Ohio Public Employees File Lawsuit Against AFSCME Union, State of Ohio Challenging Unconstitutional Restrictions on Stopping Union Dues
Class action lawsuit names Governor DeWine for state’s role in enforcing opt-out requirement that violates U.S. Supreme Court’s Janus v. AFSCME precedent
Columbus, OH (August 27, 2019) – National Right to Work Legal Defense Foundation staff attorneys have just filed a class action lawsuit in the U.S. District Court for the Southern District of Ohio, challenging the State of Ohio’s enforcement of illegal restrictions created by AFSCME Council 11 union officials to limit state employees’ First Amendment rights to stop union dues payments. The lawsuit is being filed for five state employees who are receiving free legal aid from the Foundation.
The complaint seeks to ensure that Ohio state workers can freely exercise their constitutional rights under the Foundation-won Janus v. AFSCME U.S. Supreme Court decision, which struck down mandatory union fees as a violation of the First Amendment rights of government employees. The Supreme Court recognized that any dues taken without a government worker’s affirmative consent violate the First Amendment, and further made it clear that these rights cannot be restricted absent a clear and knowing waiver of them.
The lawsuit challenges union-created restrictions which block workers from exercising their rights under Janus outside of a brief “escape period” once every three years at the expiration of the union monopoly bargaining contract. AFSCME Council 11 is enforcing such First Amendment restrictions against tens of thousands of state workers.
The lawsuit seeks to end those restrictions and ensure that state workers only have union dues deducted from their paychecks if they have affirmatively opted-in to such payments. Because the state is seizing the dues from workers’ paychecks and enforcing the restriction, Governor DeWine and another state official are named as defendants in the complaint.
“Over a year ago the US Supreme Court ruled that public employees’ financial support of union activities must be completely voluntary, but the state of Ohio continues to enforce illegal union policies that violate the clear standards laid out in the Janus decision,” said National Right to Work Foundation President Mark Mix. “Governor DeWine and Attorney General Yost should move quickly to stop this widespread violation of the First Amendment rights of Ohio public sector workers and cease collecting union dues from any worker who has not affirmatively consented to pay dues.”
The Ohio government employees’ lead Foundation staff attorney is William Messenger, who argued the Janus v. AFSCME case at the U.S. Supreme Court. Foundation staff attorneys are currently litigating dozens of cases to enforce the Janus decision for workers from coast-to-coast.
National Right to Work Foundation Issues Special Legal Notice for Michigan Construction Workers Impacted by Operating Engineers Union Boss Strike
Recent cases brought by Foundation staff attorneys demonstrate union officials frequently mislead workers about their rights during a strike
Detroit, MI (Aug 1, 2019) – Staff attorneys from the National Right to Work Legal Defense Foundation have provided a legal notice to Michigan-based employees of the Rieth-Riley Construction Company in the wake of Operating Engineers Local 324 union boss strike demands.
News reports indicate that the strike order affects hundreds of employees who are operating heavy machinery as part of Michigan state projects to repair the state’s highways. The special legal notice informs these affected workers of the rights union officials won’t tell them about, including that they have the right to keep working and support their families despite the union boss-ordered strike.
“The situation raises serious concerns for employees who believe there is much to lose from a union-ordered strike,” the legal notice reads. “Which is why workers frequently contact the National Right to Work Legal Defense Foundation to learn how they can avoid fines and other vicious union discipline for continuing to work during a strike to support themselves and their families.”
The Foundation’s legal notice informs Rieth-Riley employees of their rights to resign union membership and continue to work during the union-determined strike, complete with example resignation letters. It also notes that workers have the right to revoke their union dues “check-offs,” which authorize their employer to deduct union dues directly from their paychecks. Finally, the notice provides a link to information on how to oust an unwanted union from the workplace, including the process for initiating a National Labor Relations Board-approved decertification vote.
The full notice can be found at www.nrtw.org/rieth-riley/.
The National Right to Work Foundation is the nation’s premier organization exclusively dedicated to providing free legal assistance to employee victims of forced unionism abuse. In California earlier this year, the Foundation represented three Sacramento-based mosquito abatement employees who sued Operating Engineers Local 3 for illegally intimidating them simply because they had sought information on their right to decertify a union. The California Public Employment Relations Board (PERB) ruled in favor of the workers in May.
The Foundation also aided employees in the aftermath of the high-profile New England Stop & Shop strike which was ordered by United Food and Commercial Workers (UFCW) union bosses in April. Foundation staff attorneys filed federal charges against the UFCW for two workers who received threats of illegal retaliation after continuing to work during the strike, and provided many more with information on their rights.
“As demonstrated in California earlier this year, Operating Engineers bosses will stop at nothing to ensure workers don’t discover their rights, and that effort will only intensify during this strike,” commented National Right to Work Foundation President Mark Mix. “The Foundation, since its founding in 1968, has been committed to offering free legal aid to workers to protect themselves from union bosses’ coercive tactics which regularly go hand-in-hand with union strike demands.”
National Right to Work Foundation: Federal Agencies Must Stop Deducting Union Dues in Violation of First Amendment Janus Rights
Comments to Federal Labor Relations Authority point out that no union dues can be seized unless a federal employee provides a knowing waiver of their First Amendment rights
Washington, DC (Aug 12, 2019) – Today the National Right to Work Legal Defense Foundation filed comments with the Federal Labor Relations Authority (FLRA) regarding the need for the federal government to fully protect the First Amendment rights of its employees as recognized in the Foundation-won U.S. Supreme Court case Janus v. AFSCME.
The submission comes after the U.S. Office of Personnel Management (OPM) asked the FLRA to solicit public comments on how to proceed with union dues deductions in light of the Supreme Court’s decision.
In Janus, the High Court held that requiring public employees to pay union dues or fees as a condition of employment violates their First Amendment rights “by compelling them to subsidize private speech on matters of substantial public concern.” Justice Samuel Alito further ruled for the majority that no union dues or fees could be taken from a public employee “unless the employee affirmatively consents to pay” using a “freely given” waiver of his or her First Amendment rights.
Consistent with that standard, the Foundation urged the FLRA to issue guidance to agencies that they “must cease deducting union dues from the wages of employees who signed a dues deduction form that does not satisfy the [Janus] standard.” Federal employees who signed dues deduction authorizations before the Janus decision did not knowingly waive their Janus rights. Consequently, union dues cannot legally be deducted from their paychecks.
According to the Department of Labor, nearly one million federal employees (or 26.4% of all federal workers) are union members, most of whom are likely having dues deducted from their paychecks despite never having knowingly waived their First Amendment right not to subsidize union activities as protected by Janus.
Workers who want to voluntarily pay union dues must either provide the government with a valid waiver or pay dues on their own without using taxpayer-funded payroll systems to forward the money to union officials. The comments further argue that, even where workers provide a valid authorization for dues deductions that meets the Janus standard, the government should not block them from revoking that authorization if the request is submitted at any time at least a year after the Janus-complaint authorization was obtained.
Though federal workers have never been required to pay union dues or fees to keep a job, agencies and union officials frequently prohibit employees from stopping the seizure of union dues from their wages except during short annual escape periods. The comments filed by the National Right to Work Foundation say that this practice does not comply with Janus either.
“The Janus precedent is not ambiguous on this issue: Without an affirmative and knowing waiver from public workers, the government cannot collect union dues without violating the First Amendment,” explained National Right to Work Foundation President Mark Mix. “The government is seizing union dues from close to one million federal workers in violation of the First Amendment, and federal agencies have an obligation to act swiftly to ensure that workers’ Janus rights are fully protected.”
Foundation staff attorneys have been hard at work ensuring that public workers’ constitutional rights under the Janus decision are protected, with more than 30 cases active in federal courts across the country to enforce the landmark ruling.
National Labor Relations Board Announces Rules to Limit Union Boss Tactics Trapping Workers in Unions They Oppose
Today the National Labor Relations Board (NLRB) announced rulemaking to change its policies that permit union officials to block workers from holding decertification votes to remove unions. The alterations incorporate standards established in past NLRB cases argued by Foundation staff attorneys, and urged in comments submitted by staff attorneys to the Board.
National Right to Work Foundation President Mark Mix issued the following comments regarding the NLRB’s move:
“For years union officials have used a wide range of tactics to suppress the right to vote out a union that is opposed by a majority of workers. Today’s announced rules are a good first step in what needs to be a larger series of reforms that put the rights of workers ahead of the coercive legal powers that have been granted to union bosses. That Big Labor will oppose these proposals that simply make it easier for workers to vote for or against unionization in secret ballot elections demonstrates how much their power derives from legal trickery and not from the voluntary support of rank-and-file workers.”
The announced changes include the elimination of a “bar” blocking workers from voting out a union for a period of time after a union has been installed through a controversial “card check” process and reforms to the NLRB’s “blocking charge” policy that permits union officials to file Unfair Labor Practice charges that then block workers’ right to hold a decertification election, sometimes for years. Both of the proposed changes are reforms that Foundation staff attorneys have long pushed for, including in comments to the NLRB on the election rules submitted in April 2018.
Over the years, Foundation staff attorneys have litigated dozens of cases at the NLRB for workers whose petitions for decertification votes were not processed because of the two policies.
National Mediation Board Issues Foundation-Advocated ‘Commonsense Reform’ to Union Decertification Rules
Today the National Mediation Board (NMB) issued its final rule simplifying the process workers under the Railway Labor Act can use to decertify a union they oppose. National Right to Work Legal Defense Foundation President Mark Mix issued the following comment regarding the rule change:
At long last the National Mediation Board is providing airline and railroad workers covered by the Railway Labor Act a straightforward way to remove unwanted union “representation” through a decertification vote.
The previous system – where workers had to create a “straw man” union just to challenge an incumbent union – only served to stymie workers’ rights and demonstrated the historic bias of the NMB in favor of compulsory unionism. In fact, it wasn’t until the Foundation-won case of Russell v. NMB in 1983 that workers even had an established legal right to throw off their union “representative,” albeit only through the unnecessarily complicated strawman system which is now finally being replaced with a simplified process to allow workers to exercise that right.
The Foundation has long advocated this type of change in the union decertification process and we are pleased the NMB has – as we called upon it to do in comments filed earlier this year – finally made this commonsense reform.
The full rule can be read here.
Union officials collected thousands in forced fees ignoring U.S. Supreme Court mandates
Los Angeles, CA (July 25, 2019) – A Disneyland stage technician has filed federal unfair labor practice charges against the International Alliance of Theatrical Stage Employees (IATSE) Local 504 union and Walt Disney Parks & Resorts for demanding and seizing union fees from his paycheck in violation of his legal rights. The charges were filed at the National Labor Relations Board (NLRB) with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
The employee asserted his rights under the Foundation-won Communications Workers of America v. Beck U.S. Supreme Court decision, which requires unions to reduce the compulsory fees charged to workers who refrain from union membership so they are not forced to fund activities such as lobbying and political activism. The Beck decision additionally requires union officials to provide nonmember workers an independently verified audit justifying the amount of the mandatory union fees.
Because California private-sector employees lack the protection of a Right to Work law, they can be fired for refusing to pay fees to a union. However, union officials must charge as a condition of employment only the part of dues Beck permits and follow the Beck procedures before seizing such forced union fees from workers who are not union members.
Mark Stacy is not a member of IATSE and notified the union that he objects to paying the lawfully nonchargeable part of its dues. His charges filed with the NLRB Region 21 office allege that, at IATSE officials’ behest, Disneyland has nonetheless violated Stacy’s rights under federal law by continuing to seize union fees from Stacy’s pay without reducing the fees as Beck requires.
According to Stacy’s charges, IATSE union agents have also never provided him with the financial disclosures Beck requires. Further, neither Disneyland nor IATSE has a dues deduction authorization signed by him, making any and all deductions from his wages illegal.
Other Disney employees in recent years have obtained free legal aid from the Foundation to halt the illegal seizure of dues. Last June, Foundation staff attorneys secured a favorable NLRB ruling for several Walt Disney World employees who had their requests to cut off dues ignored by Florida Teamsters officials. For months, full dues were illegally deducted from their wages by Disney and accepted by Teamsters agents in a blatant breach of federal law and Florida’s Right to Work law.
“The ‘Happiest Place on Earth’ can’t be very happy if its owners and union are violating federal law by ignoring worker rights when it comes to union dues and fees,” observed National Right to Work Foundation President Mark Mix. “Cases like this show why the workers of the Golden State deserve the protection of a Right to Work law to ensure that union membership and financial support are strictly voluntary.”
Ohio Public Employee Files Appeal in Class-Action Lawsuit Seeking Return of Forced Union Fees Seized in Violation of First Amendment
Lawsuit seeks refunds of forced union fees seized from nonmembers by AFSCME union bosses before Supreme Court’s Janus v. AFSCME decision
Columbus, Ohio (July 25, 2019) – Today, National Right to Work Legal Defense Foundation staff attorneys filed an appeal in the class-action lawsuit against an Ohio affiliate of the American Federation of State County and Municipal Employees (AFSCME) union brought by Ohio Department of Taxation employee Nathaniel Ogle. The suit seeks the return of back dues seized by AFSCME union bosses before the Supreme Court’s 2018 Foundation-won Janus decision.
Ogle’s Foundation-provided attorneys filed the appeal to the U.S. Sixth Circuit Court of Appeals in his lawsuit against the Ohio Civil Service Employees Association (OCSEA) union seeking the return of forced fees seized in recent years from potentially thousands of state employees who were not union members but forced to subsidize union activities in violation of their First Amendment rights. The OCSEA has monopoly bargaining power over more than 30,000 Ohio government employees.
On July 17, a federal district court granted union officials’ motion to dismiss the case despite acknowledging that “It is undisputed that OCSEA’s prior practice of collecting mandatory fair share fees violated Ogle’s First Amendment rights.”
In Janus, the Supreme Court not only struck down forced dues for public employees but made it clear that any dues taken without a government employee’s explicit consent violate the First Amendment.
Ogle’s appeal is one of several to have reached a federal court of appeals challenging the so-called “good faith” defense that union lawyers have asserted in response to worker petitions for refunds, arguing that union officials should be allowed to keep funds seized prior to the Janus decision. The Supreme Court never suggested that Janus only requires prospective relief for affected workers. Indeed, the High Court has noted in Janus 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 Knox v. SEIU Supreme Court decision, won by National Right to Work Foundation staff attorneys.
“This case and dozens of others filed by Foundation staff attorneys to enforce the Supreme Court’s Janus decision demonstrate that union bosses will never willingly respect the rights of workers who are opposed to union affiliation and dues payments,” National Right to Work President Mark Mix said. “In this case and others being litigated with Foundation legal aid, workers seek the return of just a few years’ worth of unconstitutionally seized forced union fees as the statutes of limitations permit, which represents just a fraction of the fees union bosses have illegally collected from workers for decades.”
California Teacher Union Bosses Back Down, Settle Lawsuit Filed by Community College Professor for First Amendment Janus Violations
Union officials to issue refunds, drop policy blocking professors from exercising First Amendment right to stop subsidizing union activities
Los Angeles, CA (July 24, 2019) – A math professor from the Ventura County Community College District (VCCCD) has just finalized a settlement with American Federation of Teachers (AFT) union officials in his class-action lawsuit to enforce the 2018 Janus v. AFSCME U.S. Supreme Court decision. The lawsuit was filed for the professor in the U.S. District Court for the Central District of California with free legal aid from the National Right to Work Legal Defense Foundation.
The victory will result in refunds of dues seized from the professor and others who attempted to exercise their right to stop union payments under the Janus decision. Additionally, the settlement forces AFT union officials to drop their policy used to block the educators from exercising their Janus rights except for a brief union-determined annual escape period.
Professor Michael McCain had been paying union dues as a member of AFT since 2005, but attempted to exercise his First Amendment right to resign his membership and cut off dues in August 2018 shortly after the Janus ruling came down. Janus, which was argued and won by Foundation staff attorneys in the U.S. Supreme Court last year, struck down compulsory union fees for all public sector employees, and instead held that affirmative employee consent is required to obtain union fees from any worker.
According to the lawsuit, the AFT and VCCCD did not honor McCain’s resignation and continued to deduct dues from his paycheck, enforcing a strict “window period” policy which severely limits the time period in which a member can resign. The lawsuit also noted that McCain’s individual dues authorization card made no mention of this rule.
McCain’s attorneys argued that the AFT’s restrictive policy constituted a “violation of [his] First Amendment right not to subsidize union activity without [his] affirmative consent and known waiver of that…right, as recognized by the U.S. Supreme Court in Janus v. AFSCME.” It requested refunds for him and other similarly situated teachers in the VCCCD of “dues deducted…without their affirmative and knowing consent.”
Rather than face Foundation attorneys and the Janus precedent in court, VCCCD and AFT officials settled the case. The union will now “fully and unconditionally” refund to McCain and other teachers who requested to stop paying union dues since Janus was decided all the dues illegally taken since the dates of their requests, plus interest. AFT and VCCCD also promised not to “adopt any policy that restricts to a yearly window period the time” when an employee can revoke his or her dues authorization.
“Michael McCain joins the ranks of educators and other government employees across the country who have successfully fought for and defended their First Amendment rights under Janus from union boss schemes like annual ‘escape periods,’ which serve no purpose other than to continue the flow of illegal dues into union coffers,” said National Right to Work President Mark Mix. “All American workers deserve the freedom that Janus promises, and Foundation attorneys will keep fighting for them in the dozens of cases already filed and many more if necessary.”
The National Right to Work Foundation filed an amicus brief in a federal class-action lawsuit currently pending before the Fourth Circuit Court of Appeals filed by Maryland teachers against the Maryland State Education Association.
Foundation staff attorneys argue in the brief, filed on July 22, that the court should reject union officials’ claims that they should not be required to refund unlawfully seized union fees, subject to the statute of limitations. The landmark Janus v. AFSCME case argued and won at the U.S. Supreme Court by Foundation staff attorneys established that the Constitution protects public workers from being forced to subsidize a union activities and that any union dues taken without a workers affirmative consent violates the First Amendment.
The brief reads in part:
The bottom line is that good faith is not a defense to a deprivation of First Amendment rights under Janus… The Union Appellees lack a cognizable basis for asserting a good faith defense. The district court’s judgment should be reversed and the case remanded for further proceedings.
Read the complete amicus brief here.
This is not the first time Foundation staff attorneys have filed an amicus brief in such a case. In June, the Foundation filed an amicus brief on behalf of Ohio Department of Taxation employee Nathaniel Ogle, whose case is ongoing.
Foundation staff attorneys are also currently litigating the same issue before the Seventh Circuit Court of Appeals on behalf of Mark Janus, lead plaintiff in the Supreme Court case. There, briefing is complete and it is likely that the Seventh Circuit will be the first Appellate Court to rule on the dues refund issue.
Prompted by Foundation Cases, NLRB Instructs Regions to Prosecute Unions for Failing to Provide Nonmember Workers with Full Beck Rights
Foundation President Mark Mix highlights Foundation Role in Potential Strengthening of Enforcement of Workers’ Beck Rights
Washington, DC (July 18, 2019) – In a move to protect workers’ rights not to fund union boss politics and other nonchargeable activities, the National Labor Relations Board (NLRB) Division of Advice and General Counsel have been instructing regional directors to issue complaints against unions when union officials fail to inform employees of the amount of reduced union fees they can pay by objecting to union membership under the Communication Workers of America v. Beck U.S. Supreme Court decision.
Beck, which was won by Foundation staff attorneys, mandated that workers who refrain from formal union membership only be charged fees directly germane to bargaining. It also stipulated that union agents inform new employees of their right to pay reduced dues as a nonmember, though a later Foundation-won decision at a circuit court expanded this to require union officials to disclose the actual amount one could pay as a nonmember.
The memos instruct NLRB Regional Directors to more stringently enforce those rights. A memo issued released this week to the Director of Region 32 read in part that “it is difficult for an employee to make an informed decision about whether to become a Beck objector without knowing the amount of savings that would result from the decision.”
National Right to Work Foundation President Mark Mix delivered the following comments on the NLRB’s actions:
“The Foundation is proud to have represented the California employee whose charge against the UFCW resulted in this Advice Memo, as well as originating this heightened disclosure standard by winning the Beck decision at the Supreme Court and the Penrod decision at the D.C. Circuit Court of Appeals. Of course, while the NLRB has an obligation to enforce workers’ Beck rights against greedy union bosses, the ultimate solution to this issue is simply to make all union payments strictly voluntary by giving every worker in America the protection of federal Right to Work law.”
Foundation staff attorneys are currently litigating several cases to secure workers’ Beck rights, including an NLRB case against UNITE-HERE scheduled to go to trial soon in Portland, Oregon.