CSEA officials forced nonmember employees to pay fees in violation of the Constitution as recognized in Janus v. AFSCME Supreme Court decision

Washington, DC (November 2, 2020) – National Right to Work Legal Defense Foundation staff attorneys just filed a petition for writ of certiorari at the U.S. Supreme Court for two Connecticut Department of Energy and Environmental Protection employees, in their class action lawsuit to require Connecticut State Employees Association (CSEA SEIU Local 2001) union officials to return forced dues money seized from them and their coworkers in violation of their First Amendment rights.

The employees, Kiernan Wholean and James Grillo, maintain that CSEA union bosses and State of Connecticut officials infringed on the First Amendment rights recognized in the landmark Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, which was decided in June 2018, the Court held that no public sector employee can be required to pay dues as a condition of employment, and further ruled that dues deductions from any public employee’s paycheck can only be made with the employee’s affirmative and knowing waiver of the right not to pay.

Wholean and Grillo, who are not members of CSEA, originally filed their case in 2018 in the U.S. District Court for the District of Connecticut shortly before the High Court decided Janus. The State ceased deducting dues from their paychecks at CSEA’s behest following a letter to the State Comptroller from a National Right to Work Foundation attorney which threatened legal action for any dues deductions from non-members that continued after Janus. However, CSEA union officials continue to refuse to refund dues that they took from Wholean, Grillo, and other nonmembers in violation of the Janus First Amendment standard before the decision, even though they knew the employees never consented to pay.

The District Court, and later the Second Circuit Court of Appeals, both accepted CSEA lawyers’ so-called “good faith” argument for letting union bosses keep the dues collected in violation of the nonmembers’ constitutional rights. Wholean and Grillo’s Foundation staff attorneys argue in their petition to the Supreme Court that such a defense has never existed under Section 1983 of the Civil Rights Act of 1871, the statute under which the lawsuit is brought. Section 1983 specifically imposes liability on those who violate the constitutional rights of others while acting “under color of” existing law.

The Supreme Court has never addressed whether there is a “good faith” defense under Section 1983. In a similar Foundation-backed case, two federal judges at the Third Circuit recently opined that such a defense does not exist, disagreeing with the decisions of other Circuits. Wholean and Grillo’s petition cites this confusion as a vital reason why the High Court should hear their case. If successful, their lawsuit could result in CSEA repaying potentially millions in forced union fees seized from June 13, 2015, until Connecticut stopped the deductions, in accordance with Connecticut’s statute of limitations.

Wholean and Grillo’s petition is now the sixth under consideration by the Supreme Court in which public employees seek refunds for dues taken in contravention of the First Amendment before the Janus ruling. Four of these petitions have been filed by Foundation staff attorneys.

Among those petitions is the continuation of the original Janus plaintiff Mark Janus’ case, who suffered from unconstitutional deductions while employed as a child support specialist for the State of Illinois. If the Supreme Court decides in the petitioners’ favor in any of these cases, it could set a precedent triggering the return of hundreds of millions in illegal dues dollars in cases across the country.

“The lower courts have allowed CSEA union bosses to profit from their past unconstitutional deductions, trampling the Janus rights of Mr. Wholean, Mr. Grillo and their coworkers,” commented National Right to Work Foundation President Mark Mix. “With six petitions on this issue now pending with the High Court and more to be filed soon, it is time the Supreme Court hears this issue and ends the denial of justice for tens of thousands of nonmember government employees whose First Amendment rights were violated.”

“Section 1983 of the Civil Rights Act, the federal statute under which all these cases were filed, was specifically intended to allow individuals to remedy the deprivation of their rights when it occurs under color of law,” added Mix. “Given Section 1983’s intent, it is outrageous that union bosses have thus far been allowed to keep money seized in violation of the First Amendment because it was authorized by then-existing but unconstitutional law. That result is especially specious because, as the Supreme Court recognized in Janus, union bosses have been ‘on notice’ from the Court since 2012 that forcing government employees to pay union fees was likely unconstitutional.”

Healthcare providers have right to rebuff Union officials’ demands that workers abandon their patients amidst pandemic

California (November 2, 2020) – Staff attorneys at the National Right to Work Legal Defense Foundation have issued a special legal notice to the over 4,000 Tenet Healthcare employees across California who will be affected by a strike planned by officials of Service Employees’ International Union (SEIU)-United Healthcare Workers West.

The legal notice informs rank-and-file Tenet Healthcare workers of the rights SEIU bosses won’t tell them about, including that they have the right to refuse to abandon their patients and to keep working to support their families despite the union-ordered strike. The notice discusses why workers across the country frequently turn to the National Right to Work Foundation for free legal aid in such situations.

“This strike raises serious concerns for employees who believe there is much to lose from a union-ordered strike,” the notice reads. “Employees have the legal right to rebuff union officials’ strike demands, but it is important for them to be fully informed before they do so.”

The full notice is available at www.nrtw.org/tenet-notice.

The notice outlines the process that Tenet nurses and other employees should follow if they want to exercise their right to return to work during the strike and avoid punishment by union bosses, complete with sample union membership resignation letters.

Further, the notice reminds employees of their rights to cut off all union dues payments in the absence of a monopoly bargaining contract with the hospital. The notice encourages employees to seek free legal aid from the Foundation if they experience union resistance as they attempt to exercise any of these rights.

The Foundation has defended hospital workers in a number of recent cases. It provided free legal aid to Daniel Dalison, who filed charges against SEIU 1199NW for illegally deducting union dues from his paycheck even though he was not a union member. Foundation staff attorneys also assisted Michigan nurse Madrina Wells in her lawsuit against officials of Teamsters Local 332 for collecting dues from her despite repeated requests to stop, and despite Michigan’s Right to Work law.

“Tenet Healthcare employees who wish to continue serving their communities amidst this pandemic may question whether the upcoming union-ordered strike is really best for themselves, their families, and their patients,” commented National Right to Work Foundation President Mark Mix. “Tenet employees should know they unequivocally have the right to reject union strike orders and continue to care for those in need.”

“We encourage rank-and-file Tenet Healthcare workers to immediately contact the Foundation for free legal aid should SEIU bosses violate their legal rights,” added Mix.

SEIU union bosses seized dues from providers without their consent, then forbade them from stopping deductions outside of short “escape period”

San Francisco, CA (October 23, 2020) – Seven California home healthcare providers are appealing their class-action lawsuit against the Service Employees International Union (SEIU) Local 2015 to the Ninth Circuit Court of Appeals. The appeal in Polk v. Yee was filed with free legal assistance from staff attorneys with the National Right to Work Legal Defense Foundation and West Coast-based Freedom Foundation who jointly represent the seven plaintiffs.

The home healthcare providers’ lawsuit states that union officials skimmed dues money from their and other providers’ Medicaid payments in violation of their First Amendment rights and federal law regarding Medicaid payments. State of California controller Betty Yee is also named as a defendant in the suit for the state’s role in abetting the illegal deductions.

The providers maintain that the union and state are infringing on their rights recognized by the Supreme Court in Right to Work Foundation-won cases Harris v. Quinn (2014), and Janus v. AFSCME (2018). In Harris, the Court ruled that unions contravene the First Amendment when they force home healthcare providers who receive some subsidies from the state to pay union dues. Similarly, in Janus v. AFSCME, the High Court held that no public sector employee could be forced to subsidize union activities as a condition of employment, and that government agencies can only deduct union payments from a public worker’s wages with an affirmative waiver of his or her First Amendment right not to pay.

The plaintiffs, Delores Polk, Heather Herrick, Lien Loi, Peter Loi, Susan McKay, Jolene Montoya, and Scott Ungar all participate in the In-Home Support Services (IHSS) program, which allots Medicaid funds to those who provide home-based aid to people with disabilities. Their lawsuit explains that “even though they are not public employees,” the State of California considers home healthcare providers as such for unionization purposes and takes union dues from them at the behest of SEIU officials.

Polk and the other plaintiffs recount in the lawsuit that SEIU union bosses began taking cuts of their Medicaid subsidies after confusing phone calls or mandatory orientation sessions, in each case never explaining that the providers have a First Amendment right under both Harris and Janus to reject union membership and dues payments.

On top of that, after each of the plaintiffs contacted the SEIU attempting to exercise their right to stop the flow of dues, SEIU operatives informed them that they could only opt out of union dues during short union-created “escape periods” of 10-30 days once per year. The lawsuit also argues that federal law governing IHSS forbids diverting any part of Medicaid payments to “any other party” besides the providers.

The lawsuit seeks a ruling that both the taking of union dues without knowing consent and the policy restricting the providers from ending the dues deductions are unconstitutional. The providers also seek refunds of all money that they and any other IHSS program participants had taken from their payments through the illegal scheme.

“It is unconscionable that SEIU union bosses are siphoning money out of these providers’ pockets merely because those they aid inside their own homes happen to receive state subsidies for their care,” observed National Right to Work Foundation President Mark Mix. “This dues skim scam is a blatant violation of federal law and the Supreme Court’s rulings in Harris and Janus. It must be stopped immediately.”

“Unfortunately, the hard-working caregivers in this case are not the only ones being victimized by unions like SEIU,” said Eric Stahlfeld, the Freedom Foundation’s chief litigation counsel. “Our research shows that states like California illegally divert $150 million each year to unions from 350,000 caregivers’ Medicaid payments. While Freedom Foundation and National Right to Work Foundation advocacy has prompted the Department of Health and Human Services to formally oppose the exploitative practice, it’s up to federal courts to end it.”

Policy requires state employees to opt in to union dues deductions annually to ensure dues are collected with voluntary waiver of First Amendment rights

Lansing, MI (October 15, 2020) – A Michigan Civil Service Commission (MiCSC) policy which helps safeguard the First Amendment rights of the state’s workers under the landmark 2018 Janus v. AFSCME Supreme Court decision survives after United Auto Workers (UAW) union bosses abandoned their lawsuit seeking to overturn the rule in federal court.

The rule, which was adopted by MiCSC in October following detailed comments from National Right to Work Foundation staff attorneys, requires Michigan state agencies to annually obtain the consent of state employees before deducting any union dues from their wages. The rule reminds state employees of their constitutional right to refuse such payments and ensures that the state deducts no union dues unless workers’ first waive their right not to pay.

National Right to Work Foundation President Mark Mix commented on the development:

“The Civil Service Commission rule’s endurance is a victory for Michigan state employees, who will now have their First Amendment right to refuse to subsidize union activities respected and safeguarded. That union officials so quickly dropped their attempts to scuttle the rule speaks to the strength of the legal case for it, namely that the Supreme Court clearly delineated in Janus v. AFSCME that union dues can only be taken from public employees’ paychecks with their affirmative and knowing consent.

“Given this example, public officials in other states should enact similar measures to protect their workers, because union bosses across the country continue to manipulate state laws and internal union policies to keep workers trapped in union payments against their will in violation of their First Amendment rights.”

UAW officials’ abandonment of their lawsuit comes after the U.S. District Court for the Eastern District of Michigan rejected their request for a preliminary injunction against the rule earlier this month. Judge George Caram Steeh ruled that union lawyers not only failed to show that the rule was causing “irreparable harm” but that a recent Sixth Circuit Court of Appeals suit foreclosed union bosses’ ability to file one of the two claims in their suit in the first place.

The District Court’s decision denying the injunction cited arguments first presented in an amicus brief from National Right to Work Foundation and Mackinac Center Legal Foundation staff attorneys, which the judge said was “timely and helpful.”

Other states that are taking steps to shore up their public employees’ Janus rights include Alaska, where Gov. Mike Dunleavy signed an executive order creating similar protections for state employees in September 2019. Also, Texas Attorney General Ken Paxton and Indiana Attorney General Curtis Hill both issued legal opinions earlier this year urging public employers to notify employees that they have a First Amendment right to refuse to fund a union unless they opt-in to such payments.

Charges were filed after SEIU failed to provide accurate information about its financials and workers’ constitutional right to object to forced dues

Seattle, WA (October 15, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, Pacific Building Services employee Daniel Dalison has won a settlement in his case against Service Employees International Union (SEIU6) Property Services NW and his employer, Pacific Building Services. Dalison filed charges earlier in the year challenging union officials’ deceptive membership forms that misinform workers about their rights, and for illegally deducting dues from his paycheck.

Because Washington State has not yet enacted Right to Work protections for private sector workers to make union payments voluntary, workers can still be forced to pay union fees as a condition of keeping their job. However, thanks to the Foundation-won CWA v. Beck Supreme Court decision, those who object to formal union membership cannot be charged for union politics and lobbying, and can only be compelled to pay fees directly related to bargaining. Beck also requires that unions provide independent audits of their expenses before taking forced fees from nonmembers.

Dalison’s NLRB unfair labor practice charges stated that SEIU6’s welcome packet incorrectly informed him that he could exercise his Beck right to object to full union dues only during a 31- day window after his hire date. Dalison’s charge also explains that the membership form is an illegal “dual purpose” form, which, if signed, triggers automatic dues seizures from an employee’s paycheck despite “actually say[ing] nothing about dues authorization.” Federal law provides that employers cannot deduct union dues or fees directly from employees’ paychecks unless they have affirmative consent from them, regardless of their membership status.

After receiving the information packet from his employer, Dalison sent the union letters “stating that he did not want union membership” and wished only to pay the required reduced fees to keep his job. He also asked the union to furnish an independent audit of its expenses and a copy of the monopoly bargaining contract between it and Pacific Building Services. The charge says that the union responded with a letter claiming “he must have misunderstood his options” and that its records showed he was a member and required to pay full dues.

Under the settlement, SEIU officials are required to return the portion of Dalison’s dues taken in violation of Beck, and provide him the financial audit and copy of the monopoly bargaining contract he requested. They also agreed to revise their welcome packet to include information about employees’ Beck rights, not to use a single form for both union membership and dues deduction authorization, and not to falsely claim that employees can only exercise their rights under Beck during a 31-day window. The terms of the settlement will be posted publicly to make other Pacific Building Services employees aware of their rights.

Earlier this year Dalison charged officials of SEIU 1199NW for violating employee rights at Swedish Medical Center, where he has also worked. Those charges related that, in addition to not allowing workers to exercise their Beck rights, SEIU 1199NW bosses ordered workers to provide photo identification any time they asked to see their own paperwork regarding membership and dues check off authorizations. Those charges are still pending at NLRB Region 19.

“Unfortunately, Washington State SEIU bosses are repeat offenders when it comes to violating workers’ rights just to collect additional union dues and fees,” said National Right to Work Foundation President Mark Mix. “Although this victory for Daniel Dalison is a welcome development, his cases show why Washington State workers need Right to Work protections that ensure all union financial support is voluntary so unions cannot so easily play fast and loose with their forced dues powers.”

Union scheme currently being challenged at Ninth Circuit blocks government workers from exercising First Amendment rights outside brief 10-day period

San Francisco, CA (October 13, 2020) – Mark Janus, the lead plaintiff in the landmark 2018 Janus v. AFSCME Supreme Court decision, has just submitted an amicus brief in Belgau v. Inslee. This is a class-action case in which a group of Washington State employees are challenging a union boss-created arrangement that limits employees’ ability to exercise their First Amendment Janus right to refrain from subsidizing a union to only 10 days per year.

The brief was submitted for Janus by staff attorneys with the National Right to Work Legal Defense Foundation and the Liberty Justice Center. Janus, a former Illinois child support specialist, was represented at the Supreme Court by attorneys from both organizations, with Foundation attorney Bill Messenger presenting oral argument.

In Janus, the Supreme Court ruled that compelling public workers to pay union dues as a condition of employment violates their First Amendment rights. The Court also held that union dues can only be taken from the paychecks of public workers if they clearly and affirmatively waive their right not to pay, with Justice Samuel Alito writing in the Court’s decision that “such a waiver cannot be presumed.”

In the Belgau case, lead plaintiff Melissa Belgau and six other Washington State employees have sued Washington Governor Jay Inslee and the Washington Federation of State Employees (WFSE) union for enforcing an unconstitutional “escape period” scheme. The plaintiffs all resigned their memberships and requested to cut off dues just a couple months after Janus was decided, but dues continued to be seized from their paychecks afterwards under the restrictive policy.

Their lawsuit demands that the state and union officials cease blocking workers from exercising their First Amendment right not to financially support the union, and that the union refund all dues seized from any worker who sought to end dues deductions after the Janus decision, but was denied under the policy. A three-judge panel of the Ninth Circuit Court of Appeals ruled against the workers in September, but their attorneys have since petitioned for an en banc rehearing of the case before the Ninth Circuit Court of Appeals.

Janus’ amicus brief emphasizes that an en banc hearing is necessary because the three-judge panel “gut[ted] the Supreme Court’s holding” by finding that it is “constitutional for a state and a union” to keep seizing payments “for union speech from objecting, nonmember employees” until an arbitrary 10-day period. The brief contends that the Constitution does not allow “states and public-sector unions” to “prohibit employees from exercising their First Amendment right to not subsidize union speech for 355-56 days of every year.”

Staff attorneys from the National Right to Work Foundation and Liberty Justice Center are currently litigating more than thirty Janus-related cases, including seven jointly. That includes the continuation of Mark Janus’ own case which is seeking its second writ of certiorari from the Supreme Court. In his case Janus is now pursuing a ruling that will make AFSCME union bosses refund forced fees seized from him in violation of the First Amendment, which would create a precedent that could require union officials to refund hundreds of millions of dollars from nonmember public employees across the country.

“It is shocking that despite the U.S. Supreme Court’s ruling in Janus, government employers and private political organizations, unions, continue to place limitations on Americans’ constitutional rights,” said Jeffrey Schwab, senior attorney at the Liberty Justice Center. “All government workers must be able to exercise their First Amendment right not to pay a union.”

“Mark Janus and his attorneys defended the First Amendment rights of public employees at the US Supreme Court and are now protecting those same freedoms by helping to challenge this egregious limitation on workers’ Janus rights,” added National Right to Work Foundation President Mark Mix. “It is outrageous to claim any government or public sector union boss policy can limit a worker’s constitutional rights to just 10 days each year.”