Worker Advocate: Biden Dues Skim Rule Proposal Violates Federal Law by Funneling Medicaid Funds to Union Officials
Comments: Federal law specifically prohibits diverting financial assistance for homecare providers to third parties such as unions
Washington, DC (September 28, 2021) – The National Right to Work Legal Defense Foundation, a nonprofit organization dedicated to protecting America’s working men and women from the abuses of compulsory unionism, filed comments today urging the Centers for Medicaid Services (CMS) not to rescind a 2018 Trump Administration rule that made clear that federal law prohibits union officials from skimming union dues payments from Medicaid funds intended for those who provide home-based assistance to disabled people.
Foundation attorneys argue in the comments that the Medicaid statute’s blanket prohibition on assigning payments to third parties has no exemption for assignments to unions and their PACs, and that the Trump-era rule simply ensured that Medicaid regulations conformed to longstanding law. Prior to the rule, union officials had siphoned upwards of $1 billion from Medicaid payments, an effort which had been aided by the Obama Administration’s 2014 creation of a special exemption for union officials from Medicaid regulations.
Union officials, especially at the Service Employees International Union (SEIU), have long used deceptive and even unconstitutional tactics to divert taxpayer-funded Medicaid payments into union coffers. Before the Supreme Court’s ruling in the Foundation-won 2014 Harris v. Quinn decision, which found that mandatory union payments violate the First Amendment rights of homecare workers who do not wish to support union activities, homecare providers in over a dozen states were required to fund union activities. States automatically deducted fees from Medicaid payments even though such union dues diversions violated federal law regarding Medicaid funds.
Even after the Harris decision was issued, union officials continued seizing money from hundreds of thousands of providers across the country under cover of the Obama-era rule creating an exception to the prohibition against skimming Medicaid funds. Many providers attempted to stop the union dues seizures, while others were unaware they could not be required to make the payments. Some, while attempting to stop the payments, even found that union agents had forged their signatures to authorize the deductions.
“[Home and Community Based Service] Medicaid payments are supposed to pay for care for the severely disabled. Diverting these payments to third-party special interests to subsidize their political agendas, lobbying, and recruitment campaigns is as unconscionable as it is unlawful under Subsection (a)(32)’s unambiguous direct payment requirement,” the comments state. “CMS’s opposite intent in its 2021 [Notice of Proposed Rulemaking] to condone this corrupt practice by inventing a new regulatory exception to the statute is inconsistent with Subsection (a)(32) and is arbitrary and capricious.”
Under the Trump-era rule, union officials may collect payments from caregivers who voluntarily support union activities, but cannot use taxpayer-funded government payment systems to deduct the dues from Medicaid payouts. Voluntary union supporters could still make payments just as millions of Americans make regular payments to private businesses or other organizations.
“The Biden Administration’s plan to reauthorize the Medicaid union dues skim is a bald attempt to allow their political allies to divert funds that federal law makes clear should be going to help those who are homebound or have significant disabilities,” observed National Right to Work Foundation President Mark Mix. “Homecare providers’ own free choice should determine whether union bosses receive their support, not politically-motivated, federally-imposed special exemptions.”
Joint Supreme Court Petition Filed for California, Oregon Government Workers Seeking Refunds of Illegally-Seized Union Dues
Four lawsuits seek refunds of millions in dues seized from public sector workers without their consent
Washington, DC (September 27, 2021) – A petition for certiorari was filed at the United States Supreme Court late last week for workers in four separate lawsuits brought against unions whose officials refuse to return forced union fees seized from the government workers’ paychecks in violation of the First Amendment.
The cases were all filed with free legal representation from National Right to Work Legal Defense Foundation staff attorneys, with two filed in partnership with attorneys at the Freedom Foundation.
The lawsuits together could enable thousands of public sector employees to obtain refunds of millions of dollars in union dues seized before the Supreme Court’s 2018 Janus v. AFSCME decision. In Janus, the High Court ruled it a First Amendment violation to collect union dues or fees from public sector workers’ paychecks without their affirmative consent.
The Janus ruling made it clear that public employees must affirmatively consent to union payments. The Court stated in its opinion that union officials had been “on notice” since the National Right to Work Foundation-won Knox v. SEIU case in 2012 that forced union dues in the public sector likely violated the First Amendment.
The petition was filed for public sector workers in California and Oregon. It combines suits filed by William Hough, a worker at the Santa Clara Valley Transportation Authority, William D. Brice, a professor at California State University Dominguez Hills, and two suits filed by groups of Oregon state employees. The petitions argue that longstanding precedent allows victims of First Amendment violations to sue for damages or restitution. They argue public sector workers across the country who were forced to pay union dues in violation of the First Amendment deserve to be refunded.
Appellate courts ruled against the workers in each of the four lawsuits. The workers’ attorneys argue in the Supreme Court petition that the lower courts improperly imposed their own views by creating an exception for union bosses in the name of “equality and fairness” that absolved them of their obligation to repay the victims of their First Amendment violations. The petition asks the Court to reject that reasoning:
Lower courts should not be permitted to manipulate constitutional claims to predetermine the outcome of cases based on what they think is good policy or fair to the violators of constitutional rights. The Court should thus reject the proposition that courts can engage in judicial gerrymandering by granting a good faith defense based on “equality and fairness” to the violators of the First Amendment that leave the victims with no remedy.
Another class action National Right to Work Foundation lawsuit filed for government workers in Illinois who seek refunds of union dues seized in violation of Janus is fully briefed and is scheduled for consideration at the Justices’ conference next week.
“For decades, union bosses dipped into the paychecks of many workers who were not union members and used their money to finance activities those workers fiercely opposed,” said National Right to Work Legal Defense Foundation President Mark Mix. “They continued seizing dues despite workers’ pleas and warnings from the Supreme Court that their actions were likely unconstitutional. Because of the statute of limitations, a ruling in these workers’ favor would only force union bosses to return a small portion of the billions of dollars nationwide they unlawfully stole from public employees’ paychecks.”
“The Supreme Court must not allow the lower courts to shield union bosses from accountability for years of violations. The Court should promptly take up these cases, and provide relief to the millions of public sector workers whose rights union bosses callously violated for years,” Mix added.
“The Supreme Court did not create a government employee’s First Amendment right not to be forced to fund a union as a condition of employment,” said Eric Stahlfeld, Freedom Foundation’s Chief Litigation Counsel. “Rather, the Court affirmed in Janus v. AFSCME what it had been signaling to unions in three previous cases starting with Knox, that the right had always existed and simply needed to be recognized. The Ninth Circuit claims it has sided with the unions in ‘good faith’, but if ignoring multiple Supreme Court rulings is operating in good faith, we’d hate to see what the Ninth Circuit considers bad faith.”
Labor Board Rejects Biden Appointee’s Attempt to Scuttle Case Against Union
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Texas nurse challenges concealment of secret union-employer deal which stifles decertification
With Foundation legal aid, Texas nurse Marissa Zamora shut down NLRB “Acting” General Counsel Ohr’s attempt to block her case.
WASHINGTON, DC – The National Labor Relations Board (NLRB) recently rejected a move by NLRB Acting General Counsel Peter Ohr to prematurely end Texas nurse Marissa Zamora’s case before the Board could rule. The case challenges National Nurses Organizing Committee (NNOC) union officials’ refusal to disclose a secret agreement they signed with the parent company of her hospital that limits Zamora’s ability to remove the union from her workplace.
Ohr is a career NLRB bureaucrat, who was installed as General Counsel by President Biden this January after Biden made the unprecedented move of removing Trump-appointed NLRB General Counsel Peter Robb before his Senate-confirmed four-year term expired. Ohr filed a motion in February seeking unilaterally to send Zamora’s complaint back to the NLRB’s Fort Worth regional office to be dismissed — after Zamora’s case had already been fully briefed at the full Board in Washington.
Zamora is represented for free by National Right to Work Foundation staff attorneys, who in March opposed Ohr’s attempted maneuver. Their brief argued that snuffing
the case out now would jeopardize the NLRB’s power to decide cases involving violations of federal labor law, and also contended that Ohr lacked any authority to make his motion because of Biden’s illegal ouster of Robb. In a May decision, the NLRB agreed with Zamora’s Foundation staff attorneys that the case should continue, observing that the matter “has been fully litigated, and the controversy at issue, which remains active, is ripe for Board adjudication.” The case began when Zamora demanded a copy of the secret so-called “neutrality agreement.” Such agreements are deals between union officials and employers — usually without the knowledge of employees in a workplace — that seek to assist the union in gaining monopoly bargaining powers over rank-and-file workers.
NNOC Agents Shrouded, Lied About Deal Which Stymied Info about Decertification
“The Board correctly rejected Peter Ohr’s attempt to scuttle this case so he could let union officials off scot-free despite their secret backroom deal to undermine the rights of nurses like Marissa Zamora who are subjected to unwanted union representation,” National Right to Work Foundation President Mark Mix said about the decision to let the case move forward. These controversial top-down organizing deals frequently contain provisions that require employers to silence opposition to unionization, hand over workers’ personal information for coercive “card check” drives that bypass the protections of a secret-ballot election, provide union organizers with preferential access to the workplace and even ensure employers will help stifle workers’ efforts to decertify, i.e. remove, the union.
In Zamora’s case, she began circulating fliers and other materials in June 2018 to educate her coworkers on how they could obtain a vote to decertify the union. Legal documents she filed in her case explain that union agents “repeatedly ripp[ed] down her fliers” and that hospital officials referenced a secret agreement with the union when they denied “her access to post material on protected bulletin boards, where her material would be shielded from vandalism.”
Zamora subsequently asked both NNOC and hospital officials to show her any “neutrality agreement” that might have triggered those efforts to block her and her coworkers’ rights. All her requests were denied, and NNOC even denied that such an agreement exists. This was despite statements by hospital agents to her that indicated a “neutrality agreement” was indeed in effect.
Trump-Appointed NLRB GC Robb Backed Nurse’s Case Until Unprecedented Firing
Zamora filed federal unfair labor practice charges at the NLRB, challenging NNOC bosses’ refusal to disclose the secret agreement. Then- NLRB General Counsel Robb issued a complaint supporting the claims in Zamora’s charges.
Nevertheless, a Labor Board Administrative Law Judge (ALJ) dismissed the complaint Robb issued, even revoking subpoenas that would have compelled NNOC union bosses to reveal the covert deal.
Zamora challenged the ALJ’s dismissal, filing exceptions at the full Board in Washington. Briefs she filed supporting those exceptions pointed out that, during a two-day trial, it came out that the “neutrality agreement” existed, but it was a closely guarded secret between the hospital and union officials “to be kept strictly confidential from employees and all third parties.” Robb also submitted exceptions buttressing Zamora’s exceptions.
Robb’s pro-employee decisions preceded Ohr’s controversial installation by Biden in January, and Ohr’s subsequent attempt to remand or dismiss the case, which the NLRB has now rejected.
“The Board should now promptly rule for Ms. Zamora on the merits of the case so union bosses cannot keep secret pacts with employers to the detriment of rank-and-file employees’ protected rights,” Mix said.
Long Beach Worker Who Opposed Teamsters’ Power Grab in Workplace Files Charges Battling Illegal Union Demands
NLRB asked to seek injunction in federal court to stop illegal union boss threats that workers will be fired if they refuse to immediately pay full union dues
Los Angeles, CA (September 23, 2021) – Long Beach-area Savage Services employee Nelson Medina is hitting Teamsters Local 848 union bosses with federal charges asserting that union officials have threatened to have him fired for refusing to join the union, pay full dues, and pay other fees demanded by union officials. The charges were filed at National Labor Relations Board (NLRB) Region 21 in Los Angeles with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
Medina’s charges come amidst a flurry of Foundation-backed legal action by California workers against Teamsters Local 848. Medina himself filed a Request for Review this July at the NLRB in Washington, DC, challenging a dubious mail-vote process Teamsters officials pushed to gain monopoly bargaining power at his workplace. According to Medina’s Request for Review, at least 12 of his coworkers never had their votes counted in the election due to errors by the NLRB Region and postal service, though union lawyers somehow produced tracking numbers for two ballots that were originally considered late and demanded they be included in the count. Medina argued this indicated illegal ballot harvesting by union officials.
Just last week, Local 848 bosses were also forced to depart Airgas worker Angel Herrera’s Ventura, CA, workplace after he and his coworkers filed a petition for an NLRB-administered vote to remove the union from the workplace. Herrera’s colleagues had been involved in litigation against Local 848 officials since 2020, and filed at least two different majority-backed petitions seeking the end of Local 848’s monopoly bargaining power.
Medina’s charges recount that he sent Teamsters officials a letter on August 15 exercising his right to reject formal union membership. His letter also demanded that union officials provide him his rights as a nonmember under the Foundation-won CWA v. Beck Supreme Court decision, which prohibits union officials from requiring nonmembers as a condition of employment to pay anything to the union beyond fees directly related to bargaining expenses.
Because California lacks Right to Work protections, private sector workers who oppose a union’s presence in their workplace can still be required to pay union fees to keep their jobs. Right to Work protections in 27 states ensure union membership and all union financial support are strictly voluntary.
In an attempt to work around California’s lack of Right to Work, Medina and his coworkers have submitted a petition with sufficient signatures to prompt the NLRB to hold a “deauthorization vote,” after which union officials (even in a state without Right to Work) would be stripped of their forced-dues power if a simple majority of workers vote to do so.
About a month after Medina’s August letter, the charge notes, union officials informed Savage Services management by mail that if Medina and 12 fellow employees did not complete membership applications and submit full dues for the month of September, they should be terminated before September’s final week.
Medina’s charge argues that the union’s attempt to force him into full membership, full dues payment, payment of other non-legally-required fees, and the tiny window union officials gave him to comply with their demands despite not directly giving him notice are all glaring violations of his rights under the National Labor Relations Act (NLRA).
The charge also asks the NLRB to seek an immediate stop to union officials’ coercive actions, demanding injunctive relief for Medina and the 12 others under Section 10(j) of the NLRA. The charge cites “the imminent threat of termination” and “the pending deauthorization petition in this bargaining unit” as reasons injunctive relief must be granted.
“Teamsters Local 848 officials seem to be on a rampage throughout Southern California, brazenly violating the rights of any workers who dare to object to their one-size-fits-all bargaining power and forced-dues demands,” observed National Right to Work Foundation President Mark Mix. “Even amidst vehement worker opposition, Teamsters officials have repeatedly shown a preference for compulsion over trying to persuade workers to support them voluntarily.”
“Mr. Medina has been courageous in his continuing struggle to ensure that union coercion and legal finagling don’t determine the fate of his and his coworkers’ freedom in the workplace, and we are proud to support him in his efforts,” Mix added.
SEIU Bosses Refund Dues Seized from Chicago Mental Health Counselor After He Resigned Union Membership
Under unconstitutional ‘escape period’ scheme, healthcare worker paid union dues for months despite resigning SEIU membership
Chicago, IL (September 20, 2021) – Former University of Illinois Healthcare worker Johnathan Shepard won a full refund of money deducted from his paycheck by union officials who refused to stop charging Shepard unless he submitted a request during a fifteen-day annual “escape period.” Union officials returned the money after Shepard filed a federal lawsuit with free legal aid from the National Right to Work Legal Defense Foundation.
Shepard was a mental health counselor for the University of Illinois Hospital and Health Sciences System. Shepard sent a letter to Service Employees International Union (SEIU) Local 73 resigning his membership, but was told union officials would continue seizing union dues from his paycheck unless he waited several months and sent another revocation letter during a narrow 15-day “escape period.”
The U.S. Supreme Court ruled in its 2018 Janus decision that public sector workers like Shepard cannot be forced to pay union dues or fees. The High Court agreed with then-Illinois state employee Mark Janus and his National Right to Work Foundation attorneys that taking union dues from public sector workers without their affirmative consent violates the First Amendment by forcing them to subsidize union speech. Shepard argued that he had withdrawn his affirmative consent by resigning from the union, giving union officials no basis to continue seizing his money.
The SEIU officials’ “escape period” scheme is designed to stop employees from exercising their First Amendment rights under Janus for 350 days of the year (351 during leap years). Shepard filed a class action lawsuit in U.S. District Court against SEIU Local 73 and the University of Illinois Board of Trustees. Rather than defend their “escape period” scheme, SEIU officials settled with Shepard and returned all the money they seized after he exercised his First Amendment right.
During Shepard’s lawsuit, SEIU Local 73 officials revealed that about two dozen other employees had similarly been blocked from cutting off union dues under the union’s “escape period” scheme. Foundation attorneys are challenging “escape periods” across the country, including in two pending Supreme Court petitions. One petition involves Chicago Public Schools educators Joanne Troesch and Ifeoma Nkemdi, whose ability to cut off union dues was confined to the month of August. Workers who have been victimized by compulsory unionism are encouraged to contact the National Right to Work Foundation for free legal aid.
“When the Foundation-won Janus decision outlawed compulsory union dues in the public sector – essentially giving Right to Work protections to every government worker – union bosses immediately created new restrictions to make cutting off dues time consuming and confusing,” said National Right to Work Legal Defense Foundation President Mark Mix. “We won’t stop fighting until ‘escape period’ schemes everywhere are eliminated and no worker can be forced to pay union dues or fees without their consent.”
Airgas Employees Free from Unwanted Union after Teamsters Flee Workplace to Avoid Vote
Workers had filed two separate petitions since 2020 seeking to end unpopular Teamster union ‘representation’
Ventura, CA (September 17, 2021) – Following Airgas USA employee Angel Herrera and his coworkers’ yearlong effort seeking to end the union’s control at their workplace, Teamsters Local 848 officials have filed documents with the National Labor Relations Board (NLRB) ending their monopoly bargaining power over all workers at the Airgas Glass Welding and Safety Products facility in Ventura. Herrera and his colleagues received free legal assistance from National Right to Work Foundation staff attorneys in filing a petition for a vote to oust Teamsters union officials.
Airgas Ventura employees’ effort began in 2020, when they submitted a petition asking Airgas management to rescind recognition of Teamsters Local 848. Though Airgas management prepared to withdraw recognition as the majority of employees had requested, Teamsters officials filed unfair labor practice charges against Airgas soon after in an attempt to retain power over the employees at the facility despite the employees’ overwhelming opposition to the union.
What followed was months of litigation at the NLRB, the federal agency charged with enforcing most private sector labor law. Ultimately the NLRB forced Airgas to recognize the Teamsters union and the union’s “representation” was imposed back on the employees.
Herrera and his coworkers tried again to get Teamsters union chiefs out of their workplace this summer by filing a “decertification petition” with the NLRB. Herrera’s petition, filed on August 30, contained signatures from enough of his coworkers to trigger an NLRB-supervised “decertification election,” a secret-ballot election after which union officials lose monopoly bargaining power if a majority of workers vote to remove them.
Before a decertification election was scheduled, however, Teamsters officials instead disclaimed interest in maintaining control over the workplace on September 13, in an apparent attempt to spare themselves the embarrassment of an overwhelming vote by workers to reject the union’s so-called “representation.”
This is just the latest in a series of successful worker efforts to oust unwanted union officials aided by National Right to Work Foundation staff attorneys. Earlier this summer, maintenance worker Tim Mangia and his coworkers at Chicago’s Rush University filed a decertification petition with free Foundation legal aid and voted out another Teamsters affiliate, Local 743, from their workplace by a more than 70-30 margin.
Relatedly, just last month in Las Vegas, Foundation staff attorneys filed an amicus brief for a Red Rock Casino worker contesting a federal judge’s order that casino management submit to bargaining talks with Culinary Union officials, despite a majority of Red Rock workers voting against unionization.
The Foundation has also fought to break down union boss-created legal barriers to unseating unwanted union officials. Early last year, following detailed formal comments submitted by Foundation attorneys, the NLRB finalized rules eviscerating union bosses’ ability to stop a decertification effort with “blocking charges,” i.e., accusations made against an employer that are often unverified and have no connection to workers’ desire to kick out undesired union officials.
“We at the Foundation are proud to have helped Mr. Herrera and his colleagues in the exercise of their workplace rights, but no American workers should have to file multiple petitions and endure protracted litigation just so they can exercise this basic right of free association,” commented National Right to Work Foundation President Mark Mix. “This is more important than ever given the Biden Administration’s focus on further empowering union officials at the expense of rank-and-file workers’ individual rights.”
“Foundation staff attorneys will not waiver in their defense of workers’ right to dispense with unwanted union so-called ‘representation,’ regardless of which way the political winds blow,” Mix added.
TX Airline Employee Urges High Court to Take Up Forced-Dues-for-Politics Challenge
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
IAM bosses automatically seize money for politics if workers miss tiny ‘escape window’ to opt out
IAM officials left Arthur Baisley just a small annual “escape window” to opt out of automatic dues deductions taken for union politics. Will the High Court hear his case against this scheme?
WASHINGTON, DC – Arthur Baisley, a United Airlines employee in Texas, filed a petition for writ of certiorari asking the U.S. Supreme Court to hear his case in which he is battling International Association of Machinists (IAM) union bosses. They are seizing dues for union political expenditures from him and his coworkers in violation of the First Amendment and the Railway Labor Act (RLA).
Baisley filed the cert petition this May with free legal aid from the National Right to Work Foundation. Baisley’s lawsuit challenges a union requirement that employees who choose not to join the union must opt out of funding the union’s political and ideological activities during a brief annual “escape window,” or else have money automatically seized from their paychecks for those purposes against their will.
Worker Contends Janus Standard Should Nullify ‘Opt-Out’ Language
Baisley’s attorneys argue the “opt-out” arrangement violates workers’ rights found in the RLA, and the First Amendment under the standard laid out in the landmark 2018 Supreme Court Janus v. AFSCME decision, won by Foundation staff attorneys. The RLA is a federal law that governs labor relations in the railway and airline industries.
In Janus, the High Court ruled that no public worker can be coerced into paying union dues or fees as a condition of getting or keeping a job. The Court also held that union dues or fees can only be deducted from a public employee’s paycheck with his or her affirmative consent and a knowing waiver of his or her constitutional right not to pay.
Baisley’s staff attorneys extend this logic and argue that, under Janus and other Supreme Court precedents, union bosses infringe on the First Amendment rights of private sector employees under the RLA by forcing them to pay for union boss political or ideological activities without their consent. The union boss “opt-out” scheme offends this principle by forcing workers to object to dues for politics within a small “escape window” and seizing those dues as a condition of employment if they don’t opt out.
IAM Officials’ Scheme Seizes Forced-Dues-for-Politics from Non-Members
Baisley is not a member of the IAM, but is still forced to pay some union fees despite being based in the Right to Work state of Texas. The RLA preempts state Right to Work protections which make union membership and all union financial support strictly voluntary. However, under long-standing law established in Foundation-supported cases, even without Right to Work protections non-members cannot, as a condition of keeping their jobs, be required to pay fees for anything beyond the union’s expenses directly related to bargaining.
Baisley’s petition details the convoluted union boss-created process that workers must navigate just to prevent money from being taken from their paychecks in violation of their First Amendment rights. In Baisley’s situation, even though he sent a letter to IAM agents in November 2018 objecting to funding all union political activities, union officials only accepted his objection for 2019, and told Baisley he had to renew his objection the next year or else be charged full union dues.
IAM Union Officials Contravened Both Janus and Long-Standing Federal Law
In addition to running afoul of the Janus First Amendment standard, Foundation staff attorneys also assert that the complicated “opt-out” scheme contravenes the RLA, which protects the right of employees under its jurisdiction to “join, organize, or assist in organizing” a union of their choice, as well as the right to abstain from all union activities.
“The sordid goal of these kinds of union ‘opt-out’ requirements is clear: trap unsuspecting workers into subsidizing union bosses’ radical political agenda without their consent and in violation of their rights,” said National Right to Work Foundation Vice President Patrick Semmens. “The Supreme Court ruled in the Foundation-won Janus case that union officials must first seek the affirmative approval of public sector workers before charging them for union politics, and this case simply seeks to ensure that Mr. Baisley and all employees subject to the RLA enjoy those same basic protections.”
Teamsters Back Down After Refusal to Give UPS Workers Verification of Audit Used to Collect Forced Union Fees
Union officials barred nonmember workers from normal fee payment process and wouldn’t provide financials to prove charges were legal
Commerce City, CO (September 16, 2021) – UPS worker Mark Hamel won a settlement from Teamsters union officials after he filed National Labor Relations Board (NLRB) charges with free legal aid from the National Right to Work Legal Defense Foundation. The settlement is a victory for Hamel, who in December 2018 charged Teamsters union officials with violating his rights under federal law by requiring him to subsidize union officials’ activities as a condition of keeping his job.
Under the Supreme Court’s 1988 Beck decision, won by Foundation attorneys, unions cannot require nonmembers to pay fees for certain activities like union boss political lobbying. Despite this longstanding precedent, Teamsters officials failed to provide Hamel with a legally required audited description of how it calculated nonmember fees.
Hamel sent Teamsters officials a letter in October 2018 resigning his membership and requesting an audit of the union’s expenditures. In November 2018 Hamel received a response from union officials that included a one page unaudited breakdown of its expenditures. Hamel then filed charges with NLRB against Teamsters Local 13, Teamsters Joint Council 3, and the International Brotherhood of Teamsters, contending their response was inadequate because federal law requires nonmembers be given an audited and verified breakdown of how mandatory fees are calculated.
Hamel’s charges argued union officials’ lack of transparency prevents workers from knowing whether their money is being used legally. Union officials are prohibited under Beck from charging nonmembers workers for anything beyond core bargaining and representational activities, but without a breakdown of expenditures audited and verified by a third party, workers cannot know whether their Beck rights were honored. The information the Teamsters provided did not include the audit and verification required under NLRB precedent.
Teamsters officials also refused to allow UPS to process Hamel’s fee payments, even though money was collected this way for other workers. Hamel argued the union requirement that he mail his fees via check unfairly subjected him to additional costs, put him at risk of being fired for missing a union-created and controlled deadline, and was merely an attempt to punish nonmembers.
Teamsters officials eventually backed down and authorized UPS to deduct fees from Hamel’s paycheck, but continued to resist providing a breakdown of how those fees were calculated. The case dragged on for nearly three years before union bosses signed a settlement the NLRB Region 17 director approved last Friday.
The settlement requires Teamsters officials to provide detailed, audited breakdowns of their expenditures, and give Hamel and other nonmembers the opportunity to challenge the calculations. They further are required to post notices at Hamel’s workplace stating that they will not restrict the rights of Beck objectors.
“Though Colorado and 22 other non-Right to Work states still outrageously allow nonmember workers to be forced to pay money to a union they do not support, the Supreme Court ruled in Beck that workers can only be compelled to pay union fees for union monopoly bargaining, not other activities like union boss political lobbying,” said National Right to Work Legal Defense Foundation President Mark Mix. “Instead of choosing transparency, Teamsters officials resisted their legal obligations for nearly three years, demonstrating their contempt for the rights of the very rank-and-file workers they claim to represent.”
Foundation President Touts Worker Freedom in Outlets Across Country on Labor Day 2021
Every year the National Right to Work Foundation uses Labor Day to remind Americans that celebrating workers must include respecting their individual rights by opposing the injustices of forced unionism. This year, National Right to Work Foundation President Mark Mix’s opinion pieces calling out union coercion and extolling the vital freedoms and opportunity secured by Right to Work reached the public through dozens of outlets. Here are some of the highlights:
On Right to Work’s Freedom and Prosperity
“With help from the same National Right to Work Foundation attorney who argued and won the Janus case, [Chicago teachers Ifeoma Nkemdi and Joanne Troesch] appealed to the Supreme Court. Sixteen states and 4 separate legal foundations filed amicus briefs supporting the educators’ petition, which the Supreme Court is set to take up in October.
“The educators are riding the momentum from a historic decade of wins against compulsory unionism. Since 2012, five states – Indiana, Michigan, Wisconsin, West Virginia, and Kentucky – passed Right to Work protections, ensuring union membership and financial support are strictly voluntary.”
-Mark Mix in The Washington Times, 9/6/2021
“And so, a year after the COVID-19-induced economic slump hit its lowest point in April 2020, Right to Work states led the way in getting jobs back on track. In Right to Work states, the number of manufacturing payroll employees had rebounded 10.1 percent just one year after its 2020 lows, a bump 63 percent greater than what forced-unionism states experienced, according to Labor Department statistics from July.”
-Mark Mix in Fox Business, 9/6/2021
“Sluggish job growth in forced-unionism states was not limited to just the pandemic recovery. A National Institute for Labor Relations Research analysis points out that, from 2020 back to 2010, employment in states lacking Right to Work protections increased by only 2.4%, paling in comparison to Right to Work states’ 11.0% jump in the same decade.
“It’s no surprise, then, that Right to Work states passed the milestone just last year of now playing host to the majority of employed people in the United States, according to the Department of Labor’s Household Survey.”
-Mark Mix in the Boston Herald, 9/6/2021
On Union Boss Attempts to Expand their Coercive Powers over Rank-and-File Workers
“It’s no wonder polls consistently show that more than 80% of Americans support the right-to-work principle that no worker should be forced to pay union dues as a condition of employment. Union members, too, overwhelmingly agree.
“When union membership and financial support are voluntary, union officials are held accountable by workers who can cut off support if these officials aren’t meeting their needs.
“Instead of rising to the challenge and seeking workers’ voluntary support, union bosses continually resort to attacking the right to work.”
-Mark Mix in the Washington Examiner, 9/3/2021
“Union officials attempt to justify their use of coercion by claiming that forced association and forced dues are good for workers, but even Vice President Kamala Harris has admitted that’s not true. As California’s Attorney General she filed a Supreme Court brief acknowledging that ‘unions do have substantial latitude to advance bargaining positions that … run counter to the economic interests of some employees.’”
-Mark Mix in Newsmax, 8/31/2021
“Why do teachers’ unions across the country have the power to dictate the terms of school districts’ reopening, while the tax dollars of parents—nearly 80 percent of whom supported in-person instruction—continue to flow towards those districts?
“The answer is that, in nearly every state, the heads of public-sector unions have at least some power to force teachers, police officers, firefighters and other public employees into one-size-fits-all contracts that make public services more responsive to the interests of union bosses than to those of the public…
“In the devastating wake of COVID-19 and the misguided policies that came with it, now is a better time than ever to take a close look at how public-sector unions became the entrenched special interest group they are today. Ending union officials’ monopoly bargaining privileges would strike at the root of the problem while protecting the freedom of association of teachers and other public employees who do not feel that these unions represent them.”
-Mark Mix in Newsweek, 9/3/2021
On Union Corruption
“If Pantoja’s account correctly depicts the facts, the culture of union corruption must be deeply ingrained in the IAM. If even a union vice president can’t attempt to combat embezzlement and lies by a fellow union officer without facing a vicious campaign of retaliation, imagine what would happen to a rank-and-file worker who tried to do the same…
“Unfortunately, under current federal policies, many if not most IAM-‘represented’ workers in all 50 states, including the 27 Right to Work states, may currently be forced to bankroll a union, or be fired, as a consequence of the federally-imposed railroad/airline-industry loophole in state bans on forced union dues and fees.”
-Mark Mix in Newsmax, 9/10/2021
“Workers in Michigan are now free to decide for themselves whether union officials deserve their support. Meanwhile, [Bob] King’s UAW has been engulfed in a massive corruption scandal including the misuse of workers’ dues money…
“Had King and other union bosses had their way, workers in Michigan would be forced to not only fund union officials’ opulent lifestyles, but also their salaries and the legal bills associated with the scandal. In states without right-to-work protections, workers in UAW shops continue to bear those costs.”
-Mark Mix in The Detroit News, 9/6/2021
Worker Freedom Group Defends WV Law Preventing Unconstitutional Union Dues Seizures from Public Workers
Law protects employees’ First Amendment rights; Kanawha Circuit judge blocked law at union lawyers’ behest
Charleston, WV (September 9, 2021) – Staff attorneys at the National Right to Work Legal Defense Foundation, a charitable nonprofit dedicated to protecting workers’ legal rights from compulsory unionism, have just filed an amicus brief defending the legality of a state law that protects the First Amendment right of West Virginia public employees to refrain from funding a union. The brief comes during a legal battle by union bosses against the law, in which a Kanawha County Circuit Court judge issued a preliminary injunction at the behest of union lawyers stopping the bill from going into effect.
Foundation staff attorneys urge the West Virginia Supreme Court of Appeals to undo the injunction, arguing that West Virginia’s Paycheck Protection Act is not only valid, but essential to protect West Virginia public sector workers’ rights under the Foundation-won 2018 Janus v. AFSCME Supreme Court decision. In Janus, the justices ruled that forcing public sector workers to subsidize union activities as a condition of keeping their jobs violates the First Amendment. The Court also held that no union dues or fees can be taken from a public worker’s wages without a knowing and intelligent waiver of that employee’s First Amendment right not to pay, and that such a waiver “cannot be presumed.”
The justices reasoned in Janus that, because all public sector union activities involve lobbying the government, forcing public sector workers to pay any money to a union amounts to forced political speech forbidden by the First Amendment.
“The Act prevents the government from unwittingly violating their employees’ First Amendment rights by seizing union dues from them without their voluntary, affirmative consent and knowing, intelligent waiver of those rights, as required under Janus,” the brief reads. “The State’s protection of its employees’ First Amendment rights does not violate the constitutional rights of Respondents West Virginia AFL-CIO, et. al. (‘the Unions’), because the Unions have no constitutional entitlement to employees’ money or to the employer’s administration of union dues deduction schemes.”
Because West Virginia has a legitimate interest in protecting its employees’ First Amendment rights, and because union officials’ lawsuit against the Paycheck Protection Act has no chance of success on the merits, Foundation attorneys argue, the West Virginia Supreme Court of Appeals should overturn the preliminary injunction.
This is not the first time the Foundation has supported state policy that protects public employees’ First Amendment Janus rights. Last year, Foundation staff attorneys filed detailed comments backing a Michigan Civil Service Commission (MiCSC) policy that required public employers to obtain annual consent from their workers before taking union payments out of their wages. Officials from the United Auto Workers (UAW) and other unions abandoned a lawsuit contesting the rule in October 2020.
Foundation staff attorneys also filed 10 legal briefs defending West Virginia’s Right to Work law, which was the target of a legal attack by union officials from 2016 until last year. Among the Foundation’s filings were amicus briefs for Reginald Gibbs, who worked as a lead slot machine technician with the Greenbrier Hotel in White Sulphur Springs, WV, and Donna Harper, who worked as a laundry aide and nursing assistant at the Genesis HealthCare Tygart Center in Fairmont, WV. Both workers opposed paying money to the union bosses in power at their workplaces.
“West Virginia union bosses’ aggressive opposition to this commonsense law shows that they care more about finding ways to keep employee money flowing into their pockets than they do about respecting the First Amendment rights of those they claim to ‘represent,’” commented National Right to Work Foundation President Mark Mix. “This law just ensures that public employees maintain full control over whether their money is going to support a union.”
“By opposing this simple protection, West Virginia union bosses are doubling down on coercion instead of focusing on ways to win over the voluntary support of public servants,” Mix added.
