5 Times Obama NLRB Member Split with Fellow Democrats to Favor Union Officials over Independent-minded Workers
At the Federalist Society blog, National Right to Work Foundation Vice President and Legal Director Raymond J. LaJeunesse has a new commentary discussing the extreme anti-worker freedom record of Barack Obama appointee Mark Gaston Pearce, who still sits on the National Labor Relations Board:
The current term of Mark Gaston Pearce as a Member of the National Labor Relations Board expires on August 27, 2018. Traditionally, the Board has consisted of three Members from the President’s party and two from the other major party. It has been publicly reported that Member Pearce, a Democrat who represented labor organizations before coming to the Board, is lobbying for reappointment. However, Member Pearce has a record that shows that he is a particularly virulent opponent of the rights of private-sector workers who choose not to support unions and object to being forced to subsidize them, more so than other Democrat appointees to the Board. Specific cases that demonstrate this follow.
Janus v. AFSCME Oral Argument Media Roundup
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:
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.
Today: Supreme Court to Hear Oral Arguments in Landmark Workers’ Rights Case, Janus v. AFSCME; Janus Supporters to Rally Outside the Supreme Court
It’s time for the U.S. Supreme Court to restore government workers’ First Amendment rights to free speech and freedom of association. No government worker should be forced to pay for union politics as a condition of employment.
WASHINGTON, D.C. (Feb. 26, 2018) – Today the U.S. Supreme Court will hear oral arguments in the landmark workers’ rights case, Janus v. AFSCME. Across the United States, more than 5 million government workers are required to give part of their paycheck to a government union as a condition of working in public service. This case seeks to outlaw that practice, and restore workers’ First Amendment rights to free speech and freedom of association.
The plaintiff in this case is Mark Janus, a child support specialist for state government in Illinois. Janus is required to pay approximately $45 each month to AFSCME Council 31, even though he is not a union member, never voted on union representation and is opposed to the policies for which the union advocates.
Janus filed his case in 2015 with free legal aid from the National Right to Work Legal Defense Foundation and the Illinois-based Liberty Justice Center.
During oral arguments, supporters of Mark Janus and the fight to restore workers’ rights will rally outside the steps of the U.S. Supreme Court.
Mark Mix, president of the National Right to Work Legal Defense Foundation, offered the following statement: “Poll after poll demonstrates that the American people overwhelmingly believe that union membership and financial support should be voluntary and not forced. Now those compulsory union payments are squarely before the Supreme Court, with the First Amendment rights of over five million teachers, firefighters, police officers and other government workers like Mark Janus at stake. Forty years ago in the Abood case the High Court erred by allowing public employees to be forced to pay money to union officials as a condition to working for their own government, and we are hopeful that by the end of the Court’s term that injustice will finally be remedied.”
Mark Janus offered the following statement: “Government workers like me should not have to bear the burden of supporting political and policy causes we disagree with in order to serve our communities and state. The right to say ‘no’ to a union is just as important as the right to say ‘yes,’ but for over 40 years, government workers have been denied that right. I am hopeful that after today’s arguments, the United States Supreme Court will restore the rights of me and every other government employee in America.”
Jacob Huebert, Janus’ attorney from the Liberty Justice Center, made the following statement: “This is the biggest case for workers’ rights in a generation. No one should be forced to check their First Amendment rights at the door just because they want to work in a government job. Workers deserve a choice and a voice.”
Commentary: Does the NLRB’s Inspector General Have a Double Standard for When Board Members Must Recuse?
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.
Worker Files Unfair Labor Practice Charge Against Union “Policy” Trapping Workers Into Dues Payments
Worker Advocate: Union officials should stop violating the rights of employees by arbitrarily blocking requests to stop dues payments
Oshkosh, WI (February 21, 2018) – On Wednesday, February 14, National Right to Work Legal Defense Foundation staff attorneys filed an unfair labor practice charge with the National Labor Relations Board (NLRB) against United Steelworkers (USW) Local 2-482 for violating a manufacturing plant employee’s rights by imposing an arbitrary “window period” to block him from ending his forced dues payments.
Since 2015, Wisconsin’s Right to Work protections make union membership and financial support strictly voluntary. However, union officials have blocked workers repeatedly from exercising their rights under the law. Donald Dillabough, a manufacturing plant employee at Clear Water Paper, Inc., found this out recently when he attempted to exercise his right to end payments to USW union officials.
In December 2017, Dillabough emailed the USW resigning from the union and revoking his authorization for the union to collect dues payments from his paychecks. Despite his revocation, USW union officials denied his request to end payments by claiming the letters were not submitted during a union-created “window period.” To this day, Dillabough remains forced to pay money to union officials because they refuse to honor his revocation request.
Dillabough turned to the National Right to Work Foundation for help with challenging the policy. Dillabough’s Foundation-provided staff attorney filed an unfair labor practice charge with NLRB Region 18 challenging the “window period” as a violation of his rights. The Region will now investigate the charge.
Unfortunately for workers, union officials frequently attempt to enforce arbitrary time restraints on when employees can or cannot exercise their right to end automatic forced dues deductions from their paychecks. Various courts have struck down these policies, but union officials continue to try and prevent rank and file workers from exercising their rights, especially in states with Right to Work protections for employees.
“Even in states like Wisconsin where union dues payments are by law supposed to be completely voluntary, union bosses frequently play fast and loose with employees’ rights to attempt to trap workers into paying forced dues against their will,” said National Right to Work Foundation President Mark Mix. “Wisconsin’s Right to Work law simply protects an employee’s right to choose for him or herself whether to join and financially support a union. Numerous court decisions have made clear that that freedom of choice cannot be limited to one week a year and the NLRB should prosecute USW bosses for this flagrant violation of the rights of a worker they claim to ‘represent.’”
Federal Court Hears Uber & Lyft Drivers’ Lawsuit Challenging Seattle Forced Unionism Ordinance
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.”
Federal Court Hears Employees’ Lawsuit Against Union For “Window Period” Policy to Trap Workers into Dues Payments
Class-action lawsuit for Michigan workers says union boss limitations on ending forced dues violate workers’ rights
Cincinnati, OH (February 1, 2018) – Today, National Right to Work Legal Defense Foundation staff attorneys are arguing in the United States Sixth Circuit Court of Appeals in a case brought by two Michigan grocery store employees against United Food and Commercial Workers Union (UFCW) Local 876. The workers’ class-action lawsuit challenges the UFCW’s arbitrary window period and other unreasonable requirements that restrict Michigan workers from exercising their right to stop dues payment.
Michigan’s Right to Work protections – enacted in 2012 – make union membership and financial support strictly voluntary. However, union officials have repeatedly blocked workers from exercising their rights under the law. Robbie Ohlendorf and Sandra Adams, a part-time stocking clerk and cashier respectively at Oleson’s Foods Stores, found this out when they attempted to exercise their right to end payments to UFCW officials.
During the summer of 2016, Ohlendorf and Adams submitted letters to the UFCW resigning from the union and revoking their authorization for the union to collect dues payments from their paychecks. Despite their revocations, UFCW union officials denied both employees’ requests to end payments by claiming the letters were not submitted during a union-created “window period” and were not sent by certified mail.
Believing their rights were being violated by UFCW policies, Ohlendorf and Adams turned to National Right to Work Foundation staff attorneys for help challenging the policies. With free Foundation-provided legal representation, the pair filed a federal class-action lawsuit in December 2016 against the UFCW. They brought the lawsuit on the grounds that union officials violated their statutory rights, and those of their co-workers, as well as the union’s duty of fair representation by limiting dues revocations to a “window period” and by demanding that such requests be made via certified mail.
Unfortunately, a Western Michigan District Court judge sided with union lawyers, ruling that the dues deduction authorizations containing the restrictions were binding. Ohlendorf and Adams then appealed the decision to the Sixth Circuit Court of Appeals where their arguments are being heard today by a three-judge panel.
“As this case demonstrates, Robbie Ohlendorf, Sandra Adams, and countless other Michigan workers are being trapped into paying forced dues against their will because union bosses have created hurdles solely to block them from exercising their rights,” said Mark Mix, President of the National Right to Work Foundation. “A favorable ruling from the Sixth Circuit Court of Appeals would send the message that union bosses cannot limit employees’ rights through these arbitrary requirements. Leaving a union and cutting off union payments ought to be no more difficult than joining one.”
West Virginia Resort Worker Files Unfair Labor Practice Charge After Union Officials Illegally Take His Money
Greenbrier employee’s case demonstrates tactics used by union bosses to extort forced dues
White Sulphur Springs, WV- A Greenbrier Hotel employee has filed a federal unfair labor practice charge with the National Labor Relations Board (NLRB) against Laborers’ International Union of North America, Local 1182. Reginald Gibbs filed the charge with free legal representation provided by National Right to Work Legal Defense Foundation staff attorneys. The charge states that union officials violated his rights by using mandatory union fees for lobbying efforts and failing to provide necessary disclosures of spending by union affiliates.
Gibbs, a slot machine technician at West Virginia’s historic Greenbrier Hotel & Resort, previously turned to National Right to Work Foundation attorneys for help in filing a motion to intervene in a court case defending West Virginia’s Right to Work law. That law ensures that union membership and financial support are completely voluntary. In that lawsuit, the West Virginia Supreme Court ruled that the law should go into effect, with the Chief Justice calling a lower court’s decision to grant a preliminary injunction against the Right to Work law a “monumental failure of legal reasoning.”
Although the state Supreme Court’s ruling means that the Right to Work law is currently in effect, forced dues contracts entered into before the law’s enactment, such as that at the Greenbrier, are exempted from the law. Thus, Local 1182 officials can have Gibbs fired for not paying union fees. However, even absent full Right to Work protections, workers are entitled to certain protections under the National Labor Relations Act as interpreted in the 1988 Foundation-won U.S. Supreme Court case Communications Workers v. Beck.
After receiving his Beck-mandated notice and audit that should explain in detail how forced union dues were being spent, Gibbs noticed several discrepancies that violate his rights. Specifically, as his NLRB charge notes, union officials improperly used dues for political lobbying efforts and failed to adequately disclose how the dues were spent by union affiliates. The NLRB will now investigate the charge.
“Despite U.S. Supreme Court precedent that has been the law for almost 30 years, union officials routinely violate the rights of the workers they claim to represent, to extract extra money from their paychecks,” said Mark Mix, president of the National Right to Work Foundation. “Fortunately, due to West Virginia’s new Right to Work law, once the current union contract expires, union bosses will no longer be able to play games with the union audit process, because Mr. Gibbs can finally stop all union payments.”
“This case provides another vivid example of why West Virginia workers need the protections provided by the Mountain State’s Right to Work law,” added Mix.
National Workplace Advocacy Group to Charter School Teachers: ‘Know Your Rights to Protect Yourself from Compulsory Unionism’
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.”
Special Legal Notice to Disney World Employees: How to Resign from Teamsters Local 385 & End Dues Payments
Orlando, FL – In response to multiple inquiries from Disney World employees regarding their legal rights, National Right to Work Legal Defense Foundation staff attorneys have issued a Special Legal Notice for all Disney World employees who wish to resign their membership in Teamsters Local 385 and exercise their right to end payment of union dues.
In recent years, numerous workers have filed federal unfair labor practice charges against Teamsters Union Local 385 with free legal assistance from National Right to Work Foundation staff attorneys in response to union officials’ refusal to accept their membership resignations and/or dues checkoff revocations.
The National Right to Work Foundation Special Legal Notice for Disney employees can be found here.
To learn more about your legal rights in general, go to the Foundation’s “Know Your Rights” page. To request free legal assistance from the National Right to Work Foundation call toll free at 1-800-336-3600, or use our legal aid request form.
