After More Than Twenty-Eight Years of Litigation, Independent-Minded Workers Prevail
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2018 edition.
Foundation-assisted couple forces union to settle case over illegally seized dues
Photo By: University of Minnesota Institute of Advanced Studies
Sherry and David Pirlott filed charges against union officials on November 8, 1989 — the day before the Berlin Wall began to be demolished — but enforcing their rights would take longer than tearing down one of the most visible symbols of the Cold War.
GREEN BAY, WI – The day before the Berlin Wall fell in November 1989, Sherry and David Pirlott filed federal unfair labor practice charges against the Teamsters Local 75 union hierarchy for keeping them in the dark about their rights and how union officials were spending their forced union dues
Following nearly three decades of litigation between National Right to Work Foundation staff attorneys and union lawyers at both the National Labor Relations Board (NLRB) and Court of Appeals for the D.C. Circuit, the Pirlotts’ rights were finally vindicated.
Before the legal battle began, Sherry Pirlott was a Teamsters local 75 union steward at the Schreiber Foods cheese company
“It was very clear from the beginning that the other union stewards did things for the betterment of the union, not for the betterment of the workers,” she later recounted. “I just did what I thought was right, and the other stewards didn’t like that one bit.”
After union goons threatened her with bodily harm for refusing to toe the line, Sherry decided to stop financially supporting the union hierarchy. Teamsters Local 75 union officials then sued her in small-claims court to force her to pay for union activities. Unable to find a local attorney in Green Bay willing to take on union lawyers, she was forced to defend herself. The judge refused to hear her arguments and quickly awarded judgment to the Teamsters.
That’s when Sherry discovered the National Right to Work Foundation’s free legal aid program — and learned about her rights under a United States Supreme Court decision Foundation staff attorneys had just won.
In the Foundation-won Communications Workers v. Beck ruling, the U.S. Supreme Court held in 1988 that workers have the right to refrain from joining a union and subsidizing union activities unrelated to monopoly bargaining and contract administration, such as politics and member-only events.
Teamsters Local 75 union officials never informed the Pirlotts or their coworkers of their rights under Beck. Once they learned of these rights, Sherry and David Pirlott, also an employee at Schreiber Foods, resigned from formal union membership and objected to paying for nonchargeable union expenses. Providing only sketchy financial disclosure of the union’s expenses, Teamster union officials told the Pirlotts that only 1.1 percent of the union’s expenditures were for non-bargaining activities.
On November 8, 1989, with free legal aid from Foundation staff attorneys, the Pirlotts filed unfair labor practice charges with the NLRB. Nearly two years later, the NLRB General Counsel found merit to the charges and issued a complaint against the union for failing to inform workers of their Beck rights, providing inadequate financial disclosure, and charging objecting workers for expenditures incurred beyond their own bargaining unit.
In 1992, an administrative law judge issued a mixed ruling, and both the Pirlotts and the union appealed to the full NLRB. That’s when the outrageous delays began.
After more than six years of inaction by Bill Clinton’s NLRB, Foundation staff attorneys filed a rare mandamus petition in the U.S. Court of Appeals for the D.C. Circuit to order the Board to issue a decision. Under mounting pressure form this legal action, the Clinton Labor Board finally acted on the case in September 1999. However, they simply sent the case back to an administrative law judge to determine whether the union could force the Pirlotts to pay for union organizing at other workplaces.
In the Foundation-won Supreme Court precedent Ellis v. Railway Clerks, the U.S. Supreme Court ruled that such expenses are not chargeable to non-members under the Railway Labor Act. Unfortunately, even though in Beck the Court ruled that the Railway Labor Act and the National Labor Relations Act are “statutory equivalents,” the judge in December 2001 ruled that Teamster union bosses could charge the Pirlotts to subsidize union organizing campaigns anywhere in the private sector.
The Pirlotts again appealed to the full NLRB. With no decision for four and a half years, Foundation staff attorneys filed a second mandamus petition and successfully convinced the D.C. Circuit to order the NLRB to respond in 2006. Unable to meet the November 30 deadline, the NLRB asked the D.C. Circuit for more time. When the NLRB finally issued a decision two months later, it failed to hold all union organizing expenditures nonchargeable under Ellis and Beck. Moreover, the Board overlooked the inadequacy of the union’s financial disclosure, so the Pirlotts appealed the decision to the D.C. Circuit.
On April 18, 2008, the D.C. Circuit issued its ruling. It declined to address the argument that objecting non-members can never be charged for organizing activities and remanded the case back to the NLRB to consider the adequacy of the union’s financial disclosure. The NLRB then sat on the case for the next seven years with little action.
The NLRB in March 2017 finally held that the Teamsters Local 75 union officials provided insufficient financial disclosure. Following this victory for the Pirlotts, settlement negotiations dragged on for nearly another year. Eventually, after Wisconsin’s Right to Work Law became operative at Schreiber Foods in January 2018, the union agreed to reimburse the Pirlotts with interest and post notices informing workers of their rights under Beck. Further, because of Wisconsin’s Right to Work Law, David Pirlott, who still works at Schreiber Foods, is finally free from any payments to the union bosses that fought to violate his rights for decades.
“With the help of NLRB bureaucrats, Teamster union bosses fought tooth and nail for nearly three decades to try to keep every last cent of the Pirlotts’ forced fees,” said National Right to Work Foundation President Mark Mix. “The Pirlotts’ lengthy legal battle to enforce their rights despite the NLRB’s repeated delays demonstrates that Right to Work laws are the only way to truly protect independent-minded workers.”
Original Janus Plaintiff Moves to Stop Union Lawsuit to Discriminate Against Non-Members
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2018 edition.
Union officials are attempting to counter Janus by expanding monopoly bargaining powers
Illinois state employee Brian Trygg seeks to intervene in a union official’s case to expand union boss power to discriminate against workers who exercise their Janus rights.
CHICAGO, IL – An Illinois civil servant has filed a motion to intervene in a union official’s
lawsuit seeking to circumvent the Janus ruling.
Brian Trygg is no stranger to union officials’ legal tactics. Trygg, an engineer at the Illinois Department of Transportation, spent seven long years in court fighting for his right to honor his religious conviction to remain unassociated with a union.
Trygg was an original plaintiff with Mark Janus in Janus v. AFSCME, but was removed from the case because he had secured religious accommodation as relief from forced union fees. Now, Trygg again seeks to hold union officials accountable in court for their misdeeds against non-members.
In anticipation of Janus, International Union of Operating Engineers (IUOE) lawyers filed a lawsuit seeking to expand union officials’ ability to use their government-granted monopoly bargaining powers to discriminate against workers who exercise their right to refrain from union membership and not pay union dues or fees.
Trygg came to Foundation staff attorneys for free legal assistance in filing his motion to intervene to protect his rights and the rights of all public employees under the Janus ruling.
The IUOE official’s lawsuit attempts to take advantage of IUOE’s legislative privilege to force its “representation” on all employees, even union non-members, in their bargaining unit while claiming it should also be free of longstanding legal doctrine prohibiting union officials from using their monopoly representation to discriminate against non-members and not represent non-members in union-controlled grievances.
Trygg seeks to intervene to urge dismissal of the IUOE case, or alternatively, to file an amicus curiae brief to support the state defendants’ motion to dismiss.
Acting on his beliefs, Trygg has exercised his right to refrain from union membership. If IUOE’s suit is successful, Trygg would continue to be unable to negotiate with his employer due to the union’s monopoly bargaining status, yet union officials would have the power to discriminate against him and ignore the legal doctrine known as “duty of fair representation.”
Trygg argues that Defendant Attorney General Lisa Madigan has failed to protect his interests, with legal representation “inadequate and bordering on malpractice.” Madigan also has opposed and criticized the Janus ruling and has taken action to limit its application to Illinois public employees.
IUOE officials appear to be calling for the overturn of the U.S. Supreme Court’s Steele precedent, a 1944 case that challenged union officials’ attempt to use their monopoly bargaining privileges to discriminate against black workers. The decision suggested that monopoly bargaining would be unconstitutional absent a legal limitation on union officials using their power to discriminate against the workers they choose to “represent.”
Trygg’s filings argue that, even if the union’s claims were valid, the solution would be eliminating union monopoly bargaining powers over non-members, not giving union officials wider berth to discriminate against those who exercise their First Amendment rights protected by the Janus decision.
“The root of Big Labor’s coercion has always been its government-granted power to impose its so-called ‘representation’ on workers who don’t want it and never asked for it,” said National Right to Work Foundation President Mark Mix. “Ultimately, if union bosses find their obligation not to discriminate against non-members under their ‘representation’ so burdensome, they can simply relinquish their government-granted monopoly bargaining powers over nonmembers like Brian Trygg.”
California Restaurant Employees Successfully Remove Union after Years of Obstruction
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2018 edition.
Landslide vote against union bosses came after years of delay by Obama NLRB
Georgina Canche and her fellow workers at Scoma’s, a CA restaurant, finally ousted unwanted union officials from their workplace after years of legal delays.
SAUSALITO, CA – Workers at Scoma’s of Sausalito, a California restaurant, held a decertification election on July 10 to remove the UNITE HERE union from their workplace, resulting in a 37-12 landslide vote against the union. The successful election was a culmination of over four years of employee efforts to remove the union’s presence at the restaurant. The restaurant employees received free legal aid from National Right to Work Legal Defense Foundation staff attorneys in their efforts to exercise their rights to oust the unwanted union.
In 2013, restaurant employee Georgina Canche and a majority of her fellow coworkers successfully petitioned their employer to withdraw recognition of UNITE HERE as their monopoly bargaining representative. Although a majority of the employees signed the petition and the employer followed procedure established by longstanding labor law, the union filed a federal charge against the employer with the National Labor Relations Board to reinstate its monopoly bargaining powers, regardless of the workers’ petition.
The notoriously pro-forced unionism Obama Labor Board sided with union lawyers, and even issued a “bargaining order” to block attempts by the workers to hold a secret ballot vote to decertify and remove the union as the employee’s monopoly bargaining representative.” With the backing of the workers, Scoma’s appealed the case to the D.C. Circuit Court of Appeals, which unanimously overturned the “bargaining order” and remanded the case to the Labor Board so that a decertification vote could proceed.
One judge wrote separately and excoriated the Board for its blocking charge policy that delays elections.
After additional delay, the NLRB Regional Director finally conducted a secret ballot decertification election, in which the workers voted overwhelmingly to remove UNITE HERE from their workplace. Thus, five years after a majority signed their petition to kick the union out of their workplace, the workers were finally free of the union.
“After years of dilatory legal challenges by union lawyers with the help of Obama-installed bureaucrats, the workers of Scoma’s restaurant are finally able to have a say in their own workplace representation,” said Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation. “This case shows the legal trickery used by union bosses to hold onto their forced-dues powers, even when a clear majority of the workers the bosses claim to represent oppose their presence. This is why the Foundation’s legal aid program is so vital in clearing the legal hurdles so workers can exercise their right to vote out a union they oppose.”
Full Foundation Action March/April 2019 Newsletter Now Online
All articles from the March/April 2019 issue of Foundation Action are now on the website.
In this issue:
- Lawsuits Successfully Challenge Schemes to Block Workers’ Janus Rights
- Housekeeper Challenges Labor Board Double Standard Promoting ‘Card Check’
- SCOTUS Asked to Hear Homecare Providers’ Case Seeking Return of Seized Union Fees
- Foundation Fights to Enforce Janus SCOTUS Victory and Halt Big Labor’s Coercive Tactics
- MA Supreme Court Hears Educators’ Challenge to Teacher Union’s Coercive Power
- Appeals Court Affirms Ruling That Union Bosses Violated Michigan’s Right to Work Law
To view other editions or sign up for a free copy of the newsletter via mail, click here.
Housekeeper Challenges Labor Board Double Standard Promoting ‘Card Check’
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.
Trump NLRB asked to enforce rule stopping companies from aiding union ‘card check’ drives
President Barack Obama’s NLRB pushed through Big Labor-friendly rules promoting coercive “card check” union organizing drives
Washington, D.C. – After UNITE HERE Local 8 union officials unionized Gladys Bryant’s workplace via a “card check” drive, the Seattle housekeeper couldn’t help but feel that her rights had been violated.
Union bosses had significant help from Bryant’s employer, Embassy Suites, to organize the employees – even a list of workers’ names and contact information. And when Bryant had sought to revoke her card asking for the union’s representation, a union organizer lied to her and her coworkers about the process, blocking Bryant from exercising her rights.
After the tainted “card check” drive resulted in UNITE HERE Local 8’s monopoly bargaining power over her and her colleagues, Bryant decided to challenge the union bosses and her employer over their coercive tactics.
She filed charges with free legal aid from Foundation staff attorneys. A National Labor Relations Board (NLRB) Regional Director dismissed her charges, but a Foundation staff attorney has filed an appeal with the NLRB General Counsel.
Bryant had been working at Embassy Suites in Seattle for a month before the company informed her and her colleagues that UNITE HERE Local 8 union officials would be organizing the workplace.
Union officials began conducting a “card check” drive, a coercive tactic that bypasses a secret ballot election. Embassy Suites actively promoted the drive, giving union organizers special access to the hotel to meet and solicit employees. The hotel even provided union bosses with a list of all employees’ names, jobs, and contact information to assist the union officials in collecting authorization cards from employees.
Although Bryant did at first sign a union authorization card, she and many of her colleagues reconsidered. When Bryant asked a union official how to revoke her card, the union official misled her and other employees that they had to appear in person at the union hall to revoke any previously signed cards.
Bryant made an appointment with the union official in an attempt to comply with the unlawful requirement. However, the union official did not show up. As a result, Bryant and her colleagues were unable to revoke their union authorization cards, which were then counted as “votes” toward unionization.
After Embassy Suites recognized UNITE HERE Local 8’s monopoly bargaining “representation” over employees, Bryant sought free legal aid from Foundation staff attorneys to file charges, arguing that the unionization violated the National Labor Relations Act (NLRA).
Bryant’s charges allege that Embassy Suites provided UNITE HERE’s organizing campaign with more than “ministerial aid.” The NLRB has long held that an employer taints employees’ efforts to remove a union if it gives the employees more than “ministerial aid,” such as providing a list of bargaining unit employees or use of company resources – as Embassy Suites gave union officials.
Foundation staff attorneys argue that the same “ministerial aid” standard must also apply when an employer aids union officials’ efforts to gain monopoly bargaining power over workers.
The Foundation staff attorney representing Bryant asks that the General Counsel issue a complaint on Bryant’s allegations to provide the Board with an opportunity to bring consistency to its “ministerial aid” standard
Bryant’s charges also argue that UNITE HERE violated the NLRA and fatally tainted its proof of employee support by misinforming employees that they could only revoke authorization cards by going in person to the union hall, blocking workers from exercising their rights. NLRB doctrine holds that, to revoke an authorization card, an employee must simply sign a document stating he or she does not support union representation.
Bryant and her coworkers had collected enough signatures for a decertification vote to remove the union. However, in a separate case covered in the January/February 2019 Foundation Action, the NLRB blocked their petition based on the “card check” recognition.
The block was due to Lamons Gasket, a 2011 Obama Board ruling barring decertification for one year after unionization via “card check.” Some Board members have noted in other recent cases that they would be willing to revisit the blocking charge policy in the future. “
“This case proves that not only are union bosses willing to manipulate and ignore the rights of the workers they claim they want to ‘represent,’ their coercion often goes unchecked because of double standards in how the NLRB interprets the law,” said National Right to Work Foundation Vice President Ray LaJeunesse. “What qualifies as ‘ministerial assistance and support’ under the National Labor Relations Act cannot depend on whether the employer is helping outside union organizers impose unionization on workers, or assisting workers in exercising their rights to remove an unwanted union. This case offers the Trump NLRB a chance to stand up for worker freedom and end a double standard that tips the scales in favor of forced unionism.”
Foundation Pushes for Rule Change to Stop Big Labor’s Illegal Medicaid Skim
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2018 edition.
Union bosses have already diverted over $1 billion in Medicaid funds intended for caregivers
Pam Harris, a home health care provider for her son Josh, won the U.S. Supreme Court Harris v. Quinn decision with the help of Foundation staff attorneys. Although the High Court declared it unconstitutional to skim union dues from Medicaid funds, the skim continues.
WASHINGTON, DC – Each year, schemes enacted by ten states allow well over $100 million to be diverted from healthcare providers to union officials. By skimming money from Medicaid programs, union bosses flout federal law and a National Right to Work Foundation-won Supreme Court decision.
A rule proposed by the U.S. Centers for Medicare & Medicaid (CMS) would end the scheme. In August, the Foundation submitted formal comments to CMS supporting the agency’s proposal that would clarify that the diversion of Medicaid payments from providers to third parties, including unions, violates federal law.
In 2014, the Obama Administration promulgated a new regulation to give legal cover to ongoing schemes of the SEIU and other unions that siphoned money from Medicaid funds, violating the federal Medicaid statute that prohibits assigning benefits to third parties. Union officials have to-date skimmed over $1 billion in Medicaid funds intended for caregivers.
The Foundation’s comments call on CMS to halt the skim, urging the agency to repeal the Obama rule and replace it with clear language to give states notice that continuing to divert payments puts their Medicaid funding at risk.
“It is long past time for this outrageous exemption for union officials to be ended,” said Foundation Vice President and Legal Director Ray LaJeunesse. “The CMS should expeditiously issue a final rule to stop the illegal diversion of funds from Medicaid providers. Despite the wishes of the politicians whom they support, union officials are not exempt from federal law. All the current proposed rule change would do is close an illegal loophole the Obama Administration invented.”
Even as union officials circumvent the law through special privileges, the Foundation has fought to restore justice to the thousands of providers affected.
The 2014 Foundation-won Harris v. Quinn Supreme Court decision held that it is unconstitutional for states to force home care providers receiving Medicaid subsidies to pay union fees. The case continues, now designated as Riffey v. Rauner, as Foundation attorneys seek the return of over $30 million in funds seized from 80,000 providers in violation of their First Amendment rights.
Despite the Supreme Court ruling, the skim has not stopped. That is why in 2017 the Foundation sent a letter to the Department of Health and Human Services to bring its attention to the issue. Moreover, Foundation President Mark Mix personally raised the issue with Trump Administration officials at the White House earlier this year.
“Our National Right to Work Foundation-won 2014 Harris decision made it illegal for states to require providers pay fees to union officials, but the current scheme to deduct union fees from Medicaid payments is part of the union bosses’ attempts to undermine that ruling,” said LaJeunesse. “Nothing in the proposed CMS rule would stop providers from making truly voluntary dues payments to union officials by check or credit card each month. The rule would merely stop union bosses from using public payment systems to capture tax dollars intended for providers caring for those in need.”
Lawsuits Successfully Challenge Schemes to Block Workers’ Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.
Workers win first two settlements to end unconstitutional forced union dues seizures
Police clerk Sandra Anderson won a settlement against IBEW with help from Foundation staff attorneys, successfully challenging union bosses’ scheme to trap her into subsidizing a union.
BRAINERD, MN – The fight for public sector workers’ First Amendment rights took a huge step forward in the Foundation-won U.S. Supreme Court Janus v. AFSCME decision. However, across the country union bosses are attempting to limit when workers can exercise their First Amendment rights under Janus, to stop dues seizures through so-called “window period” policies.
In response, Foundation staff attorneys have filed many lawsuits for public employees challenging such schemes, which claim workers can be restricted from exercising their First Amendment rights under Janus outside brief union-created window periods. Such policies trap workers in forced dues against their will, which puts them at odds with the Janus ruling that any dues taken without workers’ consent violates their constitutional rights.
Two of those important lawsuits have ended in victories halting unions’ “window period” policies.
In 2004, when the City of Brainerd Police Department entered into a monopoly bargaining contract with International Brotherhood of Electrical Workers (IBEW) Local 31, clerk Sandra Anderson was told she must either join the union and pay dues or pay compulsory union fees as a non-member. Faced with being forced to fund the union either way, Anderson joined the union, signing a form authorizing the deduction of union dues from her paycheck.
Then, Anderson heard about the Janus ruling, argued and won by Foundation staff attorneys at the Supreme Court. Soon after, Anderson emailed an IBEW official and Brainerd representatives demanding that both parties stop collecting dues from her wages in accordance with Janus. However, IBEW officials claimed that Anderson could only stop dues payments during either a 10-day window prior to the expiration of the monopoly bargaining contract, or a 10-day window prior to the anniversary date of her dues deduction authorization.
Anderson came to the Foundation for help in filing a lawsuit challenging the “window period” policy as unconstitutional, because the policy limits when she can exercise her First Amendment rights under Janus, and allows IBEW Local 31 union officials to collect union dues without her affirmative consent.
In December 2018, IBEW union officials decided they wanted the case to go away, so they settled. Under the settlement, IBEW has refunded to Anderson all union dues they unconstitutionally collected from her after she notified the City of Brainerd and IBEW Local 31 that she no longer consented to financially supporting the union. IBEW officials have also acknowledged Anderson’s request to withdraw her union membership, and will not seek or accept union dues from her again unless she affirmatively chooses to become a union member.
Shortly after Anderson’s victory, a group of Ohio public sector employees freed themselves and thousands of their colleagues from another “window period” scheme that violated their rights.
Seven Buckeye State civil servants attempted to resign their union membership in American Federation of State, County and Municipal Employees (AFSCME) Ohio Council 8 and stop paying union dues after the Janus decision. However, AFSCME officials continued to deduct dues, citing a union policy restricting revocation of dues deduction to a narrow 15-day window prior to the expiration of a monopoly bargaining contract once every three years
The workers came to Foundation staff attorneys to file a class action lawsuit challenging the “window period” scheme. Rather than face Foundation attorneys in court, AFSCME Council 8 union officials settled the lawsuit.
Under the settlement agreement, AFSCME Council 8 stopped enforcing the existing policy restricting workers under their “representation” – as many as 30,000 individuals – from exercising their Janus rights. Additionally, union officials refunded to the plaintiffs all union dues they unconstitutionally collected after the plaintiffs notified union officials that they no longer consented to financially supporting the union.
Union officials were also required to identify any other workers whose rights were blocked by the scheme, honor their requests to resign and stop paying union dues, and refund the dues seized from them under the scheme.
“These seven workers bravely challenged the union bosses’ ‘window period’ scheme, and protected not only their rights but also the rights of tens of thousands of their colleagues,” said National Right to Work Foundation President Mark Mix. “Our first-in-the-nation victories enforcing workers’ rights under Janus should be precursors of many cases that result in union bosses dropping their illegal restrictions on workers seeking to exercise their rights secured in the Foundation’s JanusSupreme Court victory.”
Full Foundation Action January/February 2019 Newsletter Now Online
All articles from the January/February 2019 edition of Foundation Action are now on the website.
In this issue:
- U.S. Supreme Court Asked to Hear Case Challenging Monopoly Bargaining Power
- Workers Challenge Big Labor’s ‘Window Period’ Schemes to Restrict Janus Rights
- Public Employees Hit Union with Charges for Intimidation and Discrimination
- Workers Sue Labor Board Over Rule Blocking Them From Holding Vote to Remove Union
- School Employees Seek Refunds and an End to Union Bosses’ Illegal Forced-Dues Demands
- Ohio Civil Servant Sues for Return of Coerced Union Fees
To view other editions or sign up for a free copy of the newsletter via mail, click here.
Workers Challenge Big Labor’s ‘Window Period’ Schemes to Restrict Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2019 edition. To view other editions or to sign up for a free subscription, click here.
Union bosses attempt to block public employees from ending union dues payments
Foundation staff attorneys are litigating several class action lawsuits for civil servants, including teachers Susan Fischer (left) and Jeanette Speck, who are victims of union officials’ coercive “window period” schemes.
TRENTON, NJ – The Foundation’s Supreme Court victory in Janus v. AFSCME was a direct hit on Big Labor’s forced fees coffers. As government employees have begun exercising their Janus protections, union officials have attempted to avoid the Supreme Court precedent and continue violating the rights of the workers they claim to represent.
Foundation staff attorneys are currently litigating more than fifteen cases to enforce the Janus decision. Recently, Foundation staff attorneys filed several class action lawsuits challenging union officials’ “window period” schemes, arbitrary windows of time limiting when employees can exercise their First Amendment right to refrain from subsidizing a union.
Before Janus, New Jersey public school teachers Susan Fischer and Jeanette Speck, along with five million other public sector workers, were required to subsidize a union even if they were not union members.
“You have to pay if you join and pay if you don’t join,” said Fischer. “That was so un-American to us.”
Days after the monumental ruling at the Supreme Court, both teachers resigned their union memberships under the Janus decision’s protection of their choice to completely refrain from supporting a union. However, the teachers were informed that they could only stop payments and withdraw their membership during an annual 10-day window period.
In anticipation of Janus, New Jersey state legislators enacted a law in May to limit workers from exercising their rights under the then-pending Supreme Court decision except during the annual 10-day window. Fischer and Speck sought free legal aid from Foundation staff attorneys to file a lawsuit arguing that the law is unconstitutional and must be struck down.
In the class action lawsuit, filed against the Township of Ocean Education Association (TOEA), the New Jersey Education Association (NJEA), and the National Education Association (NEA) unions, Fischer and Speck also seek a refund of the union dues forced from their paychecks. The lawsuit asks the U.S. District Court to certify a class to include all other public employees whose attempts to resign and cease subsidizing a union following Janus have been rejected by the NJEA and its affiliates.
Delores Polk, a California home healthcare provider who cares for her daughter, is not a voluntary member of an SEIU local union. However, pressured by an unsolicited call from an SEIU telemarketer, Polk verbally agreed to join the union and pay dues.
When Polk reconsidered days later and attempted to resign her membership and stop paying union dues, union officials informed her via letter that she had missed the “window period” to cut off payments and must wait another year before opting out.
Polk was never notified of her First Amendment rights, protected by Janus, to refrain from joining or subsidizing SEIU Local 2015, and did not sign any written documentation agreeing to be a union member or waiving her First Amendment rights as the Janus ruling requires.
Despite her lack of consent, the California State Controller, at the behest of SEIU Local 2015, continues to deduct union dues from the Medicaid funds Polk receives to care for her daughter.
Polk came to Foundation staff attorneys to file a lawsuit challenging the scheme. Her lawsuit asks the court to certify a class, including the potentially thousands of home healthcare providers who have been forced to pay union dues even after notifying the State Controller or SEIU Local 2015 officials, that they do not consent to financially supporting the union.
After Janus, several Ohio public sector workers each resigned their memberships from AFSCME Council 8. Despite the employees’ desire to refrain from subsidizing the union, AFSCME union officials have continued siphoning union dues from the workers’ paychecks, citing a union policy that restricts revocation of dues deductions to a narrow 15-day window before a new monopoly bargaining contract is enforced.
The workers sought free legal aid from Foundation staff attorneys to file a complaint. In the lawsuit, filed on behalf of all other Ohio public employees who were blocked by AFSCME Council 8 from exercising their Janus rights after attempting to cease paying union dues and fees, the workers ask the court to declare AFSCME’s revocation policy unconstitutional and to stop union officials from collecting dues from non-consenting public employees. The class potentially includes thousands of workers.
On the same day that lawsuit was filed, Foundation attorneys filed another class action lawsuit against AFSCME for an Ohio civil servant seeking to reclaim forced union fees coerced from workers by AFSCME Local 11 officials before Janus. (Read more about that case here.)
These most recent lawsuits join several others in which Foundation staff attorneys are providing free legal aid to public employees, challenging policies that block their First Amendment rights under Janus. In just two examples, Pennsylvania school bus driver Michael Mayer and California court worker Mark Smith each filed federal complaints after union officials blocked their attempts to exercise their Janus rights.
“Contrary to the wishes of union bosses and their allies in state legislatures, First Amendment rights cannot be limited to just a matter of days out of the year,” said Mark Mix, president of the National Right to Work Foundation. “The Foundation-won Janus decision at the Supreme Court recognized that all civil servants may exercise their rights to free speech and free association by resigning their union membership and cutting off union payments whenever they choose. Foundation staff attorneys remain committed to enforcing the constitutional rights of millions of public sector workers guaranteed by Janus.”
Ohio Civil Servant Sues for Return of Coerced Union Fees
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2019 edition. To view other editions or to sign up for a free subscription, click here.
Class Action Lawsuit Seeks to Enforce Janus
With free legal aid from Foundation staff attorneys, Nathaniel Ogle seeks the return of forced union fees to thousands of workers.
COLUMBUS, OH – The Foundation’s victory at the U.S. Supreme Court in Janus v. AFSCME opened the door for public sector workers to reclaim years’ worth of forced union fees seized without their consent. In Janus, argued and won by Foundation staff attorneys, the Court held that no government employee can be forced to pay union dues or fees as a condition of employment. Government employees are now seeking to hold union officials accountable for money seized without consent before the Janus decision.
Foundation staff attorneys have already filed several class action lawsuits to reclaim unconstitutionally seized fees from Big Labor’s coffers for workers who earned it in the first place. Together, the lawsuits seek over $170 million in forced-fees refunds. That number is anticipated to grow as the Foundation receives more requests for free legal aid to enforce Janus.
One recent lawsuit, filed by an Ohio public sector worker, seeks to hold union officials accountable for potentially millions in forced fees.
As an employee at Ohio’s Department of Taxation, Nathaniel Ogle exercised his legal right to refrain from membership in the Ohio Civil Service Employees Association (AFSCME Local 11). However, before Janus, Ogle and many other union non-member employees were compelled to pay union fees.
After the Janus decision, Ogle came to Foundation staff attorneys for free legal aid in filing a federal lawsuit against AFSCME Local 11. The lawsuit asks that the court certify a class to include all other employees who during the statutory limitations period were forced by AFSCME Local 11 to pay union fees without their consent. AFSCME Local 11 has monopoly bargaining power over more than 30,000 Ohio government employees, meaning a potential class of forced-fee victims may have union fees totaling millions of dollars due to them.
Foundation attorneys continue to enforce the Janus precedent through several other class action lawsuits to refund victims of union boss coercion. The victory strengthened the ongoing Hamidi v. SEIU case, currently pending at the Ninth Circuit U.S. Court of Appeals.
In Hamidi, a certified class of over 30,000 California workers is challenging SEIU Local 1000 union officials’ “opt-out” policy that required workers to affirmatively opt out of the portion of union fees that workers cannot be legally required to pay. Foundation staff attorneys notified the Court of Appeals of the Janus decision’s relevance to Hamidi, and the case was argued in December.
“Thanks to the landmark Janus ruling, tens of thousands of public sector employees are now a step closer to finally receiving recompense for years of being forced to hand over their hard-earned money to a union under threat of being fired,” said Patrick Semmens, vice president of the National Right to Work Foundation. “The Foundation will continue to enforce workers’ First Amendment protections.”
