Full Foundation Action November/December 2019 Newsletter Now Online
All articles from the November/December 2019 issue of Foundation Action are now on the website.
In this issue:
- Foundation Urges Federal and State Governments to Protect First Amendment Rights
- Foundation Assists Workers During UAW Union Boss-Ordered GM Strike
- Grocery Workers Win Cases Against UFCW Union Bosses for Illegal Strike Threats
- Labor Day 2019: National Right to Work in the News
- The Wall Street Journal Op-ed: Governments Must Secure Employees’ Janus Rights
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 the page.
Grocery Workers Win Cases Against UFCW Union Bosses for Illegal Strike Threats
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2019 edition. To view other editions or to sign up for a free subscription, click here.
Union officials forced to refund seized dues, cease misleading workers about their rights
Democrat presidential candidate Elizabeth Warren, seen here on the UFCW picket lines in April, sided with the union bosses who violated workers’ rights in an effort to secure their forced-dues-backed support in her campaign.
BOSTON, MA – This September, National Right to Work Legal Defense Foundation staff attorneys won precedent-setting settlements for Massachusetts Stop & Shop employees Saood Rafique and Matthew Coffey. The two men charged United Food and Commercial Workers (UFCW) union agents with multiple violations of their rights during the April 2019 union boss-ordered strike on the grocery chain. Rather than face continued prosecution, union officials settled their cases by remedying all of the violations of the workers’ rights stated in their respective unfair labor practice charges against the union.
Both Coffey and Rafique were misled by union agents from the start of their employments into thinking that joining the UFCW was a condition of employment at Stop & Shop. Such an arrangement, sometimes called a “closed shop,” was outlawed by the Taft-Hartley Act in 1947. UFCW bosses also charged each of them full union dues illegally for years.
UFCW Agents Ramp Up Violations During Strike
Once the strike was ordered by UFCW bosses in April, Coffey and Rafique both found out — independently of what any union official had told them — that union membership could not be mandated as a condition of employment and that they had the right to rebuff the strike order and return to work.
Because they exercised their right to return to work, union agents targeted Coffey and Rafique with vicious campaigns of intimidation during the strike. Their initial unfair labor practice charges, filed with free assistance from the Foundation, reported that UFCW agents hit them with threats of termination, harassment and other forms of illegal retaliation after they decided to go back to work.
“The union threatened that, as soon as the company came back, I was gonna be fired immediately, because in order to work at Stop & Shop they claimed that you had to be part of the union,” Coffey told CBS Western Mass News during the strike. “Which was a blatant lie.”
Coffey and Rafique also experienced illegal retaliation after the strike, with Coffey receiving a letter from union officials demanding he appear before a UFCW kangaroo court to be punished for exercising his right to keep working, and Rafique reporting that UFCW agents had told his coworkers to spy on him.
Settlements Order Remedies for All UFCW Rights Abuses
The class-wide settlements for Coffey and Rafique, approved by National Labor Relations Board (NLRB) Region 1 in Boston, order UFCW bosses to post remedial rights notices in over 70 Stop & Shop stores, as well as on the internet and in the union’s monthly newsletter, to inform all employees of their rights to both abstain from union membership and pay only the part of union fees directly germane to bargaining. These settlements enforce the Foundation-won CWA v. Beck Supreme Court decision.
The remedial notices also announce that UFCW officials will return to Coffey and Rafique dues seized from them in violation of their Beck rights. Also included in the notices are declarations that UFCW officials will “process resignations and objections of [all] bargaining unit employees who have resigned” union membership and “will not threaten [employees] with internal union discipline or fines” for returning to work during a strike. The settlements totally remedy the unfair labor practices suffered by the two grocery workers.
“These victories should serve as a reminder to all American employees — and union officials — that the individual rights of workers don’t cease to exist when union bosses call a strike,” commented Ray LaJeunesse, Vice President and Legal Director of the National Right to Work Foundation. “Workers who are subjected to strike intimidation or union bosses’ illegal misinformation can turn to the National Right to Work Foundation for free legal aid to hold union bosses accountable for their illegal actions.”
New York Employee Also Wins Case After Illegal Dues Demands
The two New England grocery workers were not the only Stop & Shop employees to win settlements against the UFCW recently. John Smith, a former employee of the Stop & Shop branch in New Hyde Park, New York, also won a victory with Foundation aid this September.
Smith had charged UFCW agents with similarly misinforming him that the grocery store was a “closed shop” when he was hired in November 2018. When he asked about how to resign his union membership, he was misled by several union officials about his right to resign and cut off a portion of union dues.
Smith’s charge also noted that union officials never apprised him of his right as a non-member to pay only the amount of union fees directly related to bargaining, as the Foundation-won CWA v. Beck Supreme Court decision requires.
His settlement, approved by NLRB Region 29 in Brooklyn, orders union officials to post notices that union officials will inform employees of their rights to refrain from formal union membership and pay only union fees directly related to bargaining. Smith will also be refunded dues that were taken in violation of his Beck rights.
“As Smith’s case shows, union bosses won’t hesitate to mislead workers regarding their legal right to resign their union membership and full union dues,” added LaJeunesse. “Unfortunately this type of misinformation will continue to be spread as long as workers lack Right to Work protections that make union membership and financial support completely voluntary.”
Cases Seeking Millions in Refunds of Forced Fees under Janus Move Forward
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.
Split Appeals Court decision bolsters petition for Supreme Court to take up issue
Veteran Foundation staff attorney William Messenger made history when he argued and won the Janus case before the High Court in 2018. He still represents Janus and others demanding forced-fee refunds.
PHILADELPHIA, PA – A National Right to Work Foundation-backed class-action lawsuit for Pennsylvania state employees seeking refunds of unconstitutionally seized union fees resulted in a split decision from the U.S. Third Circuit Court of Appeals in August. This ruling cast serious doubt on a favorite union boss argument used to avoid refunding dues seized in violation of workers’ First Amendment rights.
The employees were defending their rights under the landmark 2018 Foundation-won Janus v. AFSCME Supreme Court ruling. In Janus, the Court sided with former Illinois child support specialist Mark Janus and agreed with Foundation staff attorneys that requiring any public sector worker to pay union dues or fees as a condition of employment is a First Amendment violation. The Court also ruled that union dues can only be taken from public servants with their affirmative and knowing consent.
The plaintiffs in Wenzig v. Service Employees International Union (SEIU) Local 668 are seeking a ruling that SEIU officials must refund dues taken from employee paychecks in contravention of this standard before the Janus ruling came down. Union bosses used, as they have done in almost all similar cases, a dubious “good faith” argument to justify not refunding the dues to the victimized workers. In the split decision, two of the three judges rejected the so-called “good faith” theory.
Supreme Court Asked to End Lower Court Confusion on Janus Refunds
Foundation staff attorneys cited the growing confusion among federal judges on forced-union-fee refunds as a vital reason the Supreme Court should hear the continuation of Janus v. AFSCME. In a supplemental brief, Foundation attorneys wrote that Wenzig “supports granting review here because a majority of the Third Circuit panel rejected the good faith defense recognized by the Seventh Circuit here and by the Second, Sixth, and Ninth Circuits.”
“The Court should finally resolve this important issue and hold there is no good faith defense to Section 1983,” the brief adds. Section 1983 is the federal law requiring that those who deprive people of their constitutional rights “under color of any statute . . . shall be liable to the party injured.”
This September, Foundation staff attorneys also filed the final reply brief supporting the Supreme Court petition in Casanova v. International Association of Machinists (IAM), Local 701, another case seeking review from the High Court. It also cites the Third Circuit’s split decision. Plaintiff Benito Casanova, a Chicago Transit Authority employee, seeks to get back money that IAM bosses took from his paycheck and the paychecks of his colleagues in violation of their First Amendment rights prior to the Janus decision.
Foundation Leading Worker Efforts to Reclaim Fees Seized Against Janus
The workers in these cases and many others are collectively fighting for millions of dollars in pilfered money to be returned to them. Foundation attorneys currently represent these public servants in nearly 20 similar cases, together pursuing about $130 million in refunds to workers.
“Given the clarity of the Janus First Amendment standard, it’s bewildering that federal judges have not yet widely discredited union boss arguments that serve only to deny public sector workers refunds of money that the High Court itself ruled should have never been taken from them in the first place,” observed National Right to Work Foundation President Mark Mix. “The High Court must swiftly disabuse lower courts of their misunderstandings and provide justice to workers who have been waiting years for their hard-earned money to be returned.”
Foundation Assists Workers During UAW Union Boss-Ordered GM Strike
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2019 edition. To view other editions or to sign up for a free subscription, click here.
Strike order comes during growing UAW boss corruption and embezzlement investigation
With free aid from the Foundation, Ford employee Lloyd Stoner won a unanimous ruling from the NLRB which ordered UAW bosses to refund illegally seized dues.
DETROIT, MI – In September, United Auto Workers (UAW) union bosses ordered tens of thousands of General Motors workers on strike. The strike came as federal prosecutors were intensifying their investigation into embezzlement and corruption within the UAW hierarchy. Just days before the strike, the probe had reached the top levels of the UAW when FBI agents raided the homes of the union’s current president and his predecessor.
Amid the scandal and union boss-instigated strike, National Right to Work Legal Defense Foundation staff attorneys were assisting several Michigan workers in legal challenges to the coercive practices of UAW officials. Additionally, Foundation Legal Information staff publicized a “special legal notice” directed at workers affected by the strike to ensure they knew their legal rights despite persistent union misinformation and threats.
GM Worker Stands Up to UAW Discrimination
Joseph Small, a stamping metal repair worker at a Lansing, Michigan, GM plant, filed a federal charge with the National Labor Relations Board (NLRB) right before the strike unfolded with free aid from Foundation staff attorneys. Small, who is not a UAW member and is not required to pay fees to the union because of Michigan’s Right to Work Law, asserted in his charge that UAW officials “heavily involved [themselves] in the interview process” for a promotion for which he was being considered.
Small was passed over for the position, which went to a union member. Small’s charge notes that a union representative later “stated that [Small] did not get the position because [he] was not paying union dues,” a clear violation of federal labor law.
According to the National Labor Relations Act, workers have the right to refrain from union activities and neither union officials nor management can discriminate against employees based on their union membership status.
Ford Worker Wins Unanimous NLRB Ruling
Ford Motor Company worker Lloyd Stoner, who works at the company’s facility in Dearborn, Michigan, won a second victory in defense of his rights this August with free legal aid from the Foundation.
Stoner, who had originally charged UAW officials and Ford with illegally seizing dues from his paycheck despite his previously resigning his union membership and revoking his dues deduction authorization, received a unanimous ruling from a three-member panel of the NLRB in Washington, D.C. The labor board directed UAW officials to make Stoner whole for the dues they illegally took.
The NLRB also ordered UAW officials to immediately honor any other employees’ membership resignations. Stoner had earlier won a favorable settlement from Ford for its role in blocking him from exercising his rights.
“UAW union officials continue to show a willingness to break the law, even violating the rights of the very workers they claim to represent,” observed National Right to Work Foundation Vice President Patrick Semmens. “Whether it be federal corruption prosecutions or unfair labor practice charges at the NLRB, UAW bosses must be held accountable when they break the law.”
Foundation Urges Federal and State Governments to Protect First Amendment Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2019 edition. To view other editions or to sign up for a free subscription, click here.
Alaska first state to require First Amendment Janus rights waiver before deducting union dues
Alaska Gov. Mike Dunleavy (left), following an opinion from Attorney General Kevin Clarkson, ordered all Alaska state agencies to protect state employees’ First Amendment rights under Janus.
ANCHORAGE, AK – In late September, Alaska Governor Mike Dunleavy signed an executive order to protect the First Amendment rights of state employees established in last year’s Janus v. AFSCME Supreme Court decision. The order calls for the State of Alaska to stop deducting union dues from the paycheck of any worker who hasn’t filed a form with the state affirmatively waiving his or her First Amendment right under Janus not to fund any union activities.
The move follows a letter last year sent by National Right to Work Foundation Legal Director Raymond LaJeunesse to state comptrollers in Alaska and other states, urging them to modify dues deduction policies to comply with the Janus decision.
Foundation Comments Detail Need to End Dues Deductions Uncompliant with Janus
The Foundation also recently filed comments with the Federal Labor Relations Authority (FLRA) regarding the need for the federal government to take steps to protect the First Amendment rights of employees recognized in the Foundation-won Janus decision. The Foundation’s comments were submitted after the U.S. Office of Personnel Management (OPM) asked the FLRA to solicit public comments on how to proceed with union dues deductions in light of the Supreme Court’s Janus decision last year.
In that case, the High Court held that requiring public employees to pay union dues or fees without their consent violates the employees’ First Amendment rights “by compelling them to subsidize private speech on matters of substantial public concern.” Justice Samuel Alito’s opinion for the court further ruled that no union dues or fees could be taken from a public employee “unless the employee affirmatively consents to pay” using a “freely given” waiver of his or her First Amendment rights.
Consistent with that standard, the Foundation’s comments urge the FLRA to issue guidance to agencies that they “must cease deducting union dues from the wages of employees who signed a dues deduction form that does not satisfy the [Janus] standard.” According to Department of Labor statistics, nearly one million federal employees — 26.4% of all federal workers — are union members, many of them likely having dues deducted from their paychecks despite never having knowingly waived their First Amendment right not to subsidize union activities.
The Foundation comments make clear that these dues deductions should cease in the wake of Janus. To comply with Janus, workers wanting to voluntarily pay union dues can either provide the government with a valid waiver of their rights or pay dues on their own without using taxpayer-funded payroll systems to forward the money to union officials.
The Foundation’s comments to the FLRA further argue that, even where workers provide a valid authorization for dues deductions that meets the Janus standard, the government shouldn’t block them from revoking that authorization if the request is submitted at any time at least a year after the Janus-compliant authorization was obtained.
Foundation Comments Push to End Union-Created “Window Period” Scheme
Unfortunately, agencies and union officials often prohibit federal employees from stopping the seizure of union dues from their wages except during short annual escape periods. The comments filed by the National Right to Work Foundation say that this practice does not comply with Janus either.
“The Janus precedent is very clear about this: Without affirmative and knowing waivers from public workers, government entities cannot collect union dues without violating a worker’s First Amendment rights,” commented National Right to Work Foundation President Mark Mix.
“Currently, the government seizes union dues from almost one million federal employees in violation of the Janus decision’s First Amendment standard. Federal agencies are obligated to protect workers’ constitutional rights in this rulemaking process.”
Since the Janus decision last year, Foundation staff attorneys have been fighting to ensure public workers’ First Amendment rights are protected, litigating more than 30 cases in federal courts across the country to enforce the landmark ruling.
Foundation Winning Protections Against Forced Unionism at Trump NLRB
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
Series of victories adds protections against illegal forced dues, being trapped in union ranks
Staff attorney Glenn Taubman testified before Congress in July that existing NLRB rules wrongly favor union bosses over workers.
WASHINGTON, D.C. – In a series of recent victories, the National Labor Relations Board (NLRB) ruled in favor of workers challenging coercive union official practices, with free legal aid provided by the National Right to Work Foundation. The rulings are a stark departure from the Obama NLRB, which regularly stymied the rights of independent-minded employees opposed to associating with union bosses.
Foundation Wins Appeals in Dues Checkoff Cases
In separate cases brought by Foundation staff attorneys for Kacy Warner, a hospital worker, and Shelby Krocker, a Kroger grocery employee, the NLRB General Counsel ruled for the workers and ordered Regional Directors to prosecute union officials’ actions related to language in union dues checkoff forms.
The General Counsel’s decision to sustain Warner’s appeal concerning the checkoff authorized even more additions to the charges, saying the National Nurses Organizing Committee (NNOC) 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 authorizations for dues deductions after the union’s contract expires, failed to give workers adequate time to revoke authorizations, 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. In both cases, the NLRB General Counsel authorized even more charges against union officials for misleading and confusing language regarding union dues deductions.
NLRB Regions Instructed to Prosecute Beck Violations
Also in July, the NLRB Division of Advice and General Counsel instructed 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 under the Communication Workers of America v. Beck U.S. Supreme Court decision.
The memos instruct NLRB Regional Directors to more stringently enforce workers’ Beck rights which protect workers from being forced to fund nonchargeable union activities such as union political activities. A memo issued to the Director of NLRB 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.”
“The Foundation is proud to have represented the California employee whose charge against the UFCW resulted in this Advice Memo, as well as necessitating 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,” National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse said. Foundation staff attorneys are currently litigating several additional cases to secure and expand workers’ protections under Beck.
Ruling Aids Workers Trapped in Union Ranks They Oppose
In another Foundation victory for independent-minded workers in July, the NLRB issued a decision that limits union officials’ ability to game the NLRB system to trap workers in monopoly union ranks. The ruling allows employers to withdraw recognition from a union when a majority of its workers sign statements opposing unionization.
Foundation staff attorneys represented two workers, Brenda Lynch and Anna Marie Grant, who spearheaded the collection of signatures from a majority of workers opposed to union representation. Their employer complied with their wishes and sent the union bosses packing. After United Auto Workers (UAW) union officials sought to foist the union back onto the workers despite their clear opposition, Foundation staff attorneys persuaded the NLRB to uphold the UAW’s ouster.
“Instead of union lawyers playing legal games for months or even years to block the removal of a union that lacks majority support, the Board majority takes the common sense approach of asking union officials to prove their claim of support in a secret ballot vote of the workers,” said LaJeunesse.
Federal Board Adopts Foundation-Advocated Reform to Union Decertification Rules
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
National Mediation Board simplifies process for workers under Railway Labor Act to remove a union they oppose
At the Foundation’s urging, the NMB removed unnecessary hurdles and simplified the process for rail and airline employees to remove unpopular unions from their workplaces.
WASHINGTON, D.C. – In late July the National Mediation Board (NMB) issued its final rule simplifying decertification procedures under the Railway Labor Act (RLA). The change enables workers in the airline and railway industries to more easily vote to remove a union that lacks the support of a majority of workers.
Before the decision to simplify the process, the NMB used a confusing process that required individual employees to create a fake “straw man” union to replace the incumbent union as the monopoly representative. The decertification process is particularly important because under federal law RLA unions can force workers to pay union dues or fees as a condition of employment even where state Right to Work laws protect other employees from forced union dues.
New Straightforward Rule Vindicates Foundation Campaign for Reform
“The Foundation has long advocated this type of change in the union decertification process and we are pleased the NMB has – as we called upon it to do in comments filed earlier this year – finally made this commonsense reform,” National Right to Work Foundation Vice President Patrick Semmens said at the time.
The NMB’s final decision provides a straightforward procedure for the decertification of a union, meaning workers who do not want union representation won’t have to jump through the hoops of creating and voting for a “straw man” union just to decertify the union that currently has monopoly bargaining power over their workplace.
The NMB’s final rulemaking notice reads: “The Board believes this change is necessary to fulfill the statutory mission of the Railway Labor Act by protecting employees’ right to complete independence in the decision to become represented, to remain represented, or to become unrepresented.”
“This change will ensure that each employee has a say in their representative and eliminate unnecessary hurdles for employees who no longer wish to be represented,” the NMB continued.
The National Right to Work Foundation has long called for these rules to be updated. Foundation attorneys participated in the formal comment period process and appeared at a public hearing to address the NMB and deliver the Foundation’s position. The final rule specifically references the Foundation’s comments, vindicating its efforts in the rulemaking process.
Board Eliminates Confusing ‘Straw Man’ Election Rules
“The National Right to Work Legal Foundation (Right to Work) stated that the proposed change is ‘long overdue,’ and the [Notice of Proposed Rulemaking] is ‘needed to ensure that all employees have an equal and fair choice regarding union representation. The Board has statutory authority to adopt the proposed rules, and should do so as soon as possible,’” the NMB final rule reads.
The confusing rules previously forced individual employees to concoct a “straw man” union to replace the incumbent union as the monopoly representative. Once elected by a majority of the workers, the new “straw man” representative could disclaim collective representation, but was not legally required to do so.
“At long last the National Mediation Board is providing airline and railroad workers covered by the Railway Labor Act a straightforward way to remove unwanted union ‘representation’ through a direct decertification vote,” Semmens said.
“The previous system – in which workers had to create a ‘straw man’ union just to challenge an incumbent union – only served to stymie workers’ rights and demonstrated the historic bias of the NMB in favor of compulsory unionism,” said Semmens. “It wasn’t until the Foundation-won case of Russell v. NMB in 1983 that workers even had an established legal right to throw off their union ‘representative,’ albeit only through the unnecessarily complicated “straw man” system which is finally being replaced with a simplified process to allow workers to exercise that right.”
In addition to submitting the formal comments in May, veteran Foundation staff attorney Glenn Taubman testified in favor of the rule change at the NMB hearing in late March.
Foundation Defends Medicaid Providers from Big Labor Dues Skimming Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
Union bosses and allied states defy Foundation-backed federal protections for homecare providers
Under Harris v. Quinn, brought for plaintiff Pam Harris (right) who cares for her son Josh in their home, providers cannot be required to pay union dues; however union bosses continue to skim dues from Medicaid funds in violation of federal law.
SAN DIEGO, CA – At the urging of the National Right to Work Foundation and comments filed by over 1,200 Foundation supporters, the Department of Health and Human Services (HHS) recently issued a rule that closed an Obama-era loophole allowing union bosses to skim over $1 billion in union dues and fees from Medicaid payments intended for providers.
Unsurprisingly, union bosses are refusing to accept this rule and comply with federal law. As a result, Foundation staff attorneys have ramped up legal action in an effort to force Big Labor to end its unlawful schemes to divert union dues from payments to Medicaid providers.
Foundation Files Class Action Lawsuit for California Homecare Providers
With free legal aid from National Right to Work Foundation staff attorneys and the West Coast-based Freedom Foundation, a group of California homecare providers filed a class action lawsuit after union officials continued seizing union dues from their Medicaid payments.
The providers allege in their suit that the deduction of union dues from their Medicaid payments violates the 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.
Union officials used a special exemption to Medicaid regulations granted to them by the Obama Administration in 2014 as legal cover for this skim scheme.
In August 2018, the National Right to Work Foundation submitted formal comments to U.S. Centers for Medicare & Medicaid Services (CMS) supporting the agency’s proposal to clarify that the diversion of Medicaid payments from providers to third parties, including unions, violates federal law. Those recommendations were adopted in early May and were set to go into effect on July 5, 2019.
In addition to violating federal Medicaid law, the providers 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 landmark Foundation-won Harris v. Quinn and Janus v. AFSCME decisions by the U.S. Supreme Court.
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 fees deductions, union officials refused to honor their requests. Despite the lack of valid consent by providers, the California State Controller, at the behest of American Federation of State, County and Municipal Employees (AFSCME) union officials, continued to deduct union dues from the Medicaid funds intended for providers.
“Once again union bosses have ignored federal law, legal precedent and the clear wishes of the workers they claim to ‘represent’ simply to line their pockets with compulsory dues,” said National Right to Work Foundation Vice President Patrick Semmens. “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 attempting to trap workers into paying forced dues.”
Medicaid Providers Move to Defend Rule Ending Illegal Union Medicaid Skim
In a separate legal action, ten Medicaid providers, with free legal aid from the National Right to Work Foundation and the Freedom Foundation, moved to intervene in a recently filed federal lawsuit challenging the rule adopted by HHS. The providers support the Trump Administration’s rule because it helps to protect their right not to fund union activities in violation of their First Amendment rights. They argue repealing the rule would result in their legal rights being violated.
AFSCME and Service Employees International Union (SEIU) officials and the pro-Big Labor Attorneys General of California, Connecticut, Oregon, Massachusetts, and Washington State filed this challenge to the Trump rule in May.
Although a federal circuit court judge denied the providers’ motion to intervene, the judge granted National Right to Work Foundation staff attorneys the ability to file a brief in the case. The providers’ Foundation staff attorneys can appeal the decision to deny the providers’ motion to intervene should the judge rule against the Trump Administration and strike down the rule.
“Providers are right to oppose this lawsuit’s blatant attempt to enable union bosses to skim union dues in violation of federal law and deserve a voice in this lawsuit,” said Semmens. “The hysterical response by Big Labor and its political allies to this simple clarification of longstanding federal law suggests they are worried that many members union officials claim to represent won’t pay dues once they realize they have a choice.”
Supreme Court Asked to Hear Challenge to Monopoly Bargaining Scheme
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
Massachusetts educators can only affect their working conditions if they waive their First Amendment rights
Plaintiffs Dr. Andre Melcuk (left) and Dr. Wm. Curtis Conner (right) asked the U.S. Supreme Court to hear their case challenging Massachusetts’ government union monopoly bargaining scheme as a violation of their First Amendment rights.
WASHINGTON, D.C. – In July staff attorneys for the National Right to Work Legal Defense Foundation asked the U.S. Supreme Court to hear Branch v. Commonwealth Employment Relations Board, a lawsuit brought by four Massachusetts educators challenging the application of the state’s union monopoly bargaining law as a violation of their constitutional rights.
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, illegally deprives non-member teachers of their First Amendment rights.
Plaintiffs Say NEA Teacher Union Bosses Violated First Amendment Rights
The four plaintiffs hail from the University of Massachusetts and the Hanover School Committee. Each has their own reasons for rejecting membership in the National Education Association (NEA) and its local affiliates. While 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 just to be able to impact their work environment.
To have any say in their own work conditions, non-members like the four educators would have to waive their First Amendment rights under Janus and join the union, which means paying full union dues and funding union boss political activities.
Four Massachusetts Educators Ask Supreme Court to Apply Janus Precedent
The lead plaintiff, Dr. Ben Branch, is a longtime finance professor at the University of Massachusetts Amherst. He is a colleague of fellow plaintiff 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 decided the case against the group 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 Foundation 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 border on extortion and it’s time for courts to acknowledge it,” added Mix.
Foundation Aiding Employees Nationwide to End Restrictions on Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
California math professor wins refunds of illegal dues deductions as more lawsuits are filed
Foundation staff attorneys are currently litigating more than 30 cases to enforce workers’ Janus rights, which have yielded successful settlements and dues refunds for employees like math professor Michael McCain.
VENTURA, CA – National Right to Work Legal Defense Foundation staff attorneys are fighting nationwide in courts to ensure that public sector employees from every walk of life can exercise their First Amendment rights under the Janus v. AFSCME decision, which in 2018 eliminated union dues and fees as a condition of employment for all public sector workers and permits dues deductions only with the affirmative consent of an employee.
Obstinate union bosses have thrown up many roadblocks to prevent the workers they claim to represent from exercising those rights, often enforcing illegal “window periods” where workers can only cut off dues within a tiny, union boss-determined time period once every year or few years, and refusing to return dues seized in violation of workers’ First Amendment rights before or even after the Janus decision came down.
In California, Foundation attorneys recently secured a successful settlement for Michael McCain, a math professor in the Ventura County Community College District (VCCCD). American Federation of Teachers (AFT) union officials forcibly took several months’ worth of illegal dues from McCain after he tried to resign his union membership in the wake of the Janus decision.
The AFT officials argued that McCain had missed the so-called “window” to resign, even though his dues authorization card made no mention of this rule. Foundation attorneys countered that the AFT’s restrictive policy constituted a “violation of [McCain’s] 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.”
Citing Janus, Foundation staff attorneys filed a class-action lawsuit to stop the illegal policy and to secure refunds for McCain and other VCCCD teachers of “dues deducted . . . without their affirmative and knowing consent.”
Successful Foundation Settlement Wins Refunds for All Affected Professors
Rather than face off against Foundation attorneys and the Janus precedent in court, VCCCD and AFT officials settled the case. Union officials will now “fully and unconditionally” refund to McCain and other teachers who asked to stop paying union dues since Janus was decided all dues illegally taken since the dates of their requests, plus interest.
Additionally, AFT and VCCCD are required by the settlement to not “adopt any policy that restricts to a yearly window period the time” when an employee can revoke his or her dues authorization.
“Union boss schemes like annual ‘escape periods’ serve no purpose other than to continue the flow of illegal dues into union coffers,” observed National Right to Work Foundation President Mark Mix. “All American workers deserve the freedom that Janus promises.”
Though several Foundation lawsuits have yielded favorable settlements and promises to abide by Janus from union bosses even in states like California with heavily ingrained forced unionism laws, Foundation attorneys are fighting for precedents at federal courts that will wipe out union boss schemes meant to thwart Janus.
