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.
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.”
More Workers Ask Supreme Court to Refund Unconstitutional Forced Dues
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Four Foundation-backed cert petitions now filed at High Court with millions at stake
Foundation staff attorneys asked the Supreme Court to hear Nathaniel Ogle’s case, which seeks refunds for him and his coworkers of forced union dues that were seized from their paychecks in violation of the First Amendment.
WASHINGTON, DC – Across the nation, public employees continue to seek free legal aid from National Right to Work Foundation staff attorneys, to fight for their First Amendment rights recognized in the landmark Janus v. AFSCME Supreme Court ruling. Janus was argued and won by Foundation staff attorneys.
Janus affirmed that public employees cannot be required to subsidize union activities as a condition of employment and that union payments can only be deducted with an employee’s freely given consent.
Despite this clear ruling, union bosses have almost without exception refused to return money seized from workers in violation of the First Amendment. In response, Foundation staff attorneys are now assisting workers in more than a dozen cases seeking to force union officials to return illegal forced fees to tens of thousands of employees, with four such cases now pending at the U.S. Supreme Court.
Union Officials Refuse to Refund Illegally Seized Dues Post-Janus
In November, attorneys for Connecticut Department of Energy and Environmental Protection employees Kiernan Wholean and James Grillo filed a petition for writ of certiorari with the Supreme Court. It is asking the Justices to hear their case, seeking back years of union dues that they and their coworkers were forced to pay to Service Employees International Union (SEIU) union bosses in violation of the First Amendment. Their petition follows one filed in October for Ohio Department of Taxation employee Nathaniel Ogle, whose case seeks to require AFSCME union bosses to similarly return forced fees seized in violation of the Janus standard from potentially thousands of Ohio government employees.
With these two new cert petitions, there are now seven pending before the Supreme Court on this issue, four of which were filed for workers by Foundation staff attorneys. That includes the continuation of the original Janus case brought by Mark Janus.
If the Supreme Court decides to hear any one of these cases, a favorable ruling would create another groundbreaking precedent, potentially prompting the return in Foundation cases alone of over $130 million to employees fighting to get back money taken in contravention of their Janus rights.
Wholean and Grillo, who are not members of SEIU,
originally filed their case in 2018 in the U.S. District Court for the District of Connecticut shortly before the High Court decided Janus. The State ceased deducting dues from their paychecks for SEIU following a letter to the State Comptroller from a National Right to Work Foundation attorney, which threatened legal action for any dues deductions from non-members that continued after Janus.
However, SEIU union officials continue to refuse to refund dues that they took from Wholean, Grillo and other non-members in violation of the Janus First Amendment standard before the decision, even though they knew the employees never consented to pay.
Ogle filed his case at the District Court for the Southern District of Ohio just after Janus was decided. Like Wholean and Grillo, he was never a member of the union but had mandatory union fees deducted from his paychecks. The Ohio affiliate of the national AFSCME union has around 30,000 public employees across the Buckeye State under its bargaining monopoly. If a class is eventually certified in Ogle’s case, it could potentially include thousands of workers.
Foundation Attorneys: High Court Must Reject Union Attempts to Dodge Janus
Lower courts in these and other lawsuits have accepted union lawyers’ so-called “good faith” contentions for letting union bosses keep the dues collected in violation of the non-members’ constitutional rights. This is at odds with the Supreme Court’s Janus ruling, which did not proscribe retroactive relief. Indeed, it observed that union officials have been “on notice” for years that mandatory fees likely would not comply with the High Court’s heightened level of First Amendment scrutiny, articulated in the 2012 Supreme Court decision in the Foundation’s Knox v. SEIU case.
Foundation staff attorneys point out in the petitions before the Supreme Court that a “good faith” defense has never existed under Section 1983 of the Civil Rights Act of 1871, the statute under which these lawsuits are brought. Section 1983 specifically imposes liability on those who violate the constitutional rights of others while acting “under color of ” existing law.
Not all judges, however, have been convinced by union officials’ dubious “good faith” argument for keeping the unconstitutionally seized payments. In Wenzig, another Foundation-backed case, a majority of a Third Circuit panel denied the existence of such a defense. In a supplemental brief, Foundation attorneys cited the confusion among lower courts as a significant reason the court should hear the continuation of Janus.
“With seven petitions on this issue now pending with the High Court and more to be filed soon, it is time the Supreme Court hears this issue and ends the denial of justice for tens of thousands of non-member government employees whose First Amendment rights were violated,” commented National Right to Work Foundation President Mark Mix. “Section 1983 of the Civil Rights Act, the federal statute under which all these cases were filed, was specifically intended to allow individuals to remedy the deprivation of their rights when it occurs under color of law. It’s outrageous that union bosses have thus far been allowed to keep money seized in violation of the First Amendment because it was authorized by then-existing but unconstitutional law.
“That result is especially specious because, as the Supreme Court recognized in Janus, union bosses have been ‘on notice’ since 2012 that forcing government employees to pay union fees was likely unconstitutional,” Mix added.
Airline Workers Ask Appeals Courts to Invalidate Union Dues Opt-Out Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Cases challenge requirement that workers opt out of union political spending or else pay full dues
Just “plane” wrong: United Airlines fleet service employee Arthur Baisley (left) and JetBlue Airways pilot Christian Popp (right) are fighting to end schemes that deduct union political expenses out of workers’ paychecks without their consent.
NEW ORLEANS, LA – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, two airline workers have filed cases challenging union boss policies that require workers to opt out in order to exercise their First Amendment right not to fund union political activities, as recognized in the Foundation-argued 2018 Janus v. AFSCME Supreme Court decision.
The two federal class-action lawsuits were brought for United Airlines fleet service employee Arthur Baisley and JetBlue Airways pilot Christian Popp. They are currently pending in the U.S. Courts of Appeals for the Fifth and Eleventh Circuits respectively.
Workers Challenge Compelled Political Speech
Baisley’s case against the International Association of Machinists (IAM) union has been fully briefed and is tentatively set for oral argument the week of November 30. Meanwhile, the opening brief for Popp’s case against the Air Line Pilots Association (ALPA) union was filed in early October.
The lawsuits contend that under Janus and the 2012 Knox v. SEIU Supreme Court cases — both argued and won by Foundation staff attorneys — no union dues or fees can be charged for union political activities without a worker’s affirmative consent.
Despite this, union officials at the IAM and ALPA enforce complicated opt-out policies that require workers to object to funding union political activities or else pay full union dues. Foundation staff attorneys argue that the Janus decision’s opt-in requirement applies to airline and railroad employees covered by the Railway Labor Act (RLA), taken together with longstanding precedent protecting private sector workers from being required to pay for union political and ideological activities.
Mr. Baisley and Mr. Popp both work in Right to Work states (Texas and Florida, respectively), but the RLA preempts state law. Consequently, they can be forced to pay union dues or fees or be fired. Even under the RLA, however, union bosses cannot legally force workers to pay for political activities.
Cases Could Expand Janus Protections to Private Sector
The lawsuits argue IAM and ALPA’s opt-out policies are designed to trap unwilling participants into full dues in violation of their First Amendment rights. This forces workers to subsidize union political activities against their will, including the part of full dues that union officials use to support their radical political agenda and handpicked candidates for office.
“IAM and ALPA union officials have demonstrated a blatant disregard for the rights of the very workers they claim to represent by creating complicated obstacles for independent-minded workers who want to exercise their right not to fund union ideological activities,” said National Right to Work Foundation Vice President Patrick Semmens. “Although Janus’ biggest impact was to secure the First Amendment rights of all public employees across the nation not to be required to fund Big Labor, these cases demonstrate that Janus’ implications can also protect the rights of private sector workers.”
Cases Seeking Millions in Refunds of Forced Fees under Janus Move Forward
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Split Appeals Court decision bolsters petition for Supreme Court to take up issue
Veteran Foundation staff attorney William Messenger made history when he argued and won the Janus case before the High Court in 2018. He still represents Janus and others demanding forced-fee refunds.
PHILADELPHIA, PA – A National Right to Work Foundation-backed class-action lawsuit for Pennsylvania state employees seeking refunds of unconstitutionally seized union fees resulted in a split decision from the U.S. Third Circuit Court of Appeals in August. This ruling cast serious doubt on a favorite union boss argument used to avoid refunding dues seized in violation of workers’ First Amendment rights.
The employees were defending their rights under the landmark 2018 Foundation-won Janus v. AFSCME Supreme Court ruling. In Janus, the Court sided with former Illinois child support specialist Mark Janus and agreed with Foundation staff attorneys that requiring any public sector worker to pay union dues or fees as a condition of employment is a First Amendment violation. The Court also ruled that union dues can only be taken from public servants with their affirmative and knowing consent.
The plaintiffs in Wenzig v. Service Employees International Union (SEIU) Local 668 are seeking a ruling that SEIU officials must refund dues taken from employee paychecks in contravention of this standard before the Janus ruling came down. Union bosses used, as they have done in almost all similar cases, a dubious “good faith” argument to justify not refunding the dues to the victimized workers. In the split decision, two of the three judges rejected the so-called “good faith” theory.
Supreme Court Asked to End Lower Court Confusion on Janus Refunds
Foundation staff attorneys cited the growing confusion among federal judges on forced-union-fee refunds as a vital reason the Supreme Court should hear the continuation of Janus v. AFSCME. In a supplemental brief, Foundation attorneys wrote that Wenzig “supports granting review here because a majority of the Third Circuit panel rejected the good faith defense recognized by the Seventh Circuit here and by the Second, Sixth, and Ninth Circuits.”
“The Court should finally resolve this important issue and hold there is no good faith defense to Section 1983,” the brief adds. Section 1983 is the federal law requiring that those who deprive people of their constitutional rights “under color of any statute . . . shall be liable to the party injured.”
This September, Foundation staff attorneys also filed the final reply brief supporting the Supreme Court petition in Casanova v. International Association of Machinists (IAM), Local 701, another case seeking review from the High Court. It also cites the Third Circuit’s split decision. Plaintiff Benito Casanova, a Chicago Transit Authority employee, seeks to get back money that IAM bosses took from his paycheck and the paychecks of his colleagues in violation of their First Amendment rights prior to the Janus decision.
Foundation Leading Worker Efforts to Reclaim Fees Seized Against Janus
The workers in these cases and many others are collectively fighting for millions of dollars in pilfered money to be returned to them. Foundation attorneys currently represent these public servants in nearly 20 similar cases, together pursuing about $130 million in refunds to workers.
“Given the clarity of the Janus First Amendment standard, it’s bewildering that federal judges have not yet widely discredited union boss arguments that serve only to deny public sector workers refunds of money that the High Court itself ruled should have never been taken from them in the first place,” observed National Right to Work Foundation President Mark Mix. “The High Court must swiftly disabuse lower courts of their misunderstandings and provide justice to workers who have been waiting years for their hard-earned money to be returned.”
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.”
In the News: “Foundation Sues to Give Public Employees Their Right Not to Pay Union Dues”
The National Right to Work Foundation-won Janus v. AFSCME U.S. Supreme Court decision allows public employees to stop paying dues or fees to a union at any time they choose. Janus affirmed that the First Amendment protects government workers from supporting a union against their wishes.
But ever since the Janus decision in June 2018, many union bosses have refused to comply with the High Court’s decision. So Foundation staff attorneys have filed dozens of cases across the country to enforce the Janus decision and compel union bosses to respect the First Amendment rights of the workers they claim to “represent.”
Journalist Mark Tapscott recently reported on a number of these cases for The Epoch Times, including a newly filed case for a police officer serving on the front lines in Las Vegas:
Las Vegas Police Officer Melodie DePierro is the latest in a growing line of public sector employees suing in federal court to demand recognition of their rights under a 2018 Supreme Court decision.
DePierro’s action was filed in the U.S. District Court for Nevada against the Las Vegas Metropolitan Police Department (LVMPD) and the local Police Protective Association (PPA) union.
In Janus v American Federation of State, County and Municipal Employees (AFSCME) decided by a 5-4 vote in June 2018, the high court ruled that public sector employees cannot be forced to pay union dues in the form of agency fees without being given a chance to consent or refuse the deduction.
DePierro noted in her suit that the department’s monopoly bargaining agreement with the union only allowed a 20-day window of opportunity to request agency fee refunds and that she had never agreed to the deduction in the first place.
Right-to-Work advocates cheered Janus as a landmark decision that would prompt millions of employees at all levels of government to demand an end to hundreds of millions of dollars in agency fees that helped fund partisan union political activities with which they disagreed.
…
“Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to keep imposing an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” NRTWLDF President Mark Mix said in a statement announcing the suit.
“The High Court made perfectly clear in Janus that affirmative consent from employees is required for any dues deductions to occur. Yet PPA union bosses are clearly violating that standard here,” Mix said.
…
A week before the DePierro filing, NRTWLDF attorneys issued a special notice to more than 28,000 Ohio state employees advising them of their right not to pay agency fees. The notice was part of a settlement of the foundation’s suit against the state government and the Ohio Civil Service Employees Association, AFSCME Local 11 (OCSEA).
Other Janus suits currently working their way through the courts include NRTWLDF actions against the Chicago Teachers Union, the Alaska State Employees Association (ASEA), the United Teachers of Los Angeles (UTLA), California Service Employees International Union (SEIU), the University Professional and Technical Employees (UPTE) union and the University of California, and the Township of Ocean Education Association (TOEA), New Jersey Education Association (NJEA) and the National Education Association (NEA) unions. The latter suit has reached a federal appeals court.
Read the entire article online at The Epoch Times here.
University of California Workers Challenge Restrictions on Janus Rights
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.
Class-action lawsuit targets state and union for illegally blocking dues revocations
Former presidential candidate and self-described socialist Bernie Sanders gained the endorsement of UPTE union bosses, who are saddling employees with arbitrary restrictions on their First Amendment rights.
SAN DIEGO, CA – In March, UC San Diego Health Service Desk Analysts Pablo Labarrere and Sam Doroudi filed a federal class-action lawsuit against the University Professional and Technical Employees (UPTE) union and the University of California for seizing dues from their paychecks in violation of their First Amendment rights.
With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Labarrere and Doroudi contend that the dues seized from them and their colleagues are unconstitutional under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, the Court ruled that deducting union dues from any public sector worker’s paycheck without his or her affirmative and knowing consent breaches the First Amendment of the U.S. Constitution.
The class-action lawsuit names University of California President Janet Napolitano as a defendant for the university system’s role in perpetrating this scheme. It also names California Attorney General Xavier Becerra as a defendant for the state’s enforcement of the illegal union dues policy.
UPTE Bosses Enforce Phony Restrictions on Janus Rights
According to the lawsuit, UC San Diego Health officials made all new employees “believe that it was a condition of employment to either join the union as full members or pay forced fees as non-members” during a mandatory orientation session. New employees were given and told to sign “dues deduction authorization cards” which provided that union officials would continuously collect dues from each employee’s paycheck unless a revocation letter was sent in a 30-day window before the annual anniversary of signing the card.
According to the lawsuit, the authorization cards did not explain, as Janus requires, that public sector employees “have a First Amendment right not to subsidize the union and its speech” and that signing the card would waive those rights. Labarrere and Doroudi eventually discovered their First Amendment Janus rights independently and sent letters to UPTE officials in December 2019 demanding that dues deductions be cut off. UPTE agents rejected both requests and continued to seize dues from Labarrere’s and Doroudi’s paychecks, ostensibly because they did not submit their requests within the “escape period” created by the union bosses.
The lawsuit contends that UPTE bosses are violating Labarrere’s and Doroudi’s First Amendment Janus rights by continuing to take dues from their paychecks without ever having received their “affirmative authorization and knowing waiver” of those rights. It also argues that the 30-day “escape period” illegally restricts Labarrere and Doroudi in the exercise of their Janus rights.
The class-action lawsuit additionally seeks to stop UPTE bosses and the University of California system from enforcing the scheme against any other workers, and require UPTE officials to return all dues and fees to any employees in the workplace that had their First Amendment rights violated because of the policy.
Workers Continue to Abolish “Escape Periods” With Foundation Legal Aid
Since the Janus decision, Foundation staff attorneys have litigated at least 14 cases around the country for thousands of workers whose First Amendment Janus rights have been infringed upon with union-created “escape periods.” Six of these cases have already been settled favorably for the plaintiff employees, providing relief and refunds for them and hundreds of their coworkers, while eliminating the restrictions for tens of thousands more.
In one of those cases, Michael McCain, a math professor at a community college in Ventura County, California, fought an illegal “escape period” foisted on his workplace by American Federation of Teachers (AFT) union officials, by filing a federal lawsuit in the District Court for the Central District of California. Ultimately, instead of facing Foundation staff attorneys in court, AFT officials settled the case and paid refunds to all workers who had dues seized because of the illegal policy.
“The Supreme Court made it absolutely clear in Janus that union officials violate public workers’ First Amendment rights when they seize union dues without their consent,” observed National Right to Work Foundation Vice President Patrick Semmens. “Yet over a year and a half after the decision, California union bosses — with the assistance of state officials — continue to subject the state’s public servants to schemes that violate these rights, all to fill union coffers with more illegal dues.”
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.
