Wallingford-Swarthmore school bus driver seeks return of forced dues seized in violation of Supreme Court First Amendment decision

Philadelphia, PA (September 27, 2018) – Yesterday afternoon, a school bus driver in Pennsylvania filed a federal lawsuit with free legal aid from the National Right to Work Legal Defense Foundation against Teamsters Local 312 and his employer, the Wallingford-Swarthmore School District, for violating his constitutional rights by continuing to seize forced dues from his paycheck in violation of the Supreme Court’s recent Janus v. AFSCME decision.

The driver, Michael Mayer, is seeking a refund of union fees automatically taken out of his paycheck after he resigned his union membership, along with an injunction against the school district.

Mr. Mayer resigned his union membership on July 20, shortly after the U.S. Supreme Court’s landmark Janus decision. The Court ruled that requiring public employees to pay mandatory union dues or fees violates the First Amendment. In August, Mayer exercised his rights under Janus by hand-delivering to his employer a notice revoking his authorization for the District to deduct dues from his paycheck.

However, the Teamsters union refused to honor his resignation, and the District continued withdrawing dues from Mr. Mayer’s paycheck. Union officials cited a section of the Pennsylvania Public Employee Relations Act (PERA), which states that employees may only resign membership within fifteen days before a new monopoly contract is signed. Mayer’s lawsuit says this section of the PERA violates his rights as recognized by the Janus decision.

In the Janus case, which was briefed and argued at the Supreme Court by National Right to Work Foundation staff attorneys, the Supreme Court ruled that, unless public sector workers affirmatively consent to paying union dues or fees and knowingly waive their First Amendment right not to subsidize a labor union, the collection of dues or fees violates their constitutional rights.

In a similar case filed earlier this month, National Right to Work Foundation staff attorneys sued for a California state court employee who, like Mr. Mayer, resigned his union membership to exercise his rights under Janus only to be blocked from doing so by union officials and his government employer. In addition, Foundation staff attorneys are assisting workers in over a dozen legal actions across the country enforcing employees’ rights under Janus.

“Thanks to the Foundation-won Janus decision, workers like Mr. Mayer are finally free to exercise their constitutional rights and make their own decisions on whether or not to support a union,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “Unfortunately, though not unsurprisingly, rather than work to earn the voluntary support of the workers they claim to represent, union officials coast-to-coast are resorting to illegal schemes to block workers from exercising their rights under the Janus decision.”

To inform workers of their legal rights under Janus, and ensure they know they can turn to the National Right to Work Foundation for free legal aid in the event union officials attempt to obstruct them from exercising those rights, the Foundation launched a special website: MyJanusRights.org

Lawsuits seek refunds for forced union dues seized from nonmembers and end to union policy blocking workers from exercising First Amendment rights under Janus

Columbus, Ohio (October 15, 2018) – National Right to Work Legal Defense Foundation staff attorneys are providing free legal aid to public sector workers in Ohio in two class-action lawsuits filed today against Ohio affiliates of the American Federation of State County and Municipal Employees Union (AFSCME) union. One lawsuit aims to end unconstitutional restrictions created by union officials to block workers from exercising their constitutional rights as recognized by the Janus decision, while the other class-action complaint demands the return of forced fees seized in recent years from state employees who were not union members.

The filings are part of a wave of cases brought by Foundation staff attorneys for public employees seeking to enforce their rights under the June Supreme Court decision in Janus v. AFSCME. In Janus, which was briefed and argued at the Supreme Court by National Right to Work Foundation staff attorneys, the Court ruled that the collection of dues or fees from workers without explicit employee authorization violates workers’ constitutional rights.

In the case seeking refunds of illegally-seized union fees Foundation staff attorneys represent Nathaniel Ogle, an employee of Ohio’s Department of Taxation. The case seeks refunds for Ogle and a class of other state employees who were not union members but nevertheless had forced union fees seized from their paychecks. The case was filed against Ohio Civil Service Employees Association (AFSCME Local 11) union, which has monopoly bargaining power over more than 30,000 Ohio government employees.

In the other class-action lawsuit, Foundation staff attorneys represent Jotham Smith, Adam Scheiner, Brian Parks, Annette Lipsky, Steven Fletcher, Michael Cooper, and Tracey Baird, who are employed by various state and local Ohio government agencies. The workers all resigned their membership from AFSCME Council 8 following the Janus decision, but AFSCME officials have continued deducting dues, citing a union policy restricting revocation of dues deduction to a narrow 15-day window before a new monopoly bargaining contract is enforced. The lawsuit, which is also filed on behalf of other public employees who attempted to resign from the union and exercise their rights under Janus only to be blocked, asks the court to declare AFSCME’s resignation policy unconstitutional and seeks an injunction to stop the union from collecting dues from non-consenting public employees.

“Since the Janus decision was announced in June, Foundation staff attorneys have received a flood of calls from workers wanting to enforce their First Amendment rights,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “Unfortunately, rather than allow workers to decide freely whether or not to associate with and financially support a labor union, union bosses coast to coast have instead attempted to block workers from exercising their constitutional rights, making numerous Janus enforcement cases necessary.”

To inform workers of their legal rights under Janus, and ensure they know they can turn to the National Right to Work Foundation for free legal aid if union officials attempt to obstruct them from exercising those rights, the Foundation launched a special website: MyJanusRights.org.

National Right to Work Foundation Legal Notice: Requirements claiming to block resignation of union membership violate First Amendment

Puerto Rico (November 14, 2018) – In response to a Puerto Rico superior court ruling purporting to require executive branch employees to wait up to a year before resigning from a union and ending dues payments, National Right to Work Legal Defense Foundation staff attorneys have issued a Special Legal Notice for all Puerto Rico government employees who wish to exercise their right to cut off support for a union.

The notice can be found here: https://nrtw.org/prjanus/

A Spanish language version can be found here: https://nrtw.org/es/prjanus/

The notice comes after a September 25 ruling by the Puerto Rico superior court asserting that executive branch employees can be forced to wait one year before they can legally resign from a union and withdraw their dues deduction authorization. The judge ruled for union officials who erroneously claimed that the Supreme Court’s Janus decision only applies to non-union workers.

Under Janus, all public sector employees have the right to resign their union membership and stop any financial payments to union officials. The Supreme Court decision made it clear that public workers must opt-in to any union payments and that any payment made without a worker’s voluntary consent is a violation of that employee’s First Amendment right.

Under a section of Puerto Rico Law 134, employees of the Puerto Rico executive branch can only end dues payments a full year after their dues deduction authorizations’ effective date. However, that requirement conflicts with the June Supreme Court ruling in Janus and is no longer enforceable.

Mark Mix, president of the National Right to Work Legal Defense Foundation, released the following statement regarding the notice:

“Contrary to the wishes of Puerto Rico union bosses, under the Supreme Court’s landmark Janus decision, public sector employees have a First Amendment right to resign from a union and cut off financial support for union activities at any time. That constitutional right cannot be limited by union policies, regulation, or statute.

“Any public employee in Puerto Rico who has been blocked from stopping union payments, as is their right under Janus, should immediately contact the National Right to Work Legal Defense Foundation for free legal assistance.”

National Right to Work Foundation staff attorneys already represent workers in lawsuits across the country who have been wrongly blocked from exercising their rights under Janus. In Puerto Rico, staff attorneys represent Reynaldo Cruz, a plant operator at the Puerto Rico Sewer and Water Authority, as he fights to exercise his Janus rights to resign his union membership.

Because of the numerous requests from workers for information about their rights under the Foundation-won Janus v. AFSCME decision, the Foundation established MyJanusRights.org to educate public employees about their protections under Janus.

The site also enables workers to request free legal assistance from the National Right to Work Foundation if their rights are not being respected by union officials.

NLRB board agent: wrong to rely on NLRB website for advice

Washington, D.C. (November 15, 2018) – Today, a hospital employee in California filed a Request for Review with the National Labor Relations Board (NLRB) in Washington, D.C. to overturn a Regional Director’s decision to invalidate his petition to remove the SEIU union from his workplace with a secret ballot vote. The worker, Andrew Brown, received free legal aid from National Right to Work Legal Defense Foundation staff attorneys in filing his Request for Review.

In October, Brown, a surgical buyer at USC-Verdugo Hills Hospital in Glendale, California, petitioned for a vote to remove the Service Employees International Union (SEIU) – United Healthcare Workers West union as monopoly bargaining agent for him and his coworkers. Despite having followed the NLRB website’s instructions on union decertification petitions, including collecting signatures from over 30 percent of his colleagues as required, union officials claimed Mr. Brown’s decertification petition was untimely.

In a decision dated October 25, the Director of NLRB Region 31 in Los Angeles agreed with the union. She held that the NLRB’s “contract bar” rules, with their confusing “window periods” that limit when employee petitions can be filed – 60-90 days before a contract expires in most workplaces but 90-120 days in healthcare settings – governed. The director held that Brown’s petition was two days late under these confusing rules. She also ruled that he was wrong to rely on the NLRB’s website for advice on calculating his filing dates. Brown, who did not have an attorney at the time, had followed instructions on the NLRB’s website and actually waited to file his petition based on what he understood was the first day he was allowed to do so.

The Request for Review asks the NLRB to overturn the Regional Director’s decision and permit Brown and his coworkers to vote on whether to oust the union. Brown not only argues that the decision to block his vote misapplied existing NLRB policies, but also asks the NLRB to end the existing policy restricting decertification petitions to a limited 30-day window.

In the Request for Review, Brown and his Foundation staff attorneys argue that the so-called “contract bar” rule is contrary to the stated purpose of the National Labor Relations Act which the NLRB is charged with administering, because the rule results in workers trapped in union monopoly ranks even when a majority of them oppose unionization. As Right to Work attorneys note, the “contract bar” is not authorized or even mentioned in the National Labor Relations Act.

The Request for Review also argues that the petition for a vote should be processed because Brown followed the advice on the NLRB website as best he could and still missed the purported deadline by fewer than 48 hours. The Request for Review argues that arbitrary rules, such as the “contract bar” rule cited by union officials to block Brown’s petition, create contradictory and confusing guidelines for rank-and-file workers to follow, and allow union officials to game the system to prevent workers from escaping from forced unionism ranks, even when a significant majority would vote a union out.

“It’s long past time for the NLRB to fundamentally reform its arbitrary rules used to trap workers in union forced dues ranks, even when a majority of workers oppose unionization,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “The so-called contract bar, like the other arbitrary limitations that are used to stop workers from even holding a vote to oust an unpopular union, has no basis in law—it’s simply a relic of past NLRB bureaucrats who put the power of union bosses ahead of the rights of workers that the National Labor Relations Act is supposed to protect.”

Minnesota home-based personal care providers argue being forced under SEIU union monopoly ‘representation’ violates their freedom to associate

Washington, D.C. (December 13, 2018) – Today, with free legal aid from National Right to Work Legal Defense Foundation staff attorneys, a group of Minnesota home-based home care providers filed a petition asking the U.S. Supreme Court to review a case challenging a Minnesota state law used to force tens of thousands of home care providers under union monopoly “representation.” The providers, who work at home caring for disabled family members as part of a state-run Medicaid program, oppose union affiliation.

The case’s lead plaintiff, Teri Bierman, filed the suit with seven other home care providers to challenge a 2013 Minnesota state law used by the Service Employees International Union (SEIU) Healthcare Minnesota to force home care providers to associate with it as a condition of providing care under the state Medicaid program.

Teri Bierman and the other home care providers provide critical care to their family members who receive state assistance to help pay for their care. Bierman provides care at home for her daughter, who suffers from cerebral palsy and requires care throughout the day. The other plaintiffs in the case care for children diagnosed with severe autism, epilepsy, Rubenstein-Taybi syndrome, or other significant disabilities. Like the other plaintiffs, Bierman receives aid from a Minnesota program similar to Medicaid, which provides funds to families to care for disabled relatives.

On August 27, 2014, the SEIU “won” a controversial mail-in unionization vote for Minnesota caregivers. Even though only 13 percent of the state’s 27,000 home care providers indicated support for SEIU affiliation, that was enough for the state to impose the union’s monopoly representation onto every provider, because of the small number of ballots returned. Caregivers who didn’t vote or voted against the union were then forced to accept the SEIU’s “representation.”

Bierman v. Dayton asks the Supreme Court to declare unconstitutional under the First Amendment’s free association guarantee the unions’ monopoly bargaining privileges, by which a union forces its representation on individuals receiving state funds who do not consent to the representation.

By asking the Court to declare monopoly bargaining a violation of the First Amendment, Foundation staff attorneys seek to build off two recent Foundation-won Supreme Court decisions. In the 2014 Harris v. Quinn decision, the Court applied exacting First Amendment scrutiny to rule that providers like the Bierman plaintiffs cannot be required to pay union fees.

Next, in the June 2018 Janus v. AFSCME decision, the Court declared that forced union fees for all public sector employees violate the First Amendment and opened the door to further cases seeking to uphold workers’ rights to freedom of speech and freedom of association. In his opinion for the majority, Justice Samuel Alito wrote for the Court that “designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees.”

Both Harris and Janus were argued by National Right to Work Foundation staff attorney William Messenger, who is also the lead attorney in Bierman v. Dayton. Bierman now asks the Supreme Court, for the first time, to apply the same First Amendment standard to forced association as it has already applied to forced subsidies of union speech.

“If the Supreme Court agrees to hear Bierman, these home care providers will be one step closer toward ending an unconstitutional scheme that forces them to associate with a union they oppose as a condition of state assistance in providing care for their sons and daughters,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “Forcing individuals under union monopoly representation flies in the face of the First Amendment’s protection of freedom of association. This case gives the High Court the opportunity to apply to Big Labor’s coercive exclusive representation powers the legal standards it laid out in Janus and Harris.”

Petersburg, West Virginia (January 8, 2019) – With free legal assistance from National Right to Work Legal Defense Foundation staff attorneys, a West Virginia worker has won a settlement against the United Steelworkers (USW) Local 1017 after she filed an Unfair Labor Practice charge against the union with the National Labor Relations Board (NLRB).

Tammy Hedrick, an employee of Adell Polymers in Petersburg, West Virginia, originally brought the federal charge against the union after she was threatened with the stripping of her seniority at the behest of union officials, a violation of federal law.

When West Virginia passed its Right to Work law in 2016, Hedrick attempted to exercise her right to resign her union membership and cut off dues payments, as had been explained to her by her employer. Her contract, however, was grandfathered in, as it had been enacted before the passing of the law. In retaliation, union officials sought to strip Hedrick of her seniority and overtime pay.

The settlement agreement requires union officials to end attempts to demote Hedrick or any other employees, or otherwise punish employees, for exercising their legally protected rights. Union officials are also required by the settlement to post notices informing all of Adell Polymer’s employees of their legal rights and the end of union officials’ efforts to remove Hedrick’s seniority.

In addition to Hendrick’s settlement, National Right to Work Foundation staff attorneys are fighting to defend West Virginia’s Right to Work law in state court. Foundation staff attorneys have filed amicus briefs in West Virginia AFL-CIO, et al. v. Governor James C. Justice, et al., urging the Kanawha County Circuit Court and the West Virginia Supreme Court to uphold the state’s Right to Work protections.

“Tammy Hedrick has halted these illegal threats by union bosses against her for seeking to exercise her rights as protected by federal law,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “The outcome of this case should serve as a reminder to all Mountain State workers that under federal law they have the right to refrain from union membership, and that union officials cannot legally retaliate against workers who choose to exercise these protected rights.”

“Any worker who needs assistance in exercising these rights, or who like Tammy Hedrick is threatened for doing so, should know they can always turn to the National Right to Work Foundation for free legal assistance,” continued Mix.

Court upholds fine against MEA union officials for illegally extending requirement that teachers pay fees or be fired

Detroit, MI (January 15, 2019) – The Michigan Court of Appeals has affirmed a decision by the Michigan Employment Relations Commission (MERC) that found union officials violated Michigan’s Right to Work Law by attempting to extend forced fees for teachers.

The case was filed with MERC by Ron Conwell, a Michigan public school teacher, with free legal assistance from National Right to Work Legal Defense Foundation staff attorneys. In August 2015, Conwell resigned his union membership. Later that month, union officials informed Conwell that he was still required to pay union fees or be fired.

In 2017, MERC ruled that the Clarkston Education Association (CEA) and Michigan Education Association (MEA) violated the state’s Right to Work protections for public employees by illegally extending and enforcing a forced dues clause in the monopoly bargaining agreement after the law took effect.

MERC also held that Clarkston Community Schools officials, who did not appeal MERC’s decision, violated the law by agreeing to union officials’ demands for the illegal extension. Both the school district and the unions were fined, which made the case the first of its kind in which violators of the Right to Work law were fined.

Michigan’s Right to Work Law provides that contracts or agreements entered into after the law went into effect must respect workers’ right to refrain from the payment of any union dues or fees as a condition of employment. However, union officials illegally extended the forced dues clause after the law went into effect on March 28, 2013, and then enforced that clause against him. Therefore, Conwell could not legally be required to pay union dues or fees.

The Appeals Court affirmed MERC’s order that Clarkson Community Schools, CEA, and MEA cease maintaining forced fee agreements that violate Michigan’s Right to Work Law, and that the CEA and MEA must stop threatening employees with termination based on such provisions. The court also held that MERC had the authority to levy the civil fines it imposed on the employer and union.

“Michigan workers can celebrate that the decision upholds their right to work without paying forced tribute to union bosses,” said Mark Mix, president of the National Right to Work Foundation. “Yet it also shows workers need to keep fighting against coercion, as Michigan union bosses have repeatedly shown their willingness to violate employees’ protections under Michigan’s Right to Work laws in their efforts to keep their forced dues money stream flowing. Foundation staff attorneys continue to assist dozens of independent minded workers in fighting back against Big Labor’s orchestrated campaign to undermine Right to Work in Michigan.”

Since Right to Work legislation was signed into state law in December 2012, Foundation staff attorneys have litigated more than 100 cases in Michigan to combat compulsory unionism.

IBEW union officials quickly settle after Minnesota police department employee filed lawsuit to stop forced illegal union dues seizures

Brainerd, MN (January 14, 2019) – A federal First Amendment lawsuit brought by National Right to Work Legal Defense Foundation staff attorneys for Minnesota public sector employee Sandra Anderson against International Brotherhood of Electrical Workers (IBEW) Local 31 has forced union officials to quickly settle. The settlement frees Anderson from IBEW union officials’ “window period” policy that had blocked her from exercising her constitutional right to refrain from financially supporting the union.

Anderson, a clerk for the City of Brainerd Police Department, filed the lawsuit after she attempted to resign her union membership and revoke her dues deduction authorization after the Foundation-won Janus v. AFSCME ruling at the U.S. Supreme Court.

When IBEW Local 31 and the City of Brainerd entered into a monopoly bargaining agreement in 2004 that required employees to pay union dues or fees to IBEW Local 31 to keep their jobs, Anderson was informed that she must either join the union or pay union fees. Faced with being forced to fund the union either way, she joined the union, signing a form authorizing the deduction of union dues from her paycheck.

Earlier this year, Foundation staff attorneys argued and won Janus at the Supreme Court. In Janus, the Court ruled it unconstitutional to require public employees to subsidize a labor union. The Court further held that deducting any union dues or fees without a public employee’s affirmative consent violates the employee’s First Amendment rights.

When Anderson signed her dues deduction authorization, she was not informed of her First Amendment right to refrain from paying union dues or fees and, therefore, could not give her affirmative consent to waiving her First Amendment right not to subsidize the union.

Soon after Janus, Anderson emailed an IBEW official and Brainerd representatives demanding that both parties cease collecting dues from her wages in accordance with Janus. However, IBEW officials claimed that Anderson could only stop dues payments either during a 10-day window prior to the expiration of the monopoly bargaining contract or a 10-day window prior to the anniversary date of her dues deduction authorization.

Anderson came to Foundation staff attorneys to file a lawsuit challenging the “window period” policy as unconstitutional, because the policy limits when she can exercise her First Amendment rights under Janus and allows IBEW Local 31 union officials to collect union dues without her affirmative consent.

Deciding to settle the lawsuit, IBEW will refund to Anderson all union dues they unconstitutionally collected from her after she notified the City of Brainerd and IBEW Local 31 that she no longer consented to financially supporting the union. IBEW officials have also acknowledged Anderson’s request to withdraw her union membership, and will not seek or accept union dues from her again unless she affirmatively chooses to become a union member.

Public employees across the country are pursuing similar lawsuits with assistance from Foundation staff attorneys. For example, in one ongoing class action lawsuit, two New Jersey public school teachers are challenging a state law that enforces a “window period” policy to block public sector workers’ attempts to exercise their rights under Janus.

“Ms. Anderson is the first of thousands of government employees to successfully challenge union boss ‘window period’ schemes designed to limit workers from exercising their First Amendment rights under Janus,” commented National Right to Work Foundation President Mark Mix. “This victory serves as an inspiration for civil servants across the country who are stepping up to challenge union bosses’ coercive tactics to limit public employees’ constitutional rights.”

The Foundation has created a special website, MyJanusRights.org, to assist public employees in exercising their rights under Janus, which was successfully argued by National Right to Work Foundation staff attorney William Messenger.