Orange County Lifeguards Push for Rehearing of First Amendment Challenge to Union Scheme Trapping Them in Union Membership
Restrictions will trap lifeguards in union membership and full dues payments for almost four years after they opted out of union
Orange County, CA (May 16, 2022) – California lifeguard Jonathan Savas and 22 colleagues are pressing for a rehearing of their federal civil rights lawsuit before an en banc panel of judges of the U.S. Ninth Circuit Court of Appeals. Savas and the others are suing the State of California and the California Statewide Law Enforcement Association (CSLEA) union for violating their and their coworkers’ First Amendment right to abstain from forced union membership and compelled financial support.
Savas and his colleagues are asserting their rights under the National Right to Work Foundation-won 2018 Janus v. AFSCME U.S. Supreme Court decision, in which the Court declared that no public sector worker can be forced to bankroll a union without voluntarily waiving their First Amendment right to abstain from union payments.
A so-called “maintenance of membership” requirement enforced by CSLEA union bosses and the State of California is forcing the lifeguards to both remain union members and supply full dues payments to the CSLEA union against their will. Savas and the other plaintiffs sent messages resigning their union memberships and ending dues authorizations on or around September 2019, but union officials denied their requests, alleging they have to remain full members until 2023. Despite Janus, a three-judge panel of the Ninth Circuit ruled that this requirement does not violate the First Amendment.
Lifeguards’ Attorneys: ‘Maintenance of Membership’ Requirements Have Been Unconstitutional for Decades
Savas’ attorneys criticize the Ninth Circuit panel’s giving a pass to “maintenance of membership” requirements as contradicting Janus, and note that forcing dissenting employees to pay full union dues was unconstitutional even under Abood, the 1977 Supreme Court decision which Janus overruled. The lifeguards are receiving free legal representation from staff attorneys with the National Right to Work Legal Defense Foundation and the Freedom Foundation, along with Mariah Gondeiro of Tyler Bursh, LLP.
“The Supreme Court recognized decades prior to Janus, in Abood, that it violates the First Amendment for government employers and unions to require dissenting employees pay full union dues…If maintenance of membership requirements could not survive constitutional scrutiny under Abood,” Savas’ attorneys argue, the requirements are definitely foreclosed by the higher level of First Amendment protection applied in Janus.
Savas’ en banc request also refutes the Ninth Circuit panel’s claim that the lifeguards somehow “contractually consented to the maintenance of membership requirement.” Savas’ attorneys point out that the dues deduction authorization form that the lifeguards signed only vaguely alluded to the presence of the “maintenance of membership” requirement in the union contract with their state employer, and never explicitly informed the lifeguards what that requirement was.
On that same point, Savas’ attorneys point out that “the panel’s contract-law analysis is wrongheaded because Janus requires a constitutional-waiver analysis.” Janus requires that employees voluntarily waive their First Amendment right not to make dues payments before such payments are extracted. Savas’ attorneys state “[t]here is no evidence the Lifeguards knew of their First Amendment rights under Janus or intelligently chose to waive those rights.” Indeed, many of the lifeguards could not have known about those rights because they signed the dues deduction authorization forms before the Supreme Court decided Janus.
“Even if such evidence existed, any purported waiver would be unenforceable…because a four-year prohibition on employees’ exercising their First Amendment rights under Janus is unconscionable,” Savas’ attorneys continue.
Ninth Circuit Panel Ruling Completely Inconsistent with Janus, Rehearing Required
“So-called ‘maintenance of membership’ requirements have been unconstitutional for decades, and it’s outrageous that courts have looked the other way and allowed CSLEA union bosses to infringe Savas’ and his fellow lifeguards’ First Amendment rights under the guise of such restrictions for so long,” commented National Right to Work Foundation President Mark Mix. “A rehearing of Savas’ case is necessary so the plain meaning of Janus can be applied. Otherwise the Ninth Circuit will not only have ignored Janus, but turned back the clock over half a century on workers’ right to refrain from union membership.”
Cleveland Probation Officer Challenges Years of Janus-Breaching Dues Seizures
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Union officials covertly began seizing full dues after Janus decision, refuse to return money
CLEVELAND, OH – Cuyahoga County probation officer Kimberlee Warren is suing the Fraternal Order of Police Ohio Labor Council (FOP) union, charging union officials with breaching her First Amendment right as a public employee to refuse to support union activities. She is receiving free legal representation from National Right to Work Legal Defense Foundation staff attorneys.
Foundation staff attorneys contend that FOP union officials ignored her constitutional rights recognized in the Foundation-won 2018 Janus v. AFSCME U.S. Supreme Court decision. In Janus, the Justices declared it a First Amendment violation to force any public sector employee to pay union dues or fees as a condition of keeping his or her job. The Court also ruled that public employers and unions cannot take union dues or fees from a public sector employee unless they obtain that employee’s affirmative consent.
Warren was not an FOP union member, even before the Janus decision. However, her federal lawsuit details that astoundingly union officials furtively opted her into formal membership and full dues deductions from her paycheck after the Janus decision was issued, an event which should have prompted union officials to cease seizing all money from her.
FOP Union Bosses Brazenly Increased Forced-Dues Deductions After Janus
FOP union chiefs continued these surreptitious deductions until December 2020, Warren’s lawsuit notes, when she notified union officials that they were violating her First Amendment rights by taking the money and demanded that the union stop the coerced deductions and return all money that they had taken from her paycheck since the Janus decision.
When the deductions ended, FOP chiefs refused to give back the money that they had already seized from Warren in violation of her First Amendment rights. They claimed the deductions had appeared on her check stub and thus any responsibility to end the deductions fell on her — even though to her knowledge they had never obtained permission to opt her into membership or to take cash from her paycheck to begin with.
According to the lawsuit, Warren also asked FOP bosses to provide any dues deduction authorization document she might have signed. FOP officials rebuffed this request as well.
Union bosses were authorized by state law before the Janus ruling to seize from non-member workers’ paychecks only the part of dues they claim go toward “representational” activities. FOP union officials took this amount from Warren prior to Janus. However, their forcing her into membership afterward means they started taking full dues from her wages, even more money than they did before Janus despite the complete lack of consent.
Warren’s lawsuit seeks the return of all dues that FOP union officials garnished from her paycheck since the Janus decision was handed down.
Probation Officer Seeks Punitive Damages for Unchecked Janus Abuses
Her lawsuit also seeks punitive damages because FOP showed “reckless, callous” indifference toward her First Amendment rights by snubbing her refund requests.
“All over the country, union officials are stopping at nothing to ensure they can continue ignoring workers’ First Amendment Janus rights and continue siphoning money from the paychecks of dissenting employees,” commented National Right to Work Foundation President Mark Mix. “After Janus was handed down, FOP union officials in Warren’s workplace could have asked her to support the union voluntarily, but instead, tellingly, they began surreptitiously siphoning full dues out of her paycheck without her consent in direct contravention of the Supreme Court’s ruling.”
University of California Lab Assistant Challenges California’s Anti-Janus Law
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Employee wanted to stop dues but law let union bosses demand photo ID
Foundation staff attorney William Messenger scored a huge win for worker freedom in Janus. He’s now on Amber Walker’s legal team.
IRVINE, CA – California has long been at the forefront when it comes to promoting forced union dues. So when it became clear the Supreme Court would likely side with National Right to Work Foundation staff attorneys in the 2018 Janus v. AFSCME case, union boss allies in the California legislature quickly got to work passing laws to undermine public employees’ First Amendment rights. Among the most pernicious of the series of California’s anti-Janus laws is one that gives government union bosses unilateral control over which workers have dues money seized from their paychecks, even over the objections of those workers.
Now, with free legal representation from National Right to Work Foundation staff attorneys, University of California Irvine lab assistant Amber Walker is challenging the law in the U.S. District Court for the Central District of California, suing both the University of California system and University Professional and Technical Employees (Communications Workers of America, UPTE-CWA 9119) union officials.
Her case contends that the California statute, which makes public employers completely subservient to union officials on dues issues, let union bosses demand she provide a photo ID just to exercise her First Amendment right to stop union financial support. Her Foundation-provided staff attorneys argue that the California statute violates both due process and First Amendment guarantees.
In the Foundation-argued Janus v. AFSCME Supreme Court case, the Court declared that forcing public sector workers to fund unions as a condition of employment violates the First Amendment. The Justices also ruled that union dues can only be taken from a public employee with an affirmative and knowing waiver of that employee’s First Amendment right not to pay.
“The University is leaving me helpless against these union officials who just seem to want to take my money despite the fact that I clearly don’t want to be part of the union,” Walker told a Los Angeles Times reporter. “The Janus decision said that I should have a choice when it comes to supporting a union, but UPTE has been denying me my rights and the university is letting the union get away with it.”
Statute Prevents Workers from Telling University Admin to Stop Illegal Takings
Walker’s lawsuit explains that she sent CWA union bosses a letter in June 2021 exercising her right to end her union membership and all union dues deductions from her wages. Although Walker submitted this message within a short annual “escape period” that CWA officials impose to limit when workers can revoke dues deductions, they still rebuffed her request, telling her she needed to mail them a copy of a photo ID to effectuate her revocation.
The photo ID requirement, seemingly adopted purely to frustrate workers’ attempts to exercise their constitutional rights, is mentioned nowhere on the dues deduction card Walker had previously signed to initiate dues payments.
Lawsuit: Union Officials Should Not Control Workers’ First Amendment Rights
UC Irvine and CWA officials are still seizing cash from Walker’s paycheck, and will likely continue to do so for at least another year as the CWA’s arbitrary and short annual “window period” elapsed by the time CWA officials notified Walker that her attempt to stop dues was rejected for lack of photo ID.
The university administration can’t stop dues payments for Walker because of the California statute that gives union officials total control over union dues deductions.
Foundation staff attorneys state in Walker’s complaint that, because of the California statute, CWA officials were able to trample Walker’s desire to keep her own money and were allowed to infringe on her First Amendment Janus rights.
Walker seeks refunds of the dues taken from her and other university workers under CWA’s photo ID scheme. She also seeks to stop the State of California from enforcing the state law outsourcing the process for stopping and starting union dues deductions to self-interested union officials.
UPTE Bosses Designed Scheme Knowing CA Law Would Protect Them
“California CWA union bosses clearly value illegally filling their coffers with Ms. Walker’s money over respecting her First Amendment and due process rights,” commented National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “They created this photo ID requirement out of thin air to block workers from exercising their Janus rights, safe in the knowledge that California’s union dues policies would stifle any chance a public worker has of getting his or her employer to stop seizing dues money for the union.”
“By giving union bosses total control over how and when workers can exercise their First Amendment Janus right to stop dues payments, California is allowing the fox to guard the henhouse to the detriment of public employees’ constitutional rights,” added LaJeunesse.
Sixteen States Back Foundation’s Petition to High Court in Chicago Educator Case
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Amicus brief: Unions “refuse to stop collecting dues despite unequivocal employee demands”
“Janus has been ignored,” wrote sixteen attorneys general in their amicus brief supporting Ifeoma Nkemdi and Joanne Troesch’s petition pressing the Supreme Court to hear their case and declare “escape periods” a First Amendment violation.
WASHINGTON, DC – In July, sixteen attorneys general threw the support of their states behind Chicago Public Schools educators Ifeoma Nkemdi and Joanne Troesch, who are urging the U.S. Supreme Court to hear their case defending their First Amendment right to cut off union financial support as recognized in the Foundation-won Janus v. AFSCME decision.
In an amicus brief encouraging the High Court to hear the case, attorneys general from Alaska, Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia argue that “escape period” restrictions like the one that Chicago Teachers Union (CTU) bosses foisted on Troesch and Nkemdi are a widespread threat to public employees’ rights under the Janus Supreme Court decision.
In 2018, the Supreme Court ruled in Janus v. AFSCME that public employees’ First Amendment rights are violated when they are forced to fund a union as a condition of employment. The Court also held that union dues can only be taken from a public employee with an affirmative and knowing waiver of that employee’s First Amendment right not to pay.
Unions Are Seizing Money from ‘Tens of Thousands’ Unconstitutionally, Brief Says
The CTU-concocted “escape period” Nkemdi and Troesch are challenging blocks employees from exercising their First Amendment Janus right to end union financial support except during one month per year. The educators’ petition for writ of certiorari presses the High Court to hear their case to affirm that Janus does not permit union bosses to profit from schemes that constrict workers’ constitutional right to refrain from subsidizing a union.
The states’ amicus brief emphasizes how glaringly union officials have flouted Janus with restrictions, as well as how widespread the schemes are: “Janus has been ignored. Across the country public-sector unions have resisted Janus’s instructions and devised new ways to compel state employees to subsidize union speech. Unions place onerous terms on dues forms that prohibit state employees from opting out of paying dues except during narrow (and undisclosed) windows during the year.”
The brief continues: “Unions refuse to inform state employees that they have a First Amendment right not to pay union dues. And unions refuse to stop collecting dues despite unequivocal employee demands. The result is that tens of thousands of state employees across the country are having dues deducted to subsidize union speech without any evidence that they waived their First Amendment rights . . . .”
Nkemdi and Troesch’s case “implicates these precise concerns” and the Court must hear it, the brief maintains.
In addition to the states’ brief, policy groups Goldwater Institute, Cato Institute, Freedom Foundation, and Liberty Justice Center filed amicus briefs backing the case.
Justices May Already Be Showing Interest in Foundation-Backed Case
In late July, the Supreme Court ordered lawyers for CTU and the Chicago Board of Education to file a response brief to Troesch and Nkemdi’s petition, a signal that some Justices may be interested in taking up the case.
Also pending at the High Court is Foundation attorneys’ anti- “escape-period” case for Susan Fischer and Jeanette Speck, two New Jersey teachers. Both that case and Troesch and Nkemdi’s case are expected to be fully briefed in October, after which the Justices will decide whether to take them.
“As union bosses continue to use deceptive ‘escape period’ arrangements to keep worker money flowing unconstitutionally into their coffers, support continues to roll in from across the country for Troesch and Nkemdi, who are sticking up for independent-minded public servants who simply want to serve their communities without being forced to fund union activities,” observed National Right to Work Foundation President Mark Mix. “The High Court must weigh in to affirm that public workers’ First Amendment rights cannot be confined to union officials’ arbitrary schedules.”
NJ, Chicago Educators Push for Supreme Court Review of Anti-Janus Schemes
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.
Two petitions ask High Court to hear challenges to union boss-concocted ‘escape periods’
Plaintiff and Chicago Public Schools teacher Ifeoma Nkemdi called CTU union militants’ retaliation against her “a dishonor to the profession of education.” Her lawsuit seeks to force CTU bosses to respect her Janus rights.
WASHINGTON, DC – Staff attorneys from the National Right to Work Legal Defense Foundation have just submitted petitions for writ of certiorari in two class-action civil rights cases seeking to enforce workers’ First Amendment rights. In both cases, public educators are fighting union boss-created restrictions on their First Amendment right to refrain from funding unwanted union hierarchies in their workplaces.
One petition was filed for Chicago Public Schools educators Joanne Troesch and Ifeoma Nkemdi, whose lawsuit against the Chicago Teachers Union (CTU) and the Chicago Board of Education challenges an “escape period” scheme that blocks workers from exercising, outside the month of August, their right to terminate dues deductions from their paychecks.
A second petition was filed in a lawsuit brought by New Jersey teachers Susan Fischer and Jeanette Speck, who are suing the New Jersey Education Association (NJEA) union for enforcing a similar annual window that restricts employees in the exercise of their Janus rights to just 10 days annually, less than 3% of the year.
Constraints Clearly Violate Janus Mandate of Affirmative Consent to Dues
Both lawsuits argue that these union dues “escape periods” run afoul of the U.S. Supreme Court’s landmark ruling in Janus v. AFSCME, which was argued and won by Foundation staff attorneys in 2018. In Janus, the court ruled that no public worker can be forced to pay union dues or fees as a condition of keeping their job.
The Court further held that union bosses contravene the First Amendment if they seize any money from an employee’s paycheck without their affirmative consent and a knowing waiver of that employee’s First Amendment rights. Both petitions say public sector union officials’ “escape period” schemes breach this requirement.
Union Honchos Snubbed Exercise of Janus Rights, Kept Taking Money
Fischer and Speck, who both work in Ocean Township, NJ, attempted to exercise their Janus rights in July 2018, just a month after the High Court handed down the Janus decision. But Township officials told the teachers they could only stop payments and withdraw their memberships during an annual 10-day window. Unbeknownst to the teachers, union partisans in the New Jersey legislature had actually established that “escape period” by law in May 2018 in an apparent attempt to defang the pending Janus decision.
In Chicago, Troesch and Nkemdi’s complaint explains, both educators “did not know they had a constitutional right not to financially support” the union hierarchy until the fall of 2019, when they discovered their Janus rights while looking for information on how to continue working during a strike that CTU bosses ordered that October. They sent letters the same month to CTU officials to exercise their Janus right to resign union membership and cut off all dues deductions.
Both educators received no response until November of that year, when CTU officials confirmed receipt of the letters but said that they would continue to seize dues from the teachers’ paychecks “until September 1, 2020,” as per the union’s “escape period” scheme.
Teachers Urge Dissolution of ‘Escape Periods,’ Refunds for Them and Coworkers
Both lawsuits demand that union and government officials cease enforcing “escape periods,” properly apprise the educators’ coworkers of their right to end dues deductions any time, and allow any bargaining unit member to reclaim dues that have already been seized from them under such arrangements. Additionally, both cases seek to overturn state laws that codify “escape periods.”
“‘Escape periods’ like those forced on Troesch, Nkemdi, Fischer and Speck serve no purpose other than to keep shoveling into union coffers the hard-earned cash of public servants who oppose union officials’ so-called ‘representation,’ even after those employees have clearly exercised their First Amendment right to object to such payments,” commented National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “With opposition to these schemes growing among public employees, the Supreme Court should quickly take up this issue and clarify that Janus does not permit union bosses to profit from curtailing workers’ constitutional rights.”
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.”
Cuyahoga County Probation Officer Hits Union with Federal Lawsuit for Years of Unconstitutional Dues Seizures
Union officials took full union dues from nonmember officer without consent, then ignored requests to return illegally-seized money
Cleveland, OH (August 25, 2021) – Cuyahoga County probation officer Kimberlee Warren is suing the Fraternal Order of Police (FOP) union in her workplace, charging union officials with breaching her First Amendment right as a public employee to refuse to support union activities. She is receiving free legal representation from National Right to Work Legal Defense Foundation staff attorneys, in partnership with attorneys with the Ohio-based Buckeye Institute.
Foundation staff attorneys contend that FOP union officials ignored her constitutional rights recognized in the landmark 2018 Janus v. AFSCME U.S. Supreme Court decision, which was argued and won by Right to Work Foundation staff attorneys.
In Janus, the Justices declared it a First Amendment violation to force any public sector employee to pay union dues or fees as a condition of keeping his or her job. The Court also ruled that public employers and unions cannot take union dues or fees from a public sector employee unless they obtain that employee’s affirmative consent.
The federal lawsuit says that Warren was not a member of the FOP union before the Janus decision in June 2018, but FOP union bosses collected union dues from her wages without her consent. According to the complaint, this continued until around December 2020, when Warren notified union officials that they were violating her First Amendment rights by taking the money and demanded that the union stop the coerced deductions and return all money that they had taken from her paycheck since the Janus decision.
When the deductions ended, FOP chiefs refused to give back the money that they had already seized from Warren in violation of her First Amendment rights. They claimed the deductions had appeared on her check stub and thus any responsibility to cease the deductions fell on her – even though to her knowledge they had never obtained permission to opt her into membership or to take cash from her paycheck in the first place.
According to the lawsuit, Warren also asked FOP bosses to provide any dues deduction authorization document she might have signed. FOP officials rebuffed this request as well.
The High Court ruled in Janus that, because all activities public sector unions undertake involve lobbying the government and thus are political speech, forcing a public employee to pay any union dues or fees as a condition of keeping his or her job is forced political speech the First Amendment forbids.
Union bosses were permitted by state law before the Janus ruling to seize from nonmember workers’ paychecks only the part of dues they claimed went toward “representational” activities. FOP union officials took this amount from Warren prior to Janus. However, they furtively designated her as a member following the decision, and began taking full dues, deducting even more money from her wages than they did before Janus despite the complete lack of any consent.
Warren is now suing the FOP union in the U.S. District Court for the Northern District of Ohio. Her lawsuit seeks the return of all dues that FOP union officials garnished from her paycheck since the Janus decision was handed down. It also seeks punitive damages because FOP showed “reckless, callous” indifference toward her First Amendment rights by snubbing her refund requests.
Warren’s lawsuit comes as other Foundation-backed lawsuits for employees defending their First Amendment Janus rights seek writs of certiorari from the Supreme Court. This includes cases brought for Chicago and New Jersey public educators which challenge “window periods” that severely limit when they and their fellow educators can exercise their First Amendment right to stop union dues deductions, sometimes to periods as short as ten days per year. In a California federal court, Foundation staff attorneys are also aiding a University of California Irvine lab assistant in fighting an anti-Janus state law that gives union bosses full control over whether employers can stop sending an employee’s money to the union after that employee exercises his or her Janus rights.
“All over the country, union officials are stopping at nothing to ensure they can continue ignoring workers’ First Amendment Janus rights and continue siphoning money from the paychecks of dissenting employees,” commented National Right to Work Foundation President Mark Mix. “After Janus was handed down, FOP union officials in Warren’s workplace could have come to her to attempt to get her to support the union voluntarily, but tellingly instead they began surreptitiously siphoning full dues out of her paycheck without her consent in direct contravention of the Supreme Court.”
“Despite her repeated requests, FOP bosses have continued to trample Warren’s Janus rights, and Foundation staff attorneys are fighting to stop this gross injustice against her and punish FOP bosses for their brazen behavior,” Mix added.
Chicago Educators Press Seventh Circuit, Supreme Court to Stop Anti-Janus Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2021 edition. For updates in the case for Troesch and Nkemdi, click here. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Teachers continue battling Chicago teacher union “escape period,” file brief with Supreme Court
“I want people’s constitutional rights, the right to work to be established,” Ifeoma Nkemdi told the Chicago Tribune in 2020 about her and Joanne Troesch’s battle against CTU union boss-devised schemes to trap teachers in forced dues.
CHICAGO, IL – With free legal aid from National Right to Work Foundation staff attorneys, Chicago Public Schools (CPS) educators Ifeoma Nkemdi and Joanne Troesch are appealing to the U.S. Seventh Circuit Court of Appeals their class-action civil rights lawsuit against the Chicago Teachers Union (CTU) and The Board of Education of the City of Chicago (Board) for unconstitutional dues seizures.
The suit challenges a union policy that blocks teachers from exercising their First Amendment right under the Foundation-won Janus v. AFSCME decision to stop payments to the union outside of the month of August. It also seeks refunds of all dues seized from dissenting educators by the Board.
In Janus, which was argued by one of Troesch and Nkemdi’s Foundation staff attorneys, the High Court struck down mandatory union fees as a violation of government employees’ First Amendment rights. The Court ruled that taking any dues without a government worker’s affirmative consent violates the First Amendment, and further made it clear that these rights cannot be restricted absent a clear and knowing waiver.
The appeal comes after the U.S. District Court for the Northern District of Illinois dismissed Troesch and Nkemdi’s lawsuit on February 25, 2021. The court sided with CTU and Board officials, ruling they didn’t violate Janus by forbidding the two educators from exercising their First Amendment right to cut off union dues except for one month a year. This prompted Foundation attorneys to appeal the case to the Seventh Circuit.
CTU Bosses Pilfered from Paychecks Even after Educators Opted out
Troesch and Nkemdi’s lawsuit explains that they “did not know they had a constitutional right not to financially support” the union hierarchy until the fall of 2019. The pair independently discovered their First Amendment Janus rights while they were researching how to exercise their right to continue working during a strike that CTU bosses ordered in October 2019, the lawsuit notes. They sent letters the same month to CTU officials to exercise their Janus right to resign union membership and cut off all dues deductions.
Both educators received no response until November of that year. CTU officials then confirmed receipt of the letters but said that they would continue to seize dues from the educators’ paychecks “until September 1, 2020.” CTU bosses relied on the fact that Troesch and Nkemdi had not submitted their letters within a union boss-created “escape period,” which limits when teachers can exercise their First Amendment right to end dues deductions.
Troesch and Nkemdi contend that CTU and Board officials’ attempt to curb employees’ right to stop dues deductions with an “escape period,” and the Board’s seizure of dues after they dissociated from the union, both violate the First Amendment. Their lawsuit seeks to make the CTU union and the Board stop enforcing the “escape period,” and notify all bargaining unit employees that they can end the deduction of union dues at any time and “retroactively exercise that right.”
Troesch and Nkemdi’s efforts to defeat union boss-concocted “escape period” schemes don’t stop at their lawsuit. The pair submitted an amicus brief in Belgau v. Inslee, which is currently pending on a petition for certiorari at the U.S. Supreme Court.
New Legal Brief Backs SCOTUS Challenge to Union “Escape Period” Scheme
Belgau involves a group of Washington State employees, led by Melissa Belgau, who are fighting similar policies imposed by Washington Federation of State Employees (WFSE) union officials and the State of Washington.
University of California Santa Barbara employee Cara O’Callaghan, Maumee City (Ohio) School District employee Chelsea Kolacki, and Springfield (Ohio) Local School District employee Michelle Cymbor also joined this brief. All of them have been subjected to First Amendment violations similar to those at issue in Belgau and the Chicago educators’ case.
Foundation staff attorneys provided free legal aid in filing the brief, and currently represent public servants in at least 14 cases where union officials have tried to confine their First Amendment Janus rights to an “escape period.”
“Each day that the courts fail to fully enforce Janus is another day that union bosses are allowed to seize the hard-earned money of dissenting public servants in clear violation of their First Amendment rights,” commented National Right to Work Foundation President Mark Mix. “The Foundation is proud to stand with Ms. Troesch and Ms. Nkemdi, and will continue to defend all educators who simply want to serve their students and community without being forced to subsidize union activities.”
Photo Credit: Terrence Antonio James/Chicago Tribune/TCA
Puerto Rico Workers Ask Court to Stop Union Officials’ Illegal Dues Cover-up
Union bosses threaten healthcare unless employees ‘authorize’ years of improperly seized dues
In an attempt to cover up their misdeeds, union bosses threatened to axe Jose Ramos’ (left) and Jose Cotto’s healthcare if they didn’t retroactively OK years of unconstitutional dues deductions.
SAN JUAN, PR – Employees of the University of Puerto Rico have filed a motion for a preliminary injunction against the University of Puerto Rico Workers Union. The motion asks the court to block and reverse union officials’ efforts to bar health insurance from employees who refuse to sign away their First Amendment rights.
It comes as part of the employees’ class action lawsuit against the university’s president in his official capacity and the union for illegally seizing dues from workers’ paychecks without their authorization. The suit was originally filed in May 2020 with free legal assistance from National Right to Work Legal Defense Foundation staff attorneys.
The forced-dues seizures infringe on employees’ rights as recognized in the 2018 Foundation-won Janus v. AFSCME U.S. Supreme Court decision. In Janus, the High Court ruled that requiring public employees to pay union dues as a condition of employment violates the First Amendment, and further held that union fees can only be taken from public employees with their affirmative waiver of the right not to pay.
Union Threats: Approve Past, Present and Future Dues or Lose Healthcare
Antonio Mendez and Jose Ramos have been employed by the University as maintenance workers since 1997 and 1996, respectively. From then, their complaint says, university and union officials “have regarded Ramos and Mendez as members of the Union” and seized dues from their paychecks, despite neither ever having signed a union membership or dues deduction authorization form.
On December 28, 2020, the lawsuit was amended to include two additional plaintiffs, Jose Cotto and Igneris Perez, and to challenge a recent attempt by union officials to coerce university workers into signing a document retroactively approving all previously deducted dues and consenting to an unspecified number of future deductions. According to the complaint, employees who do not comply with union officials’ demands that they sign this document lose access to the union-administered healthcare plan which is paid for by the employer.
On December 30, the plaintiffs moved for a preliminary injunction to block union officials’ efforts to force employees to choose between losing their healthcare and retroactively agreeing to union dues deductions taken in violation of their rights.
Union Bosses’ Forced- Dues Scheme Violates First Amendment Rights
The employees’ lawsuit contends that union and university officials violated the First Amendment by seizing dues from employee paychecks without written authorization, and by requiring employees to become full union members in violation of longstanding precedent that predates Janus. The lawsuit additionally seeks an order forbidding further enforcement of the unconstitutional scheme and requiring the union to refund to employees dues that were seized illegally “within the . . . 15-year statute of limitations period for breach of contract.”
“For years, University of Puerto Rico Workers Union bosses have gotten away with taking dues out of the pockets of those they claim to represent without ever getting their permission,” said National Right to Work Foundation President Mark Mix. “Union bosses were caught red-handed violating not only workers’ rights under Janus, but precedents going back decades against mandatory union membership.
“Now, rather than making workers whole, these union officials are doubling down on their illegal acts by taking away the healthcare of anyone who doesn’t retroactively ‘authorize’ years of unconstitutional union dues deductions.”
Ohio Municipal Employee Challenges Deceitful Unconstitutional Dues Deductions
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2021 edition. To view other editions or to sign up for a free subscription, click here.
IUOE bosses’ scheme renames forced-fee payments clearly outlawed in Janus decision
Veteran Foundation staff attorney William Messenger successfully argued Janus over two years ago, but union bosses are still concocting schemes to circumvent it. Timothy Crane is now fighting a particularly flagrant example.
CINCINNATI, OH – With free legal aid from National Right to Work Foundation staff attorneys, City of Hamilton employee Timothy Crane is suing International Union of Operating Engineers (IUOE) Local 20 union officials and the City of Hamilton for seizing a compulsory fee from his paycheck in violation of his First Amendment rights.
His complaint, filed in the U.S. District Court for the Southern District of Ohio, contends that union bosses are infringing on his rights under the Janus v. AFSCME decision by forcing him to pay a so-called “agreement administration fee” equal to more than 90 percent of full union dues as a condition of his employment.
In the 2018 Foundation-won Janus decision, the High Court ruled that no public worker can be forced to pay 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 if that employee clearly and affirmatively waives his or her right not to pay. Justice Samuel Alito wrote for the Court majority that “such a waiver cannot be presumed” by union or state officials.
Even After City Employee Exercised His Janus Rights, Union Honchos Seized Fees
Crane sent letters to IUOE union officials in both August and September of 2020, attempting to exercise his First Amendment Janus right to end dues deductions from his paycheck. After sending these two letters, however, he discovered that an “agreement administration fee” was now being taken from his pay by the City at the behest of IUOE union bosses.
Crane’s complaint contends that this is just a so-called “agency fee” — compulsory union payments charged to employees who refrain from formal union membership that were definitively outlawed by the Janus v. AFSCME decision — masquerading under a different name. The suit urges the District Court to declare it unconstitutional for IUOE Local 20 and the City of Hamilton to force him to pay this compulsory union fee. Crane’s lawsuit also seeks a refund of all money that the union has illegally taken from his paycheck under the unconstitutional arrangement.
Chain of Foundation-backed Janus Victories for Ohio Workers Likely to Continue
Since Janus was handed down by the Supreme Court, Foundation staff attorneys have already won favorable settlements in four cases for Buckeye State public workers who have challenged illegal union-created restrictions on the exercise of Janus First Amendment rights. In a July 2020 settlement in a class-action lawsuit filed by four state workers, nearly 30,000 Ohio public employees were freed from an “escape-period” scheme imposed by Ohio Civil Service Employees Association (OCSEA) union chiefs, which limited to just a handful of days every few years the time in which a public employee could exercise his or her Janus rights.
“IUOE bosses, who may have thought they were going to trick employees into funding their agenda against their will with this blatantly unconstitutional scheme, have now been caught red-handed,” commented National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “Rank-and-file workers like Mr. Crane now see that IUOE officials are far more interested in keeping hard-earned employee cash flowing into their coffers than in respecting the First Amendment rights of the workers they claim to represent.”
LaJeunesse continued: “The string of Foundation victories for independent-minded Buckeye State employees who just want to exercise their First Amendment rights is not going to end here.”
