1 Mar 2018

Janus v. AFSCME Oral Argument Media Roundup

Posted in Blog

On Monday, February 26, National Right to Work Foundation staff attorney William Messenger argued at the U.S. Supreme Court in Janus v. AFSCME, arguing that forcing government workers to pay union dues or fees as a condition of employment violates the First Amendment.

After oral argument, Messenger appeared live from the Court steps on Fox Business Channel:

Foundation President Mark Mix also recently discussed the case on National Review’s “Reality Check with Jeanne Allen” podcast. Listen to it here.

SCOTUSblog provided a summary of the oral argument:

The Supreme Court heard oral argument today in Janus v. American Federation of State, Municipal, and County Employees, a challenge by an Illinois child-support specialist to the fees that he is required to pay to the union that represents him, even though he does not belong to any union. Although this is the first trip to the Supreme Court for Mark Janus, the employee, it was the third time in four years that the justices have taken the bench to consider the issue presented by Janus’ case. After roughly an hour of sometimes testy debate in the courtroom, the outcome almost certainly hinges on the vote of the court’s newest justice, Neil Gorsuch – who did not tip his hand, opting instead to remain silent.

Newspapers such as the Chicago Tribune and The Detroit News editorialized in favor of Janus. As the Tribune explained,

Mandatory fees require dissenting nonmembers to support beliefs they reject. But the right of free speech, as the court long has recognized, includes the freedom not to speak. To force someone to pay for the advancement of political positions without his or her consent is incompatible with the First Amendment.

For background on Janus, click here.

22 Feb 2018

Commentary: Does the NLRB’s Inspector General Have a Double Standard for When Board Members Must Recuse?

Posted in Blog

In a new commentary for The Federalist Society, National Right to Work Foundation Vice President and Legal Director Raymond J. LaJeunesse discusses an inconsistent standard for recusals at the National Labor Relations Board (NLRB):

Traditionally under the National Labor Relations Act, a company was considered to be a joint employer of another company’s employees only if the putative joint employer had direct and immediate control over the other company’s employees’ material terms and conditions of employment. However, in 2015, a National Labor Relations Board majority appointed by President Obama overturned thirty years of precedent in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (3-2 decision), holding that a company is a joint employer even if it only exercises indirect control of essential terms and conditions of employment or only reserves the right to do so.

The issue was addressed again by the Board in late 2017 in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (3-2 decision). In Hy-Brand, a Board majority appointed by President Trump overruled Browning-Ferris and returned “to the principles governing joint-employer status that existed prior to that decision.”

One of the Board Members in the Hy-Brand majority was William Emanuel. Neither Emanuel nor his former law firm was involved in Hy-Brand at any point, nor has anyone claimed that either represented a Hy-Brand party at any time in any other matter. However, the NLRB’s Inspector General was asked by someone to investigate whether Emanuel should have been recused in Hy-Brand because his former law firm, but not Emanuel, represented one of the employers in Browning-Ferris before the Board.

Read the full commentary here.

5 Feb 2018

Federal Court Hears Uber & Lyft Drivers’ Lawsuit Challenging Seattle Forced Unionism Ordinance

Posted in News Releases

Ninth Circuit Court of Appeals asked to rule that law seeking to impose Teamsters unionization and forced dues violates drivers’ rights

Seattle, WA (February 5, 2018) – Today, National Right to Work Legal Defense Foundation staff attorneys are arguing Clark v. Seattle at the United States Ninth Circuit Court of Appeals for individual drivers whose federal lawsuit challenges a controversial Seattle ordinance designed to unionize independent for-hire and ride-sharing drivers and force them to pay union dues. Dan Clark, lead plaintiff in the suit, is an independent driver who picks up riders through both Uber and Lyft.

The drivers originally filed suit against the City of Seattle in the U.S. District Court for the Western District of Washington with free legal representation by staff attorneys from the National Right to Work Legal Defense Foundation and the Washington State-based Freedom Foundation. The drivers argue that the Seattle ordinance is preempted by the National Labor Relations Act and that imposing forced union representation and forced dues on them violates their First Amendment rights of free speech and freedom of association.

A District Court judge ruled against the drivers last August, clearing the way for an appeal to the Ninth Circuit. Shortly after the District Court ruling, implementation of the ordinance was blocked by the Court of Appeals until that court could rule on the pending legal challenges to the first-in-the-nation ridesharing driver forced unionization scheme.

In addition to the drivers’ lawsuit, the Court of Appeals will also hear arguments in a separate legal challenge to the Seattle ordinance arguing that the forced unionization ordinance violates federal anti-trust law. A three-judge panel will hear arguments in both cases back-to-back in Seattle this morning.

“Big Labor’s one-size-fits-all, top-down forced unionism is the very antithesis of the ride-sharing model which attracts drivers by connecting them with consumers and providing them the freedom to decide when to work and through which mobile app to find customers,” National Right to Work Foundation president Mark Mix said.

“Not only is Seattle’s scheme to force independent ridesharing drivers under Teamsters monopoly representation through a coercive card check drive bad policy, but it violates federal labor law protections and the drivers’ constitutional rights,” continued Mix. “Hopefully the appeals court will rule to protect these independent drivers from this pernicious forced unionism scheme, but if it fails to we are prepared to take this case all the way to the Supreme Court to vindicate these drivers’ freedoms.”

25 Jan 2018

National Workplace Advocacy Group to Charter School Teachers: ‘Know Your Rights to Protect Yourself from Compulsory Unionism’

Posted in News Releases

National Right to Work Legal Defense Foundation president issues statement in recognition of National School Choice Week

Washington, DC (January 25, 2018) –
Mark Mix, president of the National Right to Work Legal Defense Foundation, issued the following statement in recognition of National School Choice Week 2018:

“Teacher union officials, armed with billions of dollars in mandatory union dues, have orchestrated a sustained campaign to delegitimize and block efforts to promote school choice and especially charter schools. But despite that opposition, charter schools have enjoyed steady growth and popularity.

“In response, union officials have decided that if they cannot reverse the growth of charter schools, then they would attempt to control charter schools by forcing teachers and other school employees under union monopoly power. Of course, this could prove disastrous for charter school teachers and students nationwide, many of whom are attracted to charter schools precisely because they reject the one-size-fits-all approach promoted by national teacher union bosses.

“All charter school employees are entitled to certain constitutional and statutory rights but unfortunately union officials frequently attempt to keep employees in the dark about those rights. That is why National Right to Work Foundation staff attorneys have provided direct, free legal aid to over 10,000 teachers since its founding and why the Foundation continues its Charter School Initiative.

“Led by National Right to Work Foundation staff attorneys, the National Right to Work Foundation’s Charter School Initiative aims to enlighten charter school employees about their rights so that they can make decisions about union representation in an atmosphere free of union boss threats, harassment, coercion, or misrepresentation. To that end, Foundation attorneys have developed free educational materials for charter school teachers and employees. Furthermore, Foundation staff attorneys are prepared to continue defending charter school employees from the injustices of forced unionism.

“Charter school teachers and other employees: You have rights. For more information about your rights and the Foundation’s Charter School Initiative, check out our website at www.nrtw.org/charterschools.”

23 Jan 2018

Worker Advocate Issues Statement on Judge’s Ruling Dismissing Union Lawsuit Against Kentucky’s Right to Work Law

Posted in News Releases

Frankfort, KY – Today, at the Franklin County Circuit Court, three Kentucky workers with free legal aid from National Right to Work Legal Defense Foundation staff attorneys successfully defended the Blue Grass state’s Right to Work law against spurious legal arguments from union officials attempting to retain their forced dues powers.

National Right to Work Foundation President Mark Mix issued the following statement in response to today’s ruling:

“We welcome today’s ruling by the Franklin County Circuit Court upholding Kentucky’s Right to Work law, which simply ensures that union membership and financial support are strictly voluntary. Right to Work laws have long been upheld by appellate courts, including the U.S. Supreme Court, so it comes as no surprise that union bosses’ arguments against Kentucky’s Right to Work law were rejected in this case. Rather than wasting tax dollars and workers’ dues money continuing this frivolous legal attack on Right to Work, Kentucky union bosses ought to be working to ensure that the representation they claim to provide is actually a service Kentucky employees will voluntarily pay for.”

The ruling can be found here.

12 Jan 2018

Mechanic Hits Union With Federal Charge for Canceling His Health Insurance in Retaliation Scheme

Posted in News Releases

Dealership employee discovered insurance had been canceled by union after he exercised right to resign his union membership and filed an NLRB charge challenging union practices

Chicago, IL (January 12, 2018) – A Chicago-area auto mechanic has filed an unfair labor practice charge against International Association of Machinists and Aerospace Workers (IAM) Local 701 with free legal assistance from attorneys with the National Right to Work Legal Defense Foundation. The charge, filed with the National Labor Relations Board (NLRB), describes how union bosses wrongfully terminated the worker’s health insurance in retaliation for him exercising his right to resign union membership.

Mike Vallaro is employed at Gerald Subaru, Inc. in Naperville, IL. He exercised his right to resign from the union after IAM Local 701 union officials demanded that he and his co-workers abandon their jobs and join a union-initiated strike in August 2016. By resigning prior to the union-ordered work stoppage, Vallaro could continue working and not legally be subjected to IAM internal “union discipline.”

Despite this, union officials sent him a letter threatening a disciplinary trial for working during the strike. They claimed that, if he was found guilty by the union tribunal, Vallaro would be forced to pay a monetary fine. In similar situations around the country, union officials have levied fines in the tens of thousands of dollars against workers who defied strike demands.

Understanding his rights, Vallaro turned to Right to Work Foundation staff attorneys for free legal aid and filed the unfair labor practice charge. After National Right to Work Foundation’s involvement, IAM Local 701 notified Vallaro that its trial had been canceled. However, NLRB proceedings in the case continued.

The mechanic thought that was the last of IAM Local 701’s illegal intimidation, until he went into the doctor’s office for a medical procedure, only to find that his medical insurance had been canceled. Under the monopoly bargaining contract between the IAM and his employer, all employees are entitled to health insurance. The union controls and selects the insurance plan that covers the employees irrespective of whether they are a union member or not. Additionally, because Illinois is not a Right to Work state, Vallaro is still forced to pay fees to IAM Local 701 officials each month.

Vallaro never received prior notification that his health insurance had lapsed. After conferring with his co-workers he discovered that he was the only worker in the monopoly bargaining unit to have his insurance canceled, making it clear it was in retaliation for his previous resignation and unfair labor practice charge.

In response Vallaro again turned to Foundation staff attorneys, who assisted him in filing another unfair labor practice charge against IAM officials, this time for illegal retaliation and discrimination by violating their monopoly bargaining contract to cancel Vallaro’s insurance. Both charges are now being investigated by the NLRB Region 13 office in Chicago.

Meanwhile, Vallaro faces mounting medical bills as a result of his insurance being canceled. Fortunately, for now, his employer Gerald Subaru is assisting Vallaro with the bills that would have been covered had IAM union officials not wrongfully canceled the coverage.

“Mr. Vallaro simply wanted to continue working to support himself and his family instead of engaging in a union boss-ordered strike. Now, because he exercised his protected rights under federal law, he is facing a relentless campaign of illegal union intimidation,” said Mark Mix president of the National Right to Work Legal Defense Foundation. “Union bosses’ willingness to cancel the health insurance of a worker they still claim to ‘represent’ just when he needs to rely on that insurance, is another ugly example of union officials abusing their monopoly forced dues powers to attack workers who refuse to toe the union line.”

10 Jan 2018

Foundation Warns Workers of Union Boss Tricks Ahead of Janus Ruling

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2017 edition. To sign up for a free copy of the newsletter via mail please see the form at the bottom of the page.

Special legal notice to public employees warns against signing away rights

WASHINGTON, D.C. – With forced dues requirements for over five million public sector employees at stake in the Foundation’s Janus v. AFSCME case now pending before the U.S. Supreme Court, union bosses coast-to-coast are already scrambling to limit workers ability to cut off dues payments if the court rules that mandatory union payments violate the First Amendment.

Following the Supreme Court’s announcement in late September that it was taking the Janus case, there were reports that Big Labor was ramping up tactics to block the workers from escaping forced dues. In response, Foundation staff attorneys crafted a special legal notice to public employees, warning them against signing any union authorization cards that might later be cited to limit their right to stop paying dues.

“Unfortunately, there is a long history of union officials refusing to accept limits on their forced- dues powers, and with 5.2 million government workers forced to pay billions each year to union bosses, it is no surprise that union bosses are pulling out all the stops to attempt to block them from using the protections that a Foundation win in the Janus case would bring,” said Patrick Semmens, vice president of the National Right to Work Foundation.

“Although the scale may be unprecedented given the stakes of this Supreme Court case, unfortunately these tactics are nothing new,” Semmens continued. “Invariably, after Foundation-won legal precedents or enactment of new state Right to Work laws, union officials move to block the very workers they claim to represent from exercising their rights.”

Reports: Unions Pressing Workers To Sign Away Their Rights

The National Right to Work Legal Defense Foundation’s special legal notice warns employees of the tactics teacher union bosses have already begun using:

For instance, according to The Wall Street Journal, Education Minnesota, an affiliate of the National Education Association, is having teachers sign pre-filled “membership renewal” cards which also authorize their employer to deduct union dues or fees from their paychecks.

This language may seem innocuous, but it is craftily designed to lock employees into paying dues even if they wish to cease paying. The Wall Street Journal also notes: “If public sector unions are putting this ‘renewal’ strategy in place in Minnesota, it’s likely that they’re making similar plans elsewhere.”

Although Foundation staff attorneys question the legality of such cards, the special legal notice reminds workers that signing such a card could limit their legal options later. This is compounded by the fact that in many documented instances, union organizers solicit signatures under misleading or false pretenses.

Public sector employees are taking notice of such schemes and are already calling the National Right to Work Legal Defense Foundation to report this behavior by union officials and seek advice in protecting their rights. As always, Foundation staff attorneys are prepared to take legal action for workers who are illegally required to pay forced dues.

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9 Jan 2018

Illinois Homecare Assistants Ask U.S. Supreme Court to Hear Case Seeking Ruling That First Amendment Is Violated When Union Dues Are Seized Without an Individual’s Consent

Posted in News Releases

Providers denied refunds of $32 million in union fees which the High Court ruled in Harris v. Quinn were seized in an unconstitutional scheme

Washington, DC (January 9, 2018) –
National Right to Work Legal Defense Foundation staff attorneys filed a petition for certiorari with the U.S. Supreme Court asking the court to hear a case that could determine whether individuals’ First Amendment rights can be limited by union opt-out procedures. In the case, thousands of homecare providers are being denied refunds of over $30 million seized by union officials without their consent.

The case stems from an executive order issued by former Governor Rod Blagojevich that classified more than 80,000 individuals who receive state subsidies to provide in-home care to disabled persons as “public employees” solely for the purpose of the providers being unionized and required to pay union fees. As a result, these in-home care givers, many of them parents caring for their own children, were unionized through an SEIU “card-check” union organizing drive.

Staff attorneys with the National Right to Work Foundation assisted eight of these providers in filing a federal class-action lawsuit challenging the forced dues seizures. The High Court took the case and, on June 30, 2014, it ruled that SEIU’s forced dues scheme imposed by Governor Blagojevich is unconstitutional because it violates the First Amendment rights of the in-home care providers.

After the Supreme Court’s June 2014 ruling in Harris v. Quinn – now designated Riffey v. Rauner – the case was remanded to the District Court to settle the remaining issues, including whether SEIU would be required to return more than $32 million in dues confiscated from nonmembers through its unconstitutional scheme.

In June 2016, the District Court ruled that, despite the Supreme Court ruling in Harris, the SEIU did not have to repay these funds on a class-wide basis. That decision was appealed to the U.S. Seventh Circuit Court of Appeals where Foundation staff attorneys argued the case in May 2017. The Appeals Court ruled that even though these workers never consented to their money being taken for forced dues, their First Amendment Rights were not violated. Foundation staff attorneys now ask the Court to determine whether the “government inflicts a First Amendment injury when it compels individuals to subsidize speech without their prior consent.”

The petition can be found here.

“The Supreme Court’s Harris decision ruled that forcing homecare providers to subsidize union speech violates their First Amendment rights,” stated NRTW President Mark Mix. “This petition asks the High Court to further clarify its Harris ruling, by making it clear that individuals who have never joined a union cannot be required to take affirmative steps just to protect those Constitutional rights.”

“An individual’s First Amendment rights should never be limited by bureaucratic opt-out procedures,” continued Mix. “With the Supreme Court considering the Constitutionality of mandatory union fees for all public employees next month in the Foundation’s Janus case, this issue could be critical in protecting the freedom of speech of millions of Americans.”

9 Jan 2018

Union Bosses Admit Forced Dues Fuel Big Labor’s Political Clout

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2017 edition. To sign up for a free copy of the newsletter via mail please see the form at the bottom of the page.

Union officials’ public statements about forced dues belie their legal arguments

WASHNGTON, D.C. – Since the Supreme Court’s 1977 Abood decision, union dues for public employees have ostensibly been divided between political and ideological activities that workers could not be forced to subsidize and union activities regarding monopoly bargaining which state workers like Janus v. AFSCME plaintiff Mark Janus could be required to fund.

Beginning with the National Right to Work Foundation’s 2012 Knox v. SEIU Supreme Court case, the High Court has begun to question whether that supposed line sufficiently protects the First Amendment rights of workers like Mr. Janus who do not wish to join or associate with a union, especially because all public sector union activities are directed at the government, making them inherently political. Nevertheless union lawyers continue to argue, and are expected to argue again to the Supreme Court in Janus, that the so-called “agency fees” which nonmembers are required to pay are completely unrelated to union political spending and lobbying.

However, in public statements about the impact of losing the power to compel payment from nonmembers, union officials and their allies repeatedly admit that their forced-dues powers are crucial to Big Labor’s vast political influence.

Only 35% of Workers Would Definitely Pay Dues Voluntarily

One of the starkest admissions about how dependent union bosses are on forced dues came from an internal report commissioned by AFSCME, the union in the Janus case. According to a Bloomberg News report, the union study was commissioned to look at the potential impact of a Supreme Court ruling against forced fees. It concluded that union officials could only count on payments from “roughly 35%” of workers if dues were voluntary.

Of the remaining 65 percent, union officials said a quarter would likely opt out while the rest were “on the fence.” A separate admission by AFSCME official and former Obama Administration appointee Naomi Walker demonstrates the extent to which forced dues fuel partisan union spending on politics.

Writing about Janus for a union-funded publication, Walker predicted that the “progressive infrastructure in this country, from think tanks to advocacy organizations—which depends on the resources and engagement of workers and their unions—will crumble,” if the Supreme Court strikes down mandatory union fees. Meanwhile, the SEIU says it has planned for a 30% budget reduction in preparation for the loss of forced-dues powers over public employees.
Behind closed doors the recipients of Big Labor’s political largess also admit that union political expenditures would be significantly impacted by a ruling striking down forced dues. A leaked copy of remarks by the head of the left-wing Democracy Alliance noted that the groups “dodged a bullet” when Scalia’s death left the High Court split 4-4 with forced dues intact.

Democracy Alliance has directed around $500 million in political spending in recent election cycles. It counts national unions as a significant portion of its roughly 100 membership groups, which include AFSCME, SEIU and the two national teacher unions. In the leaked speech, Democracy Alliance President Gara LaMarche described the groups as “a key anchor of funding for progressive campaigns and causes.” According to a report in the Washington Free Beacon, he warned that Big Labor’s political allies would “need to find new ways to raise money to make up for the disastrous financial shortfall that could follow policies that prevent forced unionization.

According to public disclosure reports filed by union officials, Big Labor political spending during the 2016 election cycle topped $1.7 billion. Of that figure, over $1.3 billion came from union general treasury funds, funded largely by workers who would lose their jobs if they refused to pay union dues or fees.

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8 Jan 2018

Featured Foundation Commentary: This Is Why All Union Dues Should Be Voluntary

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2017 edition. . To sign up for a free copy of the newsletter via mail please see the form at the bottom of the page.

By Mark Mix

It’s been a landmark year in the debate over forced union dues. Kentucky and Missouri became the 27th and 28th states, respectively, to pass Right to Work laws to ensure that financial support of a union is completely voluntary. Meanwhile, the US Supreme Court could announce in a few weeks that it will hear Janus v. AFSCME, a case seeking to strike down mandatory union payments as a violation of First Amendment rights of freedom of speech and freedom of association.

The basic case for Right to Work is simple: Forcing workers to pay money to a union they don’t support is wrong. This is why polling consistently shows that Americans overwhelmingly support Right to Work, including strong majorities of independent, Republican and Democratic voters.

There are other reasons to support Right to Work, too. Workplace freedom is an economic engine, with private-sector job creation rates in Right to Work states double those in forced-unionism states between 2006 and 2016.

Plus, Right to Work laws make union officials more accountable to rank-and-file members. Without Right to Work, employees must pay up or be fired. With voluntary dues, workers can withhold financial support from a union that is corrupt, ineffective or putting its institutional interests ahead of what is best for workers. Right to Work is a defender of workers’ rights — union members and nonunion alike.

Don’t take my word for it. Among proponents of this view was Samuel Gompers, who founded the American Federation of Labor in 1886 and served as the longest-tenured president of the group that would later become the AFL-CIO. As president of the AFL in 1916, Gompers wrote, “The workers of America adhere to voluntary institutions in preference to compulsory systems which are held to be not only impractical but a menace to their rights, welfare and their liberty.”

Gompers understood that true strength came from voluntary membership, and that by using government-granted powers to force workers to associate with and fund unions — such as laws that prohibit employees from choosing their own workplace representatives — organized labor undermines its legitimacy to speak on behalf of workers.

Today, this is compounded by the fact that fewer than 6 percent of unionized workers currently under monopoly union contracts have even had the opportunity to vote for or against union representation. That’s how entrenched forced unionization is in the American labor force.

In the years since Gompers wrote against “compulsory systems,” Big Labor has completely tossed out any pretense of his “voluntary unionism” that attracts workers by showing them the potential benefits of unionization.

Instead, Big Labor has wholeheartedly embraced “compulsory unionism,” which relies on special legal privileges from government to corral workers into a union with many having no say in the matter at all.

But with Right to Work states growing — six states have passed Right to Work in the past five years — and the potential Supreme Court ruling in Janus v. AFSCME looming that could give every government employee Right to Work protections, union officials may be forced to confront a future without the power to force workers to pony up.

At a recent Massachusetts AFL-CIO conference named after Gompers, union officials even organized a special panel titled “How to Survive Right To Work.”

Without government-granted power to compel support, union officials would need to listen to their members and prove to them that paying union dues is worth it.

Union officials may find that level of accountability scary, but it’s exactly how Gompers would have wanted it.

This op-ed originally appeared in the September 3, 2017 New York Post.

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