Cases Seeking Millions in Refunds of Forced Fees under Janus Move Forward
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.
Split Appeals Court decision bolsters petition for Supreme Court to take up issue
Veteran Foundation staff attorney William Messenger made history when he argued and won the Janus case before the High Court in 2018. He still represents Janus and others demanding forced-fee refunds.
PHILADELPHIA, PA – A National Right to Work Foundation-backed class-action lawsuit for Pennsylvania state employees seeking refunds of unconstitutionally seized union fees resulted in a split decision from the U.S. Third Circuit Court of Appeals in August. This ruling cast serious doubt on a favorite union boss argument used to avoid refunding dues seized in violation of workers’ First Amendment rights.
The employees were defending their rights under the landmark 2018 Foundation-won Janus v. AFSCME Supreme Court ruling. In Janus, the Court sided with former Illinois child support specialist Mark Janus and agreed with Foundation staff attorneys that requiring any public sector worker to pay union dues or fees as a condition of employment is a First Amendment violation. The Court also ruled that union dues can only be taken from public servants with their affirmative and knowing consent.
The plaintiffs in Wenzig v. Service Employees International Union (SEIU) Local 668 are seeking a ruling that SEIU officials must refund dues taken from employee paychecks in contravention of this standard before the Janus ruling came down. Union bosses used, as they have done in almost all similar cases, a dubious “good faith” argument to justify not refunding the dues to the victimized workers. In the split decision, two of the three judges rejected the so-called “good faith” theory.
Supreme Court Asked to End Lower Court Confusion on Janus Refunds
Foundation staff attorneys cited the growing confusion among federal judges on forced-union-fee refunds as a vital reason the Supreme Court should hear the continuation of Janus v. AFSCME. In a supplemental brief, Foundation attorneys wrote that Wenzig “supports granting review here because a majority of the Third Circuit panel rejected the good faith defense recognized by the Seventh Circuit here and by the Second, Sixth, and Ninth Circuits.”
“The Court should finally resolve this important issue and hold there is no good faith defense to Section 1983,” the brief adds. Section 1983 is the federal law requiring that those who deprive people of their constitutional rights “under color of any statute . . . shall be liable to the party injured.”
This September, Foundation staff attorneys also filed the final reply brief supporting the Supreme Court petition in Casanova v. International Association of Machinists (IAM), Local 701, another case seeking review from the High Court. It also cites the Third Circuit’s split decision. Plaintiff Benito Casanova, a Chicago Transit Authority employee, seeks to get back money that IAM bosses took from his paycheck and the paychecks of his colleagues in violation of their First Amendment rights prior to the Janus decision.
Foundation Leading Worker Efforts to Reclaim Fees Seized Against Janus
The workers in these cases and many others are collectively fighting for millions of dollars in pilfered money to be returned to them. Foundation attorneys currently represent these public servants in nearly 20 similar cases, together pursuing about $130 million in refunds to workers.
“Given the clarity of the Janus First Amendment standard, it’s bewildering that federal judges have not yet widely discredited union boss arguments that serve only to deny public sector workers refunds of money that the High Court itself ruled should have never been taken from them in the first place,” observed National Right to Work Foundation President Mark Mix. “The High Court must swiftly disabuse lower courts of their misunderstandings and provide justice to workers who have been waiting years for their hard-earned money to be returned.”
Featured Article: “The Future Looks Bright for the Right to Work Movement”
The Regulatory Review has ranked the essay entitled “The Future Looks Bright for the Right to Work Movement” by National Right to Work Foundation Vice President and Legal Director Raymond J. LaJeunesse, Jr. as one of the publication’s top essays in 2019.
The essay highlights successes in the ongoing fight against forced unionism through legal and legislative reform:
Thomas Jefferson famously said that it is “sinful and tyrannical” for government “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors.” That principle is consistent with the guarantees of freedom of speech and association enshrined in the U.S. Constitution’s First Amendment. Yet, some federal and state labor laws in this country have long authorized requirements that workers pay union dues as a condition of employment, requirements known as the “union shop” or “agency shop.” Increasingly, however, legislatures and courts are recognizing that workers have a constitutional right to work without being forced to subsidize a union.
Among recent achievements for the Right to Work movement are five new state Right to Work laws passed since 2012 and the landmark Foundation-won Janus v. AFSCME Supreme Court decision in June 2018.
The complete essay is available to read online here.
Foundation Assists Workers During UAW Union Boss-Ordered GM Strike
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2019 edition. To view other editions or to sign up for a free subscription, click here.
Strike order comes during growing UAW boss corruption and embezzlement investigation
With free aid from the Foundation, Ford employee Lloyd Stoner won a unanimous ruling from the NLRB which ordered UAW bosses to refund illegally seized dues.
DETROIT, MI – In September, United Auto Workers (UAW) union bosses ordered tens of thousands of General Motors workers on strike. The strike came as federal prosecutors were intensifying their investigation into embezzlement and corruption within the UAW hierarchy. Just days before the strike, the probe had reached the top levels of the UAW when FBI agents raided the homes of the union’s current president and his predecessor.
Amid the scandal and union boss-instigated strike, National Right to Work Legal Defense Foundation staff attorneys were assisting several Michigan workers in legal challenges to the coercive practices of UAW officials. Additionally, Foundation Legal Information staff publicized a “special legal notice” directed at workers affected by the strike to ensure they knew their legal rights despite persistent union misinformation and threats.
GM Worker Stands Up to UAW Discrimination
Joseph Small, a stamping metal repair worker at a Lansing, Michigan, GM plant, filed a federal charge with the National Labor Relations Board (NLRB) right before the strike unfolded with free aid from Foundation staff attorneys. Small, who is not a UAW member and is not required to pay fees to the union because of Michigan’s Right to Work Law, asserted in his charge that UAW officials “heavily involved [themselves] in the interview process” for a promotion for which he was being considered.
Small was passed over for the position, which went to a union member. Small’s charge notes that a union representative later “stated that [Small] did not get the position because [he] was not paying union dues,” a clear violation of federal labor law.
According to the National Labor Relations Act, workers have the right to refrain from union activities and neither union officials nor management can discriminate against employees based on their union membership status.
Ford Worker Wins Unanimous NLRB Ruling
Ford Motor Company worker Lloyd Stoner, who works at the company’s facility in Dearborn, Michigan, won a second victory in defense of his rights this August with free legal aid from the Foundation.
Stoner, who had originally charged UAW officials and Ford with illegally seizing dues from his paycheck despite his previously resigning his union membership and revoking his dues deduction authorization, received a unanimous ruling from a three-member panel of the NLRB in Washington, D.C. The labor board directed UAW officials to make Stoner whole for the dues they illegally took.
The NLRB also ordered UAW officials to immediately honor any other employees’ membership resignations. Stoner had earlier won a favorable settlement from Ford for its role in blocking him from exercising his rights.
“UAW union officials continue to show a willingness to break the law, even violating the rights of the very workers they claim to represent,” observed National Right to Work Foundation Vice President Patrick Semmens. “Whether it be federal corruption prosecutions or unfair labor practice charges at the NLRB, UAW bosses must be held accountable when they break the law.”
Foundation Urges Federal and State Governments to Protect First Amendment Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2019 edition. To view other editions or to sign up for a free subscription, click here.
Alaska first state to require First Amendment Janus rights waiver before deducting union dues
Alaska Gov. Mike Dunleavy (left), following an opinion from Attorney General Kevin Clarkson, ordered all Alaska state agencies to protect state employees’ First Amendment rights under Janus.
ANCHORAGE, AK – In late September, Alaska Governor Mike Dunleavy signed an executive order to protect the First Amendment rights of state employees established in last year’s Janus v. AFSCME Supreme Court decision. The order calls for the State of Alaska to stop deducting union dues from the paycheck of any worker who hasn’t filed a form with the state affirmatively waiving his or her First Amendment right under Janus not to fund any union activities.
The move follows a letter last year sent by National Right to Work Foundation Legal Director Raymond LaJeunesse to state comptrollers in Alaska and other states, urging them to modify dues deduction policies to comply with the Janus decision.
Foundation Comments Detail Need to End Dues Deductions Uncompliant with Janus
The Foundation also recently filed comments with the Federal Labor Relations Authority (FLRA) regarding the need for the federal government to take steps to protect the First Amendment rights of employees recognized in the Foundation-won Janus decision. The Foundation’s comments were submitted after the U.S. Office of Personnel Management (OPM) asked the FLRA to solicit public comments on how to proceed with union dues deductions in light of the Supreme Court’s Janus decision last year.
In that case, the High Court held that requiring public employees to pay union dues or fees without their consent violates the employees’ First Amendment rights “by compelling them to subsidize private speech on matters of substantial public concern.” Justice Samuel Alito’s opinion for the court further ruled that no union dues or fees could be taken from a public employee “unless the employee affirmatively consents to pay” using a “freely given” waiver of his or her First Amendment rights.
Consistent with that standard, the Foundation’s comments urge the FLRA to issue guidance to agencies that they “must cease deducting union dues from the wages of employees who signed a dues deduction form that does not satisfy the [Janus] standard.” According to Department of Labor statistics, nearly one million federal employees — 26.4% of all federal workers — are union members, many of them likely having dues deducted from their paychecks despite never having knowingly waived their First Amendment right not to subsidize union activities.
The Foundation comments make clear that these dues deductions should cease in the wake of Janus. To comply with Janus, workers wanting to voluntarily pay union dues can either provide the government with a valid waiver of their rights or pay dues on their own without using taxpayer-funded payroll systems to forward the money to union officials.
The Foundation’s comments to the FLRA further argue that, even where workers provide a valid authorization for dues deductions that meets the Janus standard, the government shouldn’t block them from revoking that authorization if the request is submitted at any time at least a year after the Janus-compliant authorization was obtained.
Foundation Comments Push to End Union-Created “Window Period” Scheme
Unfortunately, agencies and union officials often prohibit federal employees from stopping the seizure of union dues from their wages except during short annual escape periods. The comments filed by the National Right to Work Foundation say that this practice does not comply with Janus either.
“The Janus precedent is very clear about this: Without affirmative and knowing waivers from public workers, government entities cannot collect union dues without violating a worker’s First Amendment rights,” commented National Right to Work Foundation President Mark Mix.
“Currently, the government seizes union dues from almost one million federal employees in violation of the Janus decision’s First Amendment standard. Federal agencies are obligated to protect workers’ constitutional rights in this rulemaking process.”
Since the Janus decision last year, Foundation staff attorneys have been fighting to ensure public workers’ First Amendment rights are protected, litigating more than 30 cases in federal courts across the country to enforce the landmark ruling.
Healthcare Worker Sues Teamsters Union and Healthcare Facility for Violating West Virginia Right to Work Law
Former Tygart Center employee says union officials and employer violated her legal rights by demanding she join the union and pay union dues and fees to keep her job
Fairmont, WV (December 24, 2019) – With free legal aid from the National Right to Work Legal Defense Foundation, healthcare worker Donna Harper filed a lawsuit against Teamsters Local 175 and the Tygart Center for violating her rights under the State of West Virginia’s Right to Work law.
West Virginia’s Right to Work law prohibits requiring workers to pay union dues or fees just to get or keep a job. In defiance of West Virginia’s Right to Work law, Tygart Center and Teamsters union officials entered into a collective bargaining agreement that required employees to pay union dues and fees as a condition of employment.
When Harper was hired, Tygart Center officials informed Harper that she must become a union member and pay union dues as a condition of employment in violation of her legal rights. Tygart Center officials deducted full union membership dues and fees from Harper’s paycheck and remitted this money to Teamsters union officials.
In March 2019, Harper successfully exercised her legal rights by resigning her union membership. Even then union officials continued taking union dues from her paycheck. Union officials also never fully refunded the union dues unlawfully seized from her wages.
Foundation staff attorneys filed the suit against the Tygart Center and the Teamsters union for Harper in Marion County Circuit Court. Harper worked at the Tygart Center from February 2018 until September 2019 as a Laundry Aide and as a Certified Nursing Assistant.
Foundation staff attorneys also filed an amicus brief for Harper with the West Virginia Supreme Court defending the state Right to Work law against a protracted lawsuit brought by several unions seeking to overturn the law and restore union officials’ power to have workers fired for refusing to pay union dues or fees. That case is scheduled for oral arguments in the Supreme Court on January 15. That court has already rejected the unions’ arguments once, overturning a preliminary injunction against the Right to Work law.
“Teamsters union bosses demonstrated a blatant disregard for the law by illegally demanding Ms. Harper and her coworkers pay union dues and fees just to get or keep their jobs,” said National Right to Work Foundation President Mark Mix. “Contrary to Big Labor’s wishes, West Virginia’s Right to Work law is in full effect, meaning all union dues for workers covered by the law must be completely voluntary.”
Newark Courthouse Security Guards Win Settlement Forcing Union Bosses to Refund Illegal Dues and Stop Retaliatory Lawsuit
Union bosses filed collection suit illegally demanding dues payments from nonmember employee for period when there was no union contract in effect
Newark, NJ (December 11, 2019) – With free legal aid from the National Right to Work Legal Defense Foundation, Newark, New Jersey-based security guards Andrei Bobev and William Sona have won a settlement against United Government Security Officers of America (UGSOA) union bosses, whom they charged with illegally demanding union dues from them while there was no contract in effect between the employer and union. The settlement was approved by the National Labor Relations Board (NLRB) Region 22 in Newark.
As part of the settlement, UGSOA officials are required to refund to Sona and six coworkers more than $4,000 in dues and fees that were taken from them illegally, and notify Bobev that they will not continue a civil lawsuit they filed against him to force him to pay illegal union dues after he refused to do so. Bobev and Sona are not members of the UGSOA.
Bobev first sought the aid of Foundation staff attorneys after Paragon Systems took over the federal contract for security services at the U.S. Courthouse in Newark. USGOA bosses, who under the old contractor had monopoly bargaining power over the security guards at the courthouse, demanded that employees continue to pay them dues and fees even though a contract had not yet been finalized between the union and Paragon. Bobbev declined to pay the illegally-demanded dues, and filed federal charges with the NLRB against UGSOA officials with National Right to Work Foundation legal aid.
NLRB Region 22 officials dismissed Bobev’s charges, and UGSOA officials shortly after retaliated against him with a civil lawsuit in an attempt to force him into paying the illegal dues. However, the NLRB General Counsel in Washington reversed Region 22’s dismissal and instructed regional officials to prosecute Bobev’s charge.
Sona and other nonmembers were misled by union officials and started paying illegal dues and fees while there was no monopoly bargaining contract in effect between Paragon and the UGSOA union. With the current settlement, he and six of his fellow security guards will receive back all the money that they paid to UGSOA bosses during that period, plus interest.
UGSOA officials are also required by the settlement to post notices at union headquarters and at all of Paragon Systems’ Newark locations. The notices declare that union bosses “will not threaten to cause [the] employer to discharge [employees] for failure to pay dues and/or service fees” when there is no monopoly bargaining contract in effect, and “will not threaten to enforce [the union’s] by-laws and constitution against non-members by threatening to institute civil proceedings” to force them to pay dues or fees.
“Although this settlement finally provides Mr. Bobev, Mr. Sona, and their coworkers with remedies for illegal union boss actions, it is outrageous that UGSOA officials believed they could enforce their coercive bylaws on workers without having legal power over any one of them in the absence of a contract,” commented National Right to Work Foundation President Mark Mix. “A Right to Work law would stop coercive union boss activity in New Jersey by giving workers the right to voluntarily choose whether or not to join or financially support a union.”
Alaska School Bus Drivers Win Three Year Battle to Kick Unpopular Teamsters Union Bosses Out of Their Workplace
Multi-year legal fight to remove union opposed by majority of workers shows need for reform of NLRB rules that allow unions to block workers’ from holding decertification votes
Anchorage, AK (December 9, 2019) – A group of Alaskan school bus drivers have just prevailed in their years-long effort to remove an unpopular Teamsters union from their workplace. The union’s ouster comes after National Right to Work Legal Defense Foundation staff attorneys provided free legal aid to Elizabeth Chase, the bus driver leading the charge to hold a decertification election so workers could vote out the union.
After workers sought for almost three years to remove the union, Teamsters Local 959 union officials finally stopped fighting the workers’ efforts by filing a disclaimer of interest with the National Labor Relations Board (NLRB) Region 19 in Seattle. The disclaimer came after the Region dismissed the union’s latest unfair labor practice charge following Chase’s fifth request for review to the full NLRB in Washington, DC, contesting the Regional Director’s continued block of a decertification vote at the behest of Teamsters bosses.
Chase is an employee of Apple Bus Company near Anchorage, Alaska. In July 2017, she submitted a decertification petition to NLRB Region 19 asking for a secret ballot election to remove the Teamsters as the monopoly bargaining representative in her workplace. Under the National Labor Relations Act (NLRA), if a decertification petition garners signatures from at least 30 percent of the employees in a bargaining unit, the NLRB is supposed to conduct a secret-ballot election to determine whether a majority of the employees wish to decertify the union. Chase’s initial petition was signed by more than 50 percent of the workers in the bargaining unit, far more than necessary to trigger a decertification vote.
The NLRB Regional Director blocked the decertification vote later that year, citing the Obama Labor Board-backed “successor bar,” which prohibits workers from removing an unwanted union simply because the ownership of an employer has changed hands. That “successor bar” is not mandated by the NLRA, which the NLRB is charged with enforcing.
Despite that setback, Chase and her coworkers continued their efforts to remove the Teamsters from their workplace, filing another decertification petition in 2018. This time, Teamsters officials moved to prevent the vote by filing successive “blocking charges” with the Regional Director, alleging unfair labor practices by Apple Bus. The Regional Director repeatedly allowed union officials to block a vote despite Chase’s pointing out that the Region failed to “explain specifically what causal connection(s) exist” between the petition and the union bosses’ allegations that made it necessary to stop the vote. All told, Chase requested five times that the full NLRB in Washington, DC, reverse the Regional Director’s decisions and let the vote proceed.
The NLRA, the federal law that the NLRB is tasked with enforcing, grants all workers the right to remove an unpopular union. Most restrictions manipulated by union bosses to halt decertification votes (such as the “successor bar” and “blocking charges”) are not established in its text but have been read into it by Big Labor-friendly Board Members under the Clinton and Obama administrations. Foundation staff attorneys have been fighting for workers for decades to eliminate these unfair, non-statutory limitations on workers’ rights to hold a vote to remove a union that has lost most workers’ support.
The NLRB is currently accepting comments on reforming the “blocking charge” doctrine and another non-statutory bar to decertification elections, the “voluntary recognition” bar. In comments to the Labor Board, Chase’s Apple Bus coworker Donald Johnson blasted the union’s ability to game the NLRB’s system to delay a decertification vote for years as “the most unfair and anti-democratic event I have been involved with in my entire life.” The window for submitting comments to the NLRB ends on January 9, 2020. Foundation attorneys have prepared comments they will file urging the Board to end both the “blocking charge” policy and “voluntary recognition” bar.
“The NLRB is tasked with protecting the right of employees to remove a union that is opposed by a majority of workers, but as this case shows us that right is undermined by non-statutory NLRB policies that allow workers to be trapped in union ranks for years at a time without even a decertification vote,” observed National Right to Work Foundation President Mark Mix. “Though Ms. Chase and her coworkers are finally free from the coercive reign of a plainly unpopular Teamsters union, the NLRB must act quickly to roll back the undemocratic election bars and blocking charge policies that undermined their rights for almost three years.”
Foundation Winning Protections Against Forced Unionism at Trump NLRB
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
Series of victories adds protections against illegal forced dues, being trapped in union ranks
Staff attorney Glenn Taubman testified before Congress in July that existing NLRB rules wrongly favor union bosses over workers.
WASHINGTON, D.C. – In a series of recent victories, the National Labor Relations Board (NLRB) ruled in favor of workers challenging coercive union official practices, with free legal aid provided by the National Right to Work Foundation. The rulings are a stark departure from the Obama NLRB, which regularly stymied the rights of independent-minded employees opposed to associating with union bosses.
Foundation Wins Appeals in Dues Checkoff Cases
In separate cases brought by Foundation staff attorneys for Kacy Warner, a hospital worker, and Shelby Krocker, a Kroger grocery employee, the NLRB General Counsel ruled for the workers and ordered Regional Directors to prosecute union officials’ actions related to language in union dues checkoff forms.
The General Counsel’s decision to sustain Warner’s appeal concerning the checkoff authorized even more additions to the charges, saying the National Nurses Organizing Committee (NNOC) union violated the NLRA by “maintaining confusing and ambiguous dual-purpose authorization forms that unlawfully restrained employees in the exercise of their Section 7 rights.”
The General Counsel noted that the union’s forms failed to tell workers they can revoke authorizations for dues deductions after the union’s contract expires, failed to give workers adequate time to revoke authorizations, unlawfully required workers to use certified mail to send revocation requests, and failed to give “any indication to employees that payroll deduction authorization is voluntary.”
This came just a week after the General Counsel sustained another Foundation-led appeal for Krocker, who charged United Food and Commercial Workers (UFCW) union officials with illegally forcing her to sign a dues checkoff authorization. In both cases, the NLRB General Counsel authorized even more charges against union officials for misleading and confusing language regarding union dues deductions.
NLRB Regions Instructed to Prosecute Beck Violations
Also in July, the NLRB Division of Advice and General Counsel instructed regional directors to issue complaints against unions when union officials fail to inform employees of the amount of reduced union fees they can pay by objecting under the Communication Workers of America v. Beck U.S. Supreme Court decision.
The memos instruct NLRB Regional Directors to more stringently enforce workers’ Beck rights which protect workers from being forced to fund nonchargeable union activities such as union political activities. A memo issued to the Director of NLRB Region 32 read in part that “it is difficult for an employee to make an informed decision about whether to become a Beck objector without knowing the amount of savings that would result from the decision.”
“The Foundation is proud to have represented the California employee whose charge against the UFCW resulted in this Advice Memo, as well as necessitating this heightened disclosure standard by winning the Beck decision at the Supreme Court and the Penrod decision at the D.C. Circuit Court of Appeals,” National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse said. Foundation staff attorneys are currently litigating several additional cases to secure and expand workers’ protections under Beck.
Ruling Aids Workers Trapped in Union Ranks They Oppose
In another Foundation victory for independent-minded workers in July, the NLRB issued a decision that limits union officials’ ability to game the NLRB system to trap workers in monopoly union ranks. The ruling allows employers to withdraw recognition from a union when a majority of its workers sign statements opposing unionization.
Foundation staff attorneys represented two workers, Brenda Lynch and Anna Marie Grant, who spearheaded the collection of signatures from a majority of workers opposed to union representation. Their employer complied with their wishes and sent the union bosses packing. After United Auto Workers (UAW) union officials sought to foist the union back onto the workers despite their clear opposition, Foundation staff attorneys persuaded the NLRB to uphold the UAW’s ouster.
“Instead of union lawyers playing legal games for months or even years to block the removal of a union that lacks majority support, the Board majority takes the common sense approach of asking union officials to prove their claim of support in a secret ballot vote of the workers,” said LaJeunesse.
