8 May 2019

Janus Victory Opens Door for Lawsuits Seeking Millions in Forced-Dues Refunds

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2018 edition.

Foundation staff attorneys assist public-sector employees in halting ‘opt-out’ schemes across the country

Mark Mix Interview with Fox News after Janus

The Foundation’s Supreme Court victory in Janus v. AFSCME opened the door for several Foundation-litigated lawsuits seeking the return of union fees unconstitutionally seized from public sector workers.

WASHINGTON, DC – For years, union officials have been denying employee’s rights by using “opt-out” schemes, in which employees must take steps simply to refrain from paying for union activity they cannot legally be required to fund.

However, in the Foundation-won Janus v. AFSCME decision that freed public sector workers from compulsory dues, the U.S. Supreme Court affirmed that charging union fees is a violation of the First Amendment “unless employees clearly and affirmatively consent before any money is taken from them.”

That affirmation of workers’ rights has opened the door for thousands of employees to hold union officials’ accountable for coercive “opt-out” schemes, in which officials had required employees to take steps simply to protect their First Amendment rights.

SCOTUS Overturns Lower Court Decision Denying Providers Refunds

The Foundation is providing free legal representation to government employees across the country in numerous cases seeking the return of fees seized without consent by union officials.

A group of Illinois home care providers is seeking the return of $32 million in union fees seized in a coercive scheme by SEIU officials. With free legal aid from Foundation staff attorneys, the providers took their case, Riffey v. Rauner, all the way to the U.S. Supreme Court.

Riffey v. Rauner is a continuation of the 2014 Foundation-won Supreme Court Harris v. Quinn case. In Harris, the Court ruled that a forced-dues scheme imposed by the state of Illinois, in which over 80,000 individual home care providers in Illinois were unionized and required to pay union fees, violated the First Amendment.

After the Supreme Court decision, the case was re-designated as Riffey v. Rauner and remanded to the District Court to settle remaining issues, including whether or not tens of thousands of providers who had never joined the union would receive refunds of the money SEIU officials seized without consent.

However, in June 2016, the District Court ruled that the SEIU did not have to repay the funds, despite the Supreme Court ruling declaring the scheme unconstitutional. Foundation staff attorneys appealed the case to the U.S. Seventh Circuit Court of Appeals, which affirmed the District Court’s ruling that, even though the workers never consented to their money being taken, they did not suffer First Amendment injury.

Earlier this year, Foundation staff attorneys asked the Supreme Court to grant certiorari and hear the case to clarify that taking fees from nonmembers without consent violates the First Amendment.

The day after Janus, the Court granted certiorari in Riffey, vacated the lower court’s ruling, and remanded the case to be reconsidered in light of the new protections against “opt-out” schemes.

“With the Supreme Court remanding Riffey, we are one step closer toward indicating the rights of the tens of thousands of victims, many of whom are family members
caring for disabled children in their own homes,” said Foundation President Mark Mix.

“Now, with the new protections for workers afforded by our landmark Janus v. AFSCME victory, it is critical to confirm that unions cannot require individuals to ‘opt out’ of union dues that they cannot be required to pay in the first place,” continued Mix. “Union officials are still using such ‘opt-out’ schemes nationwide to limit workers’ constitutional protections despite Janus’ clear ruling that those schemes are impermissible. Ultimately, the clear ruling by the Supreme Court on this issue must be enforced in the lower courts to ensure that individuals who never joined a union cannot be required to take affirmative steps simply to protect their First Amendment rights.”

California Class Action Lawsuit Could Return Over $100 Million in Seized Dues

Foundation attorneys are also seeking to halt an “opt-out” scheme in which SEIU officials seized millions of dollars in forced dues from thousands of California state employees.

The workers are challenging SEIU Local 1000 officials’ “opt-out” policy that required workers to affirmatively opt out of the portion of union fees that workers cannot be legally required to fund.

In 2015, a federal judge certified Foundation staff attorney W. James Young as the attorney for the entire class of more than 30,000 nonmembers who had been coerced since June 2013 into funding SEIU union officials through the scheme.

The case is pending in the U.S. Ninth Circuit Court of Appeals on appeal from the District Court’s dismissal of the claim. Hours after the Janus ruling declared that workers must provide affirmative consent to be charged union fees, Young notified the Court of Appeals of the decision’s relevance to Hamidi.

Unions have been on notice of the dubious legal grounds of its “opt-out” policy since the Foundation-won Knox v. SEIU Supreme Court decision in 2012, when the Court ruled in favor of a similar class of workers forced to pay union dues.

Because SEIU Local 1000 did not adjust its policy of forcing workers to opt-out of non-chargeable fees after Knox, the Janus decision means the union could be required to refund all fees seized since June 2013 from the more than 30,000 class members, an amount estimated to be well over $100 million.

“For years union bosses have violated the rights of public employees and seized billions of dollars in unconstitutional forced fees,” said Mix, “Now, armed with the Janus precedent, Foundation staff attorneys are seeking to force union officials to return those ill-gotten gains to the workers whose rights they violated.”

7 May 2019

Original Janus Plaintiff Moves to Stop Union Lawsuit to Discriminate Against Non-Members

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2018 edition.

Union officials are attempting to counter Janus by expanding monopoly bargaining powers

Brian Trygg

Illinois state employee Brian Trygg seeks to intervene in a union official’s case to expand union boss power to discriminate against workers who exercise their Janus rights.

CHICAGO, IL – An Illinois civil servant has filed a motion to intervene in a union official’s
lawsuit seeking to circumvent the Janus ruling.

Brian Trygg is no stranger to union officials’ legal tactics. Trygg, an engineer at the Illinois Department of Transportation, spent seven long years in court fighting for his right to honor his religious conviction to remain unassociated with a union.

Trygg was an original plaintiff with Mark Janus in Janus v. AFSCME, but was removed from the case because he had secured religious accommodation as relief from forced union fees. Now, Trygg again seeks to hold union officials accountable in court for their misdeeds against non-members.

Union Lawsuit Seeks to Stifle Non-Members’ Voices

In anticipation of Janus, International Union of Operating Engineers (IUOE) lawyers filed a lawsuit seeking to expand union officials’ ability to use their government-granted monopoly bargaining powers to discriminate against workers who exercise their right to refrain from union membership and not pay union dues or fees.

Trygg came to Foundation staff attorneys for free legal assistance in filing his motion to intervene to protect his rights and the rights of all public employees under the Janus ruling.

The IUOE official’s lawsuit attempts to take advantage of IUOE’s legislative privilege to force its “representation” on all employees, even union non-members, in their bargaining unit while claiming it should also be free of longstanding legal doctrine prohibiting union officials from using their monopoly representation to discriminate against non-members and not represent non-members in union-controlled grievances.

Trygg seeks to intervene to urge dismissal of the IUOE case, or alternatively, to file an amicus curiae brief to support the state defendants’ motion to dismiss.

Acting on his beliefs, Trygg has exercised his right to refrain from union membership. If IUOE’s suit is successful, Trygg would continue to be unable to negotiate with his employer due to the union’s monopoly bargaining status, yet union officials would have the power to discriminate against him and ignore the legal doctrine known as “duty of fair representation.”

IL AG’s Legal Representation Inadequate and Bordering on Malpractice

Trygg argues that Defendant Attorney General Lisa Madigan has failed to protect his interests, with legal representation “inadequate and bordering on malpractice.” Madigan also has opposed and criticized the Janus ruling and has taken action to limit its application to Illinois public employees.

IUOE officials appear to be calling for the overturn of the U.S. Supreme Court’s Steele precedent, a 1944 case that challenged union officials’ attempt to use their monopoly bargaining privileges to discriminate against black workers. The decision suggested that monopoly bargaining would be unconstitutional absent a legal limitation on union officials using their power to discriminate against the workers they choose to “represent.”

Trygg’s filings argue that, even if the union’s claims were valid, the solution would be eliminating union monopoly bargaining powers over non-members, not giving union officials wider berth to discriminate against those who exercise their First Amendment rights protected by the Janus decision.

“The root of Big Labor’s coercion has always been its government-granted power to impose its so-called ‘representation’ on workers who don’t want it and never asked for it,” said National Right to Work Foundation President Mark Mix. “Ultimately, if union bosses find their obligation not to discriminate against non-members under their ‘representation’ so burdensome, they can simply relinquish their government-granted monopoly bargaining powers over nonmembers like Brian Trygg.”

7 May 2019

Hospital Employee Successfully Halts SEIU Coercive Unionization Scheme

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2018 edition.

Union bosses’ backroom deal sought to “acquire” employees who had previously rejected union organizing attempts

Kathleen Flanagan

Kathleen Flanagan’s settlement rescued her coworkers from a collusive scheme between her employers and union officials, in which employees were illegally told they must become union members and pay union membership dues.

LONG ISLAND, NY – After her employer made a deal with union officials behind closed doors, Kathleen Flanagan came to the National Right to Work Foundation to halt the scheme and free her coworkers.

The backroom deal between Northwell Health and 1199 SEIU United Healthcare Workers East (SEIU 1199) officials forced Flanagan, a physical therapist assistant, and her colleagues into union ranks without a vote. Unwilling to accept being coerced into unionization, she filed unfair labor practice charges at the National Labor Relations Board (NLRB) with free Foundation legal assistance.

In May, Northwell Health and 1199 SEIU officials were forced to give up their under-the-
table agreement, a triumph for Flanagan and her coworkers who had previously rejected SEIU unionization attempts.

Workers Compelled to Join Union Ranks

SEIU 1199 union officials already had monopoly bargaining power over some workers at Northwell Health’s facilities. However, workers in other classifications, including Flanagan’s physical therapy and occupational therapy department at Long Island Jewish Medical Center, had rebuffed union organizers.

In November 2017 a Northwell Health representative informed Flanagan’s department that SEIU 1199 had “acquired them legally.” The department, as well as other departments at Northwell’s two facilities, was “accreted” into the union’s monopoly bargaining unit and forced to accept the union’s unwanted “representation.”

At a mandatory union meeting, a union official unlawfully told the workers they were required to join the union, and therefore pay full union dues, by January 1, 2018. If Flanagan had remained an employee, she would have been required to accept union representation, pay union fees, and accept a reduction in benefits.

Faced with a reduction in benefits due to a union she and her coworkers never wanted, Flanagan chose to retire instead.

Union Officials’ Scheme with Hospital Exposed

Flanagan’s former coworkers were still being forced by union bosses to accept
representation” they didn’t want. To challenge the so-called “accretion” as unlawful, Flanagan went to Foundation staff attorneys, who helped her file charges with the NLRB.

Northwell and SEIU 1199 eventually settled the charges, rather than face further litigation for violating workers’ legal rights. Under the settlements, Northwell ceased
recognition of SEIU 1199 as the monopoly bargaining representative of the illegally
accreted hospital workers, and SEIU 1199 was forced to relinquish monopoly bargaining
privileges over those employees.

“The so-called accretion doctrine, which is not mandated by the National Labor Relations Act, empowers union bureaucrats to coerce workers into unions without a vote, frequently
after the targeted workers reject union organizing attempts,” commented National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse. “However, the collusion
between the company and union brass in this case was so egregious and flagrantly illegal that the NLRB had no choice but to take action.”

The illegally accreted workers are now freed from unwanted union representation and will be reimbursed for union fees they were forced to pay. Furthermore, notices will be posted at both of Northwell Health’s facilities and emailed out to affected employees to inform them of their rights.

“Thanks to Kathleen Flanagan, this ugly power-grab by SEIU officials was successfully halted and reversed,” continued LaJeunesse. “To protect other workers across the country from being forced into unwanted unions, the Trump NLRB should overturn this outrageous
accretion doctrine.”

7 May 2019

Michigan Supreme Court Upholds Ruling to Strike Down Teacher Union “Window Periods”

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2018 edition.

Decision affirms the right of Michigan teachers and other civil servants to leave a union at any time

UAW union chief Bob King

Union bosses still flout Michigan’s Right to Work Law, which passed in 2012 after voters rejected United Autoworkers (UAW) union chief Bob King’s ballot measure to make forced union dues mandatory under the Michigan State Constitution.

LANSING, MI – In March, the Michigan Supreme Court denied an appeal by Michigan Education Association (MEA) union lawyers of a lower court ruling that affirmed Michigan employees’ right to leave a union at the time of their choosing. National Right to Work Legal Defense Foundation staff attorneys provided free legal assistance to several public school employees in the case.

Since Michigan’s Right to Work Law took effect in 2013, Foundation staff attorneys have actively challenged union officials’ schemes to stonewall independent-minded workers attempting to exercise their lawful rights. To date, over 40 cases have been brought by Foundation attorneys to enforce Michigan employees’ Right to Work protections.

“As our enforcement activities in Michigan demonstrate, without vigorous enforcement, state Right to Work laws will be hollowed out by scofflaw union bosses,” said Ray LaJeunesse, Vice President and Legal Director of the Foundation.

School Employees Fight Back

Battle Creek Public Schools employee Alphia Snyder resigned her union membership in April 2013, after the pre-existing monopoly bargaining agreement expired and she became fully covered by Michigan’s public sector Right to Work law. However, MEA union officials insisted that she could only leave the union during an annual 30 day “window period” in August. Throughout the fall of 2013, Snyder received several demands for forced dues from MEA bosses.

Mark Norgan, a Standish-Sterling Community Schools employee, resigned his union membership in October 2013. Because he was still under a monopoly bargaining contract until June 30, 2015, he asked to pay only the part of dues he was forced to pay as a condition of employment as was his right under the Foundation-won Supreme Court case Chicago Teachers Union v. Hudson. MEA union officials told him that he could only leave the union during the annual 30 day window period.

In November 2013, Grand Blanc Community Schools employee Mary Carr resigned her union membership as soon as she became fully covered by Michigan’s Right to Work Law. However, MEA officials informed Carr that her resignation could not be effective until the following August. Union officials then sent multiple demands for forced dues, and eventually threatened Carr that if she did not pay the forced dues, they would dispatch debt collectors.

With free legal aid from Foundation staff attorneys, the three public school employees filed unfair labor practice charges with the Michigan Employment Relations Commission (MERC) against the MEA in the spring of 2014. In September 2014, an administrative law judge struck down the “window period” scheme, and the full commission agreed in February 2016. The commission also held that a union’s threats to use a debt collector to collect dues after resignation would be illegal in the future.

MEA appealed MERC’s ruling to the Michigan Court of Appeals, which in May 2017 affirmed the right of Michigan teachers and public employees to leave a union and stop paying union dues at any time. Finally, this March, the Michigan Supreme Court rejected MEA’s appeal of that ruling.

“Right to Work laws simply protect an employee’s right to decide for him or herself whether to join and financially support a union, and now Michigan’s courts have made it clear that freedom of choice cannot be limited to one month a year,” said LaJeunesse. “Hopefully Michigan unions now will focus on gaining the voluntary support of workers instead of attempting to trap them in unions with schemes like arbritrary window periods.”

7 May 2019

After More Than Twenty-Eight Years of Litigation, Independent-Minded Workers Prevail

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2018 edition.

Foundation-assisted couple forces union to settle case over illegally seized dues

Berlin Wall

Photo By: University of Minnesota Institute of Advanced Studies

Sherry and David Pirlott filed charges against union officials on November 8, 1989 — the day before the Berlin Wall began to be demolished — but enforcing their rights would take longer than tearing down one of the most visible symbols of the Cold War.

GREEN BAY, WI – The day before the Berlin Wall fell in November 1989, Sherry and David Pirlott filed federal unfair labor practice charges against the Teamsters Local 75 union hierarchy for keeping them in the dark about their rights and how union officials were spending their forced union dues

Following nearly three decades of litigation between National Right to Work Foundation staff attorneys and union lawyers at both the National Labor Relations Board (NLRB) and Court of Appeals for the D.C. Circuit, the Pirlotts’ rights were finally vindicated.

Former Steward Stood up to Corruption, Intimidation

Before the legal battle began, Sherry Pirlott was a Teamsters local 75 union steward at the Schreiber Foods cheese company

“It was very clear from the beginning that the other union stewards did things for the betterment of the union, not for the betterment of the workers,” she later recounted. “I just did what I thought was right, and the other stewards didn’t like that one bit.”

After union goons threatened her with bodily harm for refusing to toe the line, Sherry decided to stop financially supporting the union hierarchy. Teamsters Local 75 union officials then sued her in small-claims court to force her to pay for union activities. Unable to find a local attorney in Green Bay willing to take on union lawyers, she was forced to defend herself. The judge refused to hear her arguments and quickly awarded judgment to the Teamsters.

That’s when Sherry discovered the National Right to Work Foundation’s free legal aid program — and learned about her rights under a United States Supreme Court decision Foundation staff attorneys had just won.

Foundation-won Beck Precedent Requires Disclosure

In the Foundation-won Communications Workers v. Beck ruling, the U.S. Supreme Court held in 1988 that workers have the right to refrain from joining a union and subsidizing union activities unrelated to monopoly bargaining and contract administration, such as politics and member-only events.

Teamsters Local 75 union officials never informed the Pirlotts or their coworkers of their rights under Beck. Once they learned of these rights, Sherry and David Pirlott, also an employee at Schreiber Foods, resigned from formal union membership and objected to paying for nonchargeable union expenses. Providing only sketchy financial disclosure of the union’s expenses, Teamster union officials told the Pirlotts that only 1.1 percent of the union’s expenditures were for non-bargaining activities.

On November 8, 1989, with free legal aid from Foundation staff attorneys, the Pirlotts filed unfair labor practice charges with the NLRB. Nearly two years later, the NLRB General Counsel found merit to the charges and issued a complaint against the union for failing to inform workers of their Beck rights, providing inadequate financial disclosure, and charging objecting workers for expenditures incurred beyond their own bargaining unit.

Labor Board Bureaucrats Drag Feet For Years

In 1992, an administrative law judge issued a mixed ruling, and both the Pirlotts and the union appealed to the full NLRB. That’s when the outrageous delays began.

After more than six years of inaction by Bill Clinton’s NLRB, Foundation staff attorneys filed a rare mandamus petition in the U.S. Court of Appeals for the D.C. Circuit to order the Board to issue a decision. Under mounting pressure form this legal action, the Clinton Labor Board finally acted on the case in September 1999. However, they simply sent the case back to an administrative law judge to determine whether the union could force the Pirlotts to pay for union organizing at other workplaces.

In the Foundation-won Supreme Court precedent Ellis v. Railway Clerks, the U.S. Supreme Court ruled that such expenses are not chargeable to non-members under the Railway Labor Act. Unfortunately, even though in Beck the Court ruled that the Railway Labor Act and the National Labor Relations Act are “statutory equivalents,” the judge in December 2001 ruled that Teamster union bosses could charge the Pirlotts to subsidize union organizing campaigns anywhere in the private sector.

The Pirlotts again appealed to the full NLRB. With no decision for four and a half years, Foundation staff attorneys filed a second mandamus petition and successfully convinced the D.C. Circuit to order the NLRB to respond in 2006. Unable to meet the November 30 deadline, the NLRB asked the D.C. Circuit for more time. When the NLRB finally issued a decision two months later, it failed to hold all union organizing expenditures nonchargeable under Ellis and Beck. Moreover, the Board overlooked the inadequacy of the union’s financial disclosure, so the Pirlotts appealed the decision to the D.C. Circuit.

On April 18, 2008, the D.C. Circuit issued its ruling. It declined to address the argument that objecting non-members can never be charged for organizing activities and remanded the case back to the NLRB to consider the adequacy of the union’s financial disclosure. The NLRB then sat on the case for the next seven years with little action.

The NLRB in March 2017 finally held that the Teamsters Local 75 union officials provided insufficient financial disclosure. Following this victory for the Pirlotts, settlement negotiations dragged on for nearly another year. Eventually, after Wisconsin’s Right to Work Law became operative at Schreiber Foods in January 2018, the union agreed to reimburse the Pirlotts with interest and post notices informing workers of their rights under Beck. Further, because of Wisconsin’s Right to Work Law, David Pirlott, who still works at Schreiber Foods, is finally free from any payments to the union bosses that fought to violate his rights for decades.

“With the help of NLRB bureaucrats, Teamster union bosses fought tooth and nail for nearly three decades to try to keep every last cent of the Pirlotts’ forced fees,” said National Right to Work Foundation President Mark Mix. “The Pirlotts’ lengthy legal battle to enforce their rights despite the NLRB’s repeated delays demonstrates that Right to Work laws are the only way to truly protect independent-minded workers.”

6 May 2019

California Restaurant Employees Successfully Remove Union after Years of Obstruction

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2018 edition.

Landslide vote against union bosses came after years of delay by Obama NLRB

Georgina Canche

Georgina Canche and her fellow workers at Scoma’s, a CA restaurant, finally ousted unwanted union officials from their workplace after years of legal delays.

SAUSALITO, CA – Workers at Scoma’s of Sausalito, a California restaurant, held a decertification election on July 10 to remove the UNITE HERE union from their workplace, resulting in a 37-12 landslide vote against the union. The successful election was a culmination of over four years of employee efforts to remove the union’s presence at the restaurant. The restaurant employees received free legal aid from National Right to Work Legal Defense Foundation staff attorneys in their efforts to exercise their rights to oust the unwanted union.

In 2013, restaurant employee Georgina Canche and a majority of her fellow coworkers successfully petitioned their employer to withdraw recognition of UNITE HERE as their monopoly bargaining representative. Although a majority of the employees signed the petition and the employer followed procedure established by longstanding labor law, the union filed a federal charge against the employer with the National Labor Relations Board to reinstate its monopoly bargaining powers, regardless of the workers’ petition.

Obama Labor Board Trapped Workers in Unwanted Union for Four Years

The notoriously pro-forced unionism Obama Labor Board sided with union lawyers, and even issued a “bargaining order” to block attempts by the workers to hold a secret ballot vote to decertify and remove the union as the employee’s monopoly bargaining representative.” With the backing of the workers, Scoma’s appealed the case to the D.C. Circuit Court of Appeals, which unanimously overturned the “bargaining order” and remanded the case to the Labor Board so that a decertification vote could proceed.

One judge wrote separately and excoriated the Board for its blocking charge policy that delays elections.

After additional delay, the NLRB Regional Director finally conducted a secret ballot decertification election, in which the workers voted overwhelmingly to remove UNITE HERE from their workplace. Thus, five years after a majority signed their petition to kick the union out of their workplace, the workers were finally free of the union.

“After years of dilatory legal challenges by union lawyers with the help of Obama-installed bureaucrats, the workers of Scoma’s restaurant are finally able to have a say in their own workplace representation,” said Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation. “This case shows the legal trickery used by union bosses to hold onto their forced-dues powers, even when a clear majority of the workers the bosses claim to represent oppose their presence. This is why the Foundation’s legal aid program is so vital in clearing the legal hurdles so workers can exercise their right to vote out a union they oppose.”

1 May 2019
29 Apr 2019

Housekeeper Challenges Labor Board Double Standard Promoting ‘Card Check’

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.

Trump NLRB asked to enforce rule stopping companies from aiding union ‘card check’ drives

President Obama

President Barack Obama’s NLRB pushed through Big Labor-friendly rules promoting coercive “card check” union organizing drives

Washington, D.C. – After UNITE HERE Local 8 union officials unionized Gladys Bryant’s workplace via a “card check” drive, the Seattle housekeeper couldn’t help but feel that her rights had been violated.

Union bosses had significant help from Bryant’s employer, Embassy Suites, to organize the employees – even a list of workers’ names and contact information. And when Bryant had sought to revoke her card asking for the union’s representation, a union organizer lied to her and her coworkers about the process, blocking Bryant from exercising her rights.

After the tainted “card check” drive resulted in UNITE HERE Local 8’s monopoly bargaining power over her and her colleagues, Bryant decided to challenge the union bosses and her employer over their coercive tactics.

She filed charges with free legal aid from Foundation staff attorneys. A National Labor Relations Board (NLRB) Regional Director dismissed her charges, but a Foundation staff attorney has filed an appeal with the NLRB General Counsel.

‘Card Check’ Drive Marked by Misinformation and Double Standards

Bryant had been working at Embassy Suites in Seattle for a month before the company informed her and her colleagues that UNITE HERE Local 8 union officials would be organizing the workplace.

Union officials began conducting a “card check” drive, a coercive tactic that bypasses a secret ballot election. Embassy Suites actively promoted the drive, giving union organizers special access to the hotel to meet and solicit employees. The hotel even provided union bosses with a list of all employees’ names, jobs, and contact information to assist the union officials in collecting authorization cards from employees.

Although Bryant did at first sign a union authorization card, she and many of her colleagues reconsidered. When Bryant asked a union official how to revoke her card, the union official misled her and other employees that they had to appear in person at the union hall to revoke any previously signed cards.

Bryant made an appointment with the union official in an attempt to comply with the unlawful requirement. However, the union official did not show up. As a result, Bryant and her colleagues were unable to revoke their union authorization cards, which were then counted as “votes” toward unionization.

Foundation Attorney Asks NLRB to Protect Worker Freedom

After Embassy Suites recognized UNITE HERE Local 8’s monopoly bargaining “representation” over employees, Bryant sought free legal aid from Foundation staff attorneys to file charges, arguing that the unionization violated the National Labor Relations Act (NLRA).

Bryant’s charges allege that Embassy Suites provided UNITE HERE’s organizing campaign with more than “ministerial aid.” The NLRB has long held that an employer taints employees’ efforts to remove a union if it gives the employees more than “ministerial aid,” such as providing a list of bargaining unit employees or use of company resources – as Embassy Suites gave union officials.

Foundation staff attorneys argue that the same “ministerial aid” standard must also apply when an employer aids union officials’ efforts to gain monopoly bargaining power over workers.

The Foundation staff attorney representing Bryant asks that the General Counsel issue a complaint on Bryant’s allegations to provide the Board with an opportunity to bring consistency to its “ministerial aid” standard

Bryant’s charges also argue that UNITE HERE violated the NLRA and fatally tainted its proof of employee support by misinforming employees that they could only revoke authorization cards by going in person to the union hall, blocking workers from exercising their rights. NLRB doctrine holds that, to revoke an authorization card, an employee must simply sign a document stating he or she does not support union representation.

Bryant and her coworkers had collected enough signatures for a decertification vote to remove the union. However, in a separate case covered in the January/February 2019 Foundation Action, the NLRB blocked their petition based on the “card check” recognition.

The block was due to Lamons Gasket, a 2011 Obama Board ruling barring decertification for one year after unionization via “card check.” Some Board members have noted in other recent cases that they would be willing to revisit the blocking charge policy in the future. “

“This case proves that not only are union bosses willing to manipulate and ignore the rights of the workers they claim they want to ‘represent,’ their coercion often goes unchecked because of double standards in how the NLRB interprets the law,” said National Right to Work Foundation Vice President Ray LaJeunesse. “What qualifies as ‘ministerial assistance and support’ under the National Labor Relations Act cannot depend on whether the employer is helping outside union organizers impose unionization on workers, or assisting workers in exercising their rights to remove an unwanted union. This case offers the Trump NLRB a chance to stand up for worker freedom and end a double standard that tips the scales in favor of forced unionism.”

25 Apr 2019

Foundation Pushes for Rule Change to Stop Big Labor’s Illegal Medicaid Skim

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2018 edition.

Union bosses have already diverted over $1 billion in Medicaid funds intended for caregivers

Pam Harris with her son Josh

Pam Harris, a home health care provider for her son Josh, won the U.S. Supreme Court Harris v. Quinn decision with the help of Foundation staff attorneys. Although the High Court declared it unconstitutional to skim union dues from Medicaid funds, the skim continues.

WASHINGTON, DC – Each year, schemes enacted by ten states allow well over $100 million to be diverted from healthcare providers to union officials. By skimming money from Medicaid programs, union bosses flout federal law and a National Right to Work Foundation-won Supreme Court decision.

A rule proposed by the U.S. Centers for Medicare & Medicaid (CMS) would end the scheme. In August, the Foundation submitted formal comments to CMS supporting the agency’s proposal that would clarify that the diversion of Medicaid payments from providers to third parties, including unions, violates federal law.

Proposed CMS Rule Would Halt Union Officials’ Skimming Healthcare Payments

In 2014, the Obama Administration promulgated a new regulation to give legal cover to ongoing schemes of the SEIU and other unions that siphoned money from Medicaid funds, violating the federal Medicaid statute that prohibits assigning benefits to third parties. Union officials have to-date skimmed over $1 billion in Medicaid funds intended for caregivers.

The Foundation’s comments call on CMS to halt the skim, urging the agency to repeal the Obama rule and replace it with clear language to give states notice that continuing to divert payments puts their Medicaid funding at risk.

“It is long past time for this outrageous exemption for union officials to be ended,” said Foundation Vice President and Legal Director Ray LaJeunesse. “The CMS should expeditiously issue a final rule to stop the illegal diversion of funds from Medicaid providers. Despite the wishes of the politicians whom they support, union officials are not exempt from federal law. All the current proposed rule change would do is close an illegal loophole the Obama Administration invented.”

Foundation Helps Caregivers Hold Union Officials Accountable for Scheme

Even as union officials circumvent the law through special privileges, the Foundation has fought to restore justice to the thousands of providers affected.

The 2014 Foundation-won Harris v. Quinn Supreme Court decision held that it is unconstitutional for states to force home care providers receiving Medicaid subsidies to pay union fees. The case continues, now designated as Riffey v. Rauner, as Foundation attorneys seek the return of over $30 million in funds seized from 80,000 providers in violation of their First Amendment rights.

Despite the Supreme Court ruling, the skim has not stopped. That is why in 2017 the Foundation sent a letter to the Department of Health and Human Services to bring its attention to the issue. Moreover, Foundation President Mark Mix personally raised the issue with Trump Administration officials at the White House earlier this year.

“Our National Right to Work Foundation-won 2014 Harris decision made it illegal for states to require providers pay fees to union officials, but the current scheme to deduct union fees from Medicaid payments is part of the union bosses’ attempts to undermine that ruling,” said LaJeunesse. “Nothing in the proposed CMS rule would stop providers from making truly voluntary dues payments to union officials by check or credit card each month. The rule would merely stop union bosses from using public payment systems to capture tax dollars intended for providers caring for those in need.”

16 Apr 2019

Lawsuits Successfully Challenge Schemes to Block Workers’ Janus Rights

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.

Workers win first two settlements to end unconstitutional forced union dues seizures

Sandra Anderson

Police clerk Sandra Anderson won a settlement against IBEW with help from Foundation staff attorneys, successfully challenging union bosses’ scheme to trap her into subsidizing a union.

BRAINERD, MN – The fight for public sector workers’ First Amendment rights took a huge step forward in the Foundation-won U.S. Supreme Court Janus v. AFSCME decision. However, across the country union bosses are attempting to limit when workers can exercise their First Amendment rights under Janus, to stop dues seizures through so-called “window period” policies.

In response, Foundation staff attorneys have filed many lawsuits for public employees challenging such schemes, which claim workers can be restricted from exercising their First Amendment rights under Janus outside brief union-created window periods. Such policies trap workers in forced dues against their will, which puts them at odds with the Janus ruling that any dues taken without workers’ consent violates their constitutional rights.

Two of those important lawsuits have ended in victories halting unions’ “window period” policies.

Minnesota Civil Servant Stops Illegal Forced Union Due

In 2004, when the City of Brainerd Police Department entered into a monopoly bargaining contract with International Brotherhood of Electrical Workers (IBEW) Local 31, clerk Sandra Anderson was told she must either join the union and pay dues or pay compulsory union fees as a non-member. Faced with being forced to fund the union either way, Anderson joined the union, signing a form authorizing the deduction of union dues from her paycheck.

Then, Anderson heard about the Janus ruling, argued and won by Foundation staff attorneys at the Supreme Court. Soon after, Anderson emailed an IBEW official and Brainerd representatives demanding that both parties stop collecting dues from her wages in accordance with Janus. However, IBEW officials claimed that Anderson could only stop dues payments during either a 10-day window prior to the expiration of the monopoly bargaining contract, or a 10-day window prior to the anniversary date of her dues deduction authorization.

Anderson came to the Foundation for help in filing a lawsuit challenging the “window period” policy as unconstitutional, because the policy limits when she can exercise her First Amendment rights under Janus, and allows IBEW Local 31 union officials to collect union dues without her affirmative consent.

In December 2018, IBEW union officials decided they wanted the case to go away, so they settled. Under the settlement, IBEW has refunded to Anderson all union dues they unconstitutionally collected from her after she notified the City of Brainerd and IBEW Local 31 that she no longer consented to financially supporting the union. IBEW officials have also acknowledged Anderson’s request to withdraw her union membership, and will not seek or accept union dues from her again unless she affirmatively chooses to become a union member.

Ohio Union Bosses Back Down from Class Action Lawsuit Challenging Scheme

Shortly after Anderson’s victory, a group of Ohio public sector employees freed themselves and thousands of their colleagues from another “window period” scheme that violated their rights.

Seven Buckeye State civil servants attempted to resign their union membership in American Federation of State, County and Municipal Employees (AFSCME) Ohio Council 8 and stop paying union dues after the Janus decision. However, AFSCME officials continued to deduct dues, citing a union policy restricting revocation of dues deduction to a narrow 15-day window prior to the expiration of a monopoly bargaining contract once every three years

The workers came to Foundation staff attorneys to file a class action lawsuit challenging the “window period” scheme. Rather than face Foundation attorneys in court, AFSCME Council 8 union officials settled the lawsuit.

Under the settlement agreement, AFSCME Council 8 stopped enforcing the existing policy restricting workers under their “representation” – as many as 30,000 individuals – from exercising their Janus rights. Additionally, union officials refunded to the plaintiffs all union dues they unconstitutionally collected after the plaintiffs notified union officials that they no longer consented to financially supporting the union.

Union officials were also required to identify any other workers whose rights were blocked by the scheme, honor their requests to resign and stop paying union dues, and refund the dues seized from them under the scheme.

“These seven workers bravely challenged the union bosses’ ‘window period’ scheme, and protected not only their rights but also the rights of tens of thousands of their colleagues,” said National Right to Work Foundation President Mark Mix. “Our first-in-the-nation victories enforcing workers’ rights under Janus should be precursors of many cases that result in union bosses dropping their illegal restrictions on workers seeking to exercise their rights secured in the Foundation’s JanusSupreme Court victory.”