Orange County Lifeguards Push for Rehearing of First Amendment Challenge to Union Scheme Trapping Them in Union Membership
Restrictions will trap lifeguards in union membership and full dues payments for almost four years after they opted out of union
Orange County, CA (May 16, 2022) – California lifeguard Jonathan Savas and 22 colleagues are pressing for a rehearing of their federal civil rights lawsuit before an en banc panel of judges of the U.S. Ninth Circuit Court of Appeals. Savas and the others are suing the State of California and the California Statewide Law Enforcement Association (CSLEA) union for violating their and their coworkers’ First Amendment right to abstain from forced union membership and compelled financial support.
Savas and his colleagues are asserting their rights under the National Right to Work Foundation-won 2018 Janus v. AFSCME U.S. Supreme Court decision, in which the Court declared that no public sector worker can be forced to bankroll a union without voluntarily waiving their First Amendment right to abstain from union payments.
A so-called “maintenance of membership” requirement enforced by CSLEA union bosses and the State of California is forcing the lifeguards to both remain union members and supply full dues payments to the CSLEA union against their will. Savas and the other plaintiffs sent messages resigning their union memberships and ending dues authorizations on or around September 2019, but union officials denied their requests, alleging they have to remain full members until 2023. Despite Janus, a three-judge panel of the Ninth Circuit ruled that this requirement does not violate the First Amendment.
Lifeguards’ Attorneys: ‘Maintenance of Membership’ Requirements Have Been Unconstitutional for Decades
Savas’ attorneys criticize the Ninth Circuit panel’s giving a pass to “maintenance of membership” requirements as contradicting Janus, and note that forcing dissenting employees to pay full union dues was unconstitutional even under Abood, the 1977 Supreme Court decision which Janus overruled. The lifeguards are receiving free legal representation from staff attorneys with the National Right to Work Legal Defense Foundation and the Freedom Foundation, along with Mariah Gondeiro of Tyler Bursh, LLP.
“The Supreme Court recognized decades prior to Janus, in Abood, that it violates the First Amendment for government employers and unions to require dissenting employees pay full union dues…If maintenance of membership requirements could not survive constitutional scrutiny under Abood,” Savas’ attorneys argue, the requirements are definitely foreclosed by the higher level of First Amendment protection applied in Janus.
Savas’ en banc request also refutes the Ninth Circuit panel’s claim that the lifeguards somehow “contractually consented to the maintenance of membership requirement.” Savas’ attorneys point out that the dues deduction authorization form that the lifeguards signed only vaguely alluded to the presence of the “maintenance of membership” requirement in the union contract with their state employer, and never explicitly informed the lifeguards what that requirement was.
On that same point, Savas’ attorneys point out that “the panel’s contract-law analysis is wrongheaded because Janus requires a constitutional-waiver analysis.” Janus requires that employees voluntarily waive their First Amendment right not to make dues payments before such payments are extracted. Savas’ attorneys state “[t]here is no evidence the Lifeguards knew of their First Amendment rights under Janus or intelligently chose to waive those rights.” Indeed, many of the lifeguards could not have known about those rights because they signed the dues deduction authorization forms before the Supreme Court decided Janus.
“Even if such evidence existed, any purported waiver would be unenforceable…because a four-year prohibition on employees’ exercising their First Amendment rights under Janus is unconscionable,” Savas’ attorneys continue.
Ninth Circuit Panel Ruling Completely Inconsistent with Janus, Rehearing Required
“So-called ‘maintenance of membership’ requirements have been unconstitutional for decades, and it’s outrageous that courts have looked the other way and allowed CSLEA union bosses to infringe Savas’ and his fellow lifeguards’ First Amendment rights under the guise of such restrictions for so long,” commented National Right to Work Foundation President Mark Mix. “A rehearing of Savas’ case is necessary so the plain meaning of Janus can be applied. Otherwise the Ninth Circuit will not only have ignored Janus, but turned back the clock over half a century on workers’ right to refrain from union membership.”
Cleveland Probation Officer Challenges Years of Janus-Breaching Dues Seizures
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Union officials covertly began seizing full dues after Janus decision, refuse to return money
CLEVELAND, OH – Cuyahoga County probation officer Kimberlee Warren is suing the Fraternal Order of Police Ohio Labor Council (FOP) union, charging union officials with breaching her First Amendment right as a public employee to refuse to support union activities. She is receiving free legal representation from National Right to Work Legal Defense Foundation staff attorneys.
Foundation staff attorneys contend that FOP union officials ignored her constitutional rights recognized in the Foundation-won 2018 Janus v. AFSCME U.S. Supreme Court decision. In Janus, the Justices declared it a First Amendment violation to force any public sector employee to pay union dues or fees as a condition of keeping his or her job. The Court also ruled that public employers and unions cannot take union dues or fees from a public sector employee unless they obtain that employee’s affirmative consent.
Warren was not an FOP union member, even before the Janus decision. However, her federal lawsuit details that astoundingly union officials furtively opted her into formal membership and full dues deductions from her paycheck after the Janus decision was issued, an event which should have prompted union officials to cease seizing all money from her.
FOP Union Bosses Brazenly Increased Forced-Dues Deductions After Janus
FOP union chiefs continued these surreptitious deductions until December 2020, Warren’s lawsuit notes, when she notified union officials that they were violating her First Amendment rights by taking the money and demanded that the union stop the coerced deductions and return all money that they had taken from her paycheck since the Janus decision.
When the deductions ended, FOP chiefs refused to give back the money that they had already seized from Warren in violation of her First Amendment rights. They claimed the deductions had appeared on her check stub and thus any responsibility to end the deductions fell on her — even though to her knowledge they had never obtained permission to opt her into membership or to take cash from her paycheck to begin with.
According to the lawsuit, Warren also asked FOP bosses to provide any dues deduction authorization document she might have signed. FOP officials rebuffed this request as well.
Union bosses were authorized by state law before the Janus ruling to seize from non-member workers’ paychecks only the part of dues they claim go toward “representational” activities. FOP union officials took this amount from Warren prior to Janus. However, their forcing her into membership afterward means they started taking full dues from her wages, even more money than they did before Janus despite the complete lack of consent.
Warren’s lawsuit seeks the return of all dues that FOP union officials garnished from her paycheck since the Janus decision was handed down.
Probation Officer Seeks Punitive Damages for Unchecked Janus Abuses
Her lawsuit also seeks punitive damages because FOP showed “reckless, callous” indifference toward her First Amendment rights by snubbing her refund requests.
“All over the country, union officials are stopping at nothing to ensure they can continue ignoring workers’ First Amendment Janus rights and continue siphoning money from the paychecks of dissenting employees,” commented National Right to Work Foundation President Mark Mix. “After Janus was handed down, FOP union officials in Warren’s workplace could have asked her to support the union voluntarily, but instead, tellingly, they began surreptitiously siphoning full dues out of her paycheck without her consent in direct contravention of the Supreme Court’s ruling.”
Case Closed: Nurse Prevails in 11-Year Legal Fight Over Forced Dues
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2022 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
100 Rhode Island hospital employees win refund of dues illegally seized for union lobbying
After over a decade of battling power-hungry UNAP union bosses in court, Jeanette Geary has secured not only refunds of dues seized for union politics, but a First Circuit decision clarifying non-members can never be charged for union lobbying.
WARWICK, RI – Jeanette Geary finally achieved a total victory in her 11-year legal battle against union bosses. She and 99 other current and former nurses at Kent Hospital in Rhode Island received refunds of forced dues that were illegally used to support union lobbying in state legislatures. Foundation attorneys represented Geary throughout her fight.
Geary’s journey began when she grew frustrated with United Nurses and Allied Professionals (UNAP) union bosses in her workplace. “I realized what the union was doing,” Geary explained. “The union leadership had no interest in nurses or our professional work. Their only interest was collection of dues and fees.”
Geary resigned her union membership, but union dues were still extracted from her paycheck because Rhode Island is a forced unionism state that lacks Right to Work protections. However, thanks to the Foundation-won CWA v. Beck Supreme Court decision, nonmember workers can only be forced to pay fees for union activities “germane” to union monopoly bargaining. They cannot be forced to pay the portion of dues that funds activities like union lobbying.
Nurse Harassed for Standing Up to Union Bosses
Geary demanded a breakdown of the union’s expenditures, but union bosses refused to give her a legally required independent auditor’s verification of how they calculated non-members’ reduced forced fees. Like many who speak up against union bosses, Geary became a target for union harassment. “They laughed at me. They had their workplace reps ridicule me on the job and tell me I could file grievances that would be thrown away and said so with a big smile,” Geary recalled.
In 2009, Geary filed federal charges against union officials. The trial revealed UNAP officials were charging non-member nurses for lobbying in state legislatures. Despite the Supreme Court’s clear mandate in Beck that non-members’ money could not be used to fund political causes, union lawyers argued the lobbying was “germane” to the union’s monopoly bargaining.
Thanks to delays caused by President Obama’s illegal recess appointments to the National Labor Relations Board (NLRB), Geary had to file two petitions with the U.S.
Court of Appeals in Washington, D.C., and didn’t get a final NLRB ruling for nearly a decade. Finally, in March 2019, the NLRB ruled 3-1 that union officials cannot charge non-members for lobbying of any kind. It also ruled that union officials must provide independent verification that the union expenses they force non-members to pay have been audited.
Union Bosses Ridiculously Claimed Some Union Lobbying Wasn’t Political
Union officials still wouldn’t abandon their argument that nonmembers could be forced to pay for some union lobbying as a condition of employment. Union lawyers appealed the NLRB’s decision to the U.S. Court of Appeals for the First Circuit. A three-judge panel that included retired Supreme Court Justice David Souter ruled unanimously in Geary’s favor, saying “we see no convincing argument that legislative lobbying is not a ‘political’ activity.”
Union officials made a last-ditch attempt to overturn the decision, requesting an en banc hearing by the entire Court of Appeals, but that request was denied. In September 2021, union bosses finally paid back, with interest, thousands of dollars taken from Geary and 99 other current and former Kent Hospital nurses who were not union members but were charged for the union’s lobbying, bringing the decade-long case to a close.
“Jeanette Geary faced workplace ridicule for her decision to stand up to union bosses, yet she persevered for eleven years,” said National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “In the process, she won important legal precedents that will protect thousands of other workers from having their money illegally used to fund union politics.”
National Right to Work Foundation in the Detroit News: Big Labor’s Latest Attack on Michigan Right to Work
A recent op-ed from National Right to Work Foundation President Mark Mix in the Detroit News discusses union bosses never-ending attempts to overturn or undermine Michigan’s Right To Work protections for workers.
The article explains how union officials wield their monopoly power against workers in the union-controlled “grievance process” and why the Foundation recently filed an amicus brief in a case currently at the Michigan Supreme Court in which union officials are attempting to circumvent Right to Work:
Courts have long recognized that, in unionized workplaces, union kingpins effectively own the process through which workplace grievances regarding alleged misapplications or misinterpretations of company policies are handled.
Five-and-a-half decades ago, U.S. Supreme Court Justice William Brennan’s majority opinion in NLRB v. Allis Chalmers bluntly acknowledged that America’s national labor policy “extinguishes the individual employee’s power to order his own relations with his employer,” while “clothing” union bosses with monopoly-bargaining power.
And Justice Thurgood Marshall’s 1975 Emporium Capwell opinion resoundingly affirmed that a union controls all grievances under “exclusive” union bargaining, notwithstanding any employee attempts to redress grievances independently.
Their ironclad control over employee grievances is undoubtedly a boon for union bosses. Two current federal lawsuits filed by Michigan workers against United Auto Workers union bosses and Fiat Chrysler executives vividly illustrate why.
In one of these cases, 42 current and former employees of FCA (now known as Stellantis) charge that they were cheated out of wages and benefits they were promised by UAW bosses when their pay was cut from $28 an hour to $16 an hour after they switched from part-time to full-time jobs.
When the workers complained about the pay cut, local UAW bosses allegedly promised to file grievances on their behalf — but never did.
In the other case, 47 current and former engineers allege that FCA violated the union contract when it transferred them from a facility in Auburn Hills to another one in Trenton. Grievances they filed regarding the matter were mishandled or withdrawn without explanation by the UAW brass.
As outrageous as UAW bosses’ failure to follow up adequately on workers’ grievances in these two cases may seem to ordinary citizens, the fact is that federal law permits union bosses with monopoly-bargaining power to refuse to advance workers’ legitimate grievances simply because they don’t think it’s in the interest of the union to do so.
[…]
But even this extraordinarily privileged status isn’t enough to satisfy government union officials in Michigan. In Technical, Professional, and Officeworkers Association of MI v. Daniel Renner, a case now pending before the Michigan Supreme Court, they are brazenly contending they may vindictively refuse to process the grievances of union nonmembers to punish them for not joining and bankrolling the union, even when the union contract prohibits the individual employee from filing grievances on his or her own behalf.
Though union lawyers’ outrageous claims in Renner’s case have already been rejected at the Michigan Employment Relations Commission and at the State of Michigan Court of Appeals, there is no guarantee they will be dismissed by the Michigan Supreme Court.
That’s why the National Right to Work Legal Defense Foundation filed a brief Friday in the case defending Daniel Renner’s rights under Michigan’s right-to-work law.
The Michigan Supreme Court must reject this cynical attack on Wolverine State workers’ legal protections against being forced to fund a union they disapprove of.
Read the entire article on the Detroit News website.
More details on the case and the Foundation’s brief can be found here. Read the brief here (PDF).
Cuyahoga County Probation Officer Hits Union with Federal Lawsuit for Years of Unconstitutional Dues Seizures
Union officials took full union dues from nonmember officer without consent, then ignored requests to return illegally-seized money
Cleveland, OH (August 25, 2021) – Cuyahoga County probation officer Kimberlee Warren is suing the Fraternal Order of Police (FOP) union in her workplace, charging union officials with breaching her First Amendment right as a public employee to refuse to support union activities. She is receiving free legal representation from National Right to Work Legal Defense Foundation staff attorneys, in partnership with attorneys with the Ohio-based Buckeye Institute.
Foundation staff attorneys contend that FOP union officials ignored her constitutional rights recognized in the landmark 2018 Janus v. AFSCME U.S. Supreme Court decision, which was argued and won by Right to Work Foundation staff attorneys.
In Janus, the Justices declared it a First Amendment violation to force any public sector employee to pay union dues or fees as a condition of keeping his or her job. The Court also ruled that public employers and unions cannot take union dues or fees from a public sector employee unless they obtain that employee’s affirmative consent.
The federal lawsuit says that Warren was not a member of the FOP union before the Janus decision in June 2018, but FOP union bosses collected union dues from her wages without her consent. According to the complaint, this continued until around December 2020, when Warren notified union officials that they were violating her First Amendment rights by taking the money and demanded that the union stop the coerced deductions and return all money that they had taken from her paycheck since the Janus decision.
When the deductions ended, FOP chiefs refused to give back the money that they had already seized from Warren in violation of her First Amendment rights. They claimed the deductions had appeared on her check stub and thus any responsibility to cease the deductions fell on her – even though to her knowledge they had never obtained permission to opt her into membership or to take cash from her paycheck in the first place.
According to the lawsuit, Warren also asked FOP bosses to provide any dues deduction authorization document she might have signed. FOP officials rebuffed this request as well.
The High Court ruled in Janus that, because all activities public sector unions undertake involve lobbying the government and thus are political speech, forcing a public employee to pay any union dues or fees as a condition of keeping his or her job is forced political speech the First Amendment forbids.
Union bosses were permitted by state law before the Janus ruling to seize from nonmember workers’ paychecks only the part of dues they claimed went toward “representational” activities. FOP union officials took this amount from Warren prior to Janus. However, they furtively designated her as a member following the decision, and began taking full dues, deducting even more money from her wages than they did before Janus despite the complete lack of any consent.
Warren is now suing the FOP union in the U.S. District Court for the Northern District of Ohio. Her lawsuit seeks the return of all dues that FOP union officials garnished from her paycheck since the Janus decision was handed down. It also seeks punitive damages because FOP showed “reckless, callous” indifference toward her First Amendment rights by snubbing her refund requests.
Warren’s lawsuit comes as other Foundation-backed lawsuits for employees defending their First Amendment Janus rights seek writs of certiorari from the Supreme Court. This includes cases brought for Chicago and New Jersey public educators which challenge “window periods” that severely limit when they and their fellow educators can exercise their First Amendment right to stop union dues deductions, sometimes to periods as short as ten days per year. In a California federal court, Foundation staff attorneys are also aiding a University of California Irvine lab assistant in fighting an anti-Janus state law that gives union bosses full control over whether employers can stop sending an employee’s money to the union after that employee exercises his or her Janus rights.
“All over the country, union officials are stopping at nothing to ensure they can continue ignoring workers’ First Amendment Janus rights and continue siphoning money from the paychecks of dissenting employees,” commented National Right to Work Foundation President Mark Mix. “After Janus was handed down, FOP union officials in Warren’s workplace could have come to her to attempt to get her to support the union voluntarily, but tellingly instead they began surreptitiously siphoning full dues out of her paycheck without her consent in direct contravention of the Supreme Court.”
“Despite her repeated requests, FOP bosses have continued to trample Warren’s Janus rights, and Foundation staff attorneys are fighting to stop this gross injustice against her and punish FOP bosses for their brazen behavior,” Mix added.
Chicago Educators Press Seventh Circuit, Supreme Court to Stop Anti-Janus Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2021 edition. For updates in the case for Troesch and Nkemdi, click here. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Teachers continue battling Chicago teacher union “escape period,” file brief with Supreme Court
“I want people’s constitutional rights, the right to work to be established,” Ifeoma Nkemdi told the Chicago Tribune in 2020 about her and Joanne Troesch’s battle against CTU union boss-devised schemes to trap teachers in forced dues.
CHICAGO, IL – With free legal aid from National Right to Work Foundation staff attorneys, Chicago Public Schools (CPS) educators Ifeoma Nkemdi and Joanne Troesch are appealing to the U.S. Seventh Circuit Court of Appeals their class-action civil rights lawsuit against the Chicago Teachers Union (CTU) and The Board of Education of the City of Chicago (Board) for unconstitutional dues seizures.
The suit challenges a union policy that blocks teachers from exercising their First Amendment right under the Foundation-won Janus v. AFSCME decision to stop payments to the union outside of the month of August. It also seeks refunds of all dues seized from dissenting educators by the Board.
In Janus, which was argued by one of Troesch and Nkemdi’s Foundation staff attorneys, the High Court struck down mandatory union fees as a violation of government employees’ First Amendment rights. The Court ruled that taking any dues without a government worker’s affirmative consent violates the First Amendment, and further made it clear that these rights cannot be restricted absent a clear and knowing waiver.
The appeal comes after the U.S. District Court for the Northern District of Illinois dismissed Troesch and Nkemdi’s lawsuit on February 25, 2021. The court sided with CTU and Board officials, ruling they didn’t violate Janus by forbidding the two educators from exercising their First Amendment right to cut off union dues except for one month a year. This prompted Foundation attorneys to appeal the case to the Seventh Circuit.
CTU Bosses Pilfered from Paychecks Even after Educators Opted out
Troesch and Nkemdi’s lawsuit explains that they “did not know they had a constitutional right not to financially support” the union hierarchy until the fall of 2019. The pair independently discovered their First Amendment Janus rights while they were researching how to exercise their right to continue working during a strike that CTU bosses ordered in October 2019, the lawsuit notes. They sent letters the same month to CTU officials to exercise their Janus right to resign union membership and cut off all dues deductions.
Both educators received no response until November of that year. CTU officials then confirmed receipt of the letters but said that they would continue to seize dues from the educators’ paychecks “until September 1, 2020.” CTU bosses relied on the fact that Troesch and Nkemdi had not submitted their letters within a union boss-created “escape period,” which limits when teachers can exercise their First Amendment right to end dues deductions.
Troesch and Nkemdi contend that CTU and Board officials’ attempt to curb employees’ right to stop dues deductions with an “escape period,” and the Board’s seizure of dues after they dissociated from the union, both violate the First Amendment. Their lawsuit seeks to make the CTU union and the Board stop enforcing the “escape period,” and notify all bargaining unit employees that they can end the deduction of union dues at any time and “retroactively exercise that right.”
Troesch and Nkemdi’s efforts to defeat union boss-concocted “escape period” schemes don’t stop at their lawsuit. The pair submitted an amicus brief in Belgau v. Inslee, which is currently pending on a petition for certiorari at the U.S. Supreme Court.
New Legal Brief Backs SCOTUS Challenge to Union “Escape Period” Scheme
Belgau involves a group of Washington State employees, led by Melissa Belgau, who are fighting similar policies imposed by Washington Federation of State Employees (WFSE) union officials and the State of Washington.
University of California Santa Barbara employee Cara O’Callaghan, Maumee City (Ohio) School District employee Chelsea Kolacki, and Springfield (Ohio) Local School District employee Michelle Cymbor also joined this brief. All of them have been subjected to First Amendment violations similar to those at issue in Belgau and the Chicago educators’ case.
Foundation staff attorneys provided free legal aid in filing the brief, and currently represent public servants in at least 14 cases where union officials have tried to confine their First Amendment Janus rights to an “escape period.”
“Each day that the courts fail to fully enforce Janus is another day that union bosses are allowed to seize the hard-earned money of dissenting public servants in clear violation of their First Amendment rights,” commented National Right to Work Foundation President Mark Mix. “The Foundation is proud to stand with Ms. Troesch and Ms. Nkemdi, and will continue to defend all educators who simply want to serve their students and community without being forced to subsidize union activities.”
Photo Credit: Terrence Antonio James/Chicago Tribune/TCA
Oregon ABC Cameraman Wins Ruling Against Illegal Dues-Seizing NABET Bosses
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.
Administrative Law Judge orders union boss to refund all illegally taken money
He’s done playing games: After cameraman Jeremy Brown sought free legal aid from the Foundation, an NLRB Administrative Law Judge ruled against NABET bosses for violating his Beck rights for years.
PORTLAND, OR – Jeremy Brown, a “daily hire” cameraman for ABC who had worked on and off for the company since 1999, would not have thought that a new president taking over the National Association of Broadcast Employees and Technicians (NABET) Local 51 union would mean anything for him when he resumed work in 2016. After all, he had worked for ABC for nearly three years, and the union had never even contacted him and he had never joined the union.
Then, in 2019, he received a series of letters from the new union honcho, demanding he pay nearly $10,000 in initiation fees and so-called “back-agency dues.” Brown quickly obtained free legal aid from National Right to Work Legal Defense Foundation staff attorneys and asserted his rights under the Foundation-won CWA v. Beck Supreme Court decision.
Beck prevents private sector union bosses from forcing employees who have abstained from formal union membership to pay for anything unrelated to the union’s bargaining functions, such as political expenses. Moreover, it requires union officials to provide information on the union’s fee calculation and expenditures to non-members.
New NABET Chief Demanded Thousands, Then Snubbed Cameraman’s Beck Rights
Because Brown works primarily in non-Right to Work states, he can be legally forced as a condition of employment to pay some fees to union bosses.
After receiving the baffling, belated dues demands, Brown emailed the new union president, Carrie Biggs-Adams, asking for clarification. He also exercised his Beck rights by objecting “to the collection and expenditure by the union of a fee for any purpose other than” certain bargaining activities. Believing that he would be fired if he did not agree to pay union dues, he filled out a form authorizing NABET to take full dues from his paycheck, but did so under duress.
Biggs-Adams ignored several follow-ups by Brown. According to legal documents, she “believed Local 51 had no obligation to [reply to Brown] because Beck objections” are handled only by the union’s national headquarters under NABET rules. Even so, she never apprised Brown of NABET’s national mailing address, or provided him the dues reduction or any of the information mandated by Beck.
In December, Brown won a decision from a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) about the union’s Beck rights violations. The ALJ’s decision holds the NABET union violated Brown’s rights under the National Labor Relations Act (NLRA) through its officials’ omissions and the failure to reduce his dues.
The ALJ ordered NABET Local 51 to provide Brown with “a good faith determination of the reduced dues and fees objectors must pay,” and “reimburse Brown for all dues and fees collected” beyond what is required under Beck, with interest.
“While this decision vindicated Mr. Brown’s legal rights, it also demonstrates why every American worker deserves the protection of a Right to Work law to shield them from union boss threats to pay up or be fired,” commented National Right to Work Foundation Vice President Patrick Semmens.
Foundation Battles Union Restrictions on First Amendment Rights at Ninth Circuit
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.
Cases challenge coercive, anti-Janus “escape periods” concocted by union bosses
Christopher Woods (right), seen here with Mark Janus, is taking up the latter’s fight by challenging an ASEA union boss scheme that traps workers in union payments even after they have dissociated from the union.
SAN FRANSCISO, CA – The 2014 National Right to Work Foundation victory for Pam Harris in the Harris v. Quinn Supreme Court case established that union bosses violate the First Amendment when they skim dues from homecare providers’ state subsidies without their consent. Now, seven California homecare providers have just appealed to the Ninth Circuit Court of Appeals their federal lawsuit against Service Employee International Union (SEIU) Local 2015 officials for continuing to skim dues in violation of their rights.
According to their suit, SEIU honchos enforced a phony “escape period” on the homecare providers, illegally limiting the time in which they could stop the deductions. The providers’ suit says this contravenes the U.S. Supreme Court’s ruling in Janus v. AFSCME. The Court not only held that the government cannot force individuals to subsidize union activities as a condition of employment, but also that government agencies can only deduct union payments after receiving a clear and knowing waiver of their First Amendment right not to make such payments.
Dues-Skim Scam: SEIU Took Dues Without Informing Providers of Rights
Although the plaintiffs, Delores Polk, Heather Herrick, Lien Loi, Peter Loi, Susan McKay, Jolene Montoya and Scott Ungar, are not public employees, they were designated as such solely for the purpose of monopoly unionization. Then that was used as justification for the State of California to skim union dues from their payments at the behest of SEIU officials. The seven participate in the In-Home Support Services (IHSS) program, which allots Medicaid funds to those who provide home-based aid to people with disabilities.
Polk and the other plaintiffs recount in the lawsuit that SEIU union bosses began taking cuts of their Medicaid subsidies after confusing phone calls or mandatory orientation sessions. After the plaintiffs contacted the SEIU attempting to exercise their right to stop the flow of dues, SEIU operatives informed them that they could only opt out of union dues during short union-created “escape periods” of 10-30 days once per year.
The lawsuit also points out that the federal law governing IHSS forbids diverting any part of Medicaid payments to “any other party” besides the providers. In fact, in rulemaking urged by National Right to Work Foundation comments, the federal agency that administers Medicaid confirmed that skimming such payments for unions violates the Medicaid statute passed by Congress.
The seven plaintiffs now seek a ruling that both the taking of union dues without their knowing consent and the policy restricting the providers from ending the dues deductions are unconstitutional. The providers also seek refunds of all money that they and any other IHSS program participants had taken from their payments through the illegal scheme.
Alaska Union Bosses Confine Prison Employee in Unconstitutional Deductions
Also at the Ninth Circuit Court of Appeals, Alaska vocational instructor Christopher Woods recently filed an appeal in his case challenging an “escape period” scheme to block him and other Alaska state employees from exercising their First Amendment rights recognized in Janus.
In a November 2019 email, Woods, who has worked as a vocational instructor at Goose Creek Correctional Center since 2013, informed Alaska State Employees’ Association (ASEA) officials he was exercising his Janus right to stop all union dues deductions. Rather than respect his rights, union officials rejected his request and told Woods that he could only “opt out” and not be a union member with written notice to this office during a 10-day period each year.
Woods persisted on December 2, 2019, submitting to both ASEA officials and the payroll office of the Corrections Department another email asking to cut off dues. Although the payroll office confirmed to both Woods and the ASEA that it had received the request, an ASEA official responded by merely telling the payroll office that she was “still communicating with [Woods] on the matter,” the complaint says. Woods reports in his lawsuit that he has “not received any further communications” from either the ASEA or the payroll office, and that full dues are still being seized from his paychecks.
Foundation String of Triumphs Against Janus Restrictions Unlikely to End
“‘Escape periods’ are shameless union boss-concocted schemes that only exist to keep dues money rolling into their coffers after employees have clearly communicated that they do not wish to support the union,” observed National Right to Work Vice President and Legal Director Raymond LaJeunesse. “Although these arrangements are egregious in any context, trapping homecare providers in dues-skim schemes which deprive them of money they receive for taking care of the disabled is particularly unconscionable, and additionally breaches federal law which prohibits those funds from going anywhere other than to the people giving care.
“Whether it’s the landmark victories in Harris and Janus or the eight recent lawsuits in which Foundation staff attorneys have knocked down ‘escape period’ policies and secured refunds of illegal dues for workers, the Foundation has a track record of success in these cases. Union bosses shouldn’t hold their breath in the hopes of keeping seized dues,” LaJeunesse added.
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.
