for SEIU affiliation, that was enough for the state to impose the union’s monopoly representation onto every provider, because of the small number of ballots returned. Caregivers who didn’t vote or voted against the union were then forced to accept the SEIU’s “representation.”
Bierman v. Dayton asks the Supreme Court to declare unconstitutional under the First Amendment’s free association guarantee the unions’ monopoly bargaining privileges, by which a union forces its representation on individuals receiving state funds who do not consent to the representation.
By asking the Court to declare monopoly bargaining a violation of the First Amendment, Foundation staff attorneys seek to build off two recent Foundation-won Supreme Court decisions. In the 2014 Harris v. Quinn decision, the Court applied exacting First Amendment scrutiny to rule that providers like the Bierman plaintiffs cannot be required to pay union fees.
Next, in the June 2018 Janus v. AFSCME decision, the Court declared that forced union fees for all public sector employees violate the First Amendment and opened the door to further cases seeking to uphold workers’ rights to freedom of speech and freedom of association. In his opinion for the majority, Justice Samuel Alito wrote for the Court that “designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees.”
Both Harris and Janus were argued by National Right to Work Foundation staff attorney William Messenger, who is also the lead attorney in Bierman v. Dayton. Bierman now asks the Supreme Court, for the first time, to apply the same First Amendment standard to forced association as it has already applied to forced subsidies of union speech.
“If the Supreme Court agrees to hear Bierman, these home care providers will be one step closer toward ending an unconstitutional scheme that forces them to associate with a union they oppose as a condition of state assistance in providing care for their sons and daughters,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “Forcing individuals under union monopoly representation flies in the face of the First Amendment’s protection of freedom of association. This case gives the High Court the opportunity to apply to Big Labor’s coercive exclusive representation powers the legal standards it laid out in Janus and Harris.”
Lawsuit seeks return under Janus precedent of all fees seized from nonmembers by California Faculty Association union officials
Sacramento, CA (December 10, 2018) – National Right to Work Legal Defense Foundation staff attorneys have filed a federal class action lawsuit for a California professor to reclaim union fees California Faculty Association (CFA) officials unconstitutionally seized from him and similarly situated employees. The class action complaint potentially includes thousands of affected individuals and seeks to enforce the Foundation-won U.S. Supreme Court Janus v. AFSCME decision, which held that the First Amendment prohibits mandatory union fees for public sector employees.
William D. Brice, a professor at California State University Dominguez Hills (CSU), filed the complaint against the CFA. The complaint, filed at the U.S. District Court for the Eastern District of California, claims that by forcing Brice and other public sector workers under the monopoly bargaining representation of CFA to pay union fees without their affirmative consent, CFA union officials violated their First Amendment rights as protected by the Janus precedent.
Brice exercised his right to resign his membership in CFA around November 2014. However, he and other union nonmembers were forced to pay union fees as a condition of employment under state law. California’s law requires CSU to deduct union fees from nonmembers’ wages and transfer them to CFA.
In the Foundation-won Supreme Court Janus v. AFSCME decision on June 27, 2018, 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.
In the class action lawsuit, Brice claims that CFA union officials violated his and other nonmembers’ rights under the Janus decision by compelling them to subsidize the union and automatically seizing fees without their clear consent. He asks that the statutes that compelled nonmembers to pay union fees to CFA as a condition of employment be declared unconstitutional.
The complaint requests that the court certify a class that includes all individuals who at any time within the applicable limitations period were forced to pay union fees to CFA without their affirmative consent and knowing waiver of their First Amendment rights, so they can all receive refunds of the money taken from them in violation of their constitutional rights.
“Independent-minded workers are standing up for their rights,” said National Right to Work Foundation President Mark Mix. “In the Foundation-won Janus decision, the Supreme Court finally upheld public sector workers’ First Amendment right to choose whether or not to support a union without the threat of being fired. Further, the High Court made it clear that fees cannot be collected without a clear waiver of First Amendment rights, something the CFA never received from Professor Brice and his colleagues, which is why the complaint seeks refunds of millions of dollars of fees seized in recent years.”
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.