National Right to Work Legal Defense Foundation staff attorneys filed the final brief supporting Texas United Airlines employee Arthur Baisley’s petition for writ of certiorari in the United States Supreme Court. Baisley is urging the Court to hear his federal class-action civil rights case contesting a dues arrangement imposed by International Association of Machinists (IAM) union officials. The scheme forces him and his coworkers by default to subsidize union political activities in violation of the First Amendment and Railway Labor Act (RLA).
The policy that Baisley is challenging requires employees who choose not to join the union to opt out of funding the union’s political and ideological activities during a brief annual “window period,” or else have money exacted from their wages for those purposes against their will. Baisley’s Foundation-provided attorneys argue that this violates employee rights under both the 2018 Foundation-won Janus v. AFSCME Supreme Court decision, and the RLA.
The RLA governs labor relations in the rail and airline industries, and protects the right of employees to “join, organize, or assist in organizing” a union of their choice, as well as the right to abstain from all union activities. In Janus, the High Court ruled it violates the First Amendment to force a public-sector employee to pay union fees as a condition of keeping his or her job, citing the fact that all union dues for public employees are inherently political because government union speech is directed towards the government. As part of its ruling, the High Court affirmed that union dues could only be deducted from a public employee’s paycheck with an affirmative waiver of that employee’s right not to pay.
Foundation staff attorneys argue that under both Janus and another Foundation-won Supreme Court decision, Knox v. SEIU, no employee can be charged for union political or ideological expenditures without first giving their affirmative and knowing consent. This is because language from a 1961 case that union lawyers use to prop up “opt-out” schemes, like the one foisted by IAM union officials on Baisley and his coworkers, was not only dicta, but was also found flawed by the Supreme Court in Knox.
Foundation attorneys also reiterate in the latest brief that the government is involved in enforcing the RLA and thus First Amendment scrutiny should apply to the IAM bosses’ scheme, stating, “The Court should grant review to make clear that the First Amendment and federal law protect employees regulated under the Railway Labor Act from opt-out regimes—regimes which ‘create[ ] a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree.’”
Baisley is not a member of the IAM but is still forced to pay some union fees despite being based in the Right to Work state of Texas. The RLA preempts state Right to Work protections which make union membership and all union financial support strictly voluntary. However, under longstanding law, even without Right to Work protections nonmembers cannot, as a condition of keeping their jobs, be required to pay fees for anything beyond the union’s expenses directly related to monopoly bargaining.
Baisley’s petition detailed the convoluted union boss-created process that workers must navigate just to prevent money from being taken from their paychecks in violation of their First Amendment rights. In Baisley’s situation, even though he sent a letter to IAM agents in November 2018 objecting to funding all union political activities, union officials only accepted his objection for 2019, and told Baisley he had to renew his objection to full dues and fees the next year or else be charged full union dues.
Baisley’s lawsuit seeks to strike down the opt-out requirement not only as it is applied to him, but also for his coworkers whose rights are similarly restricted by the IAM’s opt-out policy. Union officials would then be required to get nonmember workers to give affirmative consent to paying for union boss activities beyond the bargaining-related expenses they can legally be required to subsidize under the RLA.
The final brief in Baisley’s case comes as other Foundation-backed lawsuits for employees defending their First Amendment Janus rights seek writs of certiorari from the Supreme Court. This includes cases brought for Chicago and New Jersey public educators which challenge “window periods” that severely limit when they and their fellow educators can exercise their First Amendment right to stop dues deductions for union bosses, sometimes to periods as short as ten days per year. In a California federal court, Foundation staff attorneys are also aiding a University of California Irvine lab assistant in fighting an anti-Janus state law that gives union bosses full control over whether employers can stop sending an employee’s money to the union after that employee exercises his or her Janus rights.
Baisley’s case is expected to be conferenced by the Justices on September 27, after which the Court will announce whether it will be heard.
“Baisley is simply seeking to stop the presumption that he wants his hard-earned money to go to union political ventures that he does not want to prop up. IAM officials’ ‘opt-out’ scheme is quite clearly meant to frustrate employees’ attempts to exercise that basic right and to keep pumping their money into those political activities,” observed National Right to Work Foundation President Mark Mix. “Judging by other pending Foundation litigation, it seems that union officials across the country are not willing to respect this right for either public or private sector workers.”
“Employee support of union political expenditures should come only voluntarily, not through underhanded, complex arrangements designed to trick nonmember workers into funding political activities they oppose,” Mix added.