Original Janus Plaintiff Moves to Intervene in IL Union Lawsuit Seeking More Power to Discriminate Against Nonmembers
Worker’s motion: Illinois AG Madigan fails to present adequate legal arguments against union lawsuit challenging state bargaining law
Chicago, IL (September 14, 2018) – An Illinois state employee has filed a motion to intervene in a lawsuit brought by an International Union of Operating Engineers (IUOE) local that seeks to expand union officials’ ability to use their government-granted monopoly bargaining powers to discriminate against workers who exercise their constitutional right to refrain from union membership and not pay union dues. Accompanying the motion to intervene is a motion asking the U.S. District Court for the Northern District of Illinois to dismiss the IUOE lawsuit.
Brian Trygg, an engineer with the Illinois Department of Transportation and one of the original plaintiffs in Janus v. AFSCME, filed the motion to intervene in the lawsuit with free legal aid from National Right to Work Legal Defense Foundation staff attorneys. Trygg was a plaintiff with Mark Janus in the Janus case, until being removed from the lawsuit on a technicality because he had previously sought relief from union fees on different grounds.
n a memorandum accompanying Trygg’s motions, his Foundation staff attorneys argue that IUOE officials “seek to ‘have their cake and eat it, too’” by taking advantage of their choice to represent all employees, even union nonmembers, in their bargaining unit while claiming they should also be free of longstanding legal doctrine prohibiting them from using their monopoly representation to discriminate against nonmembers.
IUOE officials filed the lawsuit in anticipation of the U.S. Supreme Court’s ruling in the Janus case, which was briefed and argued by Foundation staff attorneys and ended in a ruling that compulsory union dues and fees for government employees violate the First Amendment. Trygg seeks to intervene to dismiss the IUOE case, or alternatively, to file an amicus curiae brief to support the state defendants’ motion to dismiss.
His filings cite Trygg’s compelling interest in the case that, if IUOE’s suit is successful, he would be unable to negotiate with his employer by virtue of the union’s monopoly bargaining status while the union would have the power to discriminate against him and ignore the legal doctrine known as the “duty of fair representation.” That duty was created by the U.S. Supreme Court to prevent overt discrimination by union officials against nonmembers and others.
Trygg’s briefs also note that Defendant Attorney General Lisa Madigan has failed to protect his interests, as her legal representation in the case “is inadequate and bordering on malpractice” with incomplete responses to IUOE’s claims and failure to cite binding authority. Trygg argues that Madigan has conflicts of interests through her opposition to and strong criticism of the Janus ruling and her actions to limit its application to Illinois public employees.
The filings also highlight that the union appears to be calling for the overturning of the U.S. Supreme Court’s Steele v. Louisville and Nashville Railway Co. precedent, a 1944 case which challenged union officials’ attempt to use their monopoly bargaining privileges to discriminate against black workers. That decision observed that monopoly bargaining would be unconstitutional absent a legal limitation on union officials using their monopoly bargaining power to discriminate.
Trygg’s filings also argue that the union lawsuit is fundamentally flawed because, even if union claims were valid, the solution would be eliminating union monopoly bargaining powers over nonmembers, not giving union officials wider berth to discriminate against those who exercise their First Amendment rights protected by the Janus decision.
“The root of Big Labor’s coercion has always been its government-granted power to impose its so-called ‘representation’ on workers who don’t want it and never asked for it,’” said National Right to Work Foundation President Mark Mix. “This lawsuit demonstrates that, despite Big Labor’s claims, union officials’ ultimate desire is to keep their extraordinary monopoly powers over workers and then to wield them to discriminate against any worker who refuses to toe the union line.”
“Ultimately, if union bosses find their obligation not to discriminate against nonmembers under their ‘representation’ so burdensome, they can simply relinquish their government-granted monopoly bargaining powers over nonmembers like Brian Trygg,” added Mix.
California Court Worker Sues State of California and AFSCME Union for Blocking Him from Exercising Janus Rights
Court employee resigned and attempted to end all union payments, only to have union officials reject his union resignation and court officials continue seizing dues
San Francisco, CA (September 11, 2018) – With free legal assistance by National Right to Work Legal Defense Foundation staff attorneys, Mark Smith, an employee of the Superior Court of Contra Costa County in California, has filed a lawsuit against his employer and the American Federation of State, County, and Municipal Employees (AFSCME) Local 2700 after his requests to resign from the union and stop paying dues were repeatedly rebuffed.
In Janus v. AFSCME, the U.S. Supreme Court ruled on June 27, 2018 that mandatory union payments violate public sector workers’ First Amendment rights. Days after that, Mr. Smith moved to exercise his Janus rights. Smith submitted a resignation of his union membership, and told union and court officials they did not have his authorization for deducting union dues from his paycheck. Nonetheless, the court and AFSCME continued to siphon Smith’s hard-earned money without his consent.
When Smith sent his resignation via certified mail, the AFSCME Local 2700 officials left the delivery “unclaimed” according to postal service records. After the union officials’ repeatedly refused to honor Mr. Smith’s resignation requests, Smith filed a federal lawsuit against both his government employer and AFSCME at the United States District Court for the Northern District of California for violating his First Amendment rights under the Supreme Court’s Janus precedent.
The lawsuit also will challenge a California law which requires public employers to deduct dues from workers at the union’s request, even if the worker, as Smith did, revokes any authorization for dues. That law was enacted just hours after the Supreme Court ruled in Janus and also blocks public employers from informing employees of their rights under Janus.
The Supreme Court’s decision in Janus v. AFSCME protects public sector workers’ First Amendment right to refrain from being required to subsidize a labor union as a condition of employment. In the landmark case, the Supreme Court agreed with arguments made by National Right to Work Foundation staff attorneys, who briefed and argued the case for Illinois state worker Mark Janus. In addition to striking down forced union fees, the Justices ruled that any union dues or fees taken without a public employees’ affirmative consent violates a worker’s Constitutional rights.
“As we’re seeing in Mark Smith’s case and others across the country, in their greed for more forced union dues, union bosses are apparently willing to ignore even a landmark Supreme Court ruling like Janus v. AFSCME,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “Rather than respecting the rights of the workers they claim to represent, it will inevitably take litigation coast to coast to enforce public employees’ rights under Janus.”
The National Right to Work Legal Defense Foundation has established a special website, MyJanusRights.org, for public sector employees who have questions about or are looking to exercise their Janus rights.
Minnesota Court Employees Win Full Refunds of Forced Union Dues Seized in Violation of Supreme Court’s Janus Decision
Teamsters officials forced to return every dollar, plus interest, of fees seized by the union from the court workers
Minneapolis, MN (September 10, 2018) – A federal First Amendment lawsuit brought by National Right to Work Legal Defense Foundation staff attorneys for two Minnesota court employees against a Teamsters local union has ended with the workers winning a settlement that will return to the workers all forced union dues seized by union officials. The refund is a result of the Foundation-won U.S. Supreme Court Janus v. AFSCME decision, which held that the First Amendment prohibits mandatory union fees for public sector workers.
Carrie Keller and Elizabeth Zeien, employees of the State of Minnesota Court System, filed the lawsuit after Teamsters Local 320 union officials and Minnesota state officials forced them into union ranks without a vote and against their desire.
When Keller and Zeien starting working for the State, neither was a union member, and they both negotiated their own terms and conditions of employment and salaries free from union interference. In 2015, Teamsters union officials started proceedings to force a number of state employees who were not in monopoly bargaining units into union ranks, in which they could be required to pay union dues and fees.
In March 2017, Minnesota state officials complied with the Teamsters’ demands and added a number of employees, including Keller and Zeien, to a Teamsters controlled bargaining unit. Keller and Zeien were never given a vote on whether they should be part of the union bargaining unit, and they objected to the scheme.
Before being forced under the union contract, Keller and Zeien had pay scales and benefits for themselves that equaled or exceeded what they received under the union-mandated contract. The lower potential compensation and the imposition of mandatory union fees led them to approach the National Right to Work Foundation for assistance in challenging the forced unionization scheme.
The Foundation-won Supreme Court decision Janus v. AFSCME overturned the erroneous 1977 ruling in Abood v. Detroit Board of Education that public sector workers could be compelled as a condition of employment to pay union fees for bargaining-related purposes. In Janus, the Court ruled that it is unconstitutional to require government workers to pay any union dues or 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.
Deciding to settle the lawsuit after the Janus decision, Teamsters union officials will refund to Keller and Zeien the entirety of the unconstitutionally seized union dues plus interest. They and the Court System will not collect any dues or fees from the employees’ future wages unless either affirmatively chooses to become a member of Teamsters and authorizes such deductions.
“These two workers are among the first of millions of government employees to finally receive justice for the violation of their rights,” said National Right to Work Foundation President Mark Mix. “Thanks to the Foundation’s Janus Supreme Court victory, public sector workers can no longer be coerced into signing away their First Amendment rights to keep their jobs. The Foundation will continue to hold union officials accountable when they attempt to force workers into unconstitutional forced-fees schemes.”
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.
Michigan EMTs File Class Action Lawsuit Against UAW to Enforce State Right to Work Protections Against Forced Union Payments
Legal action filed in state court after UAW officials collected tens of thousands of dollars in payments in violation of state law, and illegally required workers to join union
Flint, MI (September 6, 2018) – A group of workers filed a class-action lawsuit in Michigan state court against United Auto Workers (UAW) Local 708 and STAT Emergency Medical Services to indicate their rights under the state Right to Work law that makes union membership and dues payments strictly voluntary. The workers filed the lawsuit, which seeks refunds of over $25,000 in illegally seized union dues and fees, with free legal aid from the National Right to Work Legal Defense Foundation.
The lawsuit asks for injunctive relief and the return of three years of dues and fees that were collected by UAW officials in violation of Michigan’s Right to Work law for private sector workers. As the complaint notes, in addition to the illegal forced dues, the workers have been required to be UAW members and dues were automatically deducted from their paychecks without their authorization, in violation of the law.
Both the required membership and automatic deduction policies violate state labor law. Michigan’s Right to Work law, which was enacted in 2013, protects workers’ choice by outlawing mandatory union membership and union payments as a condition of employment.
The forced-dues monopoly contract was put in place by the UAW in 2015, more than two years after Michigan’s Right to Work protections came into effect. The lawsuit seeks refunds of all illegal dues collected under that contract.
In addition to the class action suit, two of the workers filed federal unfair labor practice charges with the National Labor Relations Board (NLRB) against the UAW and their employer, STAT Emergency Medical Services. The federal charges detail the automatic dues deduction despite the lack of a check-off authorization, which violates sections of the National Labor Relations Act.
“Rather than work to earn the voluntary support of rank-and-file workers, union officials are blatantly violating longstanding federal and state law to extract dues from workers,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “Whether or not a state has Right to Work protections, workers and the Foundation will continue to remain vigilant to ensure that employees’ legal rights are not ignored by Big Labor officials.”
Connecticut State Employees File Class Action Lawsuit to Reclaim Forced Union Fees Outlawed by U.S. Supreme Court
Lawsuit seeks return under Janus precedent of all fees seized by SEIU union officials from nonmembers
Hartford, CT (September 6, 2018) – National Right to Work Legal Defense Foundation staff attorneys have filed a federal class action lawsuit for two Connecticut state employees to reclaim union fees SEIU officials unconstitutionally seized from them and similarly situated employees. The class action complaint potentially covers hundreds of 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.
Kiernan Wholean and James Grillo, workers at the Connecticut Department of Energy and Environmental Protection (DEEP), filed the complaint against Service Employees International Union (SEIU) Local 2001 and the Secretary of Office of Policy Management, the Undersecretary of Labor Relations, and the Commissioner of DEEP of Connecticut.
The complaint, filed at the U.S. District Court for the District of Connecticut, alleges that by failing to refund the full amount of seized union fees from union nonmembers and by maintaining a union monopoly bargaining agreement that requires nonmembers to pay union fees as a condition of employment, SEIU Local 2001 violates the plaintiffs’ First Amendment rights as protected by the new Janus precedent.
Although Wholean and Grillo are not members of SEIU Local 2001 and had not consented to the deduction of forced fees, they and other non-union member employees were forced to pay union fees as a condition of employment under state law.
In the Foundation-won Supreme Court Janus v. AFSCME decision, 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 those workers without their affirmative consent and knowing waiver of their First Amendment right not to financially support a labor union.
However, although Connecticut has stopped deducting union fees from the plaintiffs’ wages, Local 2001 has failed to refund the fees it seized without the plaintiffs’ consent before the Janus ruling. Additionally, despite that the Supreme Court ruled in Janus more than two months ago, DEEP maintains a collective bargaining agreement with SEIU Local 2001 officials that requires non-union members to pay union fees as a condition of employment.
The complaint requests that the court certify a class that includes all individuals who at any time since June 13, 2015, were forced to pay union fees to SEIU Local 2001 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 within the statutory limitations period.
“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, but justice also demands that the victims of such schemes have returned the money union bosses illegally seized from them,” commented National Right to Work Foundation President Mark Mix. “This class action is one of many across the country which together seek the return of more than $100 million to the victims of union bosses’ unconstitutional forced dues schemes.”
In July, Foundation staff attorneys secured the first such refund under the Janus decision for Oregon state employee Deborah Nearman. As part of a settlement, SEIU Local 503 refunded the Department of Fish and Wildlife worker almost $3,000 that had been collected as mandatory union fees.
The Foundation has created a special website, MyJanusRights.org, to assist public employees in exercising their rights under Janus, which was successfully briefed and argued by National Right to Work Foundation staff attorney William Messenger.
Worker freedom from forced unionism is advancing, but there is still much work to be done
Springfield, VA (August 31, 2018) – Mark Mix, president of the National Right to Work Legal Defense Foundation and the National Right to Work Committee, issued the following statement on the occasion of Labor Day 2018.
This Labor Day, National Right to Work is celebrating a landmark year for workers’ rights across the country. As we celebrate this Labor Day, we should remember that there is still work to be done to protect all employees from compulsory unionism’s abuses.
In June, the National Right to Work Legal Defense Foundation won a historic victory at the U.S. Supreme Court in Janus v. AFSCME when the High Court declared it unconstitutional to force public sector employees to pay union dues and fees as a condition of employment. Because of the ruling, every government employee across the nation can now exercise their First Amendment right to choose whether or not to financially support a union.
The Janus decision has opened doors for independent-minded workers to rise up and challenge union officials’ abuses of their rights. Foundation staff attorneys are helping thousands of government employees in several class action lawsuits reclaim the potentially hundreds of millions of dollars in forced union dues that were seized in violation of their First Amendment rights.
In the private sector, employees in the 23 states that lack Right to Work protections are still forced to hand over a portion of their paycheck to union officials. Millions of workers pay that tribute not because they freely choose to associate with a union, but because government has granted union officials the power to order a worker fired solely for refusing to pay fees. Until every worker in America is freed from forced unionism, our important work must continue.
With the election season swinging into high gear, the fight for freedom in the workplace faces new challenges. Even though polls show union members, like all Americans, strongly support the Right to Work principle that union membership and dues payment should be strictly voluntary, Big Labor is spending millions of dollars collected from rank-and-file employees on campaign contributions, lobbying, and other political activities to undermine Right to Work.
The National Right to Work Foundation remains committed to enforcing worker protections while establishing new precedents. After the Janus decision, the Foundation launched a Janus Task Force designed to connect public sector workers with information about the new precedent and access to free legal aid. Union officials must be held accountable when they abuse employees’ constitutional rights, and Foundation staff attorneys remain vigilant to ensure the Janus precedent is enforced. Meanwhile, the National Right to Work Committee is advocating for legislation to repeal union bosses forced dues powers.
This Labor Day, as we celebrate hard-working Americans from all walks of life, the National Right to Work community is proud to be working towards the goal of ending forced unionism in America once and for all.
A video version of this statement is available here.
Terranea Resort Concierge Files Charges Against Union for Demanding Organizing Assistance from Company
NLRB Charge: UNITE HERE officials are waging an illegal campaign to coerce Terranea workers into union forced-dues ranks without a vote
Los Angeles, CA (August 27, 2018) – With free legal aid from National Right to Work Foundation staff attorneys, a Rancho Palos Verdes resort worker has filed charges with the National Labor Relations Board (NLRB) challenging an aggressive organizing campaign being waged by UNITE HERE Local 11 union officials, who are demanding that the resort assist them in forcing their employees into a union.
Sophal Im is a concierge coordinator at the five-star Terranea Resort, which is currently being picketed as part of UNITE HERE Local 11 officials’ campaign against the resort. The charge states that union officials are violating federal labor law by demanding that Terranea assist UNITE HERE Local 11 in forcing Im and his co-workers into the union’s monopoly representation.
Union officials demand that Terranea support their efforts to unionize the employees through a “card check” drive. To force Terranea to comply, union officials have been picketing and attacking the resort for months without filing an election petition. The charge points out that this is illegal because union bosses are not allowed to picket in an attempt to organize a workplace for more than thirty days unless they also file a petition for an NLRB vote.
In union-demanded card check schemes, organizers often pressure, intimidate, or mislead workers into signing cards, which then are counted as “votes” for unionization, bypassing the NLRB-supervised secret ballot election process. If union officials have the support of just 30 percent of workers, they can move for an NLRB-supervised vote to determine whether a majority of workers support unionization. However, UNITE HERE officials haven’t filed for an election at Terranea, instead demanding that the company agree to bypass a secret ballot vote.
Because California lacks a Right to Work law, in a unionized workplace even workers who choose not to be union members can be forced to pay dues or fees to union officials, or else be fired. Im, concerned that he might be forced into accepting and subsidizing a union he opposes as a result of the unions’ aggressive campaign against his employer, came to the National Right to Work Foundation and received free legal aid in filing the charge, which will now be investigated by the NLRB.
“If they have sufficient support from the workers they seek to represent, UNITE HERE union bosses could file for an NLRB secret ballot election at any time,” said Mark Mix, president of the National Right to Work Foundation. “Because they either lack that support or are too scared workers would reject the union in such a vote, they have instead launched an apparently never-ending campaign designed to bully the employer into handing over the workers so they can be forced to pay union fees.”
“This type of corporate campaign is a clear violation of the National Labor Relations Act and the Labor Board should swiftly move to prosecute union officials for their coercive, underhanded tactics designed to subvert the rights of Mr. Im and his colleagues,” added Mix.
Trump Labor Board has opportunity to overturn harmful 2011 ruling trapping workers in union after abuse-prone “card check” certification
Washington, D.C. (August 23, 2018) – Today, National Right to Work Legal Defense Foundation staff attorneys submitted an appeal to the National Labor Relations Board (NLRB) asking the Board overturn a 2011 Obama-era NLRB decision that is being applied to block a group of Seattle hotel housekeepers from holding a secret ballot decertification vote to remove a union they oppose. Foundation staff attorneys are representing the Embassy Suites employee who filed the petition for a vote to oust the union which the workers never voted into their workplace.
The UNITE HERE Local 8 union was installed at the hotel through an oft-abused “card check” drive, which bypasses an NLRB-supervised secret ballot election. Gladys Bryant, a housekeeper at the hotel, led a group of other employees to petition the NLRB to hold a decertification vote and remove the union, which was never voted in.
However, the election petition was dismissed by an NLRB official using a controversial Obama-era ruling that bars workers from having a secret ballot decertification vote to remove a union from their workplace.
In Lamons Gasket, an Obama-selected NLRB overturned the 2007 National Right to Work Foundation-won Dana decision that gave workers the opportunity to challenge a card check union drive with a secret ballot vote. Under the Dana precedent, workers can collect signatures to request a secret ballot election during a 45-day window following notice that they have been forced into union representation via card check.
The Dana ruling provided an important, though limited, protection for workers against the coercive practices frequently associated with card check, which allows organizers to mislead employees into signing cards that are then counted as “votes” toward unionization—which is precisely what happened to Gladys Bryant. When the Dana precedent was overruled with Lamons Gasket, it meant no matter how many workers signed a petition seeking to oust a union, they could be barred for at least one year before they could file for a secret ballot vote.
Now, the Labor Board has the chance to undo the damage done by the previous NLRB by overturning the Lamons Gasket decision. This is especially important for workers in states like Washington, which does not have Right to Work protections—where workers can then be forced to pay fees to a union they never even had the chance to vote for or against.
“Ms. Bryant’s situation demonstrates the coercive nature of a card-check drive, and why the Trump Labor Board must put an end to the disastrous precedent which reinforces its use,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “The Lamons Gasket decision means that workers can be forced into paying union fees even if the majority of the workplace does not support the union. Workers must be allowed to fight back against this coercive process.”
In addition to her petition for a secret ballot decertification vote, Foundation staff attorneys also filed NLRB unfair labor practice charges for Bryant against the union and hotel management for coercive tactics used in the union card check process. Those charges are still being investigated by the NLRB.
Class of 5,000 workers seeks refund of millions of dollars in fees seized by SEIU officials in violation of Supreme Court’s Janus precedent
San Jose, CA (August 16, 2018) – National Right to Work Legal Defense Foundation staff attorneys have filed a federal class action lawsuit for a California state employee to reclaim union fees SEIU officials unconstitutionally seized from him and thousands of similarly situated employees. The class action complaint potentially includes approximately 5,000 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 Hough, a worker at the Santa Clara Valley Transportation Authority (VTA), filed the complaint against the VTA, Service Employees International Union (SEIU) Local 521, and the Attorney General and Governor of California. The complaint, filed at the U.S. District Court for the Northern District of California, claims that by forcing Hough and other state employees to pay union fees without their affirmative consent, the defendants violated their First Amendment rights as protected by the new Janus precedent.
Hough has worked at the VTA since 2005. He exercised his right to refrain from joining SEIU Local 521 because he did not wish to support it in any way. However, he and other non-union member employees were forced to pay union fees as a condition of employment under state law.
In the Foundation-won Supreme Court Janus v. AFSCME decision, 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.
However, California’s law authorizes SEIU Local 521 and its affiliates to extract union fees from non-union members as a condition of employment. In the lawsuit, Hough claims that the applicable statute, and any other statute that authorizes Local 521 to collect forced union fees from public employees without their affirmative consent, violates the First Amendment. He asks the court to declare those laws 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 SEIU Local 521 and its affiliates without their affirmative consent and knowing waiver of their First Amendment rights.
“Independent-minded workers are choosing to stand up for their rights,” said National Right to Work Foundation Vice President Patrick Semmens. “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 is clear that fees cannot be collected without a clear waiver of First Amendment rights, something the SEIU never gave Mr. Hough 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.
National Right to Work Foundation Files Comments Asking CMS to Stop Union Bosses from Skimming from Medicaid Funds
Comments: Big Labor’s $100 million a year scheme violates Medicaid statute’s prohibition on diverting payments intended for caregivers
Washington, DC (August 13, 2018) – The National Right to Work Legal Defense Foundation has today submitted formal comments to the U.S. Centers for Medicare & Medicaid (CMS) in support of the agency’s proposed rule to clarify that the diversion of Medicaid payments from providers to third parties, including unions, violates federal law.
The Foundation’s comments demonstrate how schemes enacted by roughly a dozen states have resulted in well over $100 million per year being diverted from health-care providers to union officials, in violation of federal law. The comments call on CMS to finalize a rule that definitively states that siphoning off union dues or fees from taxpayer-funded payments intended for healthcare providers violates the prohibition on assigning benefits to third parties under Section 1396a(a)(32) of the federal Medicaid statute.
As a gift to the Obama Administration’s political backers, in 2014 that administration promulgated a new regulation to give legal cover to ongoing schemes by the SEIU and other unions that have to date siphoned off over $1 billion in Medicaid funds. However, as the Foundation’s comments to CMS point out, agency rules cannot conflict with the underlying statute, which is why CMS should both repeal the Obama rule and replace it with explicit language to give states notice that continuing to divert payments puts their Medicaid funding at risk.
National Right to Work Foundation President Mark Mix issued the following statement about the filing of those comments in response to the CMS rulemaking notice:
“It is long past time that this outrageous attempt to create another exemption in federal law for union officials be ended. We encourage the CMS to expeditiously issue a final rule to stop the illegal siphoning off of funds from Medicaid providers. Despite the wishes of the politicians they back, union officials are not exempt from federal law. All the current proposed rule change would do is close the illegal loophole the Obama Administration attempted to create.
“Our 2014 National Right to Work Foundation-won 2014 Harris decision made it illegal for states to require these providers pay fees to union officials, but the current scheme to deduct union fees from Medicaid payments is part of union bosses’ attempts to undermine that ruling. Nothing in the proposed CMS rule would stop providers from sending truly voluntary dues to union officials with a check or credit card each month. It would merely stop union bosses from using public payment systems to intercept tax dollars intended for providers caring for those in need.”
Background: The 2014 Foundation-won Harris v. Quinn Supreme Court decision held that it is unconstitutional for states to force home care providers paid through Medicaid programs to pay union fees. That case still continues as 80,000 providers seek the return of over $30 million in funds seized from them in violation of their First Amendment rights.
Despite the Supreme Court’s ruling, the illegal dues skim has not stopped. That is why in 2017 the National Right to Work Foundation sent a letter to the Department of Health and Human Services to bring their attention to this issue. Additionally, Foundation President Mix personally raised the issue with Trump Administration officials at the White House earlier this year.