Housekeeper Challenges Labor Board Double Standard Promoting ‘Card Check’
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.
Trump NLRB asked to enforce rule stopping companies from aiding union ‘card check’ drives
President Barack Obama’s NLRB pushed through Big Labor-friendly rules promoting coercive “card check” union organizing drives
Washington, D.C. – After UNITE HERE Local 8 union officials unionized Gladys Bryant’s workplace via a “card check” drive, the Seattle housekeeper couldn’t help but feel that her rights had been violated.
Union bosses had significant help from Bryant’s employer, Embassy Suites, to organize the employees – even a list of workers’ names and contact information. And when Bryant had sought to revoke her card asking for the union’s representation, a union organizer lied to her and her coworkers about the process, blocking Bryant from exercising her rights.
After the tainted “card check” drive resulted in UNITE HERE Local 8’s monopoly bargaining power over her and her colleagues, Bryant decided to challenge the union bosses and her employer over their coercive tactics.
She filed charges with free legal aid from Foundation staff attorneys. A National Labor Relations Board (NLRB) Regional Director dismissed her charges, but a Foundation staff attorney has filed an appeal with the NLRB General Counsel.
Bryant had been working at Embassy Suites in Seattle for a month before the company informed her and her colleagues that UNITE HERE Local 8 union officials would be organizing the workplace.
Union officials began conducting a “card check” drive, a coercive tactic that bypasses a secret ballot election. Embassy Suites actively promoted the drive, giving union organizers special access to the hotel to meet and solicit employees. The hotel even provided union bosses with a list of all employees’ names, jobs, and contact information to assist the union officials in collecting authorization cards from employees.
Although Bryant did at first sign a union authorization card, she and many of her colleagues reconsidered. When Bryant asked a union official how to revoke her card, the union official misled her and other employees that they had to appear in person at the union hall to revoke any previously signed cards.
Bryant made an appointment with the union official in an attempt to comply with the unlawful requirement. However, the union official did not show up. As a result, Bryant and her colleagues were unable to revoke their union authorization cards, which were then counted as “votes” toward unionization.
After Embassy Suites recognized UNITE HERE Local 8’s monopoly bargaining “representation” over employees, Bryant sought free legal aid from Foundation staff attorneys to file charges, arguing that the unionization violated the National Labor Relations Act (NLRA).
Bryant’s charges allege that Embassy Suites provided UNITE HERE’s organizing campaign with more than “ministerial aid.” The NLRB has long held that an employer taints employees’ efforts to remove a union if it gives the employees more than “ministerial aid,” such as providing a list of bargaining unit employees or use of company resources – as Embassy Suites gave union officials.
Foundation staff attorneys argue that the same “ministerial aid” standard must also apply when an employer aids union officials’ efforts to gain monopoly bargaining power over workers.
The Foundation staff attorney representing Bryant asks that the General Counsel issue a complaint on Bryant’s allegations to provide the Board with an opportunity to bring consistency to its “ministerial aid” standard
Bryant’s charges also argue that UNITE HERE violated the NLRA and fatally tainted its proof of employee support by misinforming employees that they could only revoke authorization cards by going in person to the union hall, blocking workers from exercising their rights. NLRB doctrine holds that, to revoke an authorization card, an employee must simply sign a document stating he or she does not support union representation.
Bryant and her coworkers had collected enough signatures for a decertification vote to remove the union. However, in a separate case covered in the January/February 2019 Foundation Action, the NLRB blocked their petition based on the “card check” recognition.
The block was due to Lamons Gasket, a 2011 Obama Board ruling barring decertification for one year after unionization via “card check.” Some Board members have noted in other recent cases that they would be willing to revisit the blocking charge policy in the future. “
“This case proves that not only are union bosses willing to manipulate and ignore the rights of the workers they claim they want to ‘represent,’ their coercion often goes unchecked because of double standards in how the NLRB interprets the law,” said National Right to Work Foundation Vice President Ray LaJeunesse. “What qualifies as ‘ministerial assistance and support’ under the National Labor Relations Act cannot depend on whether the employer is helping outside union organizers impose unionization on workers, or assisting workers in exercising their rights to remove an unwanted union. This case offers the Trump NLRB a chance to stand up for worker freedom and end a double standard that tips the scales in favor of forced unionism.”
Foundation Pushes for Rule Change to Stop Big Labor’s Illegal Medicaid Skim
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2018 edition.
Union bosses have already diverted over $1 billion in Medicaid funds intended for caregivers
Pam Harris, a home health care provider for her son Josh, won the U.S. Supreme Court Harris v. Quinn decision with the help of Foundation staff attorneys. Although the High Court declared it unconstitutional to skim union dues from Medicaid funds, the skim continues.
WASHINGTON, DC – Each year, schemes enacted by ten states allow well over $100 million to be diverted from healthcare providers to union officials. By skimming money from Medicaid programs, union bosses flout federal law and a National Right to Work Foundation-won Supreme Court decision.
A rule proposed by the U.S. Centers for Medicare & Medicaid (CMS) would end the scheme. In August, the Foundation submitted formal comments to CMS supporting the agency’s proposal that would clarify that the diversion of Medicaid payments from providers to third parties, including unions, violates federal law.
In 2014, the Obama Administration promulgated a new regulation to give legal cover to ongoing schemes of the SEIU and other unions that siphoned money from Medicaid funds, violating the federal Medicaid statute that prohibits assigning benefits to third parties. Union officials have to-date skimmed over $1 billion in Medicaid funds intended for caregivers.
The Foundation’s comments call on CMS to halt the skim, urging the agency to repeal the Obama rule and replace it with clear language to give states notice that continuing to divert payments puts their Medicaid funding at risk.
“It is long past time for this outrageous exemption for union officials to be ended,” said Foundation Vice President and Legal Director Ray LaJeunesse. “The CMS should expeditiously issue a final rule to stop the illegal diversion of funds from Medicaid providers. Despite the wishes of the politicians whom they support, union officials are not exempt from federal law. All the current proposed rule change would do is close an illegal loophole the Obama Administration invented.”
Even as union officials circumvent the law through special privileges, the Foundation has fought to restore justice to the thousands of providers affected.
The 2014 Foundation-won Harris v. Quinn Supreme Court decision held that it is unconstitutional for states to force home care providers receiving Medicaid subsidies to pay union fees. The case continues, now designated as Riffey v. Rauner, as Foundation attorneys seek the return of over $30 million in funds seized from 80,000 providers in violation of their First Amendment rights.
Despite the Supreme Court ruling, the skim has not stopped. That is why in 2017 the Foundation sent a letter to the Department of Health and Human Services to bring its attention to the issue. Moreover, Foundation President Mark Mix personally raised the issue with Trump Administration officials at the White House earlier this year.
“Our National Right to Work Foundation-won 2014 Harris decision made it illegal for states to require providers pay fees to union officials, but the current scheme to deduct union fees from Medicaid payments is part of the union bosses’ attempts to undermine that ruling,” said LaJeunesse. “Nothing in the proposed CMS rule would stop providers from making truly voluntary dues payments to union officials by check or credit card each month. The rule would merely stop union bosses from using public payment systems to capture tax dollars intended for providers caring for those in need.”
Lawsuits Successfully Challenge Schemes to Block Workers’ Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.
Workers win first two settlements to end unconstitutional forced union dues seizures
Police clerk Sandra Anderson won a settlement against IBEW with help from Foundation staff attorneys, successfully challenging union bosses’ scheme to trap her into subsidizing a union.
BRAINERD, MN – The fight for public sector workers’ First Amendment rights took a huge step forward in the Foundation-won U.S. Supreme Court Janus v. AFSCME decision. However, across the country union bosses are attempting to limit when workers can exercise their First Amendment rights under Janus, to stop dues seizures through so-called “window period” policies.
In response, Foundation staff attorneys have filed many lawsuits for public employees challenging such schemes, which claim workers can be restricted from exercising their First Amendment rights under Janus outside brief union-created window periods. Such policies trap workers in forced dues against their will, which puts them at odds with the Janus ruling that any dues taken without workers’ consent violates their constitutional rights.
Two of those important lawsuits have ended in victories halting unions’ “window period” policies.
In 2004, when the City of Brainerd Police Department entered into a monopoly bargaining contract with International Brotherhood of Electrical Workers (IBEW) Local 31, clerk Sandra Anderson was told she must either join the union and pay dues or pay compulsory union fees as a non-member. Faced with being forced to fund the union either way, Anderson joined the union, signing a form authorizing the deduction of union dues from her paycheck.
Then, Anderson heard about the Janus ruling, argued and won by Foundation staff attorneys at the Supreme Court. Soon after, Anderson emailed an IBEW official and Brainerd representatives demanding that both parties stop collecting dues from her wages in accordance with Janus. However, IBEW officials claimed that Anderson could only stop dues payments during either a 10-day window prior to the expiration of the monopoly bargaining contract, or a 10-day window prior to the anniversary date of her dues deduction authorization.
Anderson came to the Foundation for help in filing a lawsuit challenging the “window period” policy as unconstitutional, because the policy limits when she can exercise her First Amendment rights under Janus, and allows IBEW Local 31 union officials to collect union dues without her affirmative consent.
In December 2018, IBEW union officials decided they wanted the case to go away, so they settled. Under the settlement, IBEW has refunded to Anderson all union dues they unconstitutionally collected from her after she notified the City of Brainerd and IBEW Local 31 that she no longer consented to financially supporting the union. IBEW officials have also acknowledged Anderson’s request to withdraw her union membership, and will not seek or accept union dues from her again unless she affirmatively chooses to become a union member.
Shortly after Anderson’s victory, a group of Ohio public sector employees freed themselves and thousands of their colleagues from another “window period” scheme that violated their rights.
Seven Buckeye State civil servants attempted to resign their union membership in American Federation of State, County and Municipal Employees (AFSCME) Ohio Council 8 and stop paying union dues after the Janus decision. However, AFSCME officials continued to deduct dues, citing a union policy restricting revocation of dues deduction to a narrow 15-day window prior to the expiration of a monopoly bargaining contract once every three years
The workers came to Foundation staff attorneys to file a class action lawsuit challenging the “window period” scheme. Rather than face Foundation attorneys in court, AFSCME Council 8 union officials settled the lawsuit.
Under the settlement agreement, AFSCME Council 8 stopped enforcing the existing policy restricting workers under their “representation” – as many as 30,000 individuals – from exercising their Janus rights. Additionally, union officials refunded to the plaintiffs all union dues they unconstitutionally collected after the plaintiffs notified union officials that they no longer consented to financially supporting the union.
Union officials were also required to identify any other workers whose rights were blocked by the scheme, honor their requests to resign and stop paying union dues, and refund the dues seized from them under the scheme.
“These seven workers bravely challenged the union bosses’ ‘window period’ scheme, and protected not only their rights but also the rights of tens of thousands of their colleagues,” said National Right to Work Foundation President Mark Mix. “Our first-in-the-nation victories enforcing workers’ rights under Janus should be precursors of many cases that result in union bosses dropping their illegal restrictions on workers seeking to exercise their rights secured in the Foundation’s JanusSupreme Court victory.”
Full Foundation Action January/February 2019 Newsletter Now Online
All articles from the January/February 2019 edition of Foundation Action are now on the website.
In this issue:
- U.S. Supreme Court Asked to Hear Case Challenging Monopoly Bargaining Power
- Workers Challenge Big Labor’s ‘Window Period’ Schemes to Restrict Janus Rights
- Public Employees Hit Union with Charges for Intimidation and Discrimination
- Workers Sue Labor Board Over Rule Blocking Them From Holding Vote to Remove Union
- School Employees Seek Refunds and an End to Union Bosses’ Illegal Forced-Dues Demands
- Ohio Civil Servant Sues for Return of Coerced Union Fees
To view other editions or sign up for a free copy of the newsletter via mail, click here.
Workers Challenge Big Labor’s ‘Window Period’ Schemes to Restrict Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2019 edition. To view other editions or to sign up for a free subscription, click here.
Union bosses attempt to block public employees from ending union dues payments
Foundation staff attorneys are litigating several class action lawsuits for civil servants, including teachers Susan Fischer (left) and Jeanette Speck, who are victims of union officials’ coercive “window period” schemes.
TRENTON, NJ – The Foundation’s Supreme Court victory in Janus v. AFSCME was a direct hit on Big Labor’s forced fees coffers. As government employees have begun exercising their Janus protections, union officials have attempted to avoid the Supreme Court precedent and continue violating the rights of the workers they claim to represent.
Foundation staff attorneys are currently litigating more than fifteen cases to enforce the Janus decision. Recently, Foundation staff attorneys filed several class action lawsuits challenging union officials’ “window period” schemes, arbitrary windows of time limiting when employees can exercise their First Amendment right to refrain from subsidizing a union.
Before Janus, New Jersey public school teachers Susan Fischer and Jeanette Speck, along with five million other public sector workers, were required to subsidize a union even if they were not union members.
“You have to pay if you join and pay if you don’t join,” said Fischer. “That was so un-American to us.”
Days after the monumental ruling at the Supreme Court, both teachers resigned their union memberships under the Janus decision’s protection of their choice to completely refrain from supporting a union. However, the teachers were informed that they could only stop payments and withdraw their membership during an annual 10-day window period.
In anticipation of Janus, New Jersey state legislators enacted a law in May to limit workers from exercising their rights under the then-pending Supreme Court decision except during the annual 10-day window. Fischer and Speck sought free legal aid from Foundation staff attorneys to file a lawsuit arguing that the law is unconstitutional and must be struck down.
In the class action lawsuit, filed against the Township of Ocean Education Association (TOEA), the New Jersey Education Association (NJEA), and the National Education Association (NEA) unions, Fischer and Speck also seek a refund of the union dues forced from their paychecks. The lawsuit asks the U.S. District Court to certify a class to include all other public employees whose attempts to resign and cease subsidizing a union following Janus have been rejected by the NJEA and its affiliates.
Delores Polk, a California home healthcare provider who cares for her daughter, is not a voluntary member of an SEIU local union. However, pressured by an unsolicited call from an SEIU telemarketer, Polk verbally agreed to join the union and pay dues.
When Polk reconsidered days later and attempted to resign her membership and stop paying union dues, union officials informed her via letter that she had missed the “window period” to cut off payments and must wait another year before opting out.
Polk was never notified of her First Amendment rights, protected by Janus, to refrain from joining or subsidizing SEIU Local 2015, and did not sign any written documentation agreeing to be a union member or waiving her First Amendment rights as the Janus ruling requires.
Despite her lack of consent, the California State Controller, at the behest of SEIU Local 2015, continues to deduct union dues from the Medicaid funds Polk receives to care for her daughter.
Polk came to Foundation staff attorneys to file a lawsuit challenging the scheme. Her lawsuit asks the court to certify a class, including the potentially thousands of home healthcare providers who have been forced to pay union dues even after notifying the State Controller or SEIU Local 2015 officials, that they do not consent to financially supporting the union.
After Janus, several Ohio public sector workers each resigned their memberships from AFSCME Council 8. Despite the employees’ desire to refrain from subsidizing the union, AFSCME union officials have continued siphoning union dues from the workers’ paychecks, citing a union policy that restricts revocation of dues deductions to a narrow 15-day window before a new monopoly bargaining contract is enforced.
The workers sought free legal aid from Foundation staff attorneys to file a complaint. In the lawsuit, filed on behalf of all other Ohio public employees who were blocked by AFSCME Council 8 from exercising their Janus rights after attempting to cease paying union dues and fees, the workers ask the court to declare AFSCME’s revocation policy unconstitutional and to stop union officials from collecting dues from non-consenting public employees. The class potentially includes thousands of workers.
On the same day that lawsuit was filed, Foundation attorneys filed another class action lawsuit against AFSCME for an Ohio civil servant seeking to reclaim forced union fees coerced from workers by AFSCME Local 11 officials before Janus. (Read more about that case here.)
These most recent lawsuits join several others in which Foundation staff attorneys are providing free legal aid to public employees, challenging policies that block their First Amendment rights under Janus. In just two examples, Pennsylvania school bus driver Michael Mayer and California court worker Mark Smith each filed federal complaints after union officials blocked their attempts to exercise their Janus rights.
“Contrary to the wishes of union bosses and their allies in state legislatures, First Amendment rights cannot be limited to just a matter of days out of the year,” said Mark Mix, president of the National Right to Work Foundation. “The Foundation-won Janus decision at the Supreme Court recognized that all civil servants may exercise their rights to free speech and free association by resigning their union membership and cutting off union payments whenever they choose. Foundation staff attorneys remain committed to enforcing the constitutional rights of millions of public sector workers guaranteed by Janus.”
Ohio Civil Servant Sues for Return of Coerced Union Fees
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2019 edition. To view other editions or to sign up for a free subscription, click here.
Class Action Lawsuit Seeks to Enforce Janus
With free legal aid from Foundation staff attorneys, Nathaniel Ogle seeks the return of forced union fees to thousands of workers.
COLUMBUS, OH – The Foundation’s victory at the U.S. Supreme Court in Janus v. AFSCME opened the door for public sector workers to reclaim years’ worth of forced union fees seized without their consent. In Janus, argued and won by Foundation staff attorneys, the Court held that no government employee can be forced to pay union dues or fees as a condition of employment. Government employees are now seeking to hold union officials accountable for money seized without consent before the Janus decision.
Foundation staff attorneys have already filed several class action lawsuits to reclaim unconstitutionally seized fees from Big Labor’s coffers for workers who earned it in the first place. Together, the lawsuits seek over $170 million in forced-fees refunds. That number is anticipated to grow as the Foundation receives more requests for free legal aid to enforce Janus.
One recent lawsuit, filed by an Ohio public sector worker, seeks to hold union officials accountable for potentially millions in forced fees.
As an employee at Ohio’s Department of Taxation, Nathaniel Ogle exercised his legal right to refrain from membership in the Ohio Civil Service Employees Association (AFSCME Local 11). However, before Janus, Ogle and many other union non-member employees were compelled to pay union fees.
After the Janus decision, Ogle came to Foundation staff attorneys for free legal aid in filing a federal lawsuit against AFSCME Local 11. The lawsuit asks that the court certify a class to include all other employees who during the statutory limitations period were forced by AFSCME Local 11 to pay union fees without their consent. AFSCME Local 11 has monopoly bargaining power over more than 30,000 Ohio government employees, meaning a potential class of forced-fee victims may have union fees totaling millions of dollars due to them.
Foundation attorneys continue to enforce the Janus precedent through several other class action lawsuits to refund victims of union boss coercion. The victory strengthened the ongoing Hamidi v. SEIU case, currently pending at the Ninth Circuit U.S. Court of Appeals.
In Hamidi, a certified class of over 30,000 California workers is challenging SEIU Local 1000 union officials’ “opt-out” policy that required workers to affirmatively opt out of the portion of union fees that workers cannot be legally required to pay. Foundation staff attorneys notified the Court of Appeals of the Janus decision’s relevance to Hamidi, and the case was argued in December.
“Thanks to the landmark Janus ruling, tens of thousands of public sector employees are now a step closer to finally receiving recompense for years of being forced to hand over their hard-earned money to a union under threat of being fired,” said Patrick Semmens, vice president of the National Right to Work Foundation. “The Foundation will continue to enforce workers’ First Amendment protections.”
School Employees Seek Refunds and an End to Union Bosses’ Illegal Forced-Dues Demands
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2019 edition. To view other editions or to sign up for a free subscription, click here.
After this article went to print, the workers were vindicated in a settlement. Read more in our news release here.
Citing Janus, Michigan civil servants file lawsuit to challenge coercion over forced union fees
Linda Gervais is one of the independent-minded Michigan workers receiving help from Foundation staff attorneys to enforce Michigan’s Right to Work Laws and halt union bosses’ illegal intimidation tactics.
LANSING, MI – Even after Michigan enacted its popular Right to Work Law protecting workers from being forced to pay union dues or fees as a condition of employment, union officials continued to harass and threaten two public school employees in attempts to illegally extract forced union fees from them.
After years of union bosses’ intimidation tactics, Linda Gervais and Tammy Williams filed a federal class action lawsuit, with free legal aid from Right to Work Foundation staff attorneys, to enforce their First Amendment protections under the Foundation-won Janus v. AFSCME decision. Their lawsuit demands that union officials stop the harassment, including the use of debt collectors, and refund dues illegally obtained from potentially thousands of other victims.
Gervais and Williams both are employees of the Port Huron Area School District. Both workers exercised their right to resign their union memberships in September 2013, within a year after Michigan enacted Right to Work legislation freeing employees to choose whether or not to financially support a union without fear of being fired.
However, Michigan Education Association (MEA) union officials refuse to acknowledge that Gervais and Williams have resigned their union membership and continue to claim that the workers still owe union dues.
Ignoring the Right to Work law that protects workers’ right to refrain from subsidizing a union, MEA agents contacted Gervais and Williams dozens of times demanding hundreds of dollars worth of back dues. Although the workers were under no legal obligation to pay, union agents threatened to take both women to court to extract the fees.
Gervais and Williams sought free legal assistance from Foundation staff attorneys in filing a class action lawsuit to put an end to MEA officials’ demands. The complaint asks the court to certify a class including other workers who faced, or continue to face, the same harassment, along with refunds for all workers who paid the dues MEA officials unlawfully demanded.
Their lawsuit seeks to apply to the class the protections established in Janus. In the landmark Janus decision, the Supreme Court ruled that union officials violate the First Amendment by demanding or coercing public employees to pay union dues or fees without the workers’ affirmative, clear consent.
Since the 2012 passage of Right to Work legislation in Michigan, Foundation staff attorneys have litigated more than 100 cases in the state to combat compulsory unionism and union bosses’ attempts to stop workers from exercising their Right to Work.
“As union bosses’ attempts to counteract Michigan’s Right to Work Law demonstrate, the fact that union membership and financial support are voluntary under the law doesn’t mean Big Labor will obey that law,” said Ray LaJeunesse, vice president and legal director of the National Right to Work Foundation. “Thankfully, armed with the Foundation-won Janus Supreme Court decision, Linda, Tammy, and countless other Michigan educators are a step closer to ending this multi-year campaign of illegal dues threats.”
Public Employees Hit Union with Charges for Intimidation and Discrimination
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2019 edition. To view other editions or to sign up for a free subscription, click here.
California workers targeted by union official for opposition to unionization
Three workers, including Ryan Wagner, turned to National Right to Work Foundation staff attorneys for free legal aid after a union boss illegally attempted to search their emails.
SACRAMENTO, CA – After a union official attempted to search their emails to harass and intimidate them for seeking to exercise their rights, three California public sector workers came to Foundation staff attorneys for free legal aid in filing charges.
Ryan Wagner, Brett Day, and Mark Pipkin work at the Sacramento-Yolo Mosquito & Vector Control District. Their employer notified them that an Operating Engineers (IUOE) Local 3 official had used the state’s public record request system to request copies of all three employees’ emails.
The union official requested copies of emails with keywords such as “decertification,” “PERB,” “union,” “decertify,” “how to get rid of union,” “Public Employee Relations Board,” and “Meyers Milias Brown Act.” The terms are related to the employees’ legal rights under California law, specifically the Meyers-Milias-Brown Act (MMBA), which includes county and municipal employees’ right to remove a union that has lost the support of a majority of workers.
Under the MMBA, workers have a right to abstain from union membership and participation in union activities. Unions are prohibited from interfering with, intimidating, restraining, coercing, or discriminating against any public employee who chooses to exercise those rights.
In response to the union official’s attempt to harass them for being critical of the union, Wagner, Day, and Pipkin sought free legal assistance from Foundation staff attorneys in filing unfair labor practice charges against IUOE Local 3 with the California Public Employee Relations Board (PERB).
In the charge, Foundation staff attorneys argue that the union official’s requests violate the workers’ rights under California’s labor law. As a remedy for the illegal intimidation, the three workers ask that union officials be required to post notices informing all employees of their right to refrain from union activities under California law, and that the union officials acknowledge they violated the workers’ legal rights and cease the illegal activities.
Before the Foundation’s victory at the Supreme Court in Janus v. AFSCME, public sector employees in California could be required to pay union dues or fees to get or keep a job. After Janus upheld government employees’ First Amendment right to refrain from funding union speech without fear of losing their jobs, over five million workers – including Wagner, Day, and Pipkin – were freed from forced union dues.
However, the three workers are still stuck under IUOE Local 3’s monopoly bargaining contract and so-called “representation.” A decertification election, about which the union official had sought to comb the workers’ communications, would force the union to prove it actually has the support of at least a majority of the workers it claims to represent. If a majority of workers vote against the union in a secret ballot decertification election, the unwanted union would be removed from the workplace.
“This case shows that union officials will go to any lengths to try to trap workers under a union monopoly they oppose,” said Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation. “Apparently, IUOE union bosses are so fearful of letting workers vote on unionization, that they are willing to harass and attempt to intimidate workers whom they claim to ‘represent.’”
U.S. Supreme Court Asked to Hear Case Challenging Monopoly Bargaining Power
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2019 edition. To view other editions or to sign up for a free subscription, click here.
Homecare providers challenge mandatory union ‘representation’ as First Amendment violation
SEIU bosses force Teri Bierman (pictured with her family) to affiliate with the union as a condition of caring for her own daughter in her own home.
WASHINGTON, D.C. – With free legal representation provided by National Right to Work Foundation staff attorneys, a group of homecare providers seeking to care for their sons and daughters without union boss interference have taken their case to the U.S. Supreme Court.
The providers’ lawsuit, Bierman v. Dayton, challenges a Minnesota scheme that forces thousands of providers under the exclusive monopoly “representation” of Service Employees International Union (SEIU) officials.
Bierman follows on the heels of Janus v. AFSCME, argued and won at the Supreme Court by Foundation staff attorneys. In Janus, the Court declared forced union fees for public sector employees to violate the First Amendment and opened the door to further cases seeking to uphold workers’ right of freedom of speech and freedom of association.
Teri Bierman and the seven other petitioners provide homecare services to their sons and daughters and receive state Medicaid assistance to help pay for the care.
After Minnesota declared homecare providers to be “state employees” solely for unionization purposes, SEIU Healthcare Minnesota officials moved to put all under the “exclusive representation” of union officials.
Once granted, “exclusive representation” made union officials the state-designated representative of all providers, even those opposed to unionization and who would prefer to represent themselves or be represented by a different organization.
SEIU officials notified the state that, if the union was certified, it would not force non-members to pay union fees, which the U.S. Supreme Court held to be unconstitutional for homecare providers in the Foundation-won Harris v. Quinn decision in 2014. Union officials would still, however, have the power to act as homecare providers’ sole “representative” in lobbying the state.
Concerned that the impending vote could empower union bosses to interfere with their care for their children, the group of nine homecare providers came to Foundation staff attorneys to challenge the encroachment on their First Amendment rights.
In August 2014, SEIU officials won a sham mail-in election in which just 13 percent of the nearly 27,000 care providers voted in favor of SEIU affiliation.
Consequently, even though seven out of eight providers didn’t vote for unionization, SEIU officials are now empowered to deal with the State for all care providers.
“The sparse vote only adds insult to injury for these homecare providers opposed to union affiliation,” said National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse. “It’s wrong, and contrary to the principle of freedom of association, to force them to affiliate with and accept the so-called representation of a private organization they oppose.”
The homecare providers continue to challenge the forced union “representation.” Their legal odyssey has so far taken four and a half years, and is now at the steps of the Supreme Court. In December, Foundation staff attorneys filed a petition for certiorari with the High Court, asking it to hear the case.
By asking the Court to declare it a First Amendment violation to force homecare providers to submit to union officials’ sole power to speak for them to the state, Foundation staff attorneys seek to build on the Janus victory in June 2018. In Janus, Justice Samuel Alito wrote in his opinion for the Court: “Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees.”
Foundation staff attorneys are litigating another challenge to union officials’ monopoly bargaining privileges in Mentele v. Inslee, brought by Washington homecare providers. Mentele was argued at the Ninth Circuit U.S. Court of Appeals in December.
“Forcing folks who care for their relatives into forced union representation is a slap in the face of fundamental American principles we hold dear,” continued LaJeunesse. “If the Supreme Court agrees to hear Bierman, these homecare providers will be one step closer toward vindicating their rights and establishing First Amendment protections for thousands of other individuals.”
