The #WeSue movement

By Larry Sand
December 11, 2018

The Janus decision in June has opened the door to litigation. Lots of litigation.

It has been almost six months since the Janus ruling, which allows government workers to avoid paying a union as a condition of employment. But that was just a beginning. The decision has shone a light on many other union abuses that were not addressed by the Supreme Court ruling, and has empowered workers and taxpayers to legally pursue other injustices.

Exclusive bargaining rights, in play throughout most of the country, designate a union as the sole representative to bargain collectively for all employees (whether or not they are members of the union) in a particular bargaining unit. If an individual employee wants to negotiate her contract or hire an agent to do so, she can’t. But now, there are two lawsuits being brought by Ohio’s Buckeye Institute that oppose this union overreach. In one, Jade Thompson, a Spanish teacher in Ohio, doesn’t want to be represented by the union because it bargains for policies with which she disagrees, including the exclusion of merit factors in lay-off policies and its rigid seniority system. In the other lawsuit, Kathy Uradnik, a professor of political science in Minnesota, wants out because her union discriminates against non-union faculty members “by barring them from serving on any faculty search, service, or governance committee, and even bars them from joining the Faculty Senate.”

In California, AFSCME Local 3299 is trying a novel end-around. Instead of calling them “dues,” the union has changed their name to “service fees” and continues to ding workers who want out. But a lawsuit filed by Liliana Hernandez is calling BS on this move. While a union spokesman maintains that “the union’s contract allows for the service fees and that members agreed to them when they joined,” this is a flagrant misreading of the Janus decision. In essence the union is saying, “We are not going to beat you over the head with a hammer anymore; from now on we will use a mallet.”

Then we have “foggy windows,” the nefarious cousin of “service fees.” This cutie-pie move allows dissenting workers to quit a union, but only during a brief specified time period, or they are sucked in for another year. In Las Vegas, a worker must quit between July 1st and July 15th, or be trapped paying dues for 12 more months. In May, New Jersey created a law which stipulates that for an employee to leave their union they must do so “during the 10 days following each anniversary date of their employment.” But now two teachers in New Jersey, with legal help from the National Right to Work Foundation, are fighting AB 3686’s “trap language.”

This kind of union chicanery is going on all over the country. But most recently Los Angeles special education teacher Thomas Few scored a major victory. With help from the California Policy Center and Liberty Justice Center, he sued the United Teachers of Los Angeles on November 13th, after several requests to be relieved of all union dues went unanswered. Two weeks later Few received a letter telling him that UTLA still has the right to take his money, but the union will refrain from doing so “rather than expend dues money on litigation.” UTLA not only stopped charging him monthly but sent him a check for $433.31, the amount he had paid since first demanding full separation from the union. Now since UTLA has honored Few’s request, this could open the door for all others in the same position. The California Policy Center is pursuing the lawsuit to ensure that the window will no longer shut in anyone else’s face. A hearing is scheduled for February in Los Angeles.

Perhaps the worst lawsuits for the unions are those that demand teachers and other public employees should be able to recover fees forcibly extracted from their paychecks for a period before the Janus decision was handed down. Hamidi et al v. SEIU Local 1000, filed by the National Right to Work Foundation, could force the union to refund money taken from 40,000 California state workers dating back to 2012. The money had been seized from employees who wanted to have no union involvement but were made to fork over some money to them nevertheless. The lawsuit, which includes suing for return of the forced dues payments as well as for compensatory damages, could cost the union $100 million.

Additionally, there are federal class-action lawsuits in California, Maryland, Minnesota, Ohio, Pennsylvania and elsewhere that have been filed against teachers unions. Patrick Semmens, a spokesman for the National Right to Work Foundation, said that the teachers are entitled to get their money back because the Supreme Court ruled that the collection of agency fees (full dues minus the money the union claims to spend on politics) violated teachers’ First Amendment rights, as they were still being forced to pay a union whose policies and actions they did not support. If these suits pass muster, the unions will be out untold millions of dollars.

And finally, there is release time, a union swindle that I first wrote about in 2011. Also called “official time” at the federal level, it’s a practice that allows public employees to conduct union business during working hours without loss of pay. These activities include negotiating contracts, lobbying, processing grievances, and attending union meetings and conferences. According to Trey Kovacs, a policy analyst at the Competitive Enterprise Institute, federal employees spent almost 3.5 million hours conducting union activities in fiscal year 2014, dinging taxpayers for over $162 million. This racket has cost the federal government alone over $1 billion since 1998.

But now attorney and commentator Mark Pulliam writes, “With Abood overruled as a precedent, what’s next? If the compelled payment of agency fees violates the free speech rights of government employees, taxpayer subsidies of public sector unions should likewise be unconstitutional.”

The courts are busy and will be even busier as time goes on. The era for rigged union rules is imperiled, and liberty-loving people and taxpayers will hopefully emerge victorious. With too many legislators feeding at the union trough, a #WeSue movement is just what’s needed.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.