Workers Nationwide Press NLRB to Scrap Policy Blocking Right to Vote Out Unions
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2021 edition. To view other editions or to sign up for a free subscription, click here.
Foundation cases contend ‘contract bar’ must be eliminated to protect employee freedom
Foundation staff attorneys are assisting Delaware poultry workers in challenging UFCW bosses’ attempts to use the “contract bar” to trap them in union ranks.
WASHINGTON, DC – Foundation attorneys in January filed a Request for Review to the full National Labor Relations Board (NLRB) in Washington, D.C. The Request defends the right of Virginia Transdev workers to have a vote to remove unpopular Office and Professional Employees International Union (OPEIU) Local 2 bosses from power at their workplace.
The Transdev employees, who work at the Fairfax Connector bus service in Northern Virginia, now join Foundation-backed workers in Delaware and Puerto Rico, all of whom are urging the NLRB to eliminate the “contract bar.” That is a non-statutory NLRB policy which forbids employees from exercising their right to vote out an unpopular union in an NLRB-supervised “decertification election” for up to three years after their employer and union finalize a monopoly bargaining contract.
Foundation attorneys point out in each of these cases that the “contract bar” appears nowhere in the National Labor Relations Act (NLRA), the federal law the NLRB is charged with enforcing, and is merely the result of past union boss-friendly decisions by the Board. They also argue that the bar undermines workers’ basic right under the NLRA to remove unions that lack majority support.
“The ‘contract bar’ undermines the fundamental objective of federal labor law: Employee free choice. It makes rank-and-file employees prisoners of an unpopular union, with no way out for up to three years,” commented National Right Work Foundation President Mark Mix. “This inevitably creates an environment in which, as these employees can certainly attest, it’s impossible to hold self-serving union bosses accountable because workers are denied the right to vote them out.”
Unpopular OPEIU Bosses Went Behind Workers’ Backs to Sign Contract
The petitioner in the Transdev workers’ case, Amir Daoud, submitted a petition on November 10, 2020, signed by the necessary number of his coworkers to trigger a “decertification election” in his workplace. This was after news had gotten around that an OPEIU union agent had told some employees in October he had “negotiated a new agreement” with Transdev management and “‘intended’ to sign it without a ratification vote.” Workers had already voted down an earlier union boss-promoted monopoly bargaining contract in June.
Foundation attorneys filed a Request for Review, which notes that the union agent didn’t inform Daoud and his coworkers of when he planned to approve the new contract — until after Daoud filed the petition. The new contract was signed by union agents on October 30 and Transdev representatives on October 31.
NLRB Region 5 in Baltimore dismissed Daoud and his coworkers’ decertification petition on December 22, ruling that the “contract bar” applied because the employees’ petition was submitted just after the new contract was signed, even though the employees had no way of knowing whether or when that signing would occur.
This prompted Daoud to ask the NLRB in Washington to review the case. Because Daoud recently accepted a job with Transdev outside the OPEIU’s monopoly bargaining control, the Request for Review asks the NLRB to recognize his coworker Sheila Currie as the new petitioner to represent the interests of the workers who signed the decertification petition.
The Request exposes the arbitrariness of the “contract bar,” pointing out that the NLRB Regional Director applied it “merely because the Union ‘won the race’ and signed the contract ten days” before Daoud submitted the petition, even though the petition clearly demonstrated the employees’ interest in voting the union out.
VA and Puerto Rico Cases Follow Groundbreaking Effort by DE Poultry Workers
The Virginia Transdev employees, and a Puerto Rico armored transit guard who submitted a similar Request for Review on behalf of his coworkers with Foundation aid in January, are now battling the “contract bar” like Delaware Mountaire Farms poultry worker Oscar Cruz Sosa and his coworkers. For almost a year now, Cruz Sosa and his fellow employees have been fighting United Food and Commercial Workers (UFCW) union bosses’ attempts to use the “contract bar” to block their valid petition for a decertification vote. The Mountaire employees are now waiting for the NLRB to issue a ruling on their case.
In that case, UFCW officials claim that the “contract bar” should apply to bar any elections at Mountaire, despite an NLRB Regional Director’s decision allowing the vote because the union contract contains an invalid forced-dues clause.
When the UFCW bosses asked the full NLRB to review the Region’s order allowing the election, Cruz Sosa’s attorneys filed a brief urging that, if the Board granted review, it should use the opportunity to review the entire non-statutory “contract bar” policy. The Board is now doing just that. The UFCW union bosses are even arguing that the impounded ballots already cast by Mountaire workers should be destroyed, claiming the election should never have been held.
The Requests for Review submitted by Foundation staff attorneys for the Puerto Rico guard and Virginia Transdev employees each request that the NLRB should either grant review or least hold the case until a decision is issued in Cruz Sosa’s case.
Foundation Defends MI Rule, Public Servants Nationwide from Anti-Janus Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Union officials sued to overturn Foundation-backed rule creating opt-in system for union dues
“That was so un-American to us,” New Jersey teacher Susan Fischer told NJTV News of forced union fees in 2018. Two years after Janus, she is still fighting to remove illegal union boss-created restrictions on Janus rights in the state.
LANSING, MI – Relying on arguments presented by a National Right to Work Legal Defense Foundation legal brief, a federal court has denied an injunction against a new Michigan Civil Service Commission (MiCSC) rule designed to protect state workers’ First Amendment Janus rights.
The amicus brief was filed after lawyers from several major Michigan unions sued to overturn the protections, which block dues seizures ruled unconstitutional in the 2018 Right to Work Foundation-won Janus v. AFSCME Supreme Court decision.
The rule was finalized by MiCSC in July, following detailed comments submitted by the Foundation. The arrangement alters the state’s union dues deduction system to require the affirmative and knowing consent of workers before dues can be taken from their paychecks, as per the Court’s First Amendment standard laid out in Janus.
Michigan Public Servants Will Get Yearly Nudge About Janus Rights
MiCSC will now remind Wolverine State public servants annually that they have a right not to subsidize union bosses’ activities. Further, state employees who still want to have dues deducted must annually confirm that they want to waive that right and are voluntarily authorizing union dues deductions from their paychecks.
Under the new rule, union bosses are not able to siphon dues or fees from the paychecks of employees who aren’t aware of their right not to pay union dues, or on the basis of years-old dues authorization forms that may not reflect current consent.
In September of 2019, Alaska Gov. Mike Dunleavy signed an executive order creating similar Janus protections for Alaska state employees. Foundation staff attorneys are currently representing an Alaskan state vocational instructor seeking to enforce his First Amendment rights under Janus and that order. Additionally, Texas Attorney General Ken Paxton and Indiana Attorney General Curtis Hill both issued legal opinions earlier this year, urging public employers to notify employees that they have a First Amendment right to refuse to fund a union unless they opt in to such payments. This follows a Wall Street Journal op-ed last year by Foundation President Mark Mix and staff attorney William Messenger, which encouraged states to take action to proactively defend employees’ rights under the landmark decision. Messenger argued and won Janus before the Supreme Court.
New Jersey Teachers Battle Union-Backed Rights Restriction
The efforts by states to implement Janus rights safeguards come as public workers across the country continue to challenge schemes which block them from exercising their Janus rights outside a brief, union-created “escape period,” which is often just a few days a year, or even once every three years. New Jersey teachers Susan Fischer and Jeanette Speck are defending their rights and the rights of their fellow educators in a class-action case against the New Jersey Education Association (NJEA), now pending before the U.S. Court of Appeals for the Third Circuit. Fischer and Speck attempted to exercise their right to cut off dues to the union just days after the Supreme Court recognized this right in Janus. Union-label politicians, anticipat-ing the High Court’s ruling, had enacted a state law the month before Janus was decided, cutting the time a public servant could exercise his or her Janus rights down to just 10 days per year. Oral arguments in the case took place in late September with Foundation staff attorney William Messenger arguing the case before a three-judge panel. If Fischer and Speck’s lawsuit is successful, educators across New Jersey will be free to cut off dues at any time, and the state law limiting those rights to a 10-day window would be struck down as unconstitutional. Additionally, Fischer, Speck and their coworkers who also sought to exercise their Janus rights would get refunds of all dues that were extracted from their paychecks under the unconstitutional arrangement.
Decorated Las Vegas Officer Defends Her First Amendment Janus Rights
Elsewhere in the country, Las Vegas police officer Melodie DePierro sued both the Las Vegas Police Protective Association (PPA) union and the Las Vegas Metropolitan Police Department (LVMPD) for illegally seizing union dues from her paycheck using such an “escape period” scheme.
According to her complaint filed by Foundation staff attorneys in the U.S. District Court for the District of Nevada, in January 2020 she sent letters to both union officials and the LVMPD resigning her membership and requesting a stop of all union dues deductions. Her complaint reports that union and police department agents rejected that and a later request, citing a “narrow escape period between October 1 and October 20 each year.”
DePierro, in addition to bravely asserting her rights, stands up for her community. The Las Vegas Review-Journal reported that she helped protect a hospital during the October 2017 mass shooting at the Route 91 Harvest music festival in Las Vegas, springing into action despite being off-duty.
“Officer DePierro has an exceptional history of keeping Las Vegas safe. Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to impose an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” commented National Right to Work Foundation Vice President Patrick Semmens. “Fortunately, more and more states are beginning to grow wise to the fact that union boss-devised traps are widespread, and as such are moving to secure their public servants’ Janus rights.”
Foundation President Discusses How Teacher Union Bosses Influence the Government to the Detriment of Teachers and Students
National Right to Work Legal Defense Foundation President Mark Mix recently participated in a Philanthropy Roundtable panel discussion titled “Ask The Experts: Teacher Appreciation Week? How Teachers Unions Got in the Way.”
In response to a question about how teacher union officials are influencing school reopening decisions, he noted that union bosses’ power stems from their government-granted monopoly bargaining privileges:
“At its core union monopoly bargaining (also called ‘exclusive representation’) in the government sector is inherently anti-democratic because it forces elected officials to “negotiate” with union bosses over public policy, including how government schools are run. That has always been true, but the response to COVID from government union officials in general and teacher union officials in particular only reinforces how union officials wield their government-granted exclusive representation powers to undermine and oppose policies that are in the interest of the public, taxpayers and students. There are examples of this across the country, but among the most egregious were sweeping demands by United Teachers Los Angeles union officials that included a wealth tax, defunding the police, Medicare for All and a moratorium on charter schools all as a condition of reopening Los Angeles public schools.”
Mix describes how organizations like the National Right to Work Foundation can counter union bosses’ undue influence:
“One key way to push back is to remind the public that despite the claims of union bosses like [Randi] Weingarten, many teachers oppose what union officials do in their name. Teacher union efforts to undermine the Janus v. AFSCME Supreme Court precedent in particular show how union officials put their own power and influence ahead of those they claim to ‘represent,’ often in violation of the First Amendment.”
Mix cites two Foundation cases that illustrate this point:
“Two ongoing National Right to Work Foundation Janus enforcement cases for teachers against the Los Angeles and Chicago teacher unions were brought by teachers who originally sought to cut off union financial support when they rebuffed union strike demands that they felt were not in the best interests of their students.”
Ifeoma Nkemdi, one of the Chicago teachers who sued the Chicago Teachers Union for restricting her right to cut off union dues, described the union bullying she faced in an interview with the Foundation:
As long as union bosses have monopoly bargaining powers, Mix explains, teacher union officials will continue to undermine efforts to do what is best for students:
“The ultimate solution is to end government monopoly bargaining, either through the courts because it violates the First Amendment protections for free speech and freedom of association for teachers forced under unwanted union monopoly ‘representation,’ or by state legislators who see the detrimental impact of granting one special interest group such unique powers that let them effectively veto the will of the voters’ elected representatives. Currently in many states teacher unions are not granted such powers, and it doesn’t mean teacher unions don’t exist, simply that their role is as a voluntary association that can lobby for the interests of its members, no different from any other interest group. That is the proper role for teacher unions because, among other reasons, the education of future generations shouldn’t be a subject of bargaining negotiations with teacher union bosses. ”
Read the entire discussion here.
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://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.”
Foundation Urges NLRB to Protect Workers’ Privacy from Union Organizers
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Comments filed to end Obama-era rule forcing disclosure of workers’ private information
UPS driver Rod Carter was stabbed by Teamsters militants for providing for his family during a strike, after receiving late-night threats on his home phone number.
LANSING, MI – Relying on arguments presented by a National Right to Work Legal Defense Foundation legal brief, a federal court has denied an injunction against a new Michigan Civil Service Commission (MiCSC) rule designed to protect state workers’ First Amendment Janus rights.
The amicus brief was filed after lawyers from several major Michigan unions sued to overturn the protections, which block dues seizures ruled unconstitutional in the 2018 Right to Work Foundation-won Janus v. AFSCME Supreme Court decision.
The rule was finalized by MiCSC in July, following detailed comments submitted by the Foundation. The arrangement alters the state’s union dues deduction system to require the affirmative and knowing consent of workers before dues can be taken from their paychecks, as per the Court’s First Amendment standard laid out in Janus.
Michigan Public Servants Will Get Yearly Nudge About Janus Rights
MiCSC will now remind Wolverine State public servants annually that they have a right not to subsidize union bosses’ activities. Further, state employees who still want to have dues deducted must annually confirm that they want to waive that right and are voluntarily authorizing union dues deductions from their paychecks.
Under the new rule, union bosses are not able to siphon dues or fees from the paychecks of employees who aren’t aware of their right not to pay union dues, or on the basis of years-old dues authorization forms that may not reflect current consent.
In September of 2019, Alaska Gov. Mike Dunleavy signed an executive order creating similar Janus protections for Alaska state employees. Foundation staff attorneys are currently representing an Alaskan state vocational instructor seeking to enforce his First Amendment rights under Janus and that order. Additionally, Texas Attorney General Ken Paxton and Indiana Attorney General Curtis Hill both issued legal opinions earlier this year, urging public employers to notify employees that they have a First Amendment right to refuse to fund a union unless they opt in to such payments. This follows a Wall Street Journal op-ed last year by Foundation President Mark Mix and staff attorney William Messenger, which encouraged states to take action to proactively defend employees’ rights under the landmark decision. Messenger argued and won Janus before the Supreme Court.
New Jersey Teachers Battle Union-Backed Rights Restriction
The efforts by states to implement Janus rights safeguards come as public workers across the country continue to challenge schemes which block them from exercising their Janus rights outside a brief, union-created “escape period,” which is often just a few days a year, or even once every three years. New Jersey teachers Susan Fischer and Jeanette Speck are defending their rights and the rights of their fellow educators in a class-action case against the New Jersey Education Association (NJEA), now pending before the U.S. Court of Appeals for the Third Circuit. Fischer and Speck attempted to exercise their right to cut off dues to the union just days after the Supreme Court recognized this right in Janus. Union-label politicians, anticipat-ing the High Court’s ruling, had enacted a state law the month before Janus was decided, cutting the time a public servant could exercise his or her Janus rights down to just 10 days per year. Oral arguments in the case took place in late September with Foundation staff attorney William Messenger arguing the case before a three-judge panel. If Fischer and Speck’s lawsuit is successful, educators across New Jersey will be free to cut off dues at any time, and the state law limiting those rights to a 10-day window would be struck down as unconstitutional. Additionally, Fischer, Speck and their coworkers who also sought to exercise their Janus rights would get refunds of all dues that were extracted from their paychecks under the unconstitutional arrangement.
Decorated Las Vegas Officer Defends Her First Amendment Janus Rights
Elsewhere in the country, Las Vegas police officer Melodie DePierro sued both the Las Vegas Police Protective Association (PPA) union and the Las Vegas Metropolitan Police Department (LVMPD) for illegally seizing union dues from her paycheck using such an “escape period” scheme.
According to her complaint filed by Foundation staff attorneys in the U.S. District Court for the District of Nevada, in January 2020 she sent letters to both union officials and the LVMPD resigning her membership and requesting a stop of all union dues deductions. Her complaint reports that union and police department agents rejected that and a later request, citing a “narrow escape period between October 1 and October 20 each year.”
DePierro, in addition to bravely asserting her rights, stands up for her community. The Las Vegas Review-Journal reported that she helped protect a hospital during the October 2017 mass shooting at the Route 91 Harvest music festival in Las Vegas, springing into action despite being off-duty.
“Officer DePierro has an exceptional history of keeping Las Vegas safe. Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to impose an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” commented National Right to Work Foundation Vice President Patrick Semmens. “Fortunately, more and more states are beginning to grow wise to the fact that union boss-devised traps are widespread, and as such are moving to secure their public servants’ Janus rights.”
NLRB to Prosecute Boston Hotel, UNITE HERE Union for Coercive “Card Check” Deal
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Housekeepers say employer illegally assisted union organizers during unionization push
Yotel housekeepers (from left) Lady Laura Javier, Cindy J. Alarcon Vasquez and Yesica Perez Barrios got the NLRB to prosecute union and hotel officials for using a coercive “Card Check” drive to force them under union control.
BOSTON, MA – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, in December 2019 four housekeepers at the Yotel hotel in Boston filed charges against their employer and UNITE HERE Local 26, after the hotel illegally assisted union officials with foisting their “representation” on workers during a “Card Check” organizing drive.
Now, in response to the charges filed for Cindy J. Alarcon Vasquez, Lady Laura Javier, Yesica Perez Barrios and Danela Guzman, the National Labor Relations Board (NLRB) Regional Director has issued a complaint to prosecute the hotel and UNITE HERE for violating the housekeepers’ rights under federal law.
Agreeing with the workers’ Foundation staff attorneys, the complaint charges the hotel with illegally assisting union organizers by providing the kind of assistance the Board has long held to be illegal when it benefits workers’ decertification efforts, and charges the union with illegally accepting the unlawful assistance.
NLRB: Employer Illegally Aided Union Campaign
The NLRB has long held that an employer taints employees’ efforts to remove a union if it gives those workers support that amounts to more than “ministerial aid.” Under that standard, the Board has held that an employer can’t provide a list of bargaining unit employees or allow use of company resources when employees are trying to remove a union, because this assistance would tarnish the results of the election.
Foundation attorneys in this case argue that, under the same standard, Yotel Boston similarly tainted the union’s organizing campaign by providing assistance to UNITE HERE union organizers.
The charges, which resulted in the NLRB complaint, say the hotel illegally assisted the union’s coercive “Card Check” drive, during which employees were pressured by union operatives into signing union cards. These cards were later counted as “votes,” and were used to bypass a secret-ballot election that would have determined whether the workers actually support union representation.
Foundation Cases Challenge Unequal Standard
The case is not the first in which the NLRB has addressed this double standard. In July, NLRB Region 19 issued a similar complaint in another case involving a hotel worker whose employer illegally assisted UNITE HERE Local 8 union officials in its “Card Check” drive at Embassy Suites in Seattle. There the NLRB also agreed that the employer had provided more than “ministerial aid,” and therefore UNITE HERE officials “did not represent an uncoerced majority of the unit.”
“The NLRB is finally addressing the double standard that for too long has favored union bosses in their coercive “Card Check” unionization drives,” said National Right to Work Foundation President Mark Mix. “Union bosses pressure workers and get illegal assistance from employers to impose their so-called representation on workers, but they cry foul when that same assistance is given to workers attempting to remove unwanted forced representation.
“With these two complaints against UNITE HERE union bosses, the Board is correctly finding that what qualifies as more than ‘ministerial assistance and support,’ and violates the National Labor Relations Act, cannot depend on whether the employer is helping outside union organizers impose unionization on workers or is assisting workers in exercising their right to remove an unwanted union,” Mix added
Foundation Battles Union Restrictions on First Amendment Rights at Ninth Circuit
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Cases challenge coercive, anti-Janus “escape periods” concocted by union bosses
Christopher Woods (right), seen here with Mark Janus, is taking up the latter’s fight by challenging an ASEA union boss scheme that traps workers in union payments even after they have dissociated from the union.
SAN FRANSCISO, CA – The 2014 National Right to Work Foundation victory for Pam Harris in the Harris v. Quinn Supreme Court case established that union bosses violate the First Amendment when they skim dues from homecare providers’ state subsidies without their consent. Now, seven California homecare providers have just appealed to the Ninth Circuit Court of Appeals their federal lawsuit against Service Employee International Union (SEIU) Local 2015 officials for continuing to skim dues in violation of their rights.
According to their suit, SEIU honchos enforced a phony “escape period” on the homecare providers, illegally limiting the time in which they could stop the deductions. The providers’ suit says this contravenes the U.S. Supreme Court’s ruling in Janus v. AFSCME. The Court not only held that the government cannot force individuals to subsidize union activities as a condition of employment, but also that government agencies can only deduct union payments after receiving a clear and knowing waiver of their First Amendment right not to make such payments.
Dues-Skim Scam: SEIU Took Dues Without Informing Providers of Rights
Although the plaintiffs, Delores Polk, Heather Herrick, Lien Loi, Peter Loi, Susan McKay, Jolene Montoya and Scott Ungar, are not public employees, they were designated as such solely for the purpose of monopoly unionization. Then that was used as justification for the State of California to skim union dues from their payments at the behest of SEIU officials. The seven participate in the In-Home Support Services (IHSS) program, which allots Medicaid funds to those who provide home-based aid to people with disabilities.
Polk and the other plaintiffs recount in the lawsuit that SEIU union bosses began taking cuts of their Medicaid subsidies after confusing phone calls or mandatory orientation sessions. After the plaintiffs contacted the SEIU attempting to exercise their right to stop the flow of dues, SEIU operatives informed them that they could only opt out of union dues during short union-created “escape periods” of 10-30 days once per year.
The lawsuit also points out that the federal law governing IHSS forbids diverting any part of Medicaid payments to “any other party” besides the providers. In fact, in rulemaking urged by National Right to Work Foundation comments, the federal agency that administers Medicaid confirmed that skimming such payments for unions violates the Medicaid statute passed by Congress.
The seven plaintiffs now seek a ruling that both the taking of union dues without their knowing consent and the policy restricting the providers from ending the dues deductions are unconstitutional. The providers also seek refunds of all money that they and any other IHSS program participants had taken from their payments through the illegal scheme.
Alaska Union Bosses Confine Prison Employee in Unconstitutional Deductions
Also at the Ninth Circuit Court of Appeals, Alaska vocational instructor Christopher Woods recently filed an appeal in his case challenging an “escape period” scheme to block him and other Alaska state employees from exercising their First Amendment rights recognized in Janus.
In a November 2019 email, Woods, who has worked as a vocational instructor at Goose Creek Correctional Center since 2013, informed Alaska State Employees’ Association (ASEA) officials he was exercising his Janus right to stop all union dues deductions. Rather than respect his rights, union officials rejected his request and told Woods that he could only “opt out” and not be a union member with written notice to this office during a 10-day period each year.
Woods persisted on December 2, 2019, submitting to both ASEA officials and the payroll office of the Corrections Department another email asking to cut off dues. Although the payroll office confirmed to both Woods and the ASEA that it had received the request, an ASEA official responded by merely telling the payroll office that she was “still communicating with [Woods] on the matter,” the complaint says. Woods reports in his lawsuit that he has “not received any further communications” from either the ASEA or the payroll office, and that full dues are still being seized from his paychecks.
Foundation String of Triumphs Against Janus Restrictions Unlikely to End
“‘Escape periods’ are shameless union boss-concocted schemes that only exist to keep dues money rolling into their coffers after employees have clearly communicated that they do not wish to support the union,” observed National Right to Work Vice President and Legal Director Raymond LaJeunesse. “Although these arrangements are egregious in any context, trapping homecare providers in dues-skim schemes which deprive them of money they receive for taking care of the disabled is particularly unconscionable, and additionally breaches federal law which prohibits those funds from going anywhere other than to the people giving care.
“Whether it’s the landmark victories in Harris and Janus or the eight recent lawsuits in which Foundation staff attorneys have knocked down ‘escape period’ policies and secured refunds of illegal dues for workers, the Foundation has a track record of success in these cases. Union bosses shouldn’t hold their breath in the hopes of keeping seized dues,” LaJeunesse added.
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.”
More Workers Ask Supreme Court to Refund Unconstitutional Forced Dues
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Four Foundation-backed cert petitions now filed at High Court with millions at stake
Foundation staff attorneys asked the Supreme Court to hear Nathaniel Ogle’s case, which seeks refunds for him and his coworkers of forced union dues that were seized from their paychecks in violation of the First Amendment.
WASHINGTON, DC – Across the nation, public employees continue to seek free legal aid from National Right to Work Foundation staff attorneys, to fight for their First Amendment rights recognized in the landmark Janus v. AFSCME Supreme Court ruling. Janus was argued and won by Foundation staff attorneys.
Janus affirmed that public employees cannot be required to subsidize union activities as a condition of employment and that union payments can only be deducted with an employee’s freely given consent.
Despite this clear ruling, union bosses have almost without exception refused to return money seized from workers in violation of the First Amendment. In response, Foundation staff attorneys are now assisting workers in more than a dozen cases seeking to force union officials to return illegal forced fees to tens of thousands of employees, with four such cases now pending at the U.S. Supreme Court.
Union Officials Refuse to Refund Illegally Seized Dues Post-Janus
In November, attorneys for Connecticut Department of Energy and Environmental Protection employees Kiernan Wholean and James Grillo filed a petition for writ of certiorari with the Supreme Court. It is asking the Justices to hear their case, seeking back years of union dues that they and their coworkers were forced to pay to Service Employees International Union (SEIU) union bosses in violation of the First Amendment. Their petition follows one filed in October for Ohio Department of Taxation employee Nathaniel Ogle, whose case seeks to require AFSCME union bosses to similarly return forced fees seized in violation of the Janus standard from potentially thousands of Ohio government employees.
With these two new cert petitions, there are now seven pending before the Supreme Court on this issue, four of which were filed for workers by Foundation staff attorneys. That includes the continuation of the original Janus case brought by Mark Janus.
If the Supreme Court decides to hear any one of these cases, a favorable ruling would create another groundbreaking precedent, potentially prompting the return in Foundation cases alone of over $130 million to employees fighting to get back money taken in contravention of their Janus rights.
Wholean and Grillo, who are not members of SEIU,
originally filed their case in 2018 in the U.S. District Court for the District of Connecticut shortly before the High Court decided Janus. The State ceased deducting dues from their paychecks for SEIU following a letter to the State Comptroller from a National Right to Work Foundation attorney, which threatened legal action for any dues deductions from non-members that continued after Janus.
However, SEIU union officials continue to refuse to refund dues that they took from Wholean, Grillo and other non-members in violation of the Janus First Amendment standard before the decision, even though they knew the employees never consented to pay.
Ogle filed his case at the District Court for the Southern District of Ohio just after Janus was decided. Like Wholean and Grillo, he was never a member of the union but had mandatory union fees deducted from his paychecks. The Ohio affiliate of the national AFSCME union has around 30,000 public employees across the Buckeye State under its bargaining monopoly. If a class is eventually certified in Ogle’s case, it could potentially include thousands of workers.
Foundation Attorneys: High Court Must Reject Union Attempts to Dodge Janus
Lower courts in these and other lawsuits have accepted union lawyers’ so-called “good faith” contentions for letting union bosses keep the dues collected in violation of the non-members’ constitutional rights. This is at odds with the Supreme Court’s Janus ruling, which did not proscribe retroactive relief. Indeed, it observed 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 Supreme Court decision in the Foundation’s Knox v. SEIU case.
Foundation staff attorneys point out in the petitions before the Supreme Court that a “good faith” defense has never existed under Section 1983 of the Civil Rights Act of 1871, the statute under which these lawsuits are brought. Section 1983 specifically imposes liability on those who violate the constitutional rights of others while acting “under color of ” existing law.
Not all judges, however, have been convinced by union officials’ dubious “good faith” argument for keeping the unconstitutionally seized payments. In Wenzig, another Foundation-backed case, a majority of a Third Circuit panel denied the existence of such a defense. In a supplemental brief, Foundation attorneys cited the confusion among lower courts as a significant reason the court should hear the continuation of Janus.
“With seven petitions on this issue now pending with the High Court and more to be filed soon, it is time the Supreme Court hears this issue and ends the denial of justice for tens of thousands of non-member government employees whose First Amendment rights were violated,” commented National Right to Work Foundation President Mark Mix. “Section 1983 of the Civil Rights Act, the federal statute under which all these cases were filed, was specifically intended to allow individuals to remedy the deprivation of their rights when it occurs under color of law. It’s outrageous that union bosses have thus far been allowed to keep money seized in violation of the First Amendment because it was authorized by then-existing but unconstitutional law.
“That result is especially specious because, as the Supreme Court recognized in Janus, union bosses have been ‘on notice’ since 2012 that forcing government employees to pay union fees was likely unconstitutional,” Mix added.
Las Vegas Security Guards Win $4,200 in Case Challenging Illegal Dues Seizures
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
SPFPA officials rushed monopoly bargaining contract in attempt to trap workers in forced dues
“You can stand up to the union and not fail and not have fear of retaliation,” security guard Justin Stephens told the Las Vegas Review-Journal about his and his coworkers’ victory.
LAS VEGAS, NV – Dozens of Las Vegas security guards employed by North American Security won a settlement last October against the Security, Police & Fire Professionals of America (SPFPA) union, which they had charged in April with illegally seizing dues from their paychecks. The guards received free legal aid from the National Right to Work Foundation.
SPFPA union officials must now refund more than $4,200 to the security guards, whose timely requests to resign from union membership and cease dues deductions were wrongfully rejected by union officials who hastily extended their monopoly bargaining agreement with the guards’ employer.
Union Officials Secretly Struck Contract after Guards Voiced Dissatisfaction
According to guard Justin Stephens’ April 2020 charge filed at Region 28 of the National Labor Relations Board (NLRB) in Phoenix, SPFPA officials extended the bargaining contract with North American Security on January 31, 2020. The extension occurred one day after Stephens and the vast majority of his fellow employees at the federal courthouse in Las Vegas sent letters to the union stating that they no longer wanted it as the monopoly bargaining agent in their workplace.
The charge explained that Stephens later submitted a batch of letters to SPFPA officials in which he and his fellow employees tried to exercise their rights to resign union membership and stop dues deductions from their paychecks. These letters were sent within what the employees believed to be the contract’s window for exercising their right to cut off dues payments.
However, the charge asserted, the union “did not acknowledge the timely revocation the employees made on the anniversary” of the contract, ostensibly because the union officials’ hurried contract extension eliminated any opportunity for employees to cut off union dues before the existing contract’s March 31 expiration.
SPFPA bosses kept collecting full union dues “from all non-member bargaining unit employees” in violation of their right under the National Labor Relations Act to refrain from union activities and support, according to the charge. Stephens’ charge also asserted that the union’s sudden extension of the monopoly bargaining contract after the workers notified the union about their opposition amounted to “an apparent attempt to avoid a decertification” vote to remove the union.
Because Nevada has enacted Right to Work protections for employees, union bosses are additionally forbidden by state law from requiring any employee to join or pay dues or fees to a union as a condition of employment.
The settlement requires SPFPA officials to process any timely resignations by security guards and notify North American Security to cease dues deductions from those whose resignations they have already processed.
Foundation Wins Refunds of Unlawful Dues Seized from Dozens of Guards
SPFPA bosses must also return all dues seized from Stephens’ and his coworkers’ paychecks in violation of their rights. In the future, the settlement stipulates, union officials must always “accept and timely process” resignations and requests to cut off dues.
“I want people to see this and see that it’s possible,” Stephens told the Las Vegas Review-Journal in a story about his case. “You can stand up to the union and not fail and not have fear of retaliation.”
“It’s good news that Mr. Stephens and his hardworking colleagues have gotten back dues that were illegally taken from them by SPFPA union bosses who have demonstrated they are more interested in stuffing their coffers with union dues than respecting the wishes of the rank-and-file workers they claim to ‘represent,’” commented National Right to Work Foundation Vice President and Legal Director Raymond LeJeunesse. “This type of legal trickery used by union bosses to stay in power despite the objections of most workers shows why the NLRB should eliminate its numerous policies that block workers from removing an unwanted union.”
“Ultimately, the root of this problem is the federal labor law which grants union bosses monopoly bargaining powers, allowing them to force their so-called ‘representation’ on workers who don’t want it and believe they would be better off without it,” added LaJeunesse.
“You can stand up to the union and not fail and not have fear of retaliation,” security guard Justin Stephens told the Las Vegas Review-Journal about his and his coworkers’ victory.
