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.”
National Right to Work Foundation Files Amicus Brief in Federal Class Action Lawsuit
The National Right to Work Foundation filed an amicus brief in a federal class-action lawsuit currently pending before the Fourth Circuit Court of Appeals filed by Maryland teachers against the Maryland State Education Association.
Foundation staff attorneys argue in the brief, filed on July 22, that the court should reject union officials’ claims that they should not be required to refund unlawfully seized union fees, subject to the statute of limitations. The landmark Janus v. AFSCME case argued and won at the U.S. Supreme Court by Foundation staff attorneys established that the Constitution protects public workers from being forced to subsidize a union activities and that any union dues taken without a workers affirmative consent violates the First Amendment.
The brief reads in part:
The bottom line is that good faith is not a defense to a deprivation of First Amendment rights under Janus… The Union Appellees lack a cognizable basis for asserting a good faith defense. The district court’s judgment should be reversed and the case remanded for further proceedings.
Read the complete amicus brief here.
This is not the first time Foundation staff attorneys have filed an amicus brief in such a case. In June, the Foundation filed an amicus brief on behalf of Ohio Department of Taxation employee Nathaniel Ogle, whose case is ongoing.
Foundation staff attorneys are also currently litigating the same issue before the Seventh Circuit Court of Appeals on behalf of Mark Janus, lead plaintiff in the Supreme Court case. There, briefing is complete and it is likely that the Seventh Circuit will be the first Appellate Court to rule on the dues refund issue.
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.
California Homecare Providers File Class Action Lawsuit Challenging Union ‘Escape Period’ Scheme Used to Unlawfully Seize Dues
Union officials violate providers’ First Amendment and statutory rights by refusing to halt deductions of union dues from Medicaid payments
Sacramento, CA (July 15, 2019) – California homecare providers who receive Medicaid payments for serving disabled individuals have filed a class-action lawsuit with free legal aid from attorneys provided by the National Right to Work Legal Defense Foundation staff and Washington-based Freedom Foundation. They charge union officials with violating their legal rights by unlawfully restricting them from stopping payment of union dues and fees, as is their right under the U.S. Supreme Court’s Harris and Janus decisions and the Medicaid statute.
The providers’ complaint says United Domestic Workers (UDW) AFSCME Local 3930 union officials coerced them into surrendering their legal rights by signing union membership cards that prohibit them from halting union dues and fees deductions except for a narrow “escape period” a few days every year.
When the providers attempted to exercise their legal rights under Harris and Janus to refrain from financially subsidizing a union and cut off any further dues or fee deductions, union officials refused to honor their requests. Despite the lack of valid consent by providers, the California State Controller, at the behest of AFSCME union officials, continues to deduct union dues from the Medicaid funds intended for providers.
In the class-action suit filed in U.S. District Court for the Southern District of California, the providers named as defendants UDW AFSCME Local 3930 and California State Controller Betty Yee. Yee deducts union dues and fees from providers’ Medicaid payments pursuant to state law.
The providers rely on the U.S. Supreme Court’s landmark Harris and Janus decisions in 2014 and 2018, respectively, both of which were argued and won by Foundation staff attorneys. Harris held that homecare providers cannot constitutionally be compelled to pay union dues or fees as a condition of receiving public funding. Janus established that the First Amendment protects public-sector workers from being forced to pay union dues or fees without their knowing and explicit consent.
While still permitting voluntary unionism, the Janus decision requires union officials to inform public workers of their First Amendment rights and obtain knowing waivers from them before collecting any dues or fees. This requirement invalidates the restrictions on revocation of deduction authorizations union officials enforce through membership cards signed by individuals subjected to public sector unionism.
Because union officials never obtained their consent with knowledge of their rights under Harris and Janus, the providers argue that the restrictions in their dues deduction authorizations are invalid and union officials, thus, are not legally authorized to deduct dues or fees from their hard-earned Medicaid payments. Their complaint asks that the court declare unconstitutional the California statute which authorizes such restrictions.
In addition, the providers’ suit alleges that the deduction of union dues from their Medicaid payments violates a provision of the federal Medicaid statute that prohibits the diversion of Medicaid monies to persons or institutions that are not providing services to disabled individuals.
“Once again union bosses have ignored the clear wishes of the workers they claim to ‘represent’ simply to line their pockets with compulsory dues,” said National Right to Work Foundation President Mark Mix. “Instead of informing workers of their First Amendment rights and allowing them to choose whether to pay dues to a union voluntarily, union officials nationwide are applying ‘escape periods’ and other coercive tactics to trap workers into paying forced dues against their wishes.”
NLRB General Counsel Rules for Workers in Cases Challenging Coercive Union Practices
Union officials to be held accountable for illegally forcing workers to sign misleading payroll deduction forms and intimidating workers seeking to oust union
Washington DC (July 12, 2019) Today the National Right to Work Foundation announced victories in three cases filed by Foundation staff attorneys for workers whose rights were violated by union officials who enforced mandatory dues checkoff authorizations that violate the workers’ rights and harassed workers who sought to oust the union. These cases were on appeal to the National Labor Relations Board (NLRB) General Counsel, who prosecutes violations of the National Labor Relations Act (NLRA).
In separate cases, Kacy Warner, a hospital worker, and Shelby Krocker, a Kroger employee, were required to sign check-off authorization forms. After both workers filed charges with NLRB regional offices with free legal aid from the Foundation, NLRB regional directors dismissed their cases. Their Foundation attorneys then appealed to the NLRB General Counsel for both.
The General Counsel sustained the Foundation-filed appeals for Warner in this and an additional charge against the National Nurses Organizing Committee (NNOC) for illegally intimidating workers seeking to oust the union.
Warner was not a member of NNOC and circulated a petition to hold a decertification vote to remove the union from her workplace. NNOC officials tried to interfere with her decertification efforts. And, after she started the petition, union officials told her and a coworker they must sign a dues checkoff form without providing them an alternative method of payment, as the NLRA requires.
The General Counsel’s decision to sustain Warner’s appeal concerning the checkoff also added to the charges, saying the union violated the NLRA by “maintaining confusing and ambiguous dual-purpose authorization forms that unlawfully restrained employees in the exercise of their Section 7 rights.”
The General Counsel noted that the union’s forms failed to tell workers they can revoke authorization for deduction of union dues after the union’s contract expires, failed to give workers adequate time to revoke authorization, unlawfully required workers to use certified mail to send revocation requests, and failed to give “any indication to employees that payroll deduction authorization is voluntary.”
This came just a week after the General Counsel sustained another Foundation-led appeal for Krocker, who charged United Food and Commercial Workers (UFCW) union officials with illegally forcing her to sign a dues checkoff authorization.
When she was hired, Krocker joined the union because she was told she must join and sign a dues checkoff authorization as a condition of her employment. When she later resigned union membership in 2018, the union accepted her resignation, but continued collecting dues and would not let her revoke her checkoff, claiming she missed a union-created “window” to do so. Because West Virginia is a Right to Work state, the decision to financially support a labor union is supposed to lie with each individual worker.
As he did for Warner’s appeal, the General Counsel added to the charges against union officials. The additional charges are for “failing to provide the Charging Party with the explicit dates upon which she was entitled to revoke her dues checkoff authorization when it rejected her revocation request as untimely,” not being clear with workers about membership and payroll deduction forms, not being clear that workers can revoke payroll deduction authorizations, and for “maintaining language that requires the employee to give Local 400 the authority to transfer an employee’s checkoff obligation to another employer, not limited to a successor employer.”
“The NLRB General Counsel’s rulings in these cases open the door for finally holding Big Labor accountable for the illegal language that is regularly slipped into union dues deduction cards and serves no purpose other than to restrict rank-and-file workers from exercising their legally protected rights,” said National Right to Work Foundation President Mark Mix. “The National Labor Relations Act purports to support workers’ right to refrain from supporting a union, and these dues deductions cards clearly violate that basic principle.”
Paramedic Levies Charges Against Teamsters, Medic One for Illegal Threats, Discipline and Dues Demands
Teamster union agents also charged with destroying employee’s postings about workers’ rights before union officials moved to have him fired
St. Louis, MO (July 12, 2019) – A St. Louis-area paramedic is mounting a federal unfair labor practice charge against the Teamsters Local 610 union for multiple violations of the National Labor Relations Act (NLRA). The violations charged include blocking his right to resign from union membership and demanding punishment by his employer because he attempted to inform coworkers of their rights. He is also hitting his employer, Medic One Ambulance, with a federal charge for threatening to fire him at union officials’ behest after he posted literature concerning the right of workers to resign from unions.
Both charges were filed at the National Labor Relations Board (NLRB) Region 14 office in St. Louis with free legal assistance from National Right to Work Legal Defense Foundation attorneys.
According to Jarod Aubuchon’s charge against the Teamsters, he submitted a letter to union agents on April 8 ending his union membership and asserting his right under the Foundation-won CWA v. Beck U.S. Supreme Court case to pay reduced union fees as a nonmember. Missouri’s lack of a Right to Work law means that employees who exercise their right to refrain from formal union membership must still pay a reduced share of dues or lose their jobs.
The charge against the union reports that since Aubuchon submitted his resignation neither his resignation nor his Beck rights have been acknowledged by Teamsters bosses. Moreover, full dues are still being seized from his paychecks.
Aubuchon’s charge against the union states that at some point after his resignation he began posting literature about employee rights in “common open areas.” Union agents reacted by destroying the postings and demanding disciplinary action against Aubuchon by Medic One. His charge against Medic One notes that the employer threatened to fire him during a meeting.
The NLRA prohibits unions from causing an employer to “discriminate against an employee” based on union nonmembership. Aubuchon’s charges assert that both Teamsters Local 610 and Medic One blatantly violated his rights under the NLRA.
Missouri legislators passed a Right to Work law in 2017, but Big Labor triggered a referendum in 2018 and killed the law with a multi-million-dollar campaign before the law went into effect. That leaves union officials free to have workers fired for nonpayment of union fees. However, union officials still must follow the Beck precedent to justify the amount of any mandatory fees.
“This case demonstrates the kind of abuse that happens when workers lack the protections of a Right to Work law,” observed National Right to Work Foundation President Mark Mix. “Without Right to Work, employees who exercise their freedoms under longstanding labor laws are bullied, have illegal dues seized from them, lose their jobs, and are sometimes not even permitted to notify their fellow workers of their rights.”
ESPN Cameraman Hits CWA Union Officials with Federal Charges for Illegally Demanding Nearly $10,000 in Union Fees
NABET-CWA union bosses failed to provide legally mandated breakdown of fees, while demanding cameraman pay up or be fired
Portland, OR (July 10, 2019) – An Oregon-based ESPN employee has just filed an unfair labor practice charge against the National Association of Broadcast Employees and Technicians (NABET-CWA) union, asserting that union officials illegally threatened to terminate him unless he pays thousands of dollars in union fees. The charge was filed at the National Labor Relations Board (NLRB) with free legal aid from the National Right to Work Legal Defense Foundation.
Jeremy Brown, a daily hire for ESPN, states in his charge that since April 1 he had declined membership in NABET and therefore could only be required to pay the part of union fees chargeable to nonmembers under federal law. Because Oregon lacks a Right to Work law, which would make union membership and financial support voluntary, private sector employees who fall under the monopoly bargaining power of a union must still pay a fee to union officials as a condition of employment.
Existing Supreme Court precedent provides some employee protections from compulsory union fees. The Foundation-won 1998 CWA v. Beck ruling requires unions to only charge employees who have refused formal union membership fees directly related to bargaining. Courts and the NLRB have also mandated that unions provide financial explanations to nonmembers of how the reduced amounts are calculated. Absent such a financial breakdown, union officials cannot legally demand any fees from nonmember employees.
According to Brown’s charge, those requirements were ignored by NABET union officials who demanded an initiation fee of $6,456 and an additional $3,429.60 in past dues from him in a letter, and threatened that he would be fired if he did not pay. The charge says that, despite Brown’s objection, NABET has not “provided him with a reduction of the fee to an amount that includes only lawfully chargeable costs or notice of the calculation of that amount.”
“Rather than respect workers’ legal rights, NABET-CWA union bosses are threating Jeremy Brown’s livelihood in their greedy rush to stuff their coffers with forced union dues,” observed National Right to Work Foundation President Mark Mix. “This case, like thousands of others, shows why every worker in America needs the protection of a Right to Work law guaranteeing that that all union membership and financial support is strictly voluntary and the choice of each individual.”
New York Stop & Shop Employee Hits UFCW with Federal Charges Following Repeated Attempts to Misinform Him About Rights
Employee one of numerous Northeastern United States workers whose rights have been infringed by food service industry union
New York, NY (July 10, 2019) – A former employee of the Stop & Shop supermarket branch in New Hyde Park, NY, has filed an unfair labor practice charge against United Food and Commercial Workers (UFCW) Local 464A union, reporting that officials falsely told him that he could only resign from union membership by quitting his job. That misinformation is a clear violation of employee rights under federal law. The charge was filed with the National Labor Relations Board (NLRB) with free legal aid from the National Right to Work Legal Defense Foundation.
The former employee, John Smith, reports in his charge that he became a member of the UFCW upon beginning work at Stop & Shop in November 2018 because his manager had told him that union membership is a condition of employment at the branch. Smith’s charge further relates that at the beginning of 2019 he began asking UFCW officials how to resign his union membership.
According to the charge, the first union agent whom Smith spoke with on this matter simply reiterated that the only way to end union membership was to resign his job, but Smith persisted and asked to be directed to the “union constitution.” The charge reports that he was then handed off to another union official who told him again that his employment hinged on his union membership.
Smith is asking the NLRB to issue a complaint against the union for the violations. Under longstanding NLRB precedent, union agents are required to inform employees of their right to refrain from union membership. Moreover, NLRB precedents applying the Foundation-won Supreme Court decision in CWA v. Beck mandate that union agents apprise workers of their right to pay reduced union fees as a nonmember.
Other employees in the New York City area and around the country have obtained Foundation legal aid to mount similar charges against the UFCW in recent months. Beverley Pryce and Carolee Buckley, two employees at Plattdeutsche Home Society retirement home in Franklin Square, NY, filed unfair labor practice charges in May against UFCW Local 2013 because union agents failed to provide a legally-required financial breakdown of the reduced fees that they must pay as nonmembers. Foundation staff attorneys have also assisted other employees victimized by union officials in incidents related to the UFCW-ordered Stop & Shop strike which affected grocery workers in Connecticut, Massachusetts and Rhode Island.
“Once again UFCW union bosses have been caught violating the rights of the very workers they claim to represent,” commented National Right to Work President Mark Mix. “The increasing number of charges bring into sharp focus the campaign of coercion and misinformation that UFCW officials are perpetrating against rank-and-file workers.”
Massachusetts Educators Ask US Supreme Court to Review State Law Conditioning Workplace Rights on Funding Union Politics
State law lets unions block workers from a say in workplace matters unless they waive their First Amendment rights and fund union political activities
Washington, D.C. (July 8, 2019) – Today, staff attorneys for the National Right to Work Legal Defense Foundation are submitting a Petition for Writ of Certiorari to the US Supreme Court to hear Branch v. Commonwealth Employment Relations Board, in which four Massachusetts educators are challenging the application of the state’s monopoly bargaining law for its educational system.
The educators argue that the state law, which is manipulated by union bosses to block teachers who are not union members from voting or otherwise voicing their opinions in the determination of their own working conditions, results in depriving nonmember teachers of their First Amendment rights.
The four plaintiffs hail from the University of Massachusetts and the Hanover School Committee. All have rejected membership in the National Educators Association (NEA) and its local affiliates.
Although the 2018 Foundation-won Janus v. AFSCME Supreme Court decision guarantees that union fees and membership are strictly voluntary for all public sector workers, the policy in question unconstitutionally forces them to become full union members to be able to speak up about their work environment.
To have any say in their own work conditions, nonmembers like the four educators would have to waive their First Amendment rights under Janus and join the union, which means funding union political causes.
The lead plaintiff, Dr. Ben Branch, is a finance professor at the University of Massachusetts Amherst. He is a colleague of fellow plaintiff of Dr. Wm. Curtis Conner, who teaches chemistry there.
Plaintiff Dr. Andre Melcuk is Director of Departmental Information Technology at the Silvio O. Conte National Center for Polymer Research at the University. Dr. Melcuk was born in the Soviet Union and opposes the union based on his dislike of collectivist organizations.
Plaintiff Deborah Curran is a long-term teacher in the Hanover Public Schools system. The union officials who supposedly “represent” her attempted to invalidate her promotion to a position mentoring new teachers and pushed to have her investigated and suspended. She ultimately spent nearly $35,000 of her own money battling union officials just to protect her job.
The petition comes after the Massachusetts Supreme Court dismissed the lawsuit in April.
“The Massachusetts Supreme Court’s refusal to apply the Janus ruling has left these educators facing a legally untenable situation: either they can avoid associating with a union with which they disagree and lose their voices in the workplace, or they can waive their Janus rights and have their money used for ideological causes they oppose,” commented National Right to Work President Mark Mix. “The state of Massachusetts is forcing these educators to fund state legislators’ union political allies if they want even the most limited participation in the government-created bargaining process that controls their conditions of employment.”
“Such schemes are effectively a modern version of Tammany Hall that should be a thing of the past, and it’s time for courts to acknowledge it,” added Mix.
