National Mediation Board Issues Foundation-Advocated ‘Commonsense Reform’ to Union Decertification Rules
Today the National Mediation Board (NMB) issued its final rule simplifying the process workers under the Railway Labor Act can use to decertify a union they oppose. National Right to Work Legal Defense Foundation President Mark Mix issued the following comment regarding the rule change:
At long last the National Mediation Board is providing airline and railroad workers covered by the Railway Labor Act a straightforward way to remove unwanted union “representation” through a decertification vote.
The previous system – where workers had to create a “straw man” union just to challenge an incumbent union – only served to stymie workers’ rights and demonstrated the historic bias of the NMB in favor of compulsory unionism. In fact, it wasn’t until the Foundation-won case of Russell v. NMB in 1983 that workers even had an established legal right to throw off their union “representative,” albeit only through the unnecessarily complicated strawman system which is now finally being replaced with a simplified process to allow workers to exercise that right.
The Foundation has long advocated this type of change in the union decertification process and we are pleased the NMB has – as we called upon it to do in comments filed earlier this year – finally made this commonsense reform.
The full rule can be read here.
Union officials collected thousands in forced fees ignoring U.S. Supreme Court mandates
Los Angeles, CA (July 25, 2019) – A Disneyland stage technician has filed federal unfair labor practice charges against the International Alliance of Theatrical Stage Employees (IATSE) Local 504 union and Walt Disney Parks & Resorts for demanding and seizing union fees from his paycheck in violation of his legal rights. The charges were filed at the National Labor Relations Board (NLRB) with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
The employee asserted his rights under the Foundation-won Communications Workers of America v. Beck U.S. Supreme Court decision, which requires unions to reduce the compulsory fees charged to workers who refrain from union membership so they are not forced to fund activities such as lobbying and political activism. The Beck decision additionally requires union officials to provide nonmember workers an independently verified audit justifying the amount of the mandatory union fees.
Because California private-sector employees lack the protection of a Right to Work law, they can be fired for refusing to pay fees to a union. However, union officials must charge as a condition of employment only the part of dues Beck permits and follow the Beck procedures before seizing such forced union fees from workers who are not union members.
Mark Stacy is not a member of IATSE and notified the union that he objects to paying the lawfully nonchargeable part of its dues. His charges filed with the NLRB Region 21 office allege that, at IATSE officials’ behest, Disneyland has nonetheless violated Stacy’s rights under federal law by continuing to seize union fees from Stacy’s pay without reducing the fees as Beck requires.
According to Stacy’s charges, IATSE union agents have also never provided him with the financial disclosures Beck requires. Further, neither Disneyland nor IATSE has a dues deduction authorization signed by him, making any and all deductions from his wages illegal.
Other Disney employees in recent years have obtained free legal aid from the Foundation to halt the illegal seizure of dues. Last June, Foundation staff attorneys secured a favorable NLRB ruling for several Walt Disney World employees who had their requests to cut off dues ignored by Florida Teamsters officials. For months, full dues were illegally deducted from their wages by Disney and accepted by Teamsters agents in a blatant breach of federal law and Florida’s Right to Work law.
“The ‘Happiest Place on Earth’ can’t be very happy if its owners and union are violating federal law by ignoring worker rights when it comes to union dues and fees,” observed National Right to Work Foundation President Mark Mix. “Cases like this show why the workers of the Golden State deserve the protection of a Right to Work law to ensure that union membership and financial support are strictly voluntary.”
Ohio Public Employee Files Appeal in Class-Action Lawsuit Seeking Return of Forced Union Fees Seized in Violation of First Amendment
Lawsuit seeks refunds of forced union fees seized from nonmembers by AFSCME union bosses before Supreme Court’s Janus v. AFSCME decision
Columbus, Ohio (July 25, 2019) – Today, National Right to Work Legal Defense Foundation staff attorneys filed an appeal in the class-action lawsuit against an Ohio affiliate of the American Federation of State County and Municipal Employees (AFSCME) union brought by Ohio Department of Taxation employee Nathaniel Ogle. The suit seeks the return of back dues seized by AFSCME union bosses before the Supreme Court’s 2018 Foundation-won Janus decision.
Ogle’s Foundation-provided attorneys filed the appeal to the U.S. Sixth Circuit Court of Appeals in his lawsuit against the Ohio Civil Service Employees Association (OCSEA) union seeking the return of forced fees seized in recent years from potentially thousands of state employees who were not union members but forced to subsidize union activities in violation of their First Amendment rights. The OCSEA has monopoly bargaining power over more than 30,000 Ohio government employees.
On July 17, a federal district court granted union officials’ motion to dismiss the case despite acknowledging that “It is undisputed that OCSEA’s prior practice of collecting mandatory fair share fees violated Ogle’s First Amendment rights.”
In Janus, the Supreme Court not only struck down forced dues for public employees but made it clear that any dues taken without a government employee’s explicit consent violate the First Amendment.
Ogle’s appeal is one of several to have reached a federal court of appeals challenging the so-called “good faith” defense that union lawyers have asserted in response to worker petitions for refunds, arguing that union officials should be allowed to keep funds seized prior to the Janus decision. The Supreme Court never suggested that Janus only requires prospective relief for affected workers. Indeed, the High Court has noted in Janus that union officials have been “on notice” for years that mandatory fees likely would not comply with the High Court’s heightened level of First Amendment scrutiny articulated in the 2012 Knox v. SEIU Supreme Court decision, won by National Right to Work Foundation staff attorneys.
“This case and dozens of others filed by Foundation staff attorneys to enforce the Supreme Court’s Janus decision demonstrate that union bosses will never willingly respect the rights of workers who are opposed to union affiliation and dues payments,” National Right to Work President Mark Mix said. “In this case and others being litigated with Foundation legal aid, workers seek the return of just a few years’ worth of unconstitutionally seized forced union fees as the statutes of limitations permit, which represents just a fraction of the fees union bosses have illegally collected from workers for decades.”
California Teacher Union Bosses Back Down, Settle Lawsuit Filed by Community College Professor for First Amendment Janus Violations
Union officials to issue refunds, drop policy blocking professors from exercising First Amendment right to stop subsidizing union activities
Los Angeles, CA (July 24, 2019) – A math professor from the Ventura County Community College District (VCCCD) has just finalized a settlement with American Federation of Teachers (AFT) union officials in his class-action lawsuit to enforce the 2018 Janus v. AFSCME U.S. Supreme Court decision. The lawsuit was filed for the professor in the U.S. District Court for the Central District of California with free legal aid from the National Right to Work Legal Defense Foundation.
The victory will result in refunds of dues seized from the professor and others who attempted to exercise their right to stop union payments under the Janus decision. Additionally, the settlement forces AFT union officials to drop their policy used to block the educators from exercising their Janus rights except for a brief union-determined annual escape period.
Professor Michael McCain had been paying union dues as a member of AFT since 2005, but attempted to exercise his First Amendment right to resign his membership and cut off dues in August 2018 shortly after the Janus ruling came down. Janus, which was argued and won by Foundation staff attorneys in the U.S. Supreme Court last year, struck down compulsory union fees for all public sector employees, and instead held that affirmative employee consent is required to obtain union fees from any worker.
According to the lawsuit, the AFT and VCCCD did not honor McCain’s resignation and continued to deduct dues from his paycheck, enforcing a strict “window period” policy which severely limits the time period in which a member can resign. The lawsuit also noted that McCain’s individual dues authorization card made no mention of this rule.
McCain’s attorneys argued that the AFT’s restrictive policy constituted a “violation of [his] First Amendment right not to subsidize union activity without [his] affirmative consent and known waiver of that…right, as recognized by the U.S. Supreme Court in Janus v. AFSCME.” It requested refunds for him and other similarly situated teachers in the VCCCD of “dues deducted…without their affirmative and knowing consent.”
Rather than face Foundation attorneys and the Janus precedent in court, VCCCD and AFT officials settled the case. The union will now “fully and unconditionally” refund to McCain and other teachers who requested to stop paying union dues since Janus was decided all the dues illegally taken since the dates of their requests, plus interest. AFT and VCCCD also promised not to “adopt any policy that restricts to a yearly window period the time” when an employee can revoke his or her dues authorization.
“Michael McCain joins the ranks of educators and other government employees across the country who have successfully fought for and defended their First Amendment rights under Janus from union boss schemes like annual ‘escape periods,’ which serve no purpose other than to continue the flow of illegal dues into union coffers,” said National Right to Work President Mark Mix. “All American workers deserve the freedom that Janus promises, and Foundation attorneys will keep fighting for them in the dozens of cases already filed and many more if necessary.”
The National Right to Work Foundation filed an amicus brief in a federal class-action lawsuit currently pending before the Fourth Circuit Court of Appeals filed by Maryland teachers against the Maryland State Education Association.
Foundation staff attorneys argue in the brief, filed on July 22, that the court should reject union officials’ claims that they should not be required to refund unlawfully seized union fees, subject to the statute of limitations. The landmark Janus v. AFSCME case argued and won at the U.S. Supreme Court by Foundation staff attorneys established that the Constitution protects public workers from being forced to subsidize a union activities and that any union dues taken without a workers affirmative consent violates the First Amendment.
The brief reads in part:
The bottom line is that good faith is not a defense to a deprivation of First Amendment rights under Janus… The Union Appellees lack a cognizable basis for asserting a good faith defense. The district court’s judgment should be reversed and the case remanded for further proceedings.
Read the complete amicus brief here.
This is not the first time Foundation staff attorneys have filed an amicus brief in such a case. In June, the Foundation filed an amicus brief on behalf of Ohio Department of Taxation employee Nathaniel Ogle, whose case is ongoing.
Foundation staff attorneys are also currently litigating the same issue before the Seventh Circuit Court of Appeals on behalf of Mark Janus, lead plaintiff in the Supreme Court case. There, briefing is complete and it is likely that the Seventh Circuit will be the first Appellate Court to rule on the dues refund issue.
Earlier this month, National Right to Work Foundation staff attorneys won a decision at the National Labor Relation Board (NLRB) for Johnson Controls Inc. employees seeking to remove the United Auto Worker (UAW) union from their workplace.
Foundation Vice President and Legal Director Raymond LaJeunesse and veteran Foundation staff attorney Glenn Taubman, who provided free legal aid to the workers, recently authored an article for the Federalist Society about the victory and how it advances the rights of workers seeking to free themselves from union monopoly ranks:
The main takeaways from this case are: 1) employers can lawfully withdraw recognition of a union when presented with objective evidence (like an employee signature petition) that the union has lost majority support, and they now face less legal jeopardy for honoring the wishes of their employees than they did under the prior regime; 2) secret ballot elections remain the favored method for determining employees’ representational desires, so if the union is “anticipatory” ousted based upon a majority employee petition but believes it actually possesses majority support, it cannot litigate its way back to power using the slow and prolonged unfair labor practice process, but must file for a secret ballot election; and 3) as noted in the dissenting opinion of Obama appointee Lauren McFerran, the Johnson Controls decision could open the door to periodic recertification elections for unions.
Many employee advocates have long urged that recertification elections are desirable. Unlike politicians who must automatically face periodic elections (a.k.a “recertifications”), current NLRB law “presumes” that unions retain majority status in perpetuity. Yet statistics show that 94% of unionized workers have never voted for the union representing their workplace. James Sherk, Union Members Never Voted for a Union, Heritage Foundation, August 30, 2016. If the NLRB adopts a recertification process, unions could not rely upon outdated doctrines granting them perpetual majority status, but would have to periodically prove their majority support. As National Right to Work Foundation attorneys have long argued, permanently encrusting a labor union on a bargaining unit, with no showing of current employee support, does not lead to workplace stability or protect employees’ right of free choice.
Read the rest here.
Learn more about the decision here.
Prompted by Foundation Cases, NLRB Instructs Regions to Prosecute Unions for Failing to Provide Nonmember Workers with Full Beck Rights
Foundation President Mark Mix highlights Foundation Role in Potential Strengthening of Enforcement of Workers’ Beck Rights
Washington, DC (July 18, 2019) – In a move to protect workers’ rights not to fund union boss politics and other nonchargeable activities, the National Labor Relations Board (NLRB) Division of Advice and General Counsel have been instructing regional directors to issue complaints against unions when union officials fail to inform employees of the amount of reduced union fees they can pay by objecting to union membership under the Communication Workers of America v. Beck U.S. Supreme Court decision.
Beck, which was won by Foundation staff attorneys, mandated that workers who refrain from formal union membership only be charged fees directly germane to bargaining. It also stipulated that union agents inform new employees of their right to pay reduced dues as a nonmember, though a later Foundation-won decision at a circuit court expanded this to require union officials to disclose the actual amount one could pay as a nonmember.
The memos instruct NLRB Regional Directors to more stringently enforce those rights. A memo issued released this week to the Director of Region 32 read in part that “it is difficult for an employee to make an informed decision about whether to become a Beck objector without knowing the amount of savings that would result from the decision.”
National Right to Work Foundation President Mark Mix delivered the following comments on the NLRB’s actions:
“The Foundation is proud to have represented the California employee whose charge against the UFCW resulted in this Advice Memo, as well as originating this heightened disclosure standard by winning the Beck decision at the Supreme Court and the Penrod decision at the D.C. Circuit Court of Appeals. Of course, while the NLRB has an obligation to enforce workers’ Beck rights against greedy union bosses, the ultimate solution to this issue is simply to make all union payments strictly voluntary by giving every worker in America the protection of federal Right to Work law.”
Foundation staff attorneys are currently litigating several cases to secure workers’ Beck rights, including an NLRB case against UNITE-HERE scheduled to go to trial soon in Portland, Oregon.
California Homecare Providers File Class Action Lawsuit Challenging Union ‘Escape Period’ Scheme Used to Unlawfully Seize Dues
Union officials violate providers’ First Amendment and statutory rights by refusing to halt deductions of union dues from Medicaid payments
Sacramento, CA (July 15, 2019) – California homecare providers who receive Medicaid payments for serving disabled individuals have filed a class-action lawsuit with free legal aid from attorneys provided by the National Right to Work Legal Defense Foundation staff and Washington-based Freedom Foundation. They charge union officials with violating their legal rights by unlawfully restricting them from stopping payment of union dues and fees, as is their right under the U.S. Supreme Court’s Harris and Janus decisions and the Medicaid statute.
The providers’ complaint says United Domestic Workers (UDW) AFSCME Local 3930 union officials coerced them into surrendering their legal rights by signing union membership cards that prohibit them from halting union dues and fees deductions except for a narrow “escape period” a few days every year.
When the providers attempted to exercise their legal rights under Harris and Janus to refrain from financially subsidizing a union and cut off any further dues or fee deductions, union officials refused to honor their requests. Despite the lack of valid consent by providers, the California State Controller, at the behest of AFSCME union officials, continues to deduct union dues from the Medicaid funds intended for providers.
In the class-action suit filed in U.S. District Court for the Southern District of California, the providers named as defendants UDW AFSCME Local 3930 and California State Controller Betty Yee. Yee deducts union dues and fees from providers’ Medicaid payments pursuant to state law.
The providers rely on the U.S. Supreme Court’s landmark Harris and Janus decisions in 2014 and 2018, respectively, both of which were argued and won by Foundation staff attorneys. Harris held that homecare providers cannot constitutionally be compelled to pay union dues or fees as a condition of receiving public funding. Janus established that the First Amendment protects public-sector workers from being forced to pay union dues or fees without their knowing and explicit consent.
While still permitting voluntary unionism, the Janus decision requires union officials to inform public workers of their First Amendment rights and obtain knowing waivers from them before collecting any dues or fees. This requirement invalidates the restrictions on revocation of deduction authorizations union officials enforce through membership cards signed by individuals subjected to public sector unionism.
Because union officials never obtained their consent with knowledge of their rights under Harris and Janus, the providers argue that the restrictions in their dues deduction authorizations are invalid and union officials, thus, are not legally authorized to deduct dues or fees from their hard-earned Medicaid payments. Their complaint asks that the court declare unconstitutional the California statute which authorizes such restrictions.
In addition, the providers’ suit alleges that the deduction of union dues from their Medicaid payments violates a provision of the federal Medicaid statute that prohibits the diversion of Medicaid monies to persons or institutions that are not providing services to disabled individuals.
“Once again union bosses have ignored the clear wishes of the workers they claim to ‘represent’ simply to line their pockets with compulsory dues,” said National Right to Work Foundation President Mark Mix. “Instead of informing workers of their First Amendment rights and allowing them to choose whether to pay dues to a union voluntarily, union officials nationwide are applying ‘escape periods’ and other coercive tactics to trap workers into paying forced dues against their wishes.”
Union officials to be held accountable for illegally forcing workers to sign misleading payroll deduction forms and intimidating workers seeking to oust union
Washington DC (July 12, 2019) Today the National Right to Work Foundation announced victories in three cases filed by Foundation staff attorneys for workers whose rights were violated by union officials who enforced mandatory dues checkoff authorizations that violate the workers’ rights and harassed workers who sought to oust the union. These cases were on appeal to the National Labor Relations Board (NLRB) General Counsel, who prosecutes violations of the National Labor Relations Act (NLRA).
In separate cases, Kacy Warner, a hospital worker, and Shelby Krocker, a Kroger employee, were required to sign check-off authorization forms. After both workers filed charges with NLRB regional offices with free legal aid from the Foundation, NLRB regional directors dismissed their cases. Their Foundation attorneys then appealed to the NLRB General Counsel for both.
The General Counsel sustained the Foundation-filed appeals for Warner in this and an additional charge against the National Nurses Organizing Committee (NNOC) for illegally intimidating workers seeking to oust the union.
Warner was not a member of NNOC and circulated a petition to hold a decertification vote to remove the union from her workplace. NNOC officials tried to interfere with her decertification efforts. And, after she started the petition, union officials told her and a coworker they must sign a dues checkoff form without providing them an alternative method of payment, as the NLRA requires.
The General Counsel’s decision to sustain Warner’s appeal concerning the checkoff also added to the charges, saying the union violated the NLRA by “maintaining confusing and ambiguous dual-purpose authorization forms that unlawfully restrained employees in the exercise of their Section 7 rights.”
The General Counsel noted that the union’s forms failed to tell workers they can revoke authorization for deduction of union dues after the union’s contract expires, failed to give workers adequate time to revoke authorization, unlawfully required workers to use certified mail to send revocation requests, and failed to give “any indication to employees that payroll deduction authorization is voluntary.”
This came just a week after the General Counsel sustained another Foundation-led appeal for Krocker, who charged United Food and Commercial Workers (UFCW) union officials with illegally forcing her to sign a dues checkoff authorization.
When she was hired, Krocker joined the union because she was told she must join and sign a dues checkoff authorization as a condition of her employment. When she later resigned union membership in 2018, the union accepted her resignation, but continued collecting dues and would not let her revoke her checkoff, claiming she missed a union-created “window” to do so. Because West Virginia is a Right to Work state, the decision to financially support a labor union is supposed to lie with each individual worker.
As he did for Warner’s appeal, the General Counsel added to the charges against union officials. The additional charges are for “failing to provide the Charging Party with the explicit dates upon which she was entitled to revoke her dues checkoff authorization when it rejected her revocation request as untimely,” not being clear with workers about membership and payroll deduction forms, not being clear that workers can revoke payroll deduction authorizations, and for “maintaining language that requires the employee to give Local 400 the authority to transfer an employee’s checkoff obligation to another employer, not limited to a successor employer.”
“The NLRB General Counsel’s rulings in these cases open the door for finally holding Big Labor accountable for the illegal language that is regularly slipped into union dues deduction cards and serves no purpose other than to restrict rank-and-file workers from exercising their legally protected rights,” said National Right to Work Foundation President Mark Mix. “The National Labor Relations Act purports to support workers’ right to refrain from supporting a union, and these dues deductions cards clearly violate that basic principle.”