Union officials had required home healthcare providers to submit photo identification to exercise constitutional right to stop union dues deductions

Chicago, IL (September 11, 2020) – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, an Illinois home healthcare provider has just won a settlement against SEIU Healthcare Illinois and Indiana (SEIU-HCII) union bosses. Her class-action case challenged SEIU-HCII officials’ enforcement of an arbitrary restriction on providers’ First Amendment right not to subsidize union activities, as recognized by the Supreme Court in the Foundation-won Harris v. Quinn and Janus v. AFSCME decisions.

In Harris, won by Foundation staff attorneys in 2014, the High Court recognized that the First Amendment is violated by schemes to forcibly extract dues from home healthcare providers who assist individuals whose care is subsidized by the government. In the 2018 Janus decision, the Supreme Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights, and ruled that the government can only deduct union dues or fees with an individual’s affirmative and knowing consent.

Plaintiff Hydie Nance provides home-based healthcare under the auspices of Illinois’ Home Services Plan. This program provides Medicaid funds to people with disabilities so they can hire and pay “personal assistants” to help them with their day-to-day activities. In her class-action lawsuit, Nance asserted that the Illinois Department of Human Services deducted union dues from the subsidies of home healthcare providers without informing them that “that they have a First Amendment right not to financially support SEIU-HCII.”

Nance tried to exercise her right to stop these illegal dues deductions in both November 2019 and later in March 2020. Full dues continued to be deducted out of her subsidies after both requests, with SEIU-HCII agents claiming after her second request that they could not process her request “without [her] valid photo id.” Nance’s lawsuit also alleged that union and state officials did not notify home healthcare providers about the photo ID “requirement” until after a request to cut off dues had already been submitted.

Nance argued in her suit that the dues scheme imposed by SEIU-HCII union bosses “impedes and burdens personal assistants’ First Amendment right to stop subsidizing SEIU-HCII and its speech” and additionally “impinges on personal assistants’ right to privacy and exposes them to the threat of identity theft.” She sought a ruling from the US District Court for the Northern District of Illinois declaring illegal the deductions the union made after she exercised her rights, forbidding further enforcement of the unconstitutional restriction, and ordering refunds for all home healthcare providers from whom the union had seized money illegally under the policy.

SEIU-HCII bosses have now backed down from further litigation and settled the case. The settlement requires that union officials “not reject or refuse” a request to end dues deductions because an individual does not provide a photo ID and also orders a refund to Nance of all dues seized under the scheme in violation of her First Amendment rights. Under the settlement, union brass must also “identify from its records [home healthcare] providers whose requests to resign their union membership” were rebuffed because they did not provide photo ID and process those requests. The union also must stop rejecting or ignoring requests by providers to stop dues deductions made using forms provided by organizations which inform workers of their rights, something union officials were regularly doing.

“This scheme imposed by SEIU-HCII union officials forced Illinois home healthcare providers to produce photo IDs just to stop the flow of their own money that was going to fill union coffers in violation of the First Amendment,” commented National Right to Work Foundation President Mark Mix. “Though this settlement puts an end to this blatantly unconstitutional arrangement, it is outrageous that over two years after Janus was decided and over eight years after Harris was decided, union bosses still refuse to respect, and devise ways to circumvent, the constitutional rights of those they claim to represent.

“We urge any Illinois home healthcare provider who had a request to cut off dues rejected by SEIU-HCII to contact the Foundation so their rights can be vindicated,” Mix added.

In attempt to protect coercive powers over workers, CWA union lawyers now making last-minute attempt to intervene and delay case

Detroit, MI (September 9, 2020) – National Right to Work Legal Defense Foundation staff attorneys have just filed their brief on the merits in Michigan-based employee Veronica Rolader’s case charging AT&T officials with illegally deducting dues from her paycheck at the behest of Communications Workers of America (CWA) union bosses. The case seeks to overturn a National Labor Relations Board (NLRB) precedent from 1979 that grants union bosses the power to limit to a narrow “window period” when workers may revoke their dues deduction authorization forms.

According to Rolader’s brief, in January 2000 she signed a form authorizing AT&T to deduct union dues from her paycheck and remit them to CWA bosses. Eighteen years later, in April 2018, the contract between AT&T and CWA officials expired. In June 2018, Rolader attempted to exercise her right under federal law to end her union membership and cease dues deductions from her paycheck, as union officials have no legal power to coerce dues from individual workers when there is no contract in effect.

Acting at the behest of CWA bosses, AT&T rejected this request by Rolader, writing that her request was “untimely” and that dues would continue to be deducted from her paycheck. Rolader tried again in December 2018, only to have her request denied as “untimely” once more the following January. Neither response apprised Rolader of the period in which union officials or AT&T would consider her request valid. On top of that, both of her letters to the union were submitted well before CWA brass and AT&T officials finalized a new monopoly bargaining contract in August 2019.

Rolader’s case challenges the NLRB’s 1979 decision in Frito-Lay, in which a 2-1 union boss-friendly NLRB majority ruled that union bosses can limit to a “window period” when an employee can revoke his or her dues checkoff, even during a contract hiatus. Her brief points out that the Labor Management Relations Act clearly declares that workers may revoke their dues checkoffs any time “beyond the termination date” of a union contract, and argues that the NLRB’s decision in Frito-Lay flies in the face of the statute’s plain text.

Rolader’s brief also relies on the fact that her 2018 attempts to cease dues deductions came after Michigan’s Right to Work law had gone into effect. Right to Work protections ensure that no worker can be fired for refusing to pay dues or fees to a union. Because Rolader only agreed to the dues deductions in 2000 when she was compelled to pay as a condition of employment, the brief maintains that she should have been allowed to revoke her dues deduction authorization at will once Michigan enacted its Right to Work law.

The brief additionally contests the other obstacles to revocation in the CWA policy that AT&T enforced. Those obstacles include failing to tell employees when their requests would be considered valid and petty rules requiring requests to cut off dues to be sent only by certified mail in individual envelopes.

Although CWA union officials earlier backed down from further litigation in this case by settling after the NLRB had moved to prosecute the union, they now seek to intervene in the case between Rolader and AT&T in an attempt to prevent or delay the NLRB from overruling the pro-union boss Frito-Lay decision. Foundation staff attorneys earlier this month filed a brief in opposition to the union’s belated motion to intervene, arguing that “the Union should not be allowed to hijack and delay this CA case at the midnight hour,” especially after they had already voluntarily opted-out of the case by settling.

“It’s outrageous that the NLRB’s forty-year-old decision in Frito-Lay continues to grant union bosses the privilege to keep siphoning dues out of the pockets of dissenting workers, even when the underlying ‘justification’ for the dues payments no longer exists,” commented National Right to Work Foundation President Mark Mix. “The NLRB should overturn Frito-Lay and ensure that no worker can be trapped into funding a union against their will when there is not even a valid contract in effect between a union and employer.”

Mark Mix, president of the National Right to Work Legal Defense Foundation and the National Right to Work Committee, issued the following statement on the occasion of Labor Day 2020:

On this Labor Day, as our country strives to reopen and recover, we should all remember the sacrifices that America’s working men and women – including shelf stockers, delivery drivers, nurses, and other frontline workers – continue to make so our country can get through these uniquely challenging times. Many will pay lip service to honoring workers, but it will ring hollow absent a commitment to respect workers’ individual rights and trust each worker to decide for themselves what private organizations, including labor unions, to associate with or subsidize.

Thankfully, in the past decade America’s workers have seen significant advances in that field. The United States Supreme Court’s 2018 decision in Janus v. AFSCME, argued and won by National Right to Work Foundation staff attorneys, safeguarded the First Amendment right of every public worker to choose for themselves whether or not to fund a labor union. And since 2012, five new states have enacted Right to Work laws – meaning a majority of states now protect that same fundamental freedom for private sector workers. Not since the 1950s have we seen such a large expansion of state Right to Work laws in one decade.

Meanwhile, at the urging of workers represented by Foundation staff attorneys, the National Labor Relations Board continues to eliminate policies that trap workers in unwanted union ranks for months or even years, even when an overwhelming majority wants the union out of their workplace. These are significant advances in employee freedom, but there remains much more to do.

Millions of Americans can still be fired for refusing to pay union bosses they don’t want and never asked for. Plus, even where the law protects workers from forced union dues it often takes vigilant legal enforcement to get union officials to respect those rights. Meanwhile millions more American workers are forced to accept the one-size-fits-all “representation” of these union bosses, even if they think they would be better off without it.

And Big Labor’s top officials in their shiny multi-million-dollar headquarters continue to double down on compulsion. Instead of earning the voluntary support of those whom they claim to represent like private organizations, union bosses continue to look to government to grant them more special powers to compel workers to associate with unions against their will.

This is especially demonstrated by the overwhelming forced-dues-funded support from top union bosses for Joe Biden, whose platform includes wiping out every state Right to Work law by federal fiat, authorizing federal bureaucrats to impose forced dues contracts over the objections of both businesses and individual workers, and by mandating the abuse-prone “card check” process so union bosses can corral millions of workers into unions without even a secret-ballot vote.

But the American people know this is not the future workers want or deserve – they overwhelmingly agree with the Right to Work principle that no employee should be forced to join or support a union as a condition of keeping their jobs.

So this Labor Day, and come November, think back to the hardworking individuals who served you throughout the pandemic and remember: They deserve a choice. Let’s celebrate American workers by being vigilant for attempts to undercut their freedoms.

Union lawyers aim to use non-statutory “contract bar” to have workers’ ballots to remove union destroyed and never counted

Washington, DC (August 21, 2020) – Staff attorneys at the National Right to Work Legal Defense Foundation have just filed a brief urging the National Labor Relations Board (NLRB) in Washington, D.C., to overturn its non-statutory “contract bar” policy. That policy allows union bosses to block workers from exercising their right to vote them out of a workplace for up to three years.

The “contract bar” is not provided for in the text of the National Labor Relations Act (NLRA), which the NLRB administers, but is the result of past Board decisions designed to entrench union bosses. The policy overrides workers’ right, explicitly guaranteed by the NLRA, to hold secret ballot elections to “decertify” ―i.e., remove―a union that lacks majority support.

The brief is the latest development in a case filed by Delaware-based Mountaire Farms poultry processing employee Oscar Cruz Sosa in February 2020. Cruz Sosa filed a petition, signed by hundreds of his coworkers, seeking a vote to decertify the United Food and Commercial Workers (UFCW) Local 27 union.

Cruz Sosa also filed federal unfair labor practice charges in April against the UFCW union for illegally seizing dues from his and other employees’ paychecks, and for making an uninvited visit to his house and threatening him after he submitted the petition for a vote to remove the union. He is receiving free legal aid from the Foundation in filing these charges and in defending his and his coworkers’ right to oust the union.

UFCW officials argued after the petition’s filing that the “contract bar” should block Cruz Sosa and his coworkers from even having an election, but the NLRB Regional Director in Baltimore held that the vote should proceed because the union’s contract with Mountaire Farms contains an invalid forced dues clause.

Not content to accept that result and move forward to an election, UFCW union lawyers asked the full NLRB in Washington to review the Regional Director’s decision.

Responding for Cruz Sosa, Foundation staff attorneys urged that the decision allowing a vote should stand, but because the union appealed the decision Foundation attorneys countered that, if the NLRB did decide to review the case, it should reconsider the non-statutory “contract bar” policy.

On June 23, the NLRB in Washington granted the union’s request for a review of the case and also accepted the Foundation attorneys’ argument that the entire “contract bar” doctrine should be reconsidered. The NLRB invited the parties and amici to file briefs. The case should be fully briefed and ready for a decision by early October.

Foundation staff attorneys argue in their latest brief that the “contract bar,” in addition to having no basis in the text of the NLRA, arbitrarily curtails workers’ right under the statute to vote to remove a union that a majority of them oppose. The brief states: “Over many decades the contract bar has trapped countless employees in an unwanted exclusive bargaining relationship and made the union the employees’ master and the employees ‘prisoners of the Union.’ . . . Far from ensuring the NLRA’s neutrality concerning employees’ decision to select a union or be unrepresented, the contract bar entrenches incumbent unions by keeping them in power almost indefinitely.”

The brief also points out that the idea of a “contract bar” was rejected by the NLRB in 1936, shortly after the NLRA was passed, and that the contract bar wrongly shields union officials from accountability when they cannot deliver on the often farfetched assurances union organizers make to gain the support of workers.

The brief emphasizes that the only “bar” explicitly sanctioned by the NLRA is the “election bar,” which immunizes unions from decertification attempts for one year after employees have voted in an NLRB election. In light of that, the brief maintains that, if the NLRB declines to fully eliminate the non-statutory “contract bar,” that bar should be limited to a similar one-year period, and should provide a window for workers to vote quickly after a contract has been executed.

The Board has impounded the ballots from Mountaire workers’ decertification vote, which took place in June and July, pending its decision in the case. If Cruz Sosa and his Foundation staff attorneys prevail before the Board, the workers’ votes will be counted. If the UFCW is successful, the workers’ votes will be destroyed and never tallied.

“Federal labor law, above all else, is supposed to protect the right of workers to freely choose who will be their voice in the workplace. It’s hard to imagine a policy more contrary to that than the ‘contract bar,’” observed National Right to Work Foundation President Mark Mix. “Blocking workers’ right to vote out an unwanted union for up to three years just because union officials and an employer came to a contract between themselves serves no purpose other than to insulate self-interested union bosses from being held accountable by the rank-and-file workers that the union officials claim to represent. You don’t have to look any further than the growing scandal at the United Auto Workers union to see how this works.”

“We hope that the NLRB will eliminate this coercive policy and free not only Cruz Sosa and his coworkers at Mountaire from the government-enforced grip of unwanted union bosses, but countless other employees across the country who face similar situations,” Mix added.