Final Brief Filed Asking Supreme Court to Hear Case Challenging Forced Union Affiliation as First Amendment Violation
Minnesota home-based personal care providers argue being forced under SEIU union monopoly ‘representation’ violates their freedom to associate
Washington, D.C. (April 17, 2019) – Today, National Right to Work Legal Defense Foundation staff attorneys filed the final brief in Bierman v. Walz asking the Supreme Court to hear a group of Minnesota home care providers’ challenge to forced union affiliation.
The home care providers are challenging a Minnesota state law used to force tens of thousands of home care providers under union monopoly “representation.” The providers, who work at home caring for disabled family members as part of a state-run Medicaid program, oppose union affiliation.
The case’s lead plaintiff, Teri Bierman, filed the suit with seven other home care providers to challenge a 2013 Minnesota state law used by the Service Employees International Union (SEIU) Healthcare Minnesota to force home care providers to associate with it as a condition of providing care under the state Medicaid program. Bierman v. Walz asks the Supreme Court to declare unconstitutional under the First Amendment’s free association guarantee the unions’ monopoly bargaining privileges, by which a union forces its representation on individuals receiving state funds who do not consent to the representation.
Mark Mix, president of the National Right to Work Foundation, issued the following statement about the case:
“These home care providers are bravely challenging an unconstitutional scheme that compels them to associate with a union to receive state funds to care for their own children in their own homes. We hope the Supreme Court takes this opportunity to apply the First Amendment’s protection of freedom of association to Big Labor’s unparalleled monopoly bargaining ‘representation’ privileges that force individuals to submit to union bosses’ control.”
Background Information
Teri Bierman and the other home care providers provide critical care to their family members who receive state assistance to help pay for their care. Bierman provides care at home for her daughter, who suffers from cerebral palsy and requires care throughout the day. The other plaintiffs in the case care for children diagnosed with severe autism, epilepsy, Rubenstein-Taybi syndrome, or other significant disabilities. Like the other plaintiffs, Bierman receives aid from a Minnesota Medicaid program (which provides funds to families to care for disabled relatives).
By asking the Court to declare monopoly bargaining a violation of the First Amendment, Foundation staff attorneys seek to build off two recent Foundation-won Supreme Court decisions. In the 2014 Harris v. Quinn decision, the Court applied exacting First Amendment scrutiny to rule that providers like the Bierman plaintiffs cannot be required to pay union fees.
Next, in the June 2018 Janus v. AFSCME decision, the Court declared that forced union fees for all public sector employees violate the First Amendment and opened the door to further cases seeking to uphold workers’ rights to freedom of speech and freedom of association. In his opinion for the majority, Justice Samuel Alito wrote for the Court that “designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees.”
Both Harris and Janus were argued by National Right to Work Foundation staff attorney William Messenger, who is also the lead attorney in Bierman v. Walz. Bierman now asks the Supreme Court, for the first time, to apply the same First Amendment standard to forced association as it has already applied to forced subsidies of union speech.
Rhode Island Bus Driver Asks NLRB to Overturn Policy Blocking Vote to Remove Teamsters Union
Union officials leveraging so-called “merger doctrine” to block workers from exercising right to hold decertification vote to remove minority union
Coventry, RI (April 10, 2019) – With free legal aid from National Right to Work Foundation staff attorneys, a Rhode Island bus driver has petitioned the National Labor Relations Board (NLRB) to allow a vote to decertify his local union. The filing argues the Labor Board’s “merger doctrine” being applied to block the vote is contrary to the National Labor Relations Act (NLRA).
Bradford Mayer, who works for school bus company First Student, Inc., circulated a decertification petition at his facility to remove Teamsters Local 251. He collected signatures from more than 30 percent of his colleagues at his workplace, as required to trigger an NLRB-supervised vote. However, Teamsters union officials moved to block the election on the grounds that Mayer and his colleagues were actually “merged” into a nationwide bargaining unit without their knowledge.
As his response to the NLRB notes, Mayer and his coworkers were unionized in a standalone local bargaining unit which has its own union contract. Thus they should be able to exercise their rights under the NLRA to remove the union. Instead, union officials take the position that they made a backroom deal with First Student, Inc. to “merge” the employees into a massive nationwide bargaining unit without their consent, despite the monopoly bargaining agreement not even referencing such a merger.
The “merger” effectively prevents any employee from organizing a decertification vote to reject representation by the union, which requires a worker to first obtain signatures from at least 30 percent of workers in the bargaining unit to hold a vote. Unlike paid union organizers, full time employees must collect signatures on their own time and are explicitly forbidden from receiving any meaningful assistance from management. Consequently, it is essentially impossible for workers to garner the necessary support at dozens of worksites spread around the country.
Mayer’s “Response to the Order to Show Cause” makes the point that workers have a clear legal right under the NLRA to hold a decertification vote in their workplace, and no agreement between company and union officials can waive that statutory right, which the secret merger agreement effectively does. The filing urges the NLRB to revisit the rules allowing union officials to impose such undemocratic “mergers” on workers as a means of creating decertification-proof bargaining units and promptly schedule a decertification vote for Mayer and his Rhode Island colleagues.
Various unions across the country have attempted to impose similar “mergers” before, relying on the NLRB-created “merger doctrine” as justification. Mayer’s petition calls on the NLRB to reject this so-called “merger doctrine,” because it has no basis in the NLRA and violates the act’s intended purpose of protecting employee free choice.
“Mr. Mayer and his colleagues should be allowed to decide freely whether they want to be represented by Teamsters Local 521,” says Mark Mix, President of the National Right to Work Foundation. “Union bosses have repeatedly used this so-called ‘merger doctrine’ to block workers, whom they claim to represent, from exercising their legal rights, so it is clearly time for the NLRB to reconsider this baseless rule.”
“For years the NLRB has created a web of bureaucratically created ‘rules’ not found in the National Labor Relations Act that block workers from removing unwanted unions from their workplace, and it is past time for this NLRB to move forward and stop the various games union bosses play to trap workers in unions opposed by a majority of employees,” Mix added.
Worker Advocate Urges Federal Labor Board to Simplify Process for Workers to Vote Out Union Representation
National Right to Work Foundation asks National Mediation Board to eliminate confusing ‘straw man’ decertification rules for airline and railroad workers
Washington, D.C. (April 1, 2019) – The National Right to Work Legal Defense Foundation has submitted comments to the National Mediation Board (NMB) supporting the agency’s proposed simplification of the rules enabling workers in the airline and railway industries to vote to remove a labor union that lacks the support of a majority of workers.
The NMB, which administers the Railway Labor Act (RLA), is currently considering rulemaking to modernize and update the rules for workers seeking to hold a vote to strip union officials of their monopoly bargaining powers. The process is particularly important since 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.
Longstanding legal precedent unanimously upholds that the RLA allows workers to choose their representative or no representative at all. However, NMB rules, in particular the current “straw man” requirement, make exercising this right inordinately complex.
The confusing rule forces an individual employee to run as 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 may then disclaim collective representation, but is not legally required to do so.
The Foundation’s comments to the NMB explain that the current “confusing and obfuscatory process” undermines both the letter and spirit of the RLA:
“The proposed rules are long overdue. Employee free choice is the RLA’s most significant policy, and the proposed rules are 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.”
National Right to Work Foundation President Mark Mix also commented on the long overdue reform:
“This proposed change is a commonsense reform to the current process which only makes sense if the goal is to confuse workers about their rights to remove an unwanted union. Ultimately the Railway Labor Act has many fundamental problems that require legislative action, not the least of which is that it grants union bosses the power to have workers fired for nonpayment of union dues or fees even in states with Right to Work laws. However, while we wait action from Congress to fix those greater injustices, adopting this basic change within the confines of the flawed RLA is well worth doing.”
In addition to submitting the formal comments, veteran Foundation staff attorney Glenn M. Taubman testified at the NMB hearing on March 28 in favor of the proposed rule change.
Teachers Win Case at Michigan Court of Appeals Against Union Officials for Violating Right to Work Law
Court affirms ruling against union officials who demanded that two Ann Arbor teachers continue to pay union fees after resigning union membership
Ann Arbor, Michigan (March 22, 2019) – Two public school teachers have won a victory at the Michigan Court of Appeals with free legal assistance from National Right to Work Foundation staff attorneys after union officials violated their legal rights.
The court affirmed the Michigan Employment Relations Commission (MERC) finding that union officials with the Ann Arbor Education Association (AAEA) union, an affiliate of the Michigan Education Association (MEA) union, violated the rights of teachers Jeffrey Finnan and Cory Merante under Michigan’s Right to Work Law by demanding that they continue to pay union fees even though they had resigned their union membership. The teachers both worked for the Ann Arbor School District.
Michigan’s Right to Work statutes, which went into effect in March 2013, protect workers from being forced to pay union dues as a condition of employment and allow workers to cut off all union dues or fees after resigning their union membership.
Finnan and Merante each filed unfair labor practice charges against the AAEA because union officials demanded that they continue paying union fees after resigning union membership. An administrative law judge (ALJ) sided with the teachers, finding that union officials had engaged in unfair labor practices by demanding that the teachers continue to pay union fees.
MERC affirmed the ALJ’s findings and ordered the union to cease and desist from demanding payment of union fees from the nonmembers in violation of their rights.
Union officials appealed, but the Michigan Court of Appeals now has affirmed MERC’s decision. The court agreed that union officials had violated the rights of Finnan and Merante under Michigan’s Right to Work Law to refrain from financially supporting the union.
“This ruling by the Michigan Court of Appeals upholds Right to Work protections for workers laid out clearly in state law,” said Mark Mix, president of the National Right to Work Foundation. “Time and again, Michigan union bosses have demonstrated that they will stop at nothing to obtain membership dues and union fees from the workers they supposedly represent, regardless of workers’ wishes.”
Since Right to Work legislation was signed into state law in December 2012, Foundation staff attorneys have litigated more than 100 cases in Michigan to combat compulsory unionism.
