Worker Advocate to Labor Board: Rescind Obama-Era Election Rule and Require Union Recertification Votes
National Right to Work Foundation comments call for NLRB election reforms to ensure workers are not trapped in unions opposed by most employees
Washington, DC (April 16, 2018) – Today the National Right to Work Legal Defense Foundation filed comments with the National Labor Relations Board (NLRB) in response to the Labor Board’s Request for Information regarding the 2014 “Ambush Election” Rule pushed through by the Obama NLRB. The Foundation’s comments not only call for the 2014 changes to be rescinded, but ask the Board to institute new protections for workers who are forced under union monopoly representation they oppose.
The comments call on the newly constituted five member NLRB to require unions to regularly recertify that they have the support of at least a majority of workers or else lose their powerful status under the National Labor Relations Act (NLRA) as the monopoly “representative” of all workers in a workplace, including those who prefer a different union or no union at all. In its comments, the Foundation cites a recent study of NLRB data that found that 94 percent of workers currently under union monopoly representation have never even voted on that union in an NLRB secret ballot election.
“Just as no elected public official enjoys life tenure on the basis of winning one election, no union should maintain [their] extraordinary powers… on the basis of just one election…” the Foundation told the NLRB in its comments “Today, many workplaces unionized decades ago consist primarily, if not entirely, of workers hired long after any ‘choice’ was made to organize.”
The comments also call on the NLRB to remove numerous bureaucratically-enacted barriers not mandated by the NLRA that prevent workers from holding a decertification vote to remove an unwanted union from their workplace. The Foundation calls for the elimination of various “election bars,” for ending union officials’ ability to abuse the NLRB system by filing blocking charges to stop workers from holding decertification votes, and for other reforms that would streamline and simplify the decertification process.
National Right to Work Foundation staff attorneys currently represent employees in over 80 cases at the NLRB, including many where workers have been blocked from even holding a vote to remove a union that they believe lacks the support of a majority of employees.
The Foundation opposed the one-sided 2014 rule changes which were designed to expand forced unionization by dramatically shortening the time frame individual workers have to gather, evaluate, and share information with their coworkers about the negative effects of unionization. Moreover, the rules require job providers to disclose workers’ personal information (including their phone numbers, email addresses, and shift information), thus opening up dissenting or undecided workers to intimidation and harassment.
“The Obama NLRB’s election rules made union organizing campaigns more one-sided and stifled the rights of employees opposed to unionization. It is long past time they be rescinded” said Mark Mix, President of the National Right to Work Foundation. “However, simply reverting to the pre-Obama NLRB rules would still leave many workers – whose rights the NLRB is supposed to protect – trapped in unions they oppose and that a majority of their coworkers have never voted for.”
“That’s why, if union officials are going to be granted monopoly powers over every employee in a workplace, they should be required to regularly recertify that at least a majority actually want them there,” continued Mix. “Further the Labor Board should reform the one-sided NLRB election system that lets union organizers call for a unionization vote of nonunion employees at any time, but forces workers to wait months or even years to file to force a secret ballot vote on an incumbent union.”
Leaks suggest NLRB’s “watchdog” improperly disclosed privileged, deliberative communications about major case
Washington, DC (March 29, 2018) – The National Right to Work Legal Defense Foundation is formally requesting the Council of Inspectors General on Integrity and Efficiency (CIGIE) review apparent wrongdoing by the Inspector General of the National Labor Relations Board (NLRB) regarding an investigation that led to an abrupt move by the NLRB to undo a recent decision.
The National Right to Work Foundation is a nonprofit, charitable organization that provides free legal aid to employees nationwide. With more than eighty ongoing NLRB cases in which Foundation staff attorneys represent workers, the Foundation seeks to ensure that the Board’s recusal standards are being properly and consistently enforced and that privileged communications from NLRB deliberations are not selectively leaked.
On February 9, NLRB Inspector General David Berry issued a report concerning whether NLRB Member William Emanuel should have been recused in Hy-Brand Industrial Contractors. Citing this report, the other three siting NLRB Members voted on February 27 to vacate the December decision in Hy-Brand, which had overruled a controversial, precedent-shattering decision by Barack Obama’s NLRB.
Inspector General Berry’s February 9 report, and a follow-up report dated March 20, were both made public without redactions of the NLRB’s internal deliberative communications. In 2012, then-NLRB Member Terence Flynn resigned after Inspector General Berry issued a report that said that Flynn had improperly shared information regarding the Board’s deliberative process.
The Foundation is asking the CIGIE to investigate whether Inspector General Berry himself disseminated confidential NLRB deliberations and improperly disclosed to people outside the NLRB that he was investigating Member Emanuel.
“Victims of compulsory unionism abuses should not be victimized yet again by rogue bureaucrats at the NLRB,” said National Right to Work Foundation President Mark Mix. “Whether regarding recusals or the disclosure of internal Board deliberations, Inspector General Berry appears to apply different standards to different people.”
“Despite his tenuous findings regarding recusals for Member Emanuel, just a few years ago Berry gave the green light to Obama appointee and former Service Employees International Union lawyer Craig Becker to participate in cases involving the SEIU and its affiliates,” continued Mix. “Now both Berry and NLRB Member Pearce appear to have publicly disclosed information regarding the Board’s internal deliberative process, even though Berry’s own report in 2012 condemned former Member Flynn for doing the same thing.”
While Missouri still lacks Right to Work protections for employees, IBEW union officials hiked forced fees without providing financial disclosure required by law
St. Louis, MO (March 21, 2018) – With free legal aid from National Right to Work Foundation staff attorneys, a Missouri power plant worker has filed federal unfair labor practice charges against the International Brotherhood of Electrical Workers (IBEW) Local 53 union for failing to provide an adequate breakdown of how the union spends workers’ forced union dues.
In November 2017, IBEW Local 53 union officials informed James Feagins that, beginning in 2018, he would be required to pay union fees of approximately 95 percent of formal membership dues, a substantial increase over the average of approximately 50 percent of union dues he was previously required to pay.
Because a union-backed ballot petition has blocked Missouri’s Right to Work law from going into effect, workers like Feagins currently can be fired for refusing to hand over part of their paycheck to a union they choose not to join. In the 27 states with Right to Work laws in effect, union membership and financial support is strictly voluntary.
Feagins had previously attempted to exercise his rights under the Foundation-won U.S. Supreme Court precedent Communications Workers of America v. Beck to opt out of union membership. Under Beck, workers in states without Right to Work protections cannot be compelled to pay the part of union dues used for a union’s political and member-only activities.
Beck also requires union bosses to provide workers with an independently-verified audit breaking down chargeable and non-chargeable expenses, but IBEW Local 53 union officials only provided Feagins with an unaudited statement. Moreover, IBEW Local 53’s statement of expenses included so-called “per capita taxes” sent to affiliate unions without disclosure regarding how the affiliates spend that money.
The charges allege that Local 53 union officials further violated Feagins’ Beck rights by illegally charging him for certain advertising, overhead, and organizing expenses. Further, Feagins asked union officials to provide him with a copy of the monopoly bargaining agreement, but they refused to do so in violation of federal labor law.
The National Labor Relations Board (NLRB) Regional Director in St. Louis will now investigate the charges.
“Union bosses add insult to injury by threatening workers to pay fees or else be fired, and then keeping them in the dark about where the money is going,” said Mark Mix, President of the National Right to Work Foundation. “This case underscores the need for Right to Work protections in Missouri to make union membership and dues payments completely voluntary.”
Worker Advocate Seeks Unpublished NLRB Report and Additional Disclosures Over Labor Board’s Apparent Recusal Double Standard
FOIA request seeks to bring to light information regarding efforts to prevent a full five-member Labor Board from reviewing pro-forced unionism Obama-era precedents
Washington, DC (March 19, 2018) – The National Right to Work Foundation, a charitable organization that provides free legal assistance to employees nationwide, today submitted a Freedom of Information Act (FOIA) request to the National Labor Relations Board (NLRB), asking for information regarding the NLRB’s standards for recusal and the Board’s determination to reconsider and vacate a recent decision.
“National Right to Work Foundation staff attorneys are currently providing free legal aid to workers in more than eighty NLRB cases,” stated Foundation Vice President and Legal Director Raymond LaJeunesse, who submitted the FOIA request. “These victims of compulsory unionism abuses deserve fair and impartial hearings from properly constituted NLRB panels.”
Barack Obama’s NLRB, which was dogged by accusations of its partiality throughout Obama’s two terms in office, overturned thirty years of precedent in Browning-Ferris Industries in 2015. This past December, in Hy-Brand Industrial Contractors, the NLRB overruled Browning-Ferris and restored “the principles governing joint-employer status that existed prior to that decision.”
Since the decision in Hy-Brand, one Board Member’s term expired. Then, the NLRB’s Inspector General concluded that another should have been recused in Hy-Brand because his former law firm represented an employer that was a party in Browning-Ferris. Citing the Inspector General’s report, the other three Members of the Board in late February vacated the Hy-Brand decision.
The FOIA request seeks information, documents, and communications regarding the Inspector General’s recusal determination in this case, any other recusal determinations since January 1, 2009, and the three-member panel’s reconsideration of Hy-Brand. In addition to communications between or among Board Members and the Inspector General, the Foundation seeks their communications regarding these matters with members and staff of the U.S. Senate and House of Representatives, the press, or union officials.
“The NLRB’s Inspector General appears to be setting a troubling double standard regarding recusals, especially considering the same office looked the other way when former Service Employees International Union lawyer and Obama appointee Craig Becker refused to recuse himself from cases involving the SEIU and its affiliates,” explained National Right to Work Foundation President Mark Mix.
“The public deserves to know the truth surrounding this double standard, especially given that it advances the concerted effort by Big Labor and its allies to block a full NLRB from reviewing controversial Obama-era rulings that limit the rights of workers who don’t want to associate with a labor union,” continued Mix.
Air Traffic Controller Forces Settlement from FAA Concerning Religious Discrimination Committed at Behest of Union Bosses
Union retaliated against worker for resigning from membership, had worker transferred to force him to work on Saturday in violation of his religious beliefs
Warrenton, VA (March 8, 2018) – A Federal Aviation Administration (FAA) employee has won a federal settlement after the agency complied with union officials’ demands to punish him for resigning his union membership by transferring him to a position that caused a scheduling conflict with his religious obligations.
In 2013, Matthew Gray, a Seventh-day Adventist who works at the FAA’s Potomac facility, filed federal charges with the Equal Employment Opportunity Commission (EEOC) against the National Air Traffic Controllers Association (NATCA) union and FAA.
With free legal aid from National Right to Work Foundation staff attorneys, Gray filed the charges after he was informed by a union official that he was being removed from his detail and transferred to another in which he would be required to work on Saturdays as punishment for resigning from the union. Federal law ensures that independent-minded employees of the federal government, like Gray, cannot be required to pay any dues or “fees” to a union as a condition of employment.
Gray resigned union membership because he believes union membership is contrary to his faith. A central doctrine of Gray’s church is weekly worship, and not working, on Saturday. Gray’s original position allowed him to avoid any scheduling conflict between his work and religious obligations. By removing him from that detail, however, NATCA union officials effectively forced Gray to work on Saturday, unless he found a replacement or took leave every week, or lose his job.
Instead of standing up to the union’s ugly retaliation against a worker who chose to exercise his legal rights, Gray’s manager at the FAA told him that he was complying with the union’s transfer request because Gray “no longer represent[s] the best interests of NATCA.”
Before this settlement was reached, the EEOC had found cause to believe that the union violated Gray’s rights under Title VII of the Civil Rights Act, and Gray had won settlements resolving unfair labor practice charges he filed with the Federal Labor Relations Authority against the union and FAA.
“Make no mistake, union bosses punished Matthew Gray for simply acting on his deeply-held religious beliefs,” said Mark Mix, President of the National Right to Work Foundation. “Hardworking Americans should not face religious discrimination or any other retaliation for exercising their right to refrain from union membership.”
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.
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.
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.