Ohio Public Workers Axe Illegal Restrictions on Janus Rights for Almost 30,000
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2020 edition. To view other editions or to sign up for a free subscription, click here.
Foundation-backed lawsuit ends AFSCME bosses unlawful “escape period” scheme
Two years after Foundation staff attorneys won Janus, public sector workers continue to cast off the shackles of forced union dues. In Allen, the plaintiffs successfully defended the Janus rights of thousands of Ohio public workers.
COLUMBUS, OH – A lawsuit by four Ohio public employees has secured the end of an illegal dues deduction scheme used by Ohio Civil Service Employees’ Association (OCSEA/AFSCME Council 11) union bosses to block an estimated 28,000 workers from exercising their First Amendment right to stop union dues payments. The workers obtained free legal representation from National Right to Work Foundation staff attorneys in challenging the policy.
The class-action suit, Allen v. AFSCME, challenged OCSEA’s so-called “maintenance of membership” policy, which trapped workers in forced-dues payments except for a brief “escape period” once every three years at the expiration of the union monopoly contract. The workers argued this policy violated their First Amendment rights under the Janus v. AFSCME Supreme Court decision.
In Janus, the High Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights, and ruled that the government can only deduct union dues or fees with an individual’s affirmative consent.
After Freeing Workers, Foundation Attorneys Warn of Future Union Boss Tricks
As a result of the lawsuit, OCSEA officials and the State of Ohio have rescinded the “maintenance of membership” restriction on when state workers can exercise their First Amendment right to cut off union dues deductions.
They must also honor requests to stop dues deductions from any employees who signed the AFSCME dues authorization form at issue in the lawsuit. Finally, AFSCME bosses repaid dues seized illegally under the scheme to the plaintiffs and more than 150 other employees who tried to cut off union dues deductions after Janus was decided.
Knowing that union bosses don’t easily give up in their crusades to coerce workers into paying dues, however, Foundation staff attorneys issued a legal notice shortly after the case wrapped up, warning workers that OCSEA union bosses may soon solicit them to sign new dues deduction forms which are not covered by the litigation. The new forms will “purport to restrict” when employees can stop dues, it warns.
In light of that, the notice reminds workers that under Janus, no Ohio public employee can be forced to sign a union dues deduction form as a condition of employment, no matter what union agents may tell them.
Just Latest in String of Ohio Worker Victories over “Escape Periods”
Allen is not the only case in which Ohio public employees have, with National Right to Work Foundation legal aid, successfully challenged union boss attempts to limit their rights.
Seven other Ohio public employees won the first-in-the-nation victory against unconstitutional “escape periods” with Foundation aid in January 2019, after they filed a class-action federal lawsuit challenging a similar policy created by AFSCME Council 8 bosses. They won a settlement ending the restrictions for themselves and their coworkers. That win was followed by two other Ohio public workers, Connie Pennington and Donna Fizer, successfully ending “escape period” restrictions with Foundation assistance later in 2019.
“Although this chain of victories for Buckeye State public employees is certainly encouraging, the widespread nature of these schemes shows there remains much work to do to force union bosses to end their unconstitutional restrictions on public employees’ First Amendment Janus rights,” observed National Right to Work Foundation President Mark Mix. “Foundation litigation has already freed hundreds of thousands of public employees from forced union dues, but likely millions more remain trapped and unable to exercise their rights. That is why Foundation litigators will continue to file these cases.”
Foundation Asks Supreme Court to Hear Janus Case Again, Seeking Return of Forced Fees
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2020 edition. To view other editions or to sign up for a free subscription, click here.
Case could set precedent for hundreds of millions of dollars in refunds to Big Labor’s victims
Mark Janus’ second Foundation-backed appeal to the Supreme Court landed the top spot on Fox News’ website. If Janus prevails again, hundreds of millions of dollars in unconstitutional union dues could be returned to public sector employees.
WASHINGTON, DC – Mark Janus is returning to the U.S. Supreme Court, this time asking the Justices to hear the continuation of Janus v. American Federation of State, County, and Municipal Employees (AFSCME), Council 31. Janus seeks repayment of the thousands of dollars in fees the union took from his paycheck in violation of his First Amendment rights. Another Supreme Court victory for Janus could set a precedent resulting in the return of hundreds of millions of dollars seized by union officials in violation of workers’ constitutional rights.
The original Janus v. AFSCME was argued successfully before the Supreme Court by veteran National Right to Work Foundation staff attorney William Messenger. In a landmark victory, the Court sided with Janus on June 27, 2018, and declared it illegal to force public employees to subsidize a union as a condition of employment. The Court recognized that compelling public workers to pay fees to a union violates their First Amendment rights.
Illinois Child Support Public Servant Intervenes in Lawsuit with Foundation Aid
As a result of Janus, more than five million public sector employees across the country are no longer required to pay union dues or fees to keep their jobs. However, Janus’ case continues as he seeks the return of the fees that AFSCME seized from his paycheck without his permission from June 27, 2018, to March 23, 2013, representing the two-year statute of limitations from the date his case started in March 2015 through the Supreme Court’s 2018 decision in his favor.
The Janus case began in February 2015, when then-newly elected Illinois Governor Bruce Rauner issued an executive order prohibiting state agencies from requiring employees who had abstained from formal union membership to pay union fees, based on a Right to Work Foundation U.S. Supreme Court victory in 2014 in another Illinois case. Rauner also filed a federal lawsuit seeking a declaratory judgment that forced union fees violate the First Amendment rights of public workers.
Staff attorneys from the Foundation, in partnership with the Illinois-based Liberty Justice Center, filed a motion for Mark Janus and two other plaintiffs to intervene in the case in March 2015, and have represented Janus ever since. The U.S. District Court for the Northern District of Illinois granted Janus’ motion to file a complaint in intervention, which allowed the suit to move forward even after the court ruled that Rauner lacked standing to pursue the lawsuit.
The Supreme Court permitted union bosses to impose forced union fees on public workers in the 1977 Abood v. Detroit Board of Education decision. However, before the Janus victory, Foundation staff attorneys secured several victories for workers which called the constitutionality of forced fees into question. In 2012, the court ruled in Knox v. SEIU that union officials must obtain affirmative consent from workers before using workers’ forced union fees for special assessments or risk infringing on their First Amendment rights. In 2014, the court ruled in Harris v. Quinn that requiring home healthcare providers who receive a subsidy from the government to pay union dues is a First Amendment violation.
Following Janus’ groundbreaking win at the Supreme Court in June 2018, Foundation attorneys continued his case in Illinois federal courts, arguing that the Supreme Court’s ruling is retroactive and that AFSCME should be required to return dues they seized unconstitutionally before the decision. In this and similar cases, union bosses have made a so-called “good faith” argument to defend their seizing of dues before Janus was issued. The U.S. Seventh Circuit Court of Appeals in Chicago ruled in 2019 that AFSCME could keep the unconstitutional dues, prompting Janus’ petition to the Supreme Court.
Hundreds of Millions of Dollars Potentially At Stake
“The Supreme Court agreed that the union taking money from non-members was wrong but the union still has the money it illegally garnished from my paycheck,” commented Janus. “It’s time for AFSCME to give me back the money they wrongfully took.”
Foundation staff attorneys are currently fighting for thousands of workers in about 20 cases which seek refunds of dues seized unconstitutionally before Janus was decided. While Janus is seeking the return of $3,000 of his own money, a favorable decision for him would set a precedent that could result in the return of over $120 million to public servants just in Foundation-backed cases. Other cases brought by workers could bring that total to hundreds of millions of dollars.
Workers Already Winning Refunds of Illegal Dues with Foundation Legal Aid
“The Supreme Court has already sided with the Foundation arguments for Mark Janus and ruled that forcing public employees to fund union activities violates the First Amendment,” said National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “The Supreme Court should take this case again to ensure that public sector union bosses are not permitted to profit from their widespread violation of workers’ First Amendment rights.”
Foundation staff attorneys in July 2018 secured the nation’s first-ever refund of dues seized unconstitutionally before Janus for Debora Nearman, an Oregon state wildlife employee. SEIU bosses were forced to settle and give back to Nearman over $3,000 in illegal fees they had seized from her over two years, during which they had sponsored an aggressive political campaign against her own husband, who ran successfully for the Oregon Legislature in 2016.
Final Briefs Filed at Appeals Court in Continuation of Janus v. AFSCME
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
Foundation seeks first-in-nation appellate court ruling to order non-member dues refunded
Veteran Foundation staff attorney William Messenger, seen here speaking to reporters after Supreme Court oral arguments in Janus, leads the Foundation’s Janus enforcement task force.
CHICAGO, IL – Although Janus v. AFSCME secured a landmark victory at the U.S. Supreme Court for government employees’ First Amendment rights, Mark Janus’ case is not over because AFSCME union bosses have refused to return the funds taken from him in violation of the First Amendment.
Janus’ attorneys from National Right to Work Foundation and Illinois-based Liberty Justice Center have completed briefing with the Seventh Circuit Court of Appeals on the issue of whether union officials can keep money they seized from non-members in violation of their constitutional rights. The case is likely to mark the first time an appellate court will rule on the issue, potentially establishing a precedent that could result in the return of hundreds of millions of dollars seized by union bosses in violation of the Janus precedent.
Janus Secured Workers’ First Amendment Rights
Mark Janus was an Illinois child support specialist whose case was successfully argued at the Supreme Court by National Right to Work Foundation staff attorney William Messenger.
The Supreme Court’s June 27, 2018, decision in Janus’ favor found that any union fees taken from workers like Mark Janus – who was not a member of AFSCME – without the workers’ affirmative and knowing consent violate the First Amendment. Justice Samuel Alito wrote for the majority that compulsory fees “[violate] the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern.”
The Supreme Court sent the case back to the lower courts to determine, among other things, whether Janus is entitled to all the union fees he was forced to pay since March 23, 2013.
Janus’ appeal comes after a district court judge ruled that union officials are not required to refund forced fees seized from non-member workers prior to the Janus decision.
“Just like a thief would not be allowed to keep the money he stole, union bosses must be forced to return funds unlawfully seized from workers,” said National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse. “It would be a massive injustice to deny workers victimized by Big Labor the refunds to which the Supreme Court made clear they are entitled.”
Seventh Circuit Likely First Appeals Court to Rule on Non-member Refunds
Janus will likely be the first case in which an appellate court will evaluate the so-called “good faith” defense that union lawyers have asserted in response to worker lawsuits seeking refunds, arguing that union officials should be allowed to keep funds seized prior to the Janus decision.
This contention has generally succeeded in lower courts despite the Supreme Court asserting that union bosses have been “on notice” for years that mandatory fees likely would not comply with the heightened level of First Amendment scrutiny articulated in the Supreme Court’s earlier Knox v. SEIU decision, also won by Foundation staff attorneys.
Mark Janus is asking the Seventh Circuit to rule that he is entitled to refunds of approximately $3,000 in fees he was forced to pay since March 23, 2013, as the statute of limitations permits. In addition, the case has significant implications for dozens of other cases being litigated around the country for hundreds of thousands of other workers seeking the return of forced fees seized unlawfully by union officials.
Janus Refund Efforts Continue Nationwide
Foundation staff attorneys are currently litigating over a dozen such cases that collectively seek over $120 million in refunds for non-members forced to pay union fees before Janus. Other ongoing lawsuits and potential cases could result in half a billion dollars or more returned to government workers from union treasuries.
“The Janus case is a milestone of worker freedom, but union bosses continue to block workers from exercising their rights and deny workers refunds for dues and fees seized against their wishes,” said LaJeunesse. “We hope the Seventh Circuit Court of Appeals will follow the clear logic of the Supreme Court’s decision in Janus and establish that union bosses cannot profit from violating workers’ First Amendment rights.”
Janus v. AFSCME Media Roundup
On June 6 the National Right to Work Legal Defense Foundation petitioned the Supreme Court to hear Janus v. AFSCME a case that could end forced union fees for all public sector employees. The case has generated a lot of media attention. Here are just some samples. Please click the link in the publication name to read the full article.
New York Times – “Last year, the Supreme Court seemed poised to deal a sharp blow to public sector unions. Then Justice Antonin Scalia died and the court deadlocked, granting the unions a reprieve. It may not last long.”
One News Now – “The Janus case is a very important step in our efforts to end the forced payment of fees to a union as a condition of employment,” says Mark Mix of National Right To Work Legal Defense Foundation. “The Janus case specifically deals with government employees. Interestingly enough, if we win at the Supreme Court, which we fully intend to do, it would protect every government employee in America from being fired for failure to tender dues or fees to a labor union.”
Washington Free Beacon – “The Supreme Court could revisit a 40-year-old precedent that allows government agencies to force public sector workers to pay union dues, an issue the court deadlocked on in 2016 following the sudden death of Antonin Scalia.”
Illinois News Network – “Foundation President Mark Mix said this is about compelled speech vs. free speech.Mix said what’s happened is there’s “a private institution in between taxpayers and elected officials and [the union] is able to speak for government employees that, heretofore, never asked for, never wanted, and in fact stand back and say, ‘I don’t want you to speak for me,’ as [plaintiffs] have said in this case,” Mix said.”
Foxnews.com – “It’s the state’s burden to justify infringing on a worker’s association rights,” he said. “The key is there’s no difference between collectively bargaining with the government and lobbying the government. If you can’t force people to pay to lobby the government, then you can’t force them to pay union dues or exclusively bargain with them.”
SCOTUSBLOG – “With Justice Neil Gorsuch now on the bench, however, Janus hopes that the Supreme Court will seize its third opportunity to reverse Abood. ”
Washington Examiner – “The case, called Janus v. American Federation of State, County and Municipal Employees, asks whether an Illinois state government employee can be forced to pay a so-called “security fee” to the union as a condition of employment. Such fees are common provisions in public-sector union contracts. Losing them would be a severe financial blow to the unions.”
Minnesota Court Employees File Federal Lawsuit Challenging Public Sector Forced Union Dues
Workers’ case follows up on Supreme Court split on constitutionality of mandatory union fees for government employees
Minneapolis, MN (June 8, 2017) – Assisted by National Right to Work Legal Defense Foundation staff attorneys, two Minnesota court employees are filing a lawsuit in federal court challenging the constitutionality of public sector union officials’ forced dues powers. The case being filed today argues that the state requirement that the plaintiffs pay union fees as a condition of government employment violates the First Amendment.
Carrie Keller is a Court Administrative Assistant, and Elizabeth Zeien is an Accounting Technician; both are employed by the State of Minnesota Court System. When they started working for the State, neither was a union member, and they both negotiated their own terms and conditions of employment and salaries, free from union interference.
In 2015, union officials started proceedings to force a number of state employees who were not in monopoly bargaining units into union ranks, where they could be required to pay union dues and fees. Ultimately, in March 2017, Minnesota state officials complied with the Teamsters’ demands and added a number of employees, including Keller and Zeien, to a Teamsters controlled bargaining unit without the employees’ permission or desire. Keller, Zeien and the other employees were never given a vote on whether they should be part of the union bargaining unit, and they objected to the new scheme.
Before being summarily forced under the union contract, Keller and Zeien had negotiated pay scales and benefits for themselves that equaled or exceeded what they received under the union-mandated contract. The lower compensation under the union contract and the imposition of mandatory union fees led Keller and Zeien to approach the National Right to Work Foundation for assistance in challenging the forced unionization scheme.
“These two workers were happily working and successfully representing themselves in dealing with their employer until Teamsters officials sought to bolster they forced dues ranks even though it meant a step back in their working conditions,” said Mark Mix, president of the National Right to Work Foundation. “This case is a prime example of the power of worker freedom being destroyed by union boss interference and why it is wrong to force employees to pay money to a union for representation they don’t want and never asked for.”
Nearly 40 years ago, the Supreme Court ruled in Abood v. Detroit Board of Education that public-sector workers could be compelled as a condition of employment to pay union fees. However, in two recent National Right to Work Foundation-won Supreme Court decisions, Knox v. SEIU (2012) and Harris v. Quinn (2014), the High Court suggested it is ready to revisit the 1978 precedent in Abood, expressing skepticism about the constitutionality of public sector union officials’ forced-dues privileges.
National Right to Work Foundation staff attorneys currently have seven other ongoing cases challenging the mandatory union payments as a violation of the First Amendment, including Janus v. AFSCME – on behalf of a Illinois government employee Mark Janus who is forced to pay fees to AFSCME union officials – which is currently before the Supreme Court on a petition for certiorari.
Iowa Teacher Moves to Defend Union Bargaining Reform Law from Union Lawsuit
National Right to Work Foundation staff attorneys help Iowa teacher file Motion to Intervene in support of the recently passed reform legislation
Des Moines, IA (March 29, 2017) – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, a Waverly-area school teacher has filed a motion to intervene in the recently filed lawsuit attacking Iowa’s new government union reform law. Kevin Rohne, a public school special education teacher, seeks to intervene in the court case (AFSCME v. State of Iowa) to defend the law, which limits union monopoly bargaining powers and mandates regular recertification elections to determine if union officials are actually supported by the rank-and-file they claim to represent.
Mr. Rohne wishes to intervene to support the law because his rights are at stake as a public sector worker currently forced to accept government mandated union bargaining. Rohne opposes having government-imposed union “representation” and supports efforts to eliminate or reform monopoly bargaining powers granted to union officials under Iowa law.
The unions’ complaint asks the court to overturn the recently-enacted public sector union bargaining reform law. This law, which passed the Iowa legislature on February 16, is similar to Wisconsin’s Act 10 legislation which also instituted yearly renewal elections for most public sector unions and rolled back union monopoly bargaining powers.
Wisconsin’s Act 10 law faced multiple union legal challenges but was ultimately upheld in all of the cases. Moreover, the 2007 National Right to Work Foundation-won U.S. Supreme Court case Davenport v. WEA reaffirmed the right of the states to pass laws limiting compulsory unionism powers granted to public sector union officials.
Rohne’s motion is particularly important at this time due to the fact that the state official charged with defending the law, Iowa Attorney General Tom Miller, has publicly refused to defend the law in court. Miller in the past has been supported by the same public sector unions that are affected by the new law.
“It is outrageous first, the Attorney General will not do his job and secondly, that AFSCME union officials reject the right and the authority of the Iowa legislature to reform the extraordinary monopoly bargaining powers that were previously granted to them by the legislature,” said Mark Mix, President of the National Right to Work Foundation. “Public sector monopoly bargaining elevates the voice of a single organization speaking to the government over the voices of the tens of thousands of workers and taxpayers who elect the government. The Foundation will proudly continue to represent workers who seek to defend their rights against union boss-lawsuits, as it did in helping to defend Wisconsin’s Act 10.”
National Right to Work Foundation Staff Attorney Argues Case Before 7th Circuit Court of Appeals Challenging Forced Union Dues
Janus v. AFSCME could be next U.S. Supreme Court case to decide constitutionality of mandatory union fees for public employees
Chicago, IL (March 1, 2017) – On Wednesday, the U.S. Court of Appeals for the Seventh Circuit will hear oral arguments in Janus v. AFSCME, a case challenging mandatory union fees paid by government workers in Illinois. This case builds on recent Supreme Court decisions Knox v. SEIU (2012) and Harris v. Quinn (2014), both of which were won by National Right to Work Legal Defense Foundation staff attorneys.
In Janus, the plaintiffs are two Illinois government employees who are represented by staff attorneys from the National Right to Work Legal Defense Foundation and the Liberty Justice Center.
Under Illinois law, union officials are empowered to require government employees to pay money to a union as a condition of employment. Although state employees aren’t forced to be full-fledged union members, they are required to pay mandatory dues or fees to a union or be fired. This lawsuit seeks to end that practice on the grounds that these fees violate the plaintiffs’ First Amendment rights.
A victory for the Janus plaintiffs would impact millions of government employees who currently can be fired for refusing to pay dues or fees to union officials. The National Right to Work Foundation currently has seven cases across the country on behalf of public employees seeking a ruling that mandatory union fees violate the First Amendment, with Janus most likely to reach the U.S. Supreme Court first.
In 2016, because of the untimely death of Justice Antonin Scalia, the High Court split 4-4 in Friedrichs v. California Teachers Association, a case that would have also ended forced dues for public employees. A new justice will be the deciding vote should Janus or another case presenting the issue be taken up by the Supreme Court.
National Right to Work Foundation President Mark Mix commented, “Hopefully the Seventh Circuit will rule quickly so the case can go to the Supreme Court, which should uphold the First Amendment by ending the injustice of forcing public employees to pay tribute to union bosses as a condition of working for their own government.”
Check out the lead article in the January/February 2017 Foundation Action Newsletter “Foundation Cases Poised to Challenge Forced Dues at Supreme Court”
Foundation Cases Poised to Challenge Forced Dues at Supreme Court
Cases to overturn forced dues could quickly reach Supreme Court with new Trump Justice
To read the rest of the January/February 2017 issue, please click here.
Washington, D.C. – Over the past few months, Foundation staff attorneys have been busy litigating hundreds of cases on the behalf of independent-minded workers across the country. Two of those cases have the potential to reach the Supreme Court this year and answer the unresolved questions left in the wake of the 4-4 split in the Fredrichs v. California Teachers Association.
One of those cases, Janus v. AFSCME, stems from an executive order from Illinois Governor Bruce Rauner that placed any union fees that nonunion members were forced to pay into an escrow account until the constitutionality of those fees was resolved. Governor Rauner subsequently filed a lawsuit in U.S. District Court for the Northern District of Illinois and argued that collecting forced dues or fees from state employees as a condition of employment violated the First Amendment of the Constitution.
Foundation staff attorneys then filed a motion to intervene as plaintiffs for Mark Janus and other state employees who are forced to pay union fees as a condition of employment. A Judge eventually ruled that Governor Rauner did not have standing in court but let the Foundation-represented employees continue to challenge the constitutionality of forced fees.
After the Supreme Court reached a 4-4 deadlock in a similar case earlier this year, Friedrichs v. CTA, a District Judge ruled against Janus and the other state employees. Foundation attorneys immediately filed an appeal to the Seventh Circuit Court of Appeals and are awaiting a decision. It is possible that a petition for a writ of certiorari could be filed with the Supreme Court later this year.
The second case, Serna v. Transportation Workers Union (TWA), is a class-action lawsuit brought by several American Eagle Airlines and Southwest Airlines employees U.S. District Court for the Northern District of Texas was pending with the Supreme Court as this issue of Foundation Action went to press. That suit challenges the constitutionality of the Railway Labor Act’s sanction of agreements that require compulsory union fees as a condition of employment.
Even though these employees work in the private sector, the Supreme Court has previously ruled that because the Railway Labor Act (RLA) effectively mandates forced fees for railway and airline workers, it effectively fosters the same Constitutional issues as were raised for government employees in Friedrichs. Therefore, success in Serna on the First Amendment claims against forced dues would effectively overturn forced dues for public sector workers.
After the Fifth Circuit Court of Appeals ruled against the airline employees citing the Friedrichs deadlock, Foundation staff attorneys filed a petition for a writ of certiorari with the Supreme Court. The Court was scheduled to consider the petition on January 6 and a decision whether to take the case or not could follow shortly after, or the Justices may decide to hold the case in light of the potential for a 4-4 tie until a ninth Justice is seated.
“Both of these cases have the potential to answer the ultimate question that was left unresolved by Friedrichs and that is whether or not it is constitutional to force workers to pay union bosses tribute to get or keep a job,” National Right to Work Foundation President Mark Mix said.
In addition to Serna and Janus, National Right to Work Foundation staff attorneys have two additional cases working their way through the courts – one on behalf of university professors in Massachusetts and one for school employees in Kentucky – that directly challenge the constitutionality of mandatory union dues. More cases directly challenging the constitutionality of government-mandated forced union dues are expected to be filed by Foundation staff attorneys in 2017.
