Wall Street Journal Highlights Foundation Litigation to Enforce Janus v. AFSCME
In June 2018, National Right to Work Foundation staff attorneys won the landmark Janus v. AFSMCE case at the U.S. Supreme Court. The Janus decision established that the First Amendment protects public-sector workers from being forced to pay dues or fees to a union against their wishes.
Union bosses have widely blocked public employees from exercising their Janus rights using a variety of coercive tactics, requiring Foundation staff attorneys to pursue dozens of follow-up cases to enforce Janus.
Recently The Wall Street Journal published an article highlighting this ongoing litigation and heavily cited veteran Foundation staff attorney Bill Messenger:
The opt-out window is a favorite post-Janus union tactic for retaining members. More than 40 lawsuits against these “escape period” requirements are pending across the country, according to Bill Messenger, an attorney with the National Right to Work Foundation who argued Mark Janus’s case at the Supreme Court. …
Mr. Messenger and lawyers at LJC argue that these opt-out window requirements flout the Janus ruling, which clarified that a worker must give affirmative consent to become a union member. Before Janus, they argue, workers couldn’t give free, knowledgeable consent because they faced an unconstitutional choice between being a member or an agency-fee payer. Unions are violating the free-speech rights of members like Ms. Callaghan, who joined before Janus, by forcing them to wait for opt-out windows to leave. …
More than 80 lawsuits are challenging union efforts to hang on to unwilling members. Often handled by nonprofits like the LJC and NRTW Foundation, these suits fall into four main camps: challenging opt-out window restrictions, seeking compensation for pre-Janus agency fees paid by nonmembers, fighting exclusive union representation, and extending Janus to the private sector. These cases aren’t litigating the merits of unions; they’re seeking to codify workers’ freedom to choose whether they want to be in one.
Read the complete column from The Wall Street Journal here.
Flight Attendant’s Lawsuit Against Southwest and Union for Illegal Firing Will Continue
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2019 edition. To view other editions or to sign up for a free subscription, click here.
Employee was fired after opposing union political activity and supporting Right to Work
Charlene Carter turned to Foundation attorneys after union bosses demanded she be fired for voicing her religious beliefs and support of the National Right to Work Act.
DALLAS, TX – Charlene Carter was forced to pay fees to the Transportation Workers Union (TWU) Local 556 union to keep her job as a Southwest flight attendant. Compelled to subsidize a union that actively promoted political issues that violated her conscience, Carter spoke out in protest of how her union fees were being spent.
Her concerns were ignored — until Carter responded to a union email by declaring her support for Right to Work. Weeks later, Carter was fired.
She sought free legal aid from National Right to Work Foundation staff attorneys, who filed a lawsuit in 2017 challenging the firing. Southwest and TWU Local 556 moved to dismiss her claims, but a federal judge recently ordered that the lawsuit should continue.
As a Southwest Airlines employee, Carter joined TWU Local 556 in September 1996. A pro-life Christian, she resigned her membership in September 2013 after learning that her union dues were being used to promote causes that violate her conscience and beliefs.
However, she was still forced to pay fees to TWU Local 556 to keep her job. Texas Right to Work Law does not protect her from forced union fees, because airline and railway employees are covered by the federal Railway Labor Act (RLA). The RLA allows union officials to have a worker fired for refusing to pay union dues or fees, but does protect the rights of employees to remain non-members of the union, to criticize the union and its leadership, and advocate in favor of changing the union’s current leadership.
Carter became a vocal supporter of a campaign to recall the TWU Local 556 Executive Board, including its president, Audrey Stone. Her pleadings describe how, in the year leading up to her lawsuit, Southwest subjected supporters of the recall campaign to disciplinary measures, including fact-findings, suspension and even termination of employment, in multiple instances at the request of TWU Local 556 members and officials.
Carter’s lawsuit states that, in contrast, when complaints were filed against the Executive Board’s supporters for their social media activity, which included allegations of death threats, threats of violence, obscene language and sexual harassment, those employees were either not disciplined or were allowed to keep their jobs.
In January 2017, Carter learned that President Stone and other TWU Local 556 officials used union dues to attend the “Women’s March on Washington D.C.,” which was sponsored by political groups she opposed, including Planned Parenthood.
Carter’s lawsuit argues that Southwest knew of the TWU Local 556 activities and participation in the Women’s March and helped accommodate TWU Local 556 members who attended the protest, by allowing them to give their work shifts to other employees not attending the protest.
Carter sent President Stone private Facebook messages, sharply criticizing the union and its support for pro-abortion activity. President Stone never responded to Carter.
A month later, Carter received an email from TWU Local 556, urging her to oppose a National Right to Work Bill. Carter responded again with an email to President Stone, declaring her support for Right to Work and the Executive Board recall effort.
Days after sending Stone that email, Carter was notified by Southwest managers that they needed to have a mandatory meeting as soon as possible about “Facebook posts they had seen.” During this meeting, Southwest confronted Carter with screenshots of her pro-life posts and messages, and questioned her why she made them.
Carter explained her religious beliefs and opposition to the union’s political activities. Carter said that, by participating in the Women’s March, President Stone and TWU Local 556 members purported to be representing all Southwest flight attendants. Southwest authorities indicated that President Stone claimed to be harassed by these messages.
A week after this meeting, Southwest fired Carter, claiming she violated its “Workplace Bullying and Hazing Policy” and “Social Media Policy.” Before her termination, Carter had never received any discipline in her 20-year career with Southwest.
“I had a really hard time knowing that they went and spent our money… and when we voiced our opinion about it, we were chastised about it,” Carter said. “And for me, I was fired for it.”
Carter received free legal assistance from Foundation staff attorneys to file a federal lawsuit to challenge the firing as an abuse of her rights, alleging she lost her job because she stood up to TWU Local 556 and criticized the union for its political activities and how it spent employees’ money.
Although Southwest and TWU Local 556 moved to dismiss her claims, the federal district court ruled that Carter’s allegations establish “more than a sheer possibility” that union officials retaliated against her, and that Southwest fired her for opposing union leadership and engaging in activities the RLA protects.
The Court also denied Southwest’s motion to dismiss Carter’s claim that Southwest discriminated against her religious beliefs in violation of Title VII of the Civil Right Act of 1964, as Carter has established “more than a sheer possibility” that her religious beliefs and practices were a factor in Southwest’s decision to fire her.
Carter also claims that TWU Local 556 discriminated against her religious beliefs by complaining about her pro-life messages in order to get Southwest to fire her. Union officials did not ask the court to dismiss that claim.
“This case shows the extent to which union officials will wield their power over employers to violate the rights’ of the workers they claim to represent,” said Mark Mix, president of the National Right to Work Foundation. “Charlene Carter merely voiced her opinion and opposition to her money being used for causes she opposes, expressing her protected religious beliefs.
“A victory for Charlene would send a message that this type of abuse of union monopoly power will not go unchallenged. Ultimately, it is up to Congress to end Big Labor’s power to force its representation on workers who oppose it and then add insult to injury by forcing workers under threat of termination to pay money to a union they oppose,” added Mix.
Hospital Employees Fight Forced Unionization by Bureaucrat Fiat
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2019 edition. To view other editions or to sign up for a free subscription, click here.
Workers were forced under SEIU’s ‘representation’ despite overwhelming opposition
Employees at Lehigh Valley Hospital – Schuylkill East were freed from union bosses’ scheme that forced them to subsidize the politically active SEIU.
WASHINGTON, D.C. – The National Labor Relations Board (NLRB) unanimously overturned a Regional Director’s decision that forced Pennsylvania hospital employees under the so-called “representation” of union bosses, even though the workers opposed the union and had rejected an SEIU organizing drive.
National Right to Work Foundation staff attorneys filed a brief in the case for employees to support the challenge to the Regional Director’s decision.
In 2016, employees at Lehigh Valley Hospital-Schuylkill East completely rejected Service Employees International Union (SEIU) officials’ attempts to unionize their workplace. Union organizers did not even file a petition for an election, which required the signatures of 30% of the hospital workers.
Employees at a separate facility, Schuylkill South, had been unionized for several decades.
SEIU agreed to a plan where some Schuylkill South workers were transferred to Schuylkill East, but kept under the union’s monopoly bargaining representation. Union officials then claimed that the entire Schuylkill East workforce should be included in the monopoly bargaining unit, based in part on the presence of these unionized workers.
In October 2017, NLRB Regional Director Dennis Walsh ordered that Schuylkill East workers should be forced into the slightly larger Schuylkill South monopoly bargaining unit, citing the NLRB’s “accretion” policy that grants union officials the power to absorb workers into a larger unionized workplace without their input. The employees were never given a vote.
Walsh had previously been suspended one month without pay by the NLRB, following an investigation into his use of his position with the NLRB to solicit contributions to a pro-union scholarship fund from union officials with cases at the NLRB. Reports indicate that the SEIU was one of the unions that made payments to Walsh’s fund.
The employer challenged Walsh’s ruling at the NLRB in Washington, D.C., and successfully halted SEIU’s coercive unionization scheme.
“This ruling is a much-needed victory for workers over a shameful union power-grab aided and abetted by a demonstrably partisan Regional Director, who only a few years ago was suspended for his pro-union conduct that violated NLRB ethics rules,” said Mark Mix, president of the National Right to Work Foundation. “Despite the workers in this case successfully resisting an SEIU organizing drive, union bosses attempted to game the NLRB system to force these workers into union forced-dues ranks. The unanimous Board decision overturning the Regional Director’s order is evidence of just how radical the accretion in this case was, and how the accretion doctrine undermines the premise of the National Labor Relations Act which is supposedly based on the idea that workers have a say in whether or not they are unionized.”
Disneyland Technician Hits Union and Disney with Federal Charges for Illegally Seizing Union Fees
Union officials collected thousands in forced fees ignoring U.S. Supreme Court mandates
Los Angeles, CA (July 25, 2019) – A Disneyland stage technician has filed federal unfair labor practice charges against the International Alliance of Theatrical Stage Employees (IATSE) Local 504 union and Walt Disney Parks & Resorts for demanding and seizing union fees from his paycheck in violation of his legal rights. The charges were filed at the National Labor Relations Board (NLRB) with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
The employee asserted his rights under the Foundation-won Communications Workers of America v. Beck U.S. Supreme Court decision, which requires unions to reduce the compulsory fees charged to workers who refrain from union membership so they are not forced to fund activities such as lobbying and political activism. The Beck decision additionally requires union officials to provide nonmember workers an independently verified audit justifying the amount of the mandatory union fees.
Because California private-sector employees lack the protection of a Right to Work law, they can be fired for refusing to pay fees to a union. However, union officials must charge as a condition of employment only the part of dues Beck permits and follow the Beck procedures before seizing such forced union fees from workers who are not union members.
Mark Stacy is not a member of IATSE and notified the union that he objects to paying the lawfully nonchargeable part of its dues. His charges filed with the NLRB Region 21 office allege that, at IATSE officials’ behest, Disneyland has nonetheless violated Stacy’s rights under federal law by continuing to seize union fees from Stacy’s pay without reducing the fees as Beck requires.
According to Stacy’s charges, IATSE union agents have also never provided him with the financial disclosures Beck requires. Further, neither Disneyland nor IATSE has a dues deduction authorization signed by him, making any and all deductions from his wages illegal.
Other Disney employees in recent years have obtained free legal aid from the Foundation to halt the illegal seizure of dues. Last June, Foundation staff attorneys secured a favorable NLRB ruling for several Walt Disney World employees who had their requests to cut off dues ignored by Florida Teamsters officials. For months, full dues were illegally deducted from their wages by Disney and accepted by Teamsters agents in a blatant breach of federal law and Florida’s Right to Work law.
“The ‘Happiest Place on Earth’ can’t be very happy if its owners and union are violating federal law by ignoring worker rights when it comes to union dues and fees,” observed National Right to Work Foundation President Mark Mix. “Cases like this show why the workers of the Golden State deserve the protection of a Right to Work law to ensure that union membership and financial support are strictly voluntary.”
California Teacher Union Bosses Back Down, Settle Lawsuit Filed by Community College Professor for First Amendment Janus Violations
Union officials to issue refunds, drop policy blocking professors from exercising First Amendment right to stop subsidizing union activities
Los Angeles, CA (July 24, 2019) – A math professor from the Ventura County Community College District (VCCCD) has just finalized a settlement with American Federation of Teachers (AFT) union officials in his class-action lawsuit to enforce the 2018 Janus v. AFSCME U.S. Supreme Court decision. The lawsuit was filed for the professor in the U.S. District Court for the Central District of California with free legal aid from the National Right to Work Legal Defense Foundation.
The victory will result in refunds of dues seized from the professor and others who attempted to exercise their right to stop union payments under the Janus decision. Additionally, the settlement forces AFT union officials to drop their policy used to block the educators from exercising their Janus rights except for a brief union-determined annual escape period.
Professor Michael McCain had been paying union dues as a member of AFT since 2005, but attempted to exercise his First Amendment right to resign his membership and cut off dues in August 2018 shortly after the Janus ruling came down. Janus, which was argued and won by Foundation staff attorneys in the U.S. Supreme Court last year, struck down compulsory union fees for all public sector employees, and instead held that affirmative employee consent is required to obtain union fees from any worker.
According to the lawsuit, the AFT and VCCCD did not honor McCain’s resignation and continued to deduct dues from his paycheck, enforcing a strict “window period” policy which severely limits the time period in which a member can resign. The lawsuit also noted that McCain’s individual dues authorization card made no mention of this rule.
McCain’s attorneys argued that the AFT’s restrictive policy constituted a “violation of [his] First Amendment right not to subsidize union activity without [his] affirmative consent and known waiver of that…right, as recognized by the U.S. Supreme Court in Janus v. AFSCME.” It requested refunds for him and other similarly situated teachers in the VCCCD of “dues deducted…without their affirmative and knowing consent.”
Rather than face Foundation attorneys and the Janus precedent in court, VCCCD and AFT officials settled the case. The union will now “fully and unconditionally” refund to McCain and other teachers who requested to stop paying union dues since Janus was decided all the dues illegally taken since the dates of their requests, plus interest. AFT and VCCCD also promised not to “adopt any policy that restricts to a yearly window period the time” when an employee can revoke his or her dues authorization.
“Michael McCain joins the ranks of educators and other government employees across the country who have successfully fought for and defended their First Amendment rights under Janus from union boss schemes like annual ‘escape periods,’ which serve no purpose other than to continue the flow of illegal dues into union coffers,” said National Right to Work President Mark Mix. “All American workers deserve the freedom that Janus promises, and Foundation attorneys will keep fighting for them in the dozens of cases already filed and many more if necessary.”
National Right to Work Foundation Files Amicus Brief in Federal Class Action Lawsuit
The National Right to Work Foundation filed an amicus brief in a federal class-action lawsuit currently pending before the Fourth Circuit Court of Appeals filed by Maryland teachers against the Maryland State Education Association.
Foundation staff attorneys argue in the brief, filed on July 22, that the court should reject union officials’ claims that they should not be required to refund unlawfully seized union fees, subject to the statute of limitations. The landmark Janus v. AFSCME case argued and won at the U.S. Supreme Court by Foundation staff attorneys established that the Constitution protects public workers from being forced to subsidize a union activities and that any union dues taken without a workers affirmative consent violates the First Amendment.
The brief reads in part:
The bottom line is that good faith is not a defense to a deprivation of First Amendment rights under Janus… The Union Appellees lack a cognizable basis for asserting a good faith defense. The district court’s judgment should be reversed and the case remanded for further proceedings.
Read the complete amicus brief here.
This is not the first time Foundation staff attorneys have filed an amicus brief in such a case. In June, the Foundation filed an amicus brief on behalf of Ohio Department of Taxation employee Nathaniel Ogle, whose case is ongoing.
Foundation staff attorneys are also currently litigating the same issue before the Seventh Circuit Court of Appeals on behalf of Mark Janus, lead plaintiff in the Supreme Court case. There, briefing is complete and it is likely that the Seventh Circuit will be the first Appellate Court to rule on the dues refund issue.
Veteran Foundation Attorneys Highlight NLRB Victory for Workers Over UAW Union Bosses
Earlier this month, National Right to Work Foundation staff attorneys won a decision at the National Labor Relation Board (NLRB) for Johnson Controls Inc. employees seeking to remove the United Auto Worker (UAW) union from their workplace.
Foundation Vice President and Legal Director Raymond LaJeunesse and veteran Foundation staff attorney Glenn Taubman, who provided free legal aid to the workers, recently authored an article for the Federalist Society about the victory and how it advances the rights of workers seeking to free themselves from union monopoly ranks:
The main takeaways from this case are: 1) employers can lawfully withdraw recognition of a union when presented with objective evidence (like an employee signature petition) that the union has lost majority support, and they now face less legal jeopardy for honoring the wishes of their employees than they did under the prior regime; 2) secret ballot elections remain the favored method for determining employees’ representational desires, so if the union is «anticipatory» ousted based upon a majority employee petition but believes it actually possesses majority support, it cannot litigate its way back to power using the slow and prolonged unfair labor practice process, but must file for a secret ballot election; and 3) as noted in the dissenting opinion of Obama appointee Lauren McFerran, the Johnson Controls decision could open the door to periodic recertification elections for unions.
Many employee advocates have long urged that recertification elections are desirable. Unlike politicians who must automatically face periodic elections (a.k.a “recertifications”), current NLRB law “presumes” that unions retain majority status in perpetuity. Yet statistics show that 94% of unionized workers have never voted for the union representing their workplace. James Sherk, Union Members Never Voted for a Union, Heritage Foundation, August 30, 2016. If the NLRB adopts a recertification process, unions could not rely upon outdated doctrines granting them perpetual majority status, but would have to periodically prove their majority support. As National Right to Work Foundation attorneys have long argued, permanently encrusting a labor union on a bargaining unit, with no showing of current employee support, does not lead to workplace stability or protect employees’ right of free choice.
Read the rest here.
Learn more about the decision here.
California Homecare Providers File Class Action Lawsuit Challenging Union ‘Escape Period’ Scheme Used to Unlawfully Seize Dues
Union officials violate providers’ First Amendment and statutory rights by refusing to halt deductions of union dues from Medicaid payments
Sacramento, CA (July 15, 2019) – California homecare providers who receive Medicaid payments for serving disabled individuals have filed a class-action lawsuit with free legal aid from attorneys provided by the National Right to Work Legal Defense Foundation staff and Washington-based Freedom Foundation. They charge union officials with violating their legal rights by unlawfully restricting them from stopping payment of union dues and fees, as is their right under the U.S. Supreme Court’s Harris and Janus decisions and the Medicaid statute.
The providers’ complaint says United Domestic Workers (UDW) AFSCME Local 3930 union officials coerced them into surrendering their legal rights by signing union membership cards that prohibit them from halting union dues and fees deductions except for a narrow “escape period” a few days every year.
When the providers attempted to exercise their legal rights under Harris and Janus to refrain from financially subsidizing a union and cut off any further dues or fee deductions, union officials refused to honor their requests. Despite the lack of valid consent by providers, the California State Controller, at the behest of AFSCME union officials, continues to deduct union dues from the Medicaid funds intended for providers.
In the class-action suit filed in U.S. District Court for the Southern District of California, the providers named as defendants UDW AFSCME Local 3930 and California State Controller Betty Yee. Yee deducts union dues and fees from providers’ Medicaid payments pursuant to state law.
The providers rely on the U.S. Supreme Court’s landmark Harris and Janus decisions in 2014 and 2018, respectively, both of which were argued and won by Foundation staff attorneys. Harris held that homecare providers cannot constitutionally be compelled to pay union dues or fees as a condition of receiving public funding. Janus established that the First Amendment protects public-sector workers from being forced to pay union dues or fees without their knowing and explicit consent.
While still permitting voluntary unionism, the Janus decision requires union officials to inform public workers of their First Amendment rights and obtain knowing waivers from them before collecting any dues or fees. This requirement invalidates the restrictions on revocation of deduction authorizations union officials enforce through membership cards signed by individuals subjected to public sector unionism.
Because union officials never obtained their consent with knowledge of their rights under Harris and Janus, the providers argue that the restrictions in their dues deduction authorizations are invalid and union officials, thus, are not legally authorized to deduct dues or fees from their hard-earned Medicaid payments. Their complaint asks that the court declare unconstitutional the California statute which authorizes such restrictions.
In addition, the providers’ suit alleges that the deduction of union dues from their Medicaid payments violates a provision of the federal Medicaid statute that prohibits the diversion of Medicaid monies to persons or institutions that are not providing services to disabled individuals.
“Once again union bosses have ignored the clear wishes of the workers they claim to ‘represent’ simply to line their pockets with compulsory dues,” said National Right to Work Foundation President Mark Mix. “Instead of informing workers of their First Amendment rights and allowing them to choose whether to pay dues to a union voluntarily, union officials nationwide are applying ‘escape periods’ and other coercive tactics to trap workers into paying forced dues against their wishes.”
Medicaid Providers Move to Defend Rule Ending Illegal Union Medicaid Skim
Providers file motion to intervene after union bosses and their allied AGs filed a lawsuit seeking to block the Center for Medicaid Services’ rule to end illegal skim
San Francisco, CA (June 21, 2019) – A group of 10 Medicaid providers have moved to intervene in a recently filed federal lawsuit challenging a rule adopted by the U.S. Centers for Medicare & Medicaid Services (CMS) that would stop union officials from skimming union dues directly out of taxpayer-funded Medicaid payments. AFSCME and SEIU union officials, and the pro-Big Labor Attorneys General of California, Connecticut, Massachusetts, Oregon and Washington State, recently filed the challenge to the rule, which was adopted in May.
The providers filed their motion with free legal representation from staff attorneys at the National Right to Work Legal Defense Foundation and the Washington State-based Freedom Foundation. The providers support the Trump Administration’s rule because it helps ensure their right not to fund union activities in violation of their First Amendment rights. They argue that the blanket prohibition in the Medicaid statute against assigning payments to third parties has no exemption for assignments to unions and their PACs, and thus the new rule simply puts the Medicaid regulations back into alignment with the law.
The Obama Administration attempted in 2014 to provide union officials with legal cover to siphon over $100 million every year in Medicaid funds into union political and lobbying activities by a special exemption for union officials to the Medicaid regulations. All told, union officials siphoned off a total of more than $1 billion in Medicaid funds over the past 15 years.
In 2014, the U.S. Supreme Court held in the National Right to Work Foundation-won Harris v. Quinn case that it is unconstitutional for states to force homecare providers receiving Medicaid funds to pay union fees. However, citing the Obama rule, union officials continued siphoning the money from hundreds of thousands of providers, including many who attempted to stop the union dues seizures and others who were unaware they could not be required to make the payments. Some, while attempting to stop the payments, found that union agents had forged their signatures to authorize the payments.
In August 2018, 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. Those recommendations were finally adopted in early May, and are set to go into effect on July 5, 2019.
“Providers are right to oppose this lawsuit’s blatant attempt to enable union bosses to skim union dues in violation of federal law,” said National Right to Work Foundation President Mark Mix. “Contrary to the wishes of union bosses and their political allies, union officials are not entitled to a special exemption from federal law.”
“Nothing in this rule stops union officials from collecting voluntary dues from voluntary union members, it just says that taxpayers and government shouldn’t act as the bagman for such dues payments,” added Mix. “The hysterical response by Big Labor and its political allies to this simple clarification of what is longstanding federal law suggests they are worried that many members union officials claim to represent won’t pay dues once they realize they have a choice.”
