3 Sep 2020

In the News: “Foundation Sues to Give Public Employees Their Right Not to Pay Union Dues”

Posted in In the News

The National Right to Work Foundation-won Janus v. AFSCME U.S. Supreme Court decision allows public employees to stop paying dues or fees to a union at any time they choose. Janus affirmed that the First Amendment protects government workers from supporting a union against their wishes.

But ever since the Janus decision in June 2018, many union bosses have refused to comply with the High Court’s decision. So Foundation staff attorneys have filed dozens of cases across the country to enforce the Janus decision and compel union bosses to respect the First Amendment rights of the workers they claim to “represent.”

Journalist Mark Tapscott recently reported on a number of these cases for The Epoch Times, including a newly filed case for a police officer serving on the front lines in Las Vegas:

Las Vegas Police Officer Melodie DePierro is the latest in a growing line of public sector employees suing in federal court to demand recognition of their rights under a 2018 Supreme Court decision.

DePierro’s action was filed in the U.S. District Court for Nevada against the Las Vegas Metropolitan Police Department (LVMPD) and the local Police Protective Association (PPA) union.

In Janus v American Federation of State, County and Municipal Employees (AFSCME) decided by a 5-4 vote in June 2018, the high court ruled that public sector employees cannot be forced to pay union dues in the form of agency fees without being given a chance to consent or refuse the deduction.

DePierro noted in her suit that the department’s monopoly bargaining agreement with the union only allowed a 20-day window of opportunity to request agency fee refunds and that she had never agreed to the deduction in the first place.

Right-to-Work advocates cheered Janus as a landmark decision that would prompt millions of employees at all levels of government to demand an end to hundreds of millions of dollars in agency fees that helped fund partisan union political activities with which they disagreed.

“Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to keep imposing an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” NRTWLDF President Mark Mix said in a statement announcing the suit.

“The High Court made perfectly clear in Janus that affirmative consent from employees is required for any dues deductions to occur. Yet PPA union bosses are clearly violating that standard here,” Mix said.

A week before the DePierro filing, NRTWLDF attorneys issued a special notice to more than 28,000 Ohio state employees advising them of their right not to pay agency fees. The notice was part of a settlement of the foundation’s suit against the state government and the Ohio Civil Service Employees Association, AFSCME Local 11 (OCSEA).

Other Janus suits currently working their way through the courts include NRTWLDF actions against the Chicago Teachers Union, the Alaska State Employees Association (ASEA), the United Teachers of Los Angeles (UTLA), California Service Employees International Union (SEIU), the University Professional and Technical Employees (UPTE) union and the University of California, and the Township of Ocean Education Association (TOEA), New Jersey Education Association (NJEA) and the National Education Association (NEA) unions. The latter suit has reached a federal appeals court.

Read the entire article online at The Epoch Times here.

23 Jul 2020

Mark Mix in the Washington Examiner: Why We Should End ‘Anti-Democratic’ Government Union Boss Monopoly Bargaining Powers

Posted in In the News

An op-ed from National Right to Work Foundation President Mark Mix appeared in the Washington Examiner today which exposes the detrimental effects of monopoly bargaining privileges for government union bosses.

Mix explains that giving union officials the power to force workers under their so-called “representation” not only allows them to put a massive burden on taxpayers with wasteful contracts, but also stops the worst government employees from being held accountable for wrongdoing:

The problem with government unions protecting bad and dangerous workers is not isolated to police departments. In New York City, for instance, firing bad teachers has long been next to impossible. One teacher accused of sexual misconduct against students was “warehoused” for 20 years, collecting $1.7 million from taxpayers despite not setting foot in a classroom. Others continue to receive payments under similar arrangements as well.

Despite calls for reform, especially around police unions, most fail to address the central role played by government union monopoly bargaining power. So-called “collective bargaining” in the government sector is inherently anti-democratic. It forces officials elected to set public policy to “negotiate” that policy with a special interest group whose aims are frequently in direct opposition to the public’s interests. It also forces good civil servants to associate with union officials who will bend over backward to shield their corrupt or inefficient coworkers from any kind of accountability.

Read the full article here.

22 Jul 2020

Foundation Case for Mountaire Worker Could Nix Longstanding Curb on Employee Rights

Posted in In the News

The Federalist Society just published an article by veteran Foundation staff attorney Glenn Taubman, which demonstrates how Selbyville, DE, Mountaire Farms employee Oscar Cruz Sosa and his coworkers’ effort to vote United Food and Commercial Workers (UFCW) union officials out of their workplace now has the potential to abolish, or at least significantly limit, a longstanding restriction on worker rights at the National Labor Relations Board (NLRB).

Taubman first explains that the restriction, the “contract bar,” exists nowhere in the National Labor Relations Act (NLRA) and arbitrarily stifles the free choice of workers:

“Under that Board-created doctrine, employees are forbidden from decertifying their incumbent union representative for as long as three years, simply because the union and employer have reached a collective bargaining agreement. The text of the NLRA is silent about such a bar limiting employees’ rights. Indeed, the only ‘bar’ Congress established in the NLRA is a one-year ‘election bar’ (no more than one valid election can be held per year), which is a far cry from the Board-created three-year contract bar…”

Taubman goes on to recount how UFCW lawyers kept claiming that the non-statutory “contract bar” should have blocked Cruz and his fellow employees from having the vote they petitioned for, even after a regional NLRB official had ruled against them:

“In the Mountaire Farms case, employee Oscar Cruz Sosa collected a petition from more than 30% of his fellow employees and filed it with the NLRB seeking an election. The United Food & Commercial Workers (UFCW) union responded by asserting that the election was barred by the contract bar, since the petition was filed in year two of a five-year agreement. However, the Director of NLRB Region 5 held that the compulsory dues clause in the contract was facially unlawful because it lacked a mandatory 30-day grace period, and therefore no contract bar applied.”

The union lawyers immediately requested that the NLRB in Washington review this decision and in fact expand the “contract bar” to apply even to their invalid contract. But, as Taubman says, Foundation staff attorneys countered that the NLRB should, if it decided to review the case, consider doing away with or significantly limiting the “contract bar.” And that’s just what the NLRB did:

“Alternatively, Mr. Cruz Sosa argued that if the Board granted the UFCW union’s Request for Review, it should take up the entire contract bar doctrine with a view towards overruling it or significantly shortening it.

“On June 23, 2020, the Board granted the Union’s request for review of the regional director’s Decision and Direction of Election, finding that it raised substantial issues warranting review…On July 7, 2020, the Board issued a Notice and Invitation to File Briefs, allowing the public to weigh in on the continuing viability of the contract bar doctrine.”

Read the whole piece here.

More on the case can be found here and here. Legal documents are available on the NLRB’s case page.

3 Jun 2020

Wall Street Journal: Texas AG Seeks to Enforce Government Employees’ First Amendment Rights Under Janus v AFSCME

Posted in In the News

The Editorial Board at The Wall Street Journal published a column on May 31, 2020, detailing efforts in Texas to enforce the landmark Janus v AFSCME U.S. Supreme Court decision argued and won by National Right to Work Foundation staff attorneys:

The Attorney General of Texas, Ken Paxton, plans to release an advisory opinion soon that could help free public employees who are fed up with their union. In 2018 in Janus v. Afscme, the Supreme Court said that union fees couldn’t be deducted from the paycheck of a government worker who didn’t ‘affirmatively consent.’

“The question is what flows from this logic. Last fall Alaska Governor Michael Dunleavy, citing Janus, signed an order to let state workers quit the union anytime, instead of only during 10 enchanted days once each year. Union members also would have to refresh their consent forms periodically.

The move by Attorney General Paxton came after Foundation President Mark Mix and staff attorney William Messenger — who argued the Janus case at the Supreme Court — called on states like Texas to emulate Alaska. They wrote that “state officials, along with federal agencies, should follow Alaska’s example” in an op-ed for The Wall Street Journal last August.

In addition, Mix and Messenger highlighted how Janus requires that  government workers must voluntarily waive their First Amendment rights before union dues or fees can be deducted from their paycheck through a voluntary waiver:

Fourteen months ago the Supreme Court held that the First Amendment protects government employees from being forced to subsidize unions. Janus v. Afscme affirmed that some five million state and local workers have the legal right to stop such payments.

Another aspect of Janus, however, has been overshadowed. The decision requires that the government obtain proof that workers voluntarily, knowingly and intelligently waived their First Amendment rights not to subsidize union speech before deducting union dues or fees from their paychecks. “To be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence,” Justice Samuel Alito wrote. “Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”

Yet the federal government and many states and localities continue to deduct union dues without evidence that workers waived their speech rights, usually based on pre-Janus authorization forms that come nowhere close to demonstrating a waiver. Labor Department figures suggest unconstitutional deductions could be coming out of the paychecks of as many as 7.2 million government employees nationwide. The fix is simple: Governments must cease transferring wages to unions until they amend their dues-deduction policies to comply with Janus.

1 Jun 2020

West Virginia Supreme Court Cites Foundation-Won Janus Case in Decision to Uphold Right to Work Law

Posted in In the News

In April the West Virginia Supreme Court upheld West Virginia’s Right to Work law, ending a multi-year union boss legal challenge.

National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse wrote an article for The Federalist Society analyzing the decision in the case: Morrisey v. West Virginia AFL-CIO. LaJeunesse just published piece highlights how the justices relied heavily on the Foundation-won Janus v. AFSCME U.S. Supreme Court decision to uphold the law protecting workers against being forced to subsidize union activities:

“Four of the five Justices concluded in Morrisey that the United States Supreme Court’s decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018), required that result. Janus held that forcing nonmembers to pay union fees as a condition of public employment violates the First Amendment. As Justice Workman put it, concurring in the judgment of the Court in Morrisey, ‘there is no principled basis on which to conclude that under the legal analysis upon which Janus is based, a prohibition on the collection of agency fees is constitutional for public employees’ unions but unconstitutional for private employees’ unions.'”

Foundation staff attorneys filed 10 legal briefs in Morrisey in defense of West Virginia’s Right to Work law. Foundation President Mark Mix hailed the decision as a “a great victory for Mountain State employees.”

Since 2012, Foundation staff attorneys have defended and enforced five newly passed Right to Work in states including West Virginia.