Las Vegas Union Officials Back Down, Settle Case Brought by Security Guards Challenging Illegal Dues Seizures
SPFPA union will pay thousands of dollars in refunds of dues illegally taken from guards to end federal Labor Board case against the union
Las Vegas, NV (November 5, 2020) – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Las Vegas security guard Justin Stephens and his coworkers have won a settlement against the Security, Police & Fire Professionals of America (SPFPA) union, which they charged in April with seizing dues from their paychecks in violation of their legal rights. As part of the settlement, union bosses are required to refund more than $4,200 to two dozen security guards, including Stephens, whose timely resignations from union membership and attempts to cut off dues deductions were rejected by union officials who hastily extended their monopoly bargaining agreement with the guards’ employer.
According to Stephens’ charge filed at Region 28 of the National Labor Relations Board (NLRB) in Phoenix, SPFPA officials extended the bargaining contract with Stephens’ employer, North American Security, on January 31, 2020. The extension occurred one day after Stephens and the vast majority of his fellow employees at the federal courthouse in Las Vegas sent letters to the union stating that they no longer wanted it as the monopoly bargaining agent in their workplace.
The charge explained that Stephens later submitted a batch of letters to SPFPA officials in which he and his fellow employees tried to exercise their rights to resign union membership and stop dues deductions from their paychecks. These letters were sent just before the previous contract between North American Security and the SPFPA was supposed to expire, on March 31, within the period when the employees could lawfully end dues deductions. Because Nevada has enacted Right to Work protections for its employees, union bosses are forbidden from requiring any employee to join or pay dues or fees to a union as a condition of employment.
The charge asserted that the union “did not acknowledge the timely revocation the employees made on the anniversary” of the contract, ostensibly because the union officials’ hurried contract extension eliminated any opportunity the employees had to cut off union dues before the existing contract’s March 31 expiration.
SPFPA bosses kept collecting full union dues “from all non-member bargaining unit employees” in violation of their right under the National Labor Relations Act to refrain from union activities and support, according to the charge. Stephens’ charge also asserted that the unions’ sudden extension of the monopoly bargaining contract after the workers notified the union about their opposition amounted to “an apparent attempt to avoid a decertification” vote to remove the union.
The settlement requires SPFPA officials to process any timely resignations by security guards and notify North American Security to cease dues deductions from those whose resignations they have already processed. SPFPA bosses must also return all dues seized from Stephens’ and his coworkers’ paychecks in violation of their rights. In the future, the settlement stipulates, union officials must always “accept and timely process” resignations and requests to cut off dues.
“It’s good news that Mr. Stephens and his hardworking colleagues have gotten back dues that were illegally taken from them by SPFPA union bosses who have demonstrated they are more interested in stuffing their coffers with union dues than respecting the wishes of the rank-and-file workers they claim to ‘represent,’” commented National Right to Work Foundation President Mark Mix. “This type of legal trickery used by union bosses to stay in power even over the objections of most workers shows why the NLRB should eliminate the numerous policies that block workers from voting out or otherwise removing an unwanted union.”
“Ultimately, the root of this problem is the federal labor law which grants union bosses monopoly bargaining powers, allowing them to force their so-called ‘representation’ on individual workers who don’t want it and believe they would be better off without it,” added Mix.
Alaska Vocational Instructor Files Appeal in Federal Class Action Lawsuit Challenging Unconstitutional Union Dues Seizures
ASEA union bosses continue to block workers from exercising First Amendment right to cut off union dues payments spent on union politics and lobbying
Anchorage, AK (November 5, 2020) – Staff Attorneys for the National Right to Work Legal Defense Foundation have filed an appeal to the US Court of Appeals for the 9th Circuit on behalf of Alaska Vocational Instructor Christopher Woods in his case against the Alaska State Employees’ Association (ASEA).
Woods, who works in the Alaska State prison system, is challenging restrictions on his and his coworkers’ First Amendment right to refrain from subsidizing a union under the 2018 Foundation-won Janus v. AFSCME US Supreme Court decision.
The union scheme forbids employees from exercising their right to cut off union dues except during an annual 10-day “escape period.” However, in Janus, the high court ruled that no public sector employee can be forced to pay union dues or fees as a condition of employment, and that the First Amendment is violated when union officials deduct dues from the paychecks of public sector employees without their affirmative and knowing consent.
Woods began working as a Vocational Instructor at Goose Creek Correctional Center in 2013 and joined the union “because he was told by a union representative that he had no choice,” according to the lawsuit. His complaint reports that, on November 26, 2019, he sent an email to ASEA officials exercising his Janus right to stop union dues deductions. A union official replied to him the same day and rebuffed his request, telling Woods that “he could only ‘opt out and not be a union member with written notice to this office’” within a 10-day period each year before the date he signed his original dues deduction authorization card.
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.
Woods’ lawsuit seeks a court ruling that the ASEA union’s “escape period” enforced by the state and the deduction of union dues from his and other state employees’ paychecks without their clear, knowing consent violates his and his coworkers’ First Amendment rights. It also requests refunds of illegally seized dues for himself and his coworkers. Alaska Department of Administration Commissioner Kelly Tshibaka is named as a party in her official capacity only, due to the State of Alaska’s role in the unconstitutional dues deductions.
The federal lawsuit comes after an Anchorage Superior Court Judge put a hold on Alaska Gov. Mike Dunleavy’s order last year that all public sector unions in the state must obtain clear consent from workers before deducting any union dues or fees, as Janus requires. That judge opined that Janus applies only to workers who are not formal union members, despite the fact that unions use their dues deduction policies to block workers from stopping dues even after they have resigned from formal union membership.
“Alaska union bosses have continued to violate the First Amendment rights of the rank-and-file workers they claim to represent and illegally seized union dues to be spent on union boss political causes,” commented National Right to Work Foundation President Mark Mix. “Ironically, Alaska has taken the lead in attempting to proactively protect its employees’ First Amendment rights, but because union bosses have successfully resisted the Governor’s Executive Order so far, this lawsuit is necessary.”
Wood’s legal team includes two Foundation staff attorneys who have successfully challenged forced union dues schemes in the U.S Supreme Court, not only in the landmark 2018 Janus case, but also in two earlier cases – Knox v. SEIU (2012) and Harris v. Quinn (2014). Foundation staff attorneys are currently litigating more than 30 cases for workers seeking to vindicate their First Amendment rights under the Janus precedent.
UNITE HERE Bosses Back Down, Offer Workers Ability to Claim Refunds in Oregon Foodservice Workers’ Case Against Union
Final settlement requires notice informing workers of legal rights and opportunity to obtain refunds of dues taken because of omissions
Portland, OR (November 4, 2020) – Two Bon Appetit foodservice workers at Lewis & Clark College in Portland, Oregon, have just won a settlement in their case charging UNITE HERE Local 8 union bosses with hindering the informed exercise of their right to choose whether or not to be union members by failing to provide employees the percentage reduction in union dues they would be required to pay as nonmembers. The workers received free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
Bon Appetit employees Terry Denton and Alejandro Martinez Cuevas originally filed charges at the National Labor Relations Board (NLRB) against UNITE HERE Local 8 in August 2018, arguing the lack of information infringed their rights under the National Labor Relations Act and the Foundation-won CWA v. Beck U.S. Supreme Court decision.
Because Oregon lacks a Right to Work law, private sector employees who refrain from formal union membership can be required to pay some fees to a union as a condition of employment. However, union officials must follow the requirements of the Beck decision and cannot require workers to pay dues or fees for activities unrelated to the union’s bargaining functions, such as union political activities.
The Regional Director for NLRB Region 19 issued a formal complaint against UNITE HERE officials in August 2019. This complaint came after a memo from the NLRB General Counsel’s office which advised the Regions that the NLRB requires union officials to keep all workers apprised of Beck fee reductions.
Union bosses and the Regional Director attempted to settle this case without offering a remedy for all bargaining unit members. This initial settlement merely required union agents to post notices announcing that they would inform employees of the reduction in union fees that would result if they asserted their rights under Beck, but did not require the union to offer employees who had received the deficient notice the ability to resign their union memberships retroactively and recover the dues that had been taken unlawfully from their wages.
Denton and Martinez Cuevas objected to the terms of the settlement agreement. They had filed charges for themselves and their fellow employees, who also deserved an opportunity to exercise their rights.
Despite the two employees’ objections, the Regional Director approved the settlement. Foundation staff attorneys then filed an appeal to the NLRB General Counsel, which was sustained in November 2019. The General Counsel’s decision noted that the original settlement agreement did “not provide an appropriate remedy” and ordered Region 19 to move forward with the charges.
Faced with the threat of a renewed prosecution by the NLRB, UNITE HERE officials backed down and settled the case with a more complete remedy. Union officials now must provide notices informing all employees, current and future, of the reduction that will be made to their union dues if they choose to be nonmembers. UNITE HERE officials will also reimburse current employees who resign their union memberships retroactively for dues money that they have paid in excess of the nonmember rate.
“Although it’s good news that after over two years Ms. Denton and Mr. Martinez Cuevas have finally vindicated their and their coworkers’ right under Beck to refrain from funding union political activities as a condition of employment, no worker in America should be forced to accept or pay for one-size-fits-all union boss ‘representation’ that they do not want,” observed National Right to Work Foundation President Mark Mix. “All American workers need Right to Work protections, which put the decision to join and financially support union activities exactly where it should be – in the hands of individual workers.”
Connecticut State Employees Ask U.S. Supreme Court to Hear Case Seeking Refunds of Union Dues Seized in Violation of First Amendment
CSEA officials forced nonmember employees to pay fees in violation of the Constitution as recognized in Janus v. AFSCME Supreme Court decision
Washington, DC (November 2, 2020) – National Right to Work Legal Defense Foundation staff attorneys just filed a petition for writ of certiorari at the U.S. Supreme Court for two Connecticut Department of Energy and Environmental Protection employees, in their class action lawsuit to require Connecticut State Employees Association (CSEA SEIU Local 2001) union officials to return forced dues money seized from them and their coworkers in violation of their First Amendment rights.
The employees, Kiernan Wholean and James Grillo, maintain that CSEA union bosses and State of Connecticut officials infringed on the First Amendment rights recognized in the landmark Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, which was decided in June 2018, the Court held that no public sector employee can be required to pay dues as a condition of employment, and further ruled that dues deductions from any public employee’s paycheck can only be made with the employee’s affirmative and knowing waiver of the right not to pay.
Wholean and Grillo, who are not members of CSEA, 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 at CSEA’s behest 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, CSEA union officials continue to refuse to refund dues that they took from Wholean, Grillo, and other nonmembers in violation of the Janus First Amendment standard before the decision, even though they knew the employees never consented to pay.
The District Court, and later the Second Circuit Court of Appeals, both accepted CSEA lawyers’ so-called “good faith” argument for letting union bosses keep the dues collected in violation of the nonmembers’ constitutional rights. Wholean and Grillo’s Foundation staff attorneys argue in their petition to the Supreme Court that such a defense has never existed under Section 1983 of the Civil Rights Act of 1871, the statute under which the lawsuit is brought. Section 1983 specifically imposes liability on those who violate the constitutional rights of others while acting “under color of” existing law.
The Supreme Court has never addressed whether there is a “good faith” defense under Section 1983. In a similar Foundation-backed case, two federal judges at the Third Circuit recently opined that such a defense does not exist, disagreeing with the decisions of other Circuits. Wholean and Grillo’s petition cites this confusion as a vital reason why the High Court should hear their case. If successful, their lawsuit could result in CSEA repaying potentially millions in forced union fees seized from June 13, 2015, until Connecticut stopped the deductions, in accordance with Connecticut’s statute of limitations.
Wholean and Grillo’s petition is now the sixth under consideration by the Supreme Court in which public employees seek refunds for dues taken in contravention of the First Amendment before the Janus ruling. Four of these petitions have been filed by Foundation staff attorneys.
Among those petitions is the continuation of the original Janus plaintiff Mark Janus’ case, who suffered from unconstitutional deductions while employed as a child support specialist for the State of Illinois. If the Supreme Court decides in the petitioners’ favor in any of these cases, it could set a precedent triggering the return of hundreds of millions in illegal dues dollars in cases across the country.
“The lower courts have allowed CSEA union bosses to profit from their past unconstitutional deductions, trampling the Janus rights of Mr. Wholean, Mr. Grillo and their coworkers,” commented National Right to Work Foundation President Mark Mix. “With six 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 nonmember government employees whose First Amendment rights were violated.”
“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,” added Mix. “Given Section 1983’s intent, it is 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’ from the Court since 2012 that forcing government employees to pay union fees was likely unconstitutional.”
National Right to Work Foundation Issues Special Legal Notice for Tenet Healthcare Employees Impacted by Planned SEIU Boss Strike
Healthcare providers have right to rebuff Union officials’ demands that workers abandon their patients amidst pandemic
California (November 2, 2020) – Staff attorneys at the National Right to Work Legal Defense Foundation have issued a special legal notice to the over 4,000 Tenet Healthcare employees across California who will be affected by a strike planned by officials of Service Employees’ International Union (SEIU)-United Healthcare Workers West.
The legal notice informs rank-and-file Tenet Healthcare workers of the rights SEIU bosses won’t tell them about, including that they have the right to refuse to abandon their patients and to keep working to support their families despite the union-ordered strike. The notice discusses why workers across the country frequently turn to the National Right to Work Foundation for free legal aid in such situations.
“This strike raises serious concerns for employees who believe there is much to lose from a union-ordered strike,” the notice reads. “Employees have the legal right to rebuff union officials’ strike demands, but it is important for them to be fully informed before they do so.”
The full notice is available at www.nrtw.org/tenet-notice.
The notice outlines the process that Tenet nurses and other employees should follow if they want to exercise their right to return to work during the strike and avoid punishment by union bosses, complete with sample union membership resignation letters.
Further, the notice reminds employees of their rights to cut off all union dues payments in the absence of a monopoly bargaining contract with the hospital. The notice encourages employees to seek free legal aid from the Foundation if they experience union resistance as they attempt to exercise any of these rights.
The Foundation has defended hospital workers in a number of recent cases. It provided free legal aid to Daniel Dalison, who filed charges against SEIU 1199NW for illegally deducting union dues from his paycheck even though he was not a union member. Foundation staff attorneys also assisted Michigan nurse Madrina Wells in her lawsuit against officials of Teamsters Local 332 for collecting dues from her despite repeated requests to stop, and despite Michigan’s Right to Work law.
“Tenet Healthcare employees who wish to continue serving their communities amidst this pandemic may question whether the upcoming union-ordered strike is really best for themselves, their families, and their patients,” commented National Right to Work Foundation President Mark Mix. “Tenet employees should know they unequivocally have the right to reject union strike orders and continue to care for those in need.”
“We encourage rank-and-file Tenet Healthcare workers to immediately contact the Foundation for free legal aid should SEIU bosses violate their legal rights,” added Mix.
SEIU union bosses seized dues from providers without their consent, then forbade them from stopping deductions outside of short “escape period”
San Francisco, CA (October 23, 2020) – Seven California home healthcare providers are appealing their class-action lawsuit against the Service Employees International Union (SEIU) Local 2015 to the Ninth Circuit Court of Appeals. The appeal in Polk v. Yee was filed with free legal assistance from staff attorneys with the National Right to Work Legal Defense Foundation and West Coast-based Freedom Foundation who jointly represent the seven plaintiffs.
The home healthcare providers’ lawsuit states that union officials skimmed dues money from their and other providers’ Medicaid payments in violation of their First Amendment rights and federal law regarding Medicaid payments. State of California controller Betty Yee is also named as a defendant in the suit for the state’s role in abetting the illegal deductions.
The providers maintain that the union and state are infringing on their rights recognized by the Supreme Court in Right to Work Foundation-won cases Harris v. Quinn (2014), and Janus v. AFSCME (2018). In Harris, the Court ruled that unions contravene the First Amendment when they force home healthcare providers who receive some subsidies from the state to pay union dues. Similarly, in Janus v. AFSCME, the High Court held that no public sector employee could be forced to subsidize union activities as a condition of employment, and that government agencies can only deduct union payments from a public worker’s wages with an affirmative waiver of his or her First Amendment right not to pay.
The plaintiffs, Delores Polk, Heather Herrick, Lien Loi, Peter Loi, Susan McKay, Jolene Montoya, and Scott Ungar all participate in the In-Home Support Services (IHSS) program, which allots Medicaid funds to those who provide home-based aid to people with disabilities. Their lawsuit explains that “even though they are not public employees,” the State of California considers home healthcare providers as such for unionization purposes and takes union dues from them at the behest of SEIU officials.
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, in each case never explaining that the providers have a First Amendment right under both Harris and Janus to reject union membership and dues payments.
On top of that, after each of 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 argues that federal law governing IHSS forbids diverting any part of Medicaid payments to “any other party” besides the providers.
The lawsuit seeks a ruling that both the taking of union dues without 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.
“It is unconscionable that SEIU union bosses are siphoning money out of these providers’ pockets merely because those they aid inside their own homes happen to receive state subsidies for their care,” observed National Right to Work Foundation President Mark Mix. “This dues skim scam is a blatant violation of federal law and the Supreme Court’s rulings in Harris and Janus. It must be stopped immediately.”
“Unfortunately, the hard-working caregivers in this case are not the only ones being victimized by unions like SEIU,” said Eric Stahlfeld, the Freedom Foundation’s chief litigation counsel. “Our research shows that states like California illegally divert $150 million each year to unions from 350,000 caregivers’ Medicaid payments. While Freedom Foundation and National Right to Work Foundation advocacy has prompted the Department of Health and Human Services to formally oppose the exploitative practice, it’s up to federal courts to end it.”
UAW Bosses Abandon Case Seeking to Overturn Civil Service Commission Rule Protecting Workers’ First Amendment Janus Rights
Policy requires state employees to opt in to union dues deductions annually to ensure dues are collected with voluntary waiver of First Amendment rights
Lansing, MI (October 15, 2020) – A Michigan Civil Service Commission (MiCSC) policy which helps safeguard the First Amendment rights of the state’s workers under the landmark 2018 Janus v. AFSCME Supreme Court decision survives after United Auto Workers (UAW) union bosses abandoned their lawsuit seeking to overturn the rule in federal court.
The rule, which was adopted by MiCSC in October following detailed comments from National Right to Work Foundation staff attorneys, requires Michigan state agencies to annually obtain the consent of state employees before deducting any union dues from their wages. The rule reminds state employees of their constitutional right to refuse such payments and ensures that the state deducts no union dues unless workers’ first waive their right not to pay.
National Right to Work Foundation President Mark Mix commented on the development:
“The Civil Service Commission rule’s endurance is a victory for Michigan state employees, who will now have their First Amendment right to refuse to subsidize union activities respected and safeguarded. That union officials so quickly dropped their attempts to scuttle the rule speaks to the strength of the legal case for it, namely that the Supreme Court clearly delineated in Janus v. AFSCME that union dues can only be taken from public employees’ paychecks with their affirmative and knowing consent.
“Given this example, public officials in other states should enact similar measures to protect their workers, because union bosses across the country continue to manipulate state laws and internal union policies to keep workers trapped in union payments against their will in violation of their First Amendment rights.”
UAW officials’ abandonment of their lawsuit comes after the U.S. District Court for the Eastern District of Michigan rejected their request for a preliminary injunction against the rule earlier this month. Judge George Caram Steeh ruled that union lawyers not only failed to show that the rule was causing “irreparable harm” but that a recent Sixth Circuit Court of Appeals suit foreclosed union bosses’ ability to file one of the two claims in their suit in the first place.
The District Court’s decision denying the injunction cited arguments first presented in an amicus brief from National Right to Work Foundation and Mackinac Center Legal Foundation staff attorneys, which the judge said was “timely and helpful.”
Other states that are taking steps to shore up their public employees’ Janus rights include Alaska, where Gov. Mike Dunleavy signed an executive order creating similar protections for state employees in September 2019. Also, 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.
Seattle Building Services Worker Wins Settlement against SEIU6 Officials for Illegal Dues Deductions and Deceiving Workers about their Rights
Charges were filed after SEIU failed to provide accurate information about its financials and workers’ constitutional right to object to forced dues
Seattle, WA (October 15, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, Pacific Building Services employee Daniel Dalison has won a settlement in his case against Service Employees International Union (SEIU6) Property Services NW and his employer, Pacific Building Services. Dalison filed charges earlier in the year challenging union officials’ deceptive membership forms that misinform workers about their rights, and for illegally deducting dues from his paycheck.
Because Washington State has not yet enacted Right to Work protections for private sector workers to make union payments voluntary, workers can still be forced to pay union fees as a condition of keeping their job. However, thanks to the Foundation-won CWA v. Beck Supreme Court decision, those who object to formal union membership cannot be charged for union politics and lobbying, and can only be compelled to pay fees directly related to bargaining. Beck also requires that unions provide independent audits of their expenses before taking forced fees from nonmembers.
Dalison’s NLRB unfair labor practice charges stated that SEIU6’s welcome packet incorrectly informed him that he could exercise his Beck right to object to full union dues only during a 31- day window after his hire date. Dalison’s charge also explains that the membership form is an illegal “dual purpose” form, which, if signed, triggers automatic dues seizures from an employee’s paycheck despite “actually say[ing] nothing about dues authorization.” Federal law provides that employers cannot deduct union dues or fees directly from employees’ paychecks unless they have affirmative consent from them, regardless of their membership status.
After receiving the information packet from his employer, Dalison sent the union letters “stating that he did not want union membership” and wished only to pay the required reduced fees to keep his job. He also asked the union to furnish an independent audit of its expenses and a copy of the monopoly bargaining contract between it and Pacific Building Services. The charge says that the union responded with a letter claiming “he must have misunderstood his options” and that its records showed he was a member and required to pay full dues.
Under the settlement, SEIU officials are required to return the portion of Dalison’s dues taken in violation of Beck, and provide him the financial audit and copy of the monopoly bargaining contract he requested. They also agreed to revise their welcome packet to include information about employees’ Beck rights, not to use a single form for both union membership and dues deduction authorization, and not to falsely claim that employees can only exercise their rights under Beck during a 31-day window. The terms of the settlement will be posted publicly to make other Pacific Building Services employees aware of their rights.
Earlier this year Dalison charged officials of SEIU 1199NW for violating employee rights at Swedish Medical Center, where he has also worked. Those charges related that, in addition to not allowing workers to exercise their Beck rights, SEIU 1199NW bosses ordered workers to provide photo identification any time they asked to see their own paperwork regarding membership and dues check off authorizations. Those charges are still pending at NLRB Region 19.
“Unfortunately, Washington State SEIU bosses are repeat offenders when it comes to violating workers’ rights just to collect additional union dues and fees,” said National Right to Work Foundation President Mark Mix. “Although this victory for Daniel Dalison is a welcome development, his cases show why Washington State workers need Right to Work protections that ensure all union financial support is voluntary so unions cannot so easily play fast and loose with their forced dues powers.”
Mark Janus Files Brief Defending WA Workers’ Right to Stop Union Dues Under Landmark Janus v. AFSCME Supreme Court Decision
Union scheme currently being challenged at Ninth Circuit blocks government workers from exercising First Amendment rights outside brief 10-day period
San Francisco, CA (October 13, 2020) – Mark Janus, the lead plaintiff in the landmark 2018 Janus v. AFSCME Supreme Court decision, has just submitted an amicus brief in Belgau v. Inslee. This is a class-action case in which a group of Washington State employees are challenging a union boss-created arrangement that limits employees’ ability to exercise their First Amendment Janus right to refrain from subsidizing a union to only 10 days per year.
The brief was submitted for Janus by staff attorneys with the National Right to Work Legal Defense Foundation and the Liberty Justice Center. Janus, a former Illinois child support specialist, was represented at the Supreme Court by attorneys from both organizations, with Foundation attorney Bill Messenger presenting oral argument.
In Janus, the Supreme Court ruled that compelling public workers to pay union dues as a condition of employment violates their First Amendment rights. The Court also held that union dues can only be taken from the paychecks of public workers if they clearly and affirmatively waive their right not to pay, with Justice Samuel Alito writing in the Court’s decision that “such a waiver cannot be presumed.”
In the Belgau case, lead plaintiff Melissa Belgau and six other Washington State employees have sued Washington Governor Jay Inslee and the Washington Federation of State Employees (WFSE) union for enforcing an unconstitutional “escape period” scheme. The plaintiffs all resigned their memberships and requested to cut off dues just a couple months after Janus was decided, but dues continued to be seized from their paychecks afterwards under the restrictive policy.
Their lawsuit demands that the state and union officials cease blocking workers from exercising their First Amendment right not to financially support the union, and that the union refund all dues seized from any worker who sought to end dues deductions after the Janus decision, but was denied under the policy. A three-judge panel of the Ninth Circuit Court of Appeals ruled against the workers in September, but their attorneys have since petitioned for an en banc rehearing of the case before the Ninth Circuit Court of Appeals.
Janus’ amicus brief emphasizes that an en banc hearing is necessary because the three-judge panel “gut[ted] the Supreme Court’s holding” by finding that it is “constitutional for a state and a union” to keep seizing payments “for union speech from objecting, nonmember employees” until an arbitrary 10-day period. The brief contends that the Constitution does not allow “states and public-sector unions” to “prohibit employees from exercising their First Amendment right to not subsidize union speech for 355-56 days of every year.”
Staff attorneys from the National Right to Work Foundation and Liberty Justice Center are currently litigating more than thirty Janus-related cases, including seven jointly. That includes the continuation of Mark Janus’ own case which is seeking its second writ of certiorari from the Supreme Court. In his case Janus is now pursuing a ruling that will make AFSCME union bosses refund forced fees seized from him in violation of the First Amendment, which would create a precedent that could require union officials to refund hundreds of millions of dollars from nonmember public employees across the country.
“It is shocking that despite the U.S. Supreme Court’s ruling in Janus, government employers and private political organizations, unions, continue to place limitations on Americans’ constitutional rights,” said Jeffrey Schwab, senior attorney at the Liberty Justice Center. “All government workers must be able to exercise their First Amendment right not to pay a union.”
“Mark Janus and his attorneys defended the First Amendment rights of public employees at the US Supreme Court and are now protecting those same freedoms by helping to challenge this egregious limitation on workers’ Janus rights,” added National Right to Work Foundation President Mark Mix. “It is outrageous to claim any government or public sector union boss policy can limit a worker’s constitutional rights to just 10 days each year.”
Ohio Public Employee Asks Supreme Court to Hear Class Action Lawsuit Seeking Return of Forced Union Dues
Lawsuit joins others pending at the Supreme Court seeking refunds of forced union fees seized from nonmembers in violation of Janus v. AFSCME
Washington, DC (October 9, 2020) – Yesterday, National Right to Work Legal Defense Foundation staff attorneys filed a petition for certiorari, asking the United States Supreme Court to hear the case of Nathaniel Ogle. Ogle is an employee of the Ohio Department of Taxation who, despite never being a member, still had mandatory union fees deducted from his paycheck by officials of the Ohio affiliate of the American Federation of State County and Municipal Employees (AFSCME) union.
In 2018, the Supreme Court ruled in Janus v AFSCME that it is unconstitutional to require public sector employees like Ogle to subsidize union activities. Soon after, Ogle filed his class action lawsuit seeking a return of fees seized before the Janus decision from himself and potentially thousands of other state employees.
AFSCME officials have thus far relied on the so-called “good faith” defense to avoid paying back money they took from nonmembers before the ruling in violation of the First Amendment as Janus recognized. However, in the Janus decision, not only did the Supreme Court not rule out retroactive relief, it also 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 Knox v. SEIU Supreme Court decision.
Foundation staff attorneys argue that in addition to there being no valid basis for the “good faith” defense under existing law, AFSCME officials also understood the dubious constitutionality of what they were doing when they extracted payments from nonmembers but still went forward with their legally suspect collection of forced union fees.
Ogle’s case was dismissed by the district court in July of 2019. A three judge panel of the U.S. Sixth Circuit Court of Appeals later held that the union could avoid paying back its victims, despite the Supreme Court’s assertion that unions had been “on notice,” leading to today’s petition for a writ of certiorari.
Ogle is the fifth dues repayment case the Court is being asked to consider. The other four, including Foundation-backed cases Casanova v. IAM and the Janus case itself, are fully briefed and scheduled to be considered at the Court’s October 9th conference. Foundation staff attorneys are actively litigating about 20 of these cases which collectively seek the return of an estimated $130 million or more in forced union fees seized from workers in violation of the First Amendment.
In a recent supplemental brief in Janus, Mark Janus’ attorneys from the National Right to Work Foundation and Illinois-based Liberty Justice Center point out that two of three judges on a panel of the Third Circuit Court of Appeals recently opined that the “good faith” defense is invalid, while other federal judges have upheld it. This, they argue, makes it especially vital that the Court hear the case to clear up the confusion among lower courts and ultimately reject this spurious argument allowing union officials to profit from violating workers’ constitutional rights.
“The so-called ‘good faith’ defense, which permits union bosses to continue to ignore an established Supreme Court precedent, has already been rejected by two federal judges. It is vital that the Supreme Court take up this issue to disabuse all lower courts of this flawed argument, and to ensure that the victims of union officials’ First Amendment violations finally get some justice,” National Right to Work President Mark Mix said. “The Court already ruled in Janus that public workers cannot be forced to pay union dues. It is past time for the victims of these First Amendment violations, including Mr. Ogle and his coworkers, to receive justice.”