Foundation Battles Union Restrictions on First Amendment Rights at Ninth Circuit
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Cases challenge coercive, anti-Janus “escape periods” concocted by union bosses
Christopher Woods (right), seen here with Mark Janus, is taking up the latter’s fight by challenging an ASEA union boss scheme that traps workers in union payments even after they have dissociated from the union.
SAN FRANSCISO, CA – The 2014 National Right to Work Foundation victory for Pam Harris in the Harris v. Quinn Supreme Court case established that union bosses violate the First Amendment when they skim dues from homecare providers’ state subsidies without their consent. Now, seven California homecare providers have just appealed to the Ninth Circuit Court of Appeals their federal lawsuit against Service Employee International Union (SEIU) Local 2015 officials for continuing to skim dues in violation of their rights.
According to their suit, SEIU honchos enforced a phony “escape period” on the homecare providers, illegally limiting the time in which they could stop the deductions. The providers’ suit says this contravenes the U.S. Supreme Court’s ruling in Janus v. AFSCME. The Court not only held that the government cannot force individuals to subsidize union activities as a condition of employment, but also that government agencies can only deduct union payments after receiving a clear and knowing waiver of their First Amendment right not to make such payments.
Dues-Skim Scam: SEIU Took Dues Without Informing Providers of Rights
Although the plaintiffs, Delores Polk, Heather Herrick, Lien Loi, Peter Loi, Susan McKay, Jolene Montoya and Scott Ungar, are not public employees, they were designated as such solely for the purpose of monopoly unionization. Then that was used as justification for the State of California to skim union dues from their payments at the behest of SEIU officials. The seven participate in the In-Home Support Services (IHSS) program, which allots Medicaid funds to those who provide home-based aid to people with disabilities.
Polk and the other plaintiffs recount in the lawsuit that SEIU union bosses began taking cuts of their Medicaid subsidies after confusing phone calls or mandatory orientation sessions. After the plaintiffs contacted the SEIU attempting to exercise their right to stop the flow of dues, SEIU operatives informed them that they could only opt out of union dues during short union-created “escape periods” of 10-30 days once per year.
The lawsuit also points out that the federal law governing IHSS forbids diverting any part of Medicaid payments to “any other party” besides the providers. In fact, in rulemaking urged by National Right to Work Foundation comments, the federal agency that administers Medicaid confirmed that skimming such payments for unions violates the Medicaid statute passed by Congress.
The seven plaintiffs now seek a ruling that both the taking of union dues without their knowing consent and the policy restricting the providers from ending the dues deductions are unconstitutional. The providers also seek refunds of all money that they and any other IHSS program participants had taken from their payments through the illegal scheme.
Alaska Union Bosses Confine Prison Employee in Unconstitutional Deductions
Also at the Ninth Circuit Court of Appeals, Alaska vocational instructor Christopher Woods recently filed an appeal in his case challenging an “escape period” scheme to block him and other Alaska state employees from exercising their First Amendment rights recognized in Janus.
In a November 2019 email, Woods, who has worked as a vocational instructor at Goose Creek Correctional Center since 2013, informed Alaska State Employees’ Association (ASEA) officials he was exercising his Janus right to stop all union dues deductions. Rather than respect his rights, union officials rejected his request and told Woods that he could only “opt out” and not be a union member with written notice to this office during a 10-day period each year.
Woods persisted on December 2, 2019, submitting to both ASEA officials and the payroll office of the Corrections Department another email asking to cut off dues. Although the payroll office confirmed to both Woods and the ASEA that it had received the request, an ASEA official responded by merely telling the payroll office that she was “still communicating with [Woods] on the matter,” the complaint says. Woods reports in his lawsuit that he has “not received any further communications” from either the ASEA or the payroll office, and that full dues are still being seized from his paychecks.
Foundation String of Triumphs Against Janus Restrictions Unlikely to End
“‘Escape periods’ are shameless union boss-concocted schemes that only exist to keep dues money rolling into their coffers after employees have clearly communicated that they do not wish to support the union,” observed National Right to Work Vice President and Legal Director Raymond LaJeunesse. “Although these arrangements are egregious in any context, trapping homecare providers in dues-skim schemes which deprive them of money they receive for taking care of the disabled is particularly unconscionable, and additionally breaches federal law which prohibits those funds from going anywhere other than to the people giving care.
“Whether it’s the landmark victories in Harris and Janus or the eight recent lawsuits in which Foundation staff attorneys have knocked down ‘escape period’ policies and secured refunds of illegal dues for workers, the Foundation has a track record of success in these cases. Union bosses shouldn’t hold their breath in the hopes of keeping seized dues,” LaJeunesse added.
More Workers Ask Supreme Court to Refund Unconstitutional Forced Dues
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Four Foundation-backed cert petitions now filed at High Court with millions at stake
Foundation staff attorneys asked the Supreme Court to hear Nathaniel Ogle’s case, which seeks refunds for him and his coworkers of forced union dues that were seized from their paychecks in violation of the First Amendment.
WASHINGTON, DC – Across the nation, public employees continue to seek free legal aid from National Right to Work Foundation staff attorneys, to fight for their First Amendment rights recognized in the landmark Janus v. AFSCME Supreme Court ruling. Janus was argued and won by Foundation staff attorneys.
Janus affirmed that public employees cannot be required to subsidize union activities as a condition of employment and that union payments can only be deducted with an employee’s freely given consent.
Despite this clear ruling, union bosses have almost without exception refused to return money seized from workers in violation of the First Amendment. In response, Foundation staff attorneys are now assisting workers in more than a dozen cases seeking to force union officials to return illegal forced fees to tens of thousands of employees, with four such cases now pending at the U.S. Supreme Court.
Union Officials Refuse to Refund Illegally Seized Dues Post-Janus
In November, attorneys for Connecticut Department of Energy and Environmental Protection employees Kiernan Wholean and James Grillo filed a petition for writ of certiorari with the Supreme Court. It is asking the Justices to hear their case, seeking back years of union dues that they and their coworkers were forced to pay to Service Employees International Union (SEIU) union bosses in violation of the First Amendment. Their petition follows one filed in October for Ohio Department of Taxation employee Nathaniel Ogle, whose case seeks to require AFSCME union bosses to similarly return forced fees seized in violation of the Janus standard from potentially thousands of Ohio government employees.
With these two new cert petitions, there are now seven pending before the Supreme Court on this issue, four of which were filed for workers by Foundation staff attorneys. That includes the continuation of the original Janus case brought by Mark Janus.
If the Supreme Court decides to hear any one of these cases, a favorable ruling would create another groundbreaking precedent, potentially prompting the return in Foundation cases alone of over $130 million to employees fighting to get back money taken in contravention of their Janus rights.
Wholean and Grillo, who are not members of SEIU,
originally filed their case in 2018 in the U.S. District Court for the District of Connecticut shortly before the High Court decided Janus. The State ceased deducting dues from their paychecks for SEIU following a letter to the State Comptroller from a National Right to Work Foundation attorney, which threatened legal action for any dues deductions from non-members that continued after Janus.
However, SEIU union officials continue to refuse to refund dues that they took from Wholean, Grillo and other non-members in violation of the Janus First Amendment standard before the decision, even though they knew the employees never consented to pay.
Ogle filed his case at the District Court for the Southern District of Ohio just after Janus was decided. Like Wholean and Grillo, he was never a member of the union but had mandatory union fees deducted from his paychecks. The Ohio affiliate of the national AFSCME union has around 30,000 public employees across the Buckeye State under its bargaining monopoly. If a class is eventually certified in Ogle’s case, it could potentially include thousands of workers.
Foundation Attorneys: High Court Must Reject Union Attempts to Dodge Janus
Lower courts in these and other lawsuits have accepted union lawyers’ so-called “good faith” contentions for letting union bosses keep the dues collected in violation of the non-members’ constitutional rights. This is at odds with the Supreme Court’s Janus ruling, which did not proscribe retroactive relief. Indeed, it observed that union officials have been “on notice” for years that mandatory fees likely would not comply with the High Court’s heightened level of First Amendment scrutiny, articulated in the 2012 Supreme Court decision in the Foundation’s Knox v. SEIU case.
Foundation staff attorneys point out in the petitions before the Supreme Court that a “good faith” defense has never existed under Section 1983 of the Civil Rights Act of 1871, the statute under which these lawsuits are brought. Section 1983 specifically imposes liability on those who violate the constitutional rights of others while acting “under color of ” existing law.
Not all judges, however, have been convinced by union officials’ dubious “good faith” argument for keeping the unconstitutionally seized payments. In Wenzig, another Foundation-backed case, a majority of a Third Circuit panel denied the existence of such a defense. In a supplemental brief, Foundation attorneys cited the confusion among lower courts as a significant reason the court should hear the continuation of Janus.
“With seven petitions on this issue now pending with the High Court and more to be filed soon, it is time the Supreme Court hears this issue and ends the denial of justice for tens of thousands of non-member government employees whose First Amendment rights were violated,” commented National Right to Work Foundation President Mark Mix. “Section 1983 of the Civil Rights Act, the federal statute under which all these cases were filed, was specifically intended to allow individuals to remedy the deprivation of their rights when it occurs under color of law. It’s outrageous that union bosses have thus far been allowed to keep money seized in violation of the First Amendment because it was authorized by then-existing but unconstitutional law.
“That result is especially specious because, as the Supreme Court recognized in Janus, union bosses have been ‘on notice’ since 2012 that forcing government employees to pay union fees was likely unconstitutional,” Mix added.
NLRB to Prosecute Boston Hotel, UNITE HERE Union for Coercive “Card Check” Deal
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Housekeepers say employer illegally assisted union organizers during unionization push
Yotel housekeepers (from left) Lady Laura Javier, Cindy J. Alarcon Vasquez and Yesica Perez Barrios got the NLRB to prosecute union and hotel officials for using a coercive “Card Check” drive to force them under union control.
BOSTON, MA – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, in December 2019 four housekeepers at the Yotel hotel in Boston filed charges against their employer and UNITE HERE Local 26, after the hotel illegally assisted union officials with foisting their “representation” on workers during a “Card Check” organizing drive.
Now, in response to the charges filed for Cindy J. Alarcon Vasquez, Lady Laura Javier, Yesica Perez Barrios and Danela Guzman, the National Labor Relations Board (NLRB) Regional Director has issued a complaint to prosecute the hotel and UNITE HERE for violating the housekeepers’ rights under federal law.
Agreeing with the workers’ Foundation staff attorneys, the complaint charges the hotel with illegally assisting union organizers by providing the kind of assistance the Board has long held to be illegal when it benefits workers’ decertification efforts, and charges the union with illegally accepting the unlawful assistance.
NLRB: Employer Illegally Aided Union Campaign
The NLRB has long held that an employer taints employees’ efforts to remove a union if it gives those workers support that amounts to more than “ministerial aid.” Under that standard, the Board has held that an employer can’t provide a list of bargaining unit employees or allow use of company resources when employees are trying to remove a union, because this assistance would tarnish the results of the election.
Foundation attorneys in this case argue that, under the same standard, Yotel Boston similarly tainted the union’s organizing campaign by providing assistance to UNITE HERE union organizers.
The charges, which resulted in the NLRB complaint, say the hotel illegally assisted the union’s coercive “Card Check” drive, during which employees were pressured by union operatives into signing union cards. These cards were later counted as “votes,” and were used to bypass a secret-ballot election that would have determined whether the workers actually support union representation.
Foundation Cases Challenge Unequal Standard
The case is not the first in which the NLRB has addressed this double standard. In July, NLRB Region 19 issued a similar complaint in another case involving a hotel worker whose employer illegally assisted UNITE HERE Local 8 union officials in its “Card Check” drive at Embassy Suites in Seattle. There the NLRB also agreed that the employer had provided more than “ministerial aid,” and therefore UNITE HERE officials “did not represent an uncoerced majority of the unit.”
“The NLRB is finally addressing the double standard that for too long has favored union bosses in their coercive “Card Check” unionization drives,” said National Right to Work Foundation President Mark Mix. “Union bosses pressure workers and get illegal assistance from employers to impose their so-called representation on workers, but they cry foul when that same assistance is given to workers attempting to remove unwanted forced representation.
“With these two complaints against UNITE HERE union bosses, the Board is correctly finding that what qualifies as more than ‘ministerial assistance and support,’ and violates the National Labor Relations Act, cannot depend on whether the employer is helping outside union organizers impose unionization on workers or is assisting workers in exercising their right to remove an unwanted union,” Mix added
Airline Workers Ask Appeals Courts to Invalidate Union Dues Opt-Out Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Cases challenge requirement that workers opt out of union political spending or else pay full dues
Just “plane” wrong: United Airlines fleet service employee Arthur Baisley (left) and JetBlue Airways pilot Christian Popp (right) are fighting to end schemes that deduct union political expenses out of workers’ paychecks without their consent.
NEW ORLEANS, LA – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, two airline workers have filed cases challenging union boss 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 Foundation-argued 2018 Janus v. AFSCME Supreme Court decision.
The two federal class-action lawsuits were brought for United Airlines fleet service employee Arthur Baisley and JetBlue Airways pilot Christian Popp. They are currently pending in the U.S. Courts of Appeals for the Fifth and Eleventh Circuits respectively.
Workers Challenge Compelled Political Speech
Baisley’s case against the International Association of Machinists (IAM) union has been fully briefed and is tentatively set for oral argument the week of November 30. Meanwhile, the opening brief for Popp’s case against the Air Line Pilots Association (ALPA) union was filed in early October.
The lawsuits contend that under Janus and the 2012 Knox v. SEIU Supreme Court cases — both 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 else pay full union dues. 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 union political and ideological activities.
Mr. Baisley and Mr. Popp both work in Right to Work states (Texas and Florida, respectively), but the RLA preempts state law. Consequently, they can be forced to pay union dues or fees or be fired. Even under the RLA, however, union bosses cannot legally force workers to pay for political activities.
Cases Could Expand Janus Protections to Private Sector
The lawsuits argue IAM and ALPA’s opt-out policies are designed to trap unwilling participants into full dues in violation of their First Amendment rights. This forces workers to subsidize union political activities against their will, including the part of full dues that union officials use to support their radical political agenda and handpicked candidates for office.
“IAM and ALPA union officials have demonstrated a blatant disregard for the rights of the very workers they claim to represent by creating complicated obstacles for independent-minded workers who want to exercise their right not to fund union ideological activities,” said National Right to Work Foundation Vice President Patrick Semmens. “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 can also protect the rights of private sector workers.”
Appeals Court Upholds Foundation Victory against Forced Dues for Lobbying
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Decade-long NLRB battle results in Appeals Court win for Rhode Island nurse
After fighting since 2009, Rhode Island nurse Jeanette Geary triumphed over UNAP union bosses in September 2020. Her victory at the First Circuit let stand an NLRB decision that declares no worker can be forced to fund any union lobbying.
BOSTON, MA – Longtime Rhode Island-based nurse Jeanette Geary has again prevailed in a legal battle waged for over a decade by United Nurses and Allied Professionals (UNAP) union bosses, who seek 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 UNAP union with free legal aid from National Right to Work Legal Defense Foundation staff attorneys. She filed charges after the union forced her and other employees to pay for union lobbying activities, and also failed to provide evidence of a legally required independent audit of its breakdown of expenditures.
Foundation-Won Legal Precedents Cited
In the 1988 Foundation-won Beck case, the United States Supreme Court ruled that private sector workers in states without Right to Work protections could be forced to pay some union fees as a condition of employment, but those fees could not be used for political activity like lobbying.
Despite this, the NLRB had decided against Geary 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 two unconstitutional “recess appointments” then-President Obama had made. Five years later, Geary’s case was the only remaining case invalidated by Noel Canning still pending a decision by a valid NLRB panel.
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.
NLRB Ruled Workers Can Never Be Forced to Fund Union Lobbying
The NLRB issued its decision on March 1 of that year, just ahead of the deadline. In its decision, the NLRB ruled 3-1 that union officials ivities. It also ruled that union officials must provide verification that the union expenses they charge to non-members have been independently 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 in March 2020 before a panel of three judges at the First Circuit Court of Appeals, including retired Supreme Court Justice David Souter, with veteran Foundation staff attorney Glenn Taubman arguing for Geary.
Appeals Court: Precedents Dictate Full Ban on Forced Dues for Lobbying
The court’s ruling not only upheld the NLRB’s decision in favor of Geary, it determined that a blanket ruling against charging non-member workers for union lobbying was the only solution that could be justified given various Supreme Court rulings, including cases brought by Foundation staff attorneys, about what workers can be forced to fund.
“In a long-overdue victory, Ms. Geary has successfully affirmed the right not to fund any union boss lobbying, a protection guaranteed by the Foundation-won Beck Supreme Court decision,” commented National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “No worker should be forced to pay for any union political activity, including lobbying. But, the fact that Ms. Geary had to endure this drawn out legal fight shows why Right to Work protections are needed for all employees, so individual workers can decide whether to subsidize union boss activities, political or not.”
Foundation Urges NLRB to Protect Workers’ Privacy from Union Organizers
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Comments filed to end Obama-era rule forcing disclosure of workers’ private information
UPS driver Rod Carter was stabbed by Teamsters militants for providing for his family during a strike, after receiving late-night threats on his home phone number.
LANSING, MI – Relying on arguments presented by a National Right to Work Legal Defense Foundation legal brief, a federal court has denied an injunction against a new Michigan Civil Service Commission (MiCSC) rule designed to protect state workers’ First Amendment Janus rights.
The amicus brief was filed after lawyers from several major Michigan unions sued to overturn the protections, which block dues seizures ruled unconstitutional in the 2018 Right to Work Foundation-won Janus v. AFSCME Supreme Court decision.
The rule was finalized by MiCSC in July, following detailed comments submitted by the Foundation. The arrangement alters the state’s union dues deduction system to require the affirmative and knowing consent of workers before dues can be taken from their paychecks, as per the Court’s First Amendment standard laid out in Janus.
Michigan Public Servants Will Get Yearly Nudge About Janus Rights
MiCSC will now remind Wolverine State public servants annually that they have a right not to subsidize union bosses’ activities. Further, state employees who still want to have dues deducted must annually confirm that they want to waive that right and are voluntarily authorizing union dues deductions from their paychecks.
Under the new rule, union bosses are not able to siphon dues or fees from the paychecks of employees who aren’t aware of their right not to pay union dues, or on the basis of years-old dues authorization forms that may not reflect current consent.
In September of 2019, Alaska Gov. Mike Dunleavy signed an executive order creating similar Janus protections for Alaska state employees. Foundation staff attorneys are currently representing an Alaskan state vocational instructor seeking to enforce his First Amendment rights under Janus and that order. Additionally, Texas Attorney General Ken Paxton and Indiana Attorney General Curtis Hill both issued legal opinions earlier this year, urging public employers to notify employees that they have a First Amendment right to refuse to fund a union unless they opt in to such payments. This follows a Wall Street Journal op-ed last year by Foundation President Mark Mix and staff attorney William Messenger, which encouraged states to take action to proactively defend employees’ rights under the landmark decision. Messenger argued and won Janus before the Supreme Court.
New Jersey Teachers Battle Union-Backed Rights Restriction
The efforts by states to implement Janus rights safeguards come as public workers across the country continue to challenge schemes which block them from exercising their Janus rights outside a brief, union-created “escape period,” which is often just a few days a year, or even once every three years. New Jersey teachers Susan Fischer and Jeanette Speck are defending their rights and the rights of their fellow educators in a class-action case against the New Jersey Education Association (NJEA), now pending before the U.S. Court of Appeals for the Third Circuit. Fischer and Speck attempted to exercise their right to cut off dues to the union just days after the Supreme Court recognized this right in Janus. Union-label politicians, anticipat-ing the High Court’s ruling, had enacted a state law the month before Janus was decided, cutting the time a public servant could exercise his or her Janus rights down to just 10 days per year. Oral arguments in the case took place in late September with Foundation staff attorney William Messenger arguing the case before a three-judge panel. If Fischer and Speck’s lawsuit is successful, educators across New Jersey will be free to cut off dues at any time, and the state law limiting those rights to a 10-day window would be struck down as unconstitutional. Additionally, Fischer, Speck and their coworkers who also sought to exercise their Janus rights would get refunds of all dues that were extracted from their paychecks under the unconstitutional arrangement.
Decorated Las Vegas Officer Defends Her First Amendment Janus Rights
Elsewhere in the country, Las Vegas police officer Melodie DePierro sued both the Las Vegas Police Protective Association (PPA) union and the Las Vegas Metropolitan Police Department (LVMPD) for illegally seizing union dues from her paycheck using such an “escape period” scheme.
According to her complaint filed by Foundation staff attorneys in the U.S. District Court for the District of Nevada, in January 2020 she sent letters to both union officials and the LVMPD resigning her membership and requesting a stop of all union dues deductions. Her complaint reports that union and police department agents rejected that and a later request, citing a “narrow escape period between October 1 and October 20 each year.”
DePierro, in addition to bravely asserting her rights, stands up for her community. The Las Vegas Review-Journal reported that she helped protect a hospital during the October 2017 mass shooting at the Route 91 Harvest music festival in Las Vegas, springing into action despite being off-duty.
“Officer DePierro has an exceptional history of keeping Las Vegas safe. Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to impose an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” commented National Right to Work Foundation Vice President Patrick Semmens. “Fortunately, more and more states are beginning to grow wise to the fact that union boss-devised traps are widespread, and as such are moving to secure their public servants’ Janus rights.”
Foundation Defends MI Rule, Public Servants Nationwide from Anti-Janus Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Union officials sued to overturn Foundation-backed rule creating opt-in system for union dues
“That was so un-American to us,” New Jersey teacher Susan Fischer told NJTV News of forced union fees in 2018. Two years after Janus, she is still fighting to remove illegal union boss-created restrictions on Janus rights in the state.
LANSING, MI – Relying on arguments presented by a National Right to Work Legal Defense Foundation legal brief, a federal court has denied an injunction against a new Michigan Civil Service Commission (MiCSC) rule designed to protect state workers’ First Amendment Janus rights.
The amicus brief was filed after lawyers from several major Michigan unions sued to overturn the protections, which block dues seizures ruled unconstitutional in the 2018 Right to Work Foundation-won Janus v. AFSCME Supreme Court decision.
The rule was finalized by MiCSC in July, following detailed comments submitted by the Foundation. The arrangement alters the state’s union dues deduction system to require the affirmative and knowing consent of workers before dues can be taken from their paychecks, as per the Court’s First Amendment standard laid out in Janus.
Michigan Public Servants Will Get Yearly Nudge About Janus Rights
MiCSC will now remind Wolverine State public servants annually that they have a right not to subsidize union bosses’ activities. Further, state employees who still want to have dues deducted must annually confirm that they want to waive that right and are voluntarily authorizing union dues deductions from their paychecks.
Under the new rule, union bosses are not able to siphon dues or fees from the paychecks of employees who aren’t aware of their right not to pay union dues, or on the basis of years-old dues authorization forms that may not reflect current consent.
In September of 2019, Alaska Gov. Mike Dunleavy signed an executive order creating similar Janus protections for Alaska state employees. Foundation staff attorneys are currently representing an Alaskan state vocational instructor seeking to enforce his First Amendment rights under Janus and that order. Additionally, Texas Attorney General Ken Paxton and Indiana Attorney General Curtis Hill both issued legal opinions earlier this year, urging public employers to notify employees that they have a First Amendment right to refuse to fund a union unless they opt in to such payments. This follows a Wall Street Journal op-ed last year by Foundation President Mark Mix and staff attorney William Messenger, which encouraged states to take action to proactively defend employees’ rights under the landmark decision. Messenger argued and won Janus before the Supreme Court.
New Jersey Teachers Battle Union-Backed Rights Restriction
The efforts by states to implement Janus rights safeguards come as public workers across the country continue to challenge schemes which block them from exercising their Janus rights outside a brief, union-created “escape period,” which is often just a few days a year, or even once every three years. New Jersey teachers Susan Fischer and Jeanette Speck are defending their rights and the rights of their fellow educators in a class-action case against the New Jersey Education Association (NJEA), now pending before the U.S. Court of Appeals for the Third Circuit. Fischer and Speck attempted to exercise their right to cut off dues to the union just days after the Supreme Court recognized this right in Janus. Union-label politicians, anticipat-ing the High Court’s ruling, had enacted a state law the month before Janus was decided, cutting the time a public servant could exercise his or her Janus rights down to just 10 days per year. Oral arguments in the case took place in late September with Foundation staff attorney William Messenger arguing the case before a three-judge panel. If Fischer and Speck’s lawsuit is successful, educators across New Jersey will be free to cut off dues at any time, and the state law limiting those rights to a 10-day window would be struck down as unconstitutional. Additionally, Fischer, Speck and their coworkers who also sought to exercise their Janus rights would get refunds of all dues that were extracted from their paychecks under the unconstitutional arrangement.
Decorated Las Vegas Officer Defends Her First Amendment Janus Rights
Elsewhere in the country, Las Vegas police officer Melodie DePierro sued both the Las Vegas Police Protective Association (PPA) union and the Las Vegas Metropolitan Police Department (LVMPD) for illegally seizing union dues from her paycheck using such an “escape period” scheme.
According to her complaint filed by Foundation staff attorneys in the U.S. District Court for the District of Nevada, in January 2020 she sent letters to both union officials and the LVMPD resigning her membership and requesting a stop of all union dues deductions. Her complaint reports that union and police department agents rejected that and a later request, citing a “narrow escape period between October 1 and October 20 each year.”
DePierro, in addition to bravely asserting her rights, stands up for her community. The Las Vegas Review-Journal reported that she helped protect a hospital during the October 2017 mass shooting at the Route 91 Harvest music festival in Las Vegas, springing into action despite being off-duty.
“Officer DePierro has an exceptional history of keeping Las Vegas safe. Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to impose an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” commented National Right to Work Foundation Vice President Patrick Semmens. “Fortunately, more and more states are beginning to grow wise to the fact that union boss-devised traps are widespread, and as such are moving to secure their public servants’ Janus rights.”
Full Foundation Action September/October 2020 Newsletter Now Online
All articles from the September/October issue of Foundation Action are now on the website.
In this issue:
- Foundation Defends New Rules Protecting Right to Remove Unwanted Unions
- Chicago Transit Worker Joins Mark Janus at Supreme Court in Demanding Refunds
- Mix to US Attorney: Let Workers Refuse to Fund Scandal-Ridden UAW Bosses
- Push to Remove UFCW Union Could End Pro-Union Boss “Contract Bar” Policy
- Ohio Public Workers Axe Illegal Restrictions on Janus Rights for Almost 30,000
- Oklahoma Sysco Employees Boot Unpopular Teamsters Bosses from Warehouse
Recent articles can be found here. To sign up for a free copy of the newsletter via mail please see the form at the bottom of this page.
Ohio Public Workers Axe Illegal Restrictions on Janus Rights for Almost 30,000
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2020 edition. To view other editions or to sign up for a free subscription, click here.
Foundation-backed lawsuit ends AFSCME bosses unlawful “escape period” scheme
Two years after Foundation staff attorneys won Janus, public sector workers continue to cast off the shackles of forced union dues. In Allen, the plaintiffs successfully defended the Janus rights of thousands of Ohio public workers.
COLUMBUS, OH – A lawsuit by four Ohio public employees has secured the end of an illegal dues deduction scheme used by Ohio Civil Service Employees’ Association (OCSEA/AFSCME Council 11) union bosses to block an estimated 28,000 workers from exercising their First Amendment right to stop union dues payments. The workers obtained free legal representation from National Right to Work Foundation staff attorneys in challenging the policy.
The class-action suit, Allen v. AFSCME, challenged OCSEA’s so-called “maintenance of membership” policy, which trapped workers in forced-dues payments except for a brief “escape period” once every three years at the expiration of the union monopoly contract. The workers argued this policy violated their First Amendment rights under the Janus v. AFSCME Supreme Court decision.
In Janus, the High 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 consent.
After Freeing Workers, Foundation Attorneys Warn of Future Union Boss Tricks
As a result of the lawsuit, OCSEA officials and the State of Ohio have rescinded the “maintenance of membership” restriction on when state workers can exercise their First Amendment right to cut off union dues deductions.
They must also honor requests to stop dues deductions from any employees who signed the AFSCME dues authorization form at issue in the lawsuit. Finally, AFSCME bosses repaid dues seized illegally under the scheme to the plaintiffs and more than 150 other employees who tried to cut off union dues deductions after Janus was decided.
Knowing that union bosses don’t easily give up in their crusades to coerce workers into paying dues, however, Foundation staff attorneys issued a legal notice shortly after the case wrapped up, warning workers that OCSEA union bosses may soon solicit them to sign new dues deduction forms which are not covered by the litigation. The new forms will “purport to restrict” when employees can stop dues, it warns.
In light of that, the notice reminds workers that under Janus, no Ohio public employee can be forced to sign a union dues deduction form as a condition of employment, no matter what union agents may tell them.
Just Latest in String of Ohio Worker Victories over “Escape Periods”
Allen is not the only case in which Ohio public employees have, with National Right to Work Foundation legal aid, successfully challenged union boss attempts to limit their rights.
Seven other Ohio public employees won the first-in-the-nation victory against unconstitutional “escape periods” with Foundation aid in January 2019, after they filed a class-action federal lawsuit challenging a similar policy created by AFSCME Council 8 bosses. They won a settlement ending the restrictions for themselves and their coworkers. That win was followed by two other Ohio public workers, Connie Pennington and Donna Fizer, successfully ending “escape period” restrictions with Foundation assistance later in 2019.
“Although this chain of victories for Buckeye State public employees is certainly encouraging, the widespread nature of these schemes shows there remains much work to do to force union bosses to end their unconstitutional restrictions on public employees’ First Amendment Janus rights,” observed National Right to Work Foundation President Mark Mix. “Foundation litigation has already freed hundreds of thousands of public employees from forced union dues, but likely millions more remain trapped and unable to exercise their rights. That is why Foundation litigators will continue to file these cases.”
