First Circuit Court of Appeals Rules Union Bosses Cannot Legally Require Rhode Island Nurses to Fund Union Lobbying
Panel upholds National Labor Relations Board ruling in decade-long case that union officials can never charge nonmembers for union lobbying expenses
Boston, MA (September 15, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, Warwick, RI-based nurse Jeanette Geary has just prevailed again in a legal battle waged for over a decade by United Nurses and Allied Professionals (UNAP) union bosses seeking to force her to fund union lobbying as a condition of keeping her job.
Geary, who worked as a nurse at Kent Hospital in Warwick, Rhode Island, filed an unfair labor practice charge in 2009 against the United Nurses and Allied Professionals (UNAP) union with free legal aid from National Right to Work Legal Defense Foundation staff attorneys. She filed the charges after UNAP officials failed to provide her evidence of a legally required independent audit of its breakdown of expenditures. She also challenged the union’s forcing of her and other employees to pay for union lobbying activities in violation of the National Right to Work Foundation-won 1988 U.S. Supreme Court Beck decision.
In Beck, the High Court ruled that private sector workers in states without Right to Work protections could only be forced to pay union dues for union activities “directly germane” to the union’s bargaining functions, which excludes political activity like lobbying. In another Foundation-won case, Hudson, the Court held that union officials must provide an audited financial breakdown of how forced union dues are being spent.
The NLRB had issued a negative decision in 2012, but that decision was invalidated by the Supreme Court’s holding in NLRB v. Noel Canning that the Board lacked a valid quorum because of three unconstitutional “recess appointments” then-President Obama had made. Seven years later, Geary’s case was the only remaining case invalidated by Noel Canning still pending without a decision by the NLRB.
In January 2019, Foundation staff attorneys filed a mandamus petition at the U.S. Court of Appeals for the District of Columbia Circuit seeking a court order that the NLRB promptly decide Geary’s case. The Appeals Court then ordered the NLRB to respond to that petition by March 4, 2019, which caused the NLRB to issue its decision on March 1, 2019, just ahead of the deadline.
The NLRB ruled 3-1 in that decision that union officials violate workers’ rights by forcing nonmembers to fund union lobbying activities. It also ruled that union officials must provide independent verification that the union expenses they charge to nonmembers have been audited. Unwilling to stop forcing workers to fund lobbying activities, UNAP union bosses asked the First Circuit Court of Appeals to overturn this ruling.
Oral arguments were held before the First Circuit in March 2020, with veteran Foundation staff attorney Glenn Taubman arguing for Geary. One of the judges on the First Circuit panel which heard the case is retired Supreme Court Justice David Souter.
“In a long-overdue victory, after over a decade of litigation Ms. Geary has successfully affirmed her right not to fund union boss lobbying, a protection guaranteed by the Foundation-won Beck Supreme Court decision,” commented National Right to Work Foundation President Mark Mix. “No worker should be forced to pay for union political activity, including lobbying. But, the fact that Ms. Geary had to endure this drawn out legal fight shows why a National Right to Work Law should be passed allowing every worker the individual right to decide for themselves whether to subsidize any union boss activities, political or not.”
Airline Workers Ask Appeals Courts to Invalidate Union Dues Opt-Out Schemes as Violation of First Amendment
Cases challenge union officials’ requirement that workers repeatedly opt-out of union political spending or else be trapped in full forced dues
Springfield, VA (September 14, 2020) – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, two airline workers are challenging union officials’ opt-out policies that require workers to “opt-out” in order to exercise their First Amendment right not to fund union political activities, as recognized in the Supreme Court’s 2018 Janus v. AFSCME decision.
The two federal class action lawsuits were brought for United Airlines fleet service employee Arthur Baisley and JetBlue Airlines pilot Christian Popp, and are currently pending in the US Courts of Appeals for the Fifth Circuit and Eleventh Circuit respectively. Baisley’s case against the International Association of Machinists (IAM) union has been fully briefed and is pending before the Fifth Circuit. Meanwhile, the opening brief for Popp’s case against the Air Line Pilot Association (ALPA) union is due in early October.
The lawsuits contend that under Janus and the 2012 Knox v. SEIU Supreme Court cases – both of which were argued and won by Foundation staff attorneys – no union dues or fees can be charged for union political activities without a worker’s affirmative consent.
Despite this, union officials at the IAM and ALPA enforce complicated opt-out policies that require workers to object to funding union political activities or pay full union dues. National Right to Work Foundation staff attorneys argue that the Janus decision’s opt-in requirement applies to airline and railroad employees covered by the Railway Labor Act (RLA) taken together with longstanding precedent protecting private sector workers from being required to pay for political and ideological union activities.
Mr. Baisley and Mr. Popp both live in Right to Work states (Texas and Florida, respectively), but the RLA preempts state law, meaning that they can still be forced to pay union dues or fees or be fired. Even under the RLA, however, union bosses cannot force workers to pay for political activities. These lawsuits point out that the RLA protects the rights of employees “to join, organize, or assist in organizing a union… [as well as their right to] refrain from any of those activities,”—a rule that union officials have violated.
“IAM and ALPA union officials have demonstrated a blatant disregard for the rights of the very workers they claim to represent by creating deliberately complicated obstacles for independent-minded workers who want to exercise their right not to fund union ideological activities,” said National Right to Work Foundation President Mark Mix. “Although Janus’ biggest impact was to secure the First Amendment rights of all public employees across the nation not to be required to fund Big Labor, these cases demonstrate that Janus’ implications also protect private sector employees.”
SEIU Bosses Back Down, Settle Class-Action First Amendment Lawsuit from Illinois Home Healthcare Provider Challenging Forced Dues Scheme
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.
Michigan Employee Asks NLRB to End Policy Permitting Employers and Union Bosses to Coerce Dues Payments Even in Absence of Union Contract
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.”
National Right to Work President Emphasizes Worker Freedom, Coming Challenges in Labor Day 2020 Statement
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.
In the News: “Foundation Sues to Give Public Employees Their Right Not to Pay Union Dues”
The National Right to Work Foundation-won Janus v. AFSCME U.S. Supreme Court decision allows public employees to stop paying dues or fees to a union at any time they choose. Janus affirmed that the First Amendment protects government workers from supporting a union against their wishes.
But ever since the Janus decision in June 2018, many union bosses have refused to comply with the High Court’s decision. So Foundation staff attorneys have filed dozens of cases across the country to enforce the Janus decision and compel union bosses to respect the First Amendment rights of the workers they claim to “represent.”
Journalist Mark Tapscott recently reported on a number of these cases for The Epoch Times, including a newly filed case for a police officer serving on the front lines in Las Vegas:
Las Vegas Police Officer Melodie DePierro is the latest in a growing line of public sector employees suing in federal court to demand recognition of their rights under a 2018 Supreme Court decision.
DePierro’s action was filed in the U.S. District Court for Nevada against the Las Vegas Metropolitan Police Department (LVMPD) and the local Police Protective Association (PPA) union.
In Janus v American Federation of State, County and Municipal Employees (AFSCME) decided by a 5-4 vote in June 2018, the high court ruled that public sector employees cannot be forced to pay union dues in the form of agency fees without being given a chance to consent or refuse the deduction.
DePierro noted in her suit that the department’s monopoly bargaining agreement with the union only allowed a 20-day window of opportunity to request agency fee refunds and that she had never agreed to the deduction in the first place.
Right-to-Work advocates cheered Janus as a landmark decision that would prompt millions of employees at all levels of government to demand an end to hundreds of millions of dollars in agency fees that helped fund partisan union political activities with which they disagreed.
…
“Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to keep imposing an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” NRTWLDF President Mark Mix said in a statement announcing the suit.
“The High Court made perfectly clear in Janus that affirmative consent from employees is required for any dues deductions to occur. Yet PPA union bosses are clearly violating that standard here,” Mix said.
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A week before the DePierro filing, NRTWLDF attorneys issued a special notice to more than 28,000 Ohio state employees advising them of their right not to pay agency fees. The notice was part of a settlement of the foundation’s suit against the state government and the Ohio Civil Service Employees Association, AFSCME Local 11 (OCSEA).
Other Janus suits currently working their way through the courts include NRTWLDF actions against the Chicago Teachers Union, the Alaska State Employees Association (ASEA), the United Teachers of Los Angeles (UTLA), California Service Employees International Union (SEIU), the University Professional and Technical Employees (UPTE) union and the University of California, and the Township of Ocean Education Association (TOEA), New Jersey Education Association (NJEA) and the National Education Association (NEA) unions. The latter suit has reached a federal appeals court.
Read the entire article online at The Epoch Times here.