4 Apr 2020

Foundation in the Wall Street Journal: More Changes Necessary to Protect Workers’ Right to Vote Out Unwanted Unions

Posted in Blog

After the National Right to Work Foundation filed comments in January in support of policies to protect workers, the National Labor Relations Board (NLRB) has issued its final rule eliminating some barriers that prevented workers from being able to decertify a union they oppose.

Late last year, National Right to Work Foundation President Mark Mix wrote in the Wall Street Journal encouraging the NLRB to remove such barriers for workers by highlighting actual examples of how these types of NLRB rules hurt working men and women across the country:

A variety of other nonstatutory policies, doctrines and “bars” prevent workers from holding votes to oust unions they oppose. In many cases, the policies are applied one after the other, blocking escape routes.

A majority of workers at a Wisconsin trucking company experienced this over the past two years. First, they were blocked from removing their union by the so-called voluntary-recognition bar. This stops workers from decertifying a union for up to a year after the union is installed through “card check”—a procedure that avoids the need for a secret ballot and makes workers vulnerable to union intimidation.

Then, after waiting a year for that bar to expire, the Wisconsin workers found they had been merged by Teamsters officials into a multicompany nationwide bargaining unit of about 24,000 workers. Suddenly the petition to oust the local union was 7,000 signatures short—for a workplace with fewer than 10 union workers. Last month the NLRB declined the Wisconsin workers’ appeal, though a majority of voting board members signaled they would revisit the “merger doctrine” policy in the future.

Mix went on to discuss more of the bureaucratically-created policies, including the recently eliminated “blocking charge” policy, that allow union bosses to prevent workers from choosing who represents them:

Other workers face other hurdles: The “settlement bar” blocks a decertification vote because of an NLRB settlement to which the workers weren’t a party; the “successor bar” blocks a vote for up to a year after a company is acquired; the “contract bar” blocks a vote for up to three years after a union contract is forged; and a “blocking charge” blocks a vote while union allegations against a company are pending. None of these are required by law.

The NLRB is addressing the voluntary-recognition bar and blocking charges through the current rule-making process, but the other policies are similarly destructive of workers’ legal right to vote out a union that lacks majority backing. Congress should act to protect workers from being trapped in union ranks they oppose, but in the meantime the NLRB has the authority to eliminate these barriers.

After the Foundation’s comments and advocacy, the NLRB has finally removed the “blocking charge” and “voluntary recognition bar” rules, but there is more work to be done to protect workers and remove barriers.

1 Apr 2020

Worker Advocate Encouraged by National Labor Relations Board Rule Rolling Back Barriers to Workers Voting Out Unions

Posted in News Releases

Reform follows changes long advocated by National Right to Work Foundation, which has litigated hundreds of cases for workers seeking to oust unwanted unions

Washington, DC (April 1, 2020) – Citing comments from the National Right to Work Legal Defense Foundation, the National Labor Relations Board (NLRB) today formally issued a final rule eliminating some of the barriers that workers face when attempting to exercise their right to vote to remove an unwanted union.

National Right to Work Foundation President Mark Mix issued the following statement on the NLRB’s final rule:

While this NLRB still has much more to do, this long-awaited rule represents a significant step forward towards fully protecting the statutory right of employees under the Act to remove a union opposed by a majority of workers.

The blocking charge policy that is finally being modified has always been particularly odious in its treatment of employee rights, in that it allows union officials’ allegations against an employer to be grounds for blocking the statutory rights of employees who are not accused of any wrongdoing. Needless to say, in any other context, union bosses would be howling about employer conduct being used as grounds for blocking employees’ rights under the Act, yet here they support nullifying workers’ rights on the basis of any unproven allegation.

There are still additional non-statutory barriers to decertification that should to be eliminated, but we are encouraged that the Board took this step and thankful it made modifications to the proposed rule as advocated by the Foundation in its comments.

The rule reforms how the NLRB deals with union “blocking charges,” which are filed by union officials to prevent rank-and-file employees from exercising their right to vote to remove a union. Under the old rules, unions could block workers’ requested votes from taking place for months or even years by making allegations against the employer.

Under the new rule, union unfair labor practice charges cannot stall a vote from taking place. Additionally, and in apparent response to the Foundation’s comments, the NLRB modified its proposed rule so that in most cases ballots will be counted and not impounded, with the tallies released promptly.

The NLRB also substantially eliminated the so-called “voluntary recognition bar,” which was used by union officials to block workers from requesting a secret ballot election after a union was installed as the monopoly bargaining agent through an abuse-prone “card check” drive that bypassed the NLRB-supervised election process. The Trump NLRB did so by reinstating a system secured by Foundation staff attorneys for workers in the 2007 Dana Corp. NLRB decision. Although thousands of workers used the Dana process to secure secret ballot votes after being unionized through abusive card checks, the Obama NLRB voided employees’ Dana rights in 2010.

Additionally, the NLRB adopted the changes supported by the Foundation’s January comments to crack down on construction industry schemes through which employers and union bosses unilaterally install a union in a workplace without first providing proof of majority union support among the workers. Foundation staff attorneys represented a victim of such a scheme in a key case (Colorado Fire Sprinkler, Inc.) that ended when a U.S. Circuit Court of Appeals panel unanimously reversed the Obama Board and ruled for the worker who had been unionized despite no evidence of majority employee support for the union.

31 Mar 2020

Alaska Vocational Instructor Files Lawsuit against Union, State Challenging Dues Seizures in Violation of First Amendment

Posted in News Releases

Alaska Governor attempted to affirmatively protect state employees’ Janus rights with Executive Order, but union bosses are blocking its enforcement

Anchorage, AK (March 31, 2020) – An Alaska prison employee has just filed a federal class-action lawsuit against the Alaska State Employees’ Association (ASEA) union and State of Alaska for restrictions on his and his coworkers’ First Amendment right to refrain from subsidizing a union. The lawsuit was filed in the U.S. District Court for the District of Alaska with free legal aid from National Right to Work Foundation staff attorneys.

The lawsuit, filed by Christopher Woods, says the ASEA union’s dues deduction scheme violates his and his coworkers’ First Amendment rights under the 2018 Foundation-won Janus v. AFSCME U.S. Supreme Court decision. The union scheme forbids employees from exercising their right to cut off union dues except during an annual 10-day “escape period.” However, in Janus, the high court ruled that no public sector employee can be forced to pay union dues or fees as a condition of employment, and that the First Amendment is violated when union officials deduct dues from the paychecks of public sector employees without their affirmative and knowing consent.

Woods began working as a Vocational Instructor at Goose Creek Correctional Center in 2013 and joined the union “because he was told by a union representative that he had no choice,” according to the lawsuit. His complaint reports that, on November 26, 2019, he sent an email to ASEA officials exercising his Janus right to “stop [his] union dues withdrawal.” A union official replied to him the same day and rebuffed his request, telling Woods that “he could only ‘opt out and not be a union member with written notice to this office’” within a 10-day period each year before the date he signed his original dues deduction authorization card.

Woods persisted on December 2, 2019, submitting to both ASEA officials and the payroll office of the Corrections Department another email asking to cut off dues. Although the payroll office confirmed to both Woods and the ASEA that it had received the request, an ASEA official responded by merely telling the payroll office that she was “still communicating with [Woods] on the matter,” the complaint says. Woods reports in his lawsuit that he has “not received any further communications” from either the ASEA or the payroll office, and that full dues are still being seized from his paychecks.

Woods’ lawsuit asks the District Court to rule that the ASEA union’s “escape period” enforced by the state and the deduction of union dues from his and other state employees’ paychecks without their clear, knowing consent violates his and his coworkers’ First Amendment rights. It also requests refunds of illegally seized dues for himself and his coworkers. Alaska Department of Administration Commissioner Kelly Tshibaka is named as a party in her official capacity only, due to the State of Alaska’s role in the unconstitutional dues deductions.

The federal lawsuit comes after an Anchorage Superior Court Judge put a hold on Alaska Gov. Mike Dunleavy’s order last year that all public sector unions in the state must obtain clear consent from all workers before deducting any union dues or fees, as Janus requires. That judge opined that Janus applies only to workers who are not formal union members, despite the fact that unions use their dues deduction policies to block workers from stopping dues even after they have resigned from formal union membership.

“Once again, Alaska union bosses are demonstrating that they will violate the First Amendment rights of the employees they claim to represent if it means stuffing their pockets with more forced dues,” commented National Right to Work Foundation President Mark Mix. “Ironically Alaska has taken the lead in attempting to proactively protect its employees’ First Amendment rights, but because union bosses have successfully resisted the Governor’s Executive Order so far this lawsuit is necessary.”

Wood’s legal team includes two Foundation staff attorneys who have successfully challenged forced union dues schemes in the U.S Supreme Court, not only in the landmark 2018 Janus case, but also in two earlier cases – Knox v. SEIU (2012) and Harris v. Quinn (2014). Foundation staff attorneys are currently litigating more than 30 cases for workers seeking to vindicate their First Amendment rights under the Janus precedent.

27 Mar 2020

Gompers Preparatory Academy Educators File Response to SDEA Union Bosses’ Continued Attempts to Block Vote to Remove Union

Posted in News Releases

Disastrous AB5 sponsor sides with union officials against teachers who remain trapped under union monopoly

San Diego, CA (March 27, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, educators at San Diego’s Gompers Preparatory Academy (GPA) are urging California Public Employment Relations Board (PERB) officials to let a secret-ballot vote proceed that could remove San Diego Education Association (SDEA) union bosses from power at the school. GPA teachers filed a response to union “blocking charges” brought against the school which could stall, for another year, the teachers’ right to a decertification election.

SDEA officials installed the union at the school in January 2019 after conducting a controversial “card check” drive, bypassing the more reliable method of a secret-ballot election whether to choose a union as the monopoly representative of all educators in the school. GPA transitioned from being a regular public school to a charter preparatory academy in 2005 as the result of a campaign by parents, teachers, and administrators who believed that school district and union bureaucracies were not serving the students’ interests, especially by failing to combat gang violence and teacher attrition at the school.

GPA parents and educators have accused union agents of sowing division at the school, including by supporting anti-charter school legislation, making unnecessary and disparaging comments to school leadership during bargaining sessions, and plotting to prevent the California NAACP from giving the school’s director, Vincent Riveroll, an award for helping minority students succeed.

Dr. Kristie Chiscano, who teaches chemistry to 10th and 11th grade students at GPA, began circulating a petition for a vote to decertify the union in October 2019. She soon obtained the signatures of well over the number of her fellow educators necessary to trigger a PERB-supervised secret-ballot vote to remove the union.

But, in December of last year, union officials preemptively filed a charge against the school seeking “that the certification year be extended.” That would block the educators’ right to remove the union from their workplace for another year despite no evidence or even an allegation that any educator violated the law. Such meritless “blocking charges” are a regular tactic union lawyers use to block rank-and-file employees from holding secret-ballot elections that may result in the removal of union officials from power.

Dr. Chiscano sought free legal aid from Foundation staff attorneys to decertify the union, and is now fighting to counter union “blocking charges.” The response filed with the PERB argues that the allegations union officials are making against the school’s leadership have no connection to the decertification effort and should not serve as grounds to deny the teachers’ right to a secret-ballot decertification vote. “PERB should thus proceed with a secret-ballot election as soon as practicable so Petitioner Chiscano and her fellow Gompers employees can exercise their right” to vote the union out, the response argues.

Meanwhile, California State Assemblywoman Lorena Gonzalez has jumped into the controversy on the side of SDEA union bosses. In a letter to GPA leadership she attacked the Right to Work Foundation simply for providing legal aid to GPA educators as they seek to exercise their right to hold a decertification election. The Foundation has provided legal aid to thousands upon thousands of teachers, including many charter school teachers.

Gonzalez, who regularly sides with union bosses over rank-and-file workers, introduced California’s disastrous AB 5 measure, which was written by union lobbyists and designed to foist union monopoly representation and forced union dues on independent contractors across the state of California. The bill has already led to a significant drop in opportunities for many workers across the state.

“SDEA union bosses are continuing to manipulate legal procedures to keep the educators they claim to represent trapped in union ranks instead of just letting them exercise their right to hold a decertification election,” commented National Right to Work Foundation President Mark Mix. “Foundation staff attorneys will continue to fight for Dr. Chiscano and her fellow educators until they are able to decide, free of coercion, who will speak for them in the workplace.”

Mix continued: “All these educators seek is a secret ballot vote to see whether a majority of their colleagues want the disruptive union out of their school. It is disgraceful but not surprising that Assemblywoman Gonzalez, who is elected by secret ballot, is opposing these teachers’ attempt to exercise their legal rights.”

25 Mar 2020

Minnesota Building Materials Employees Win $30,000 after Illegally Being Fired at Behest of Teamsters Union Bosses

Posted in News Releases

Workers receive back pay from employer but charges against Teamsters for union officials’ role in illegal termination and rights violations are still pending

Minneapolis, MN (March 25, 2020) – Two Minnesota building materials employees won a settlement in their unfair labor practice cases charging their former employer, OMG Midwest, for illegally firing them after the workers refused to formally join the Teamsters Local 120 union. The two workers charged that company and union officials told them several times – falsely – that union membership was required as a condition of employment. The settlement was won with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.

As a result of the settlement, OMG Midwest will now pay over $30,000 in back pay to the two men. They will also “remove all references to the termination” from the two employees’ personnel files, post notices at OMG’s Belle Plaine, Minnesota, facility, and distribute those notices to individual employees. The notices will explain that workers cannot be forced to join a union as a condition of employment. Charges against the union for violating the two workers’ rights are still pending.

James Connolly recounted in his charges that he asked Teamsters officials via email on April 9, 2019, whether or not he would be compelled into joining the union as part of the job. The same day a union official wrongly replied, “Sorry James but yes you do have to join.” Later, on May 1, a representative of OMG Midwest reiterated the same false information to Connolly. Connolly responded to the company in a May 9 email, in which he repeated his unwillingness to formally join the Teamsters. OMG Midwest fired Connolly the next day. Connolly then filed unfair labor practice charges against OMG Midwest and the Teamsters union at National Labor Relations Board (NLRB) Region 18 with Foundation aid.

Later, in June, Charles Winter filed similar charges against OMG Midwest and the Teamsters union. Winter reported in his charges that at a company-wide meeting a Teamsters representative had told him and other employees that union membership is required in order to get or keep a job. When Winter later received an email from a company representative reiterating the false information that union membership was compulsory, Winter replied on May 20 holding firm that he would not join. He was fired in an email from the same company representative that same day.

Winter’s charge also alleged that the union membership form that Teamsters officials gave him was missing a legally-required estimate of the reduced union fees that union nonmembers would be required to pay under the Foundation-won CWA v. Beck Supreme Court decision.

Both men’s charges argued that the misinformation about membership and their firings clearly violated Section 7 of the National Labor Relations Act (NLRA), which protects the “right to refrain from any or all” union activities. Winter also charged that the union violated his right under Beck to be a nonmember and pay only the part of union dues directly germane to bargaining. As part of the settlement, OMG Midwest is required to include “a Notice of Beck Rights” in the rights notices it will disseminate to all bargaining unit employees.

Because Minnesota has not enacted Right to Work protections for employees, union bosses can have private sector workers fired for not paying fees to a union. However, union officials can only require workers to pay the portion of dues allowed by Beck and must follow certain Beck procedures before seizing such forced fees from workers who are not union members.

“Although it’s good news that Mr. Connolly and Mr. Winter have won these settlements which require OMG Midwest to make reparations for violating longstanding worker protections, the fact is that Mr. Connolly’s and Mr. Winter’s charges against the Teamsters union are still pending,” observed National Right to Work Foundation President Mark Mix. “NLRB Region 18 must swiftly prosecute Teamsters Local 120 officials so these two men’s rights can be fully vindicated.”

Mix added: “Ultimately, Minnesota legislators need to pass Right to Work protections for their state’s private-sector employees which will ensure that union bosses must use persuasion – not illegal intimidation or threats of firing – to secure the support of workers.”

24 Mar 2020

Paramedic Files Appeal after NLRB Disregards Illegal Union Retaliation

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2020 edition. To view other editions or to sign up for a free subscription, click here.

Appeal to NLRB General Counsel comes just months after Region 14 was reversed in similar case

Jarod Aubuchon

Paramedic Jarod Aubuchon is appealing his case against Teamsters officials after they punished him for informing his coworkers of their rights to resign union membership and pay reduced dues.

St. LOUIS, MO – Jarod Aubuchon, a St. Louis-area paramedic who charged Teamsters Local 610 union officials with illegal retaliation after he tried to inform his coworkers of their right to pay reduced union dues, is filing an appeal in his case to the National Labor Relations Board (NLRB) General Counsel in Washington, D.C. He is represented free of charge by National Right to Work Legal Defense Foundation staff attorneys.

Aubuchon’s appeal comes after the October 2019 dismissal of his case by NLRB Region 14 officials in St. Louis. Region 14 was reversed by the NLRB General Counsel in a similar union retaliation case this summer, which was also brought by Foundation staff attorneys.

Union Officials Vow Punishments after Worker Posted Rights Notices

Aubuchon discovered the right of private sector workers under the Foundation-won CWA v. Beck Supreme Court decision to resign union membership and pay a reduced portion of union dues. Because Missouri is not a Right to Work state, private sector workers can still be compelled to pay part of union dues as a condition of employment.

Beck, won by Foundation staff attorneys in 1988, guarantees that employees who are not union members can only be required to pay fees to a union for expenses that are directly germane to bargaining, such as contract administration. 

Armed with this new knowledge, Aubuchon posted flyers in common areas of his workplace informing his coworkers of their Beck rights. According to his charge, Teamsters agents responded by tearing down these notices and later demanding that his employer, Medic One, discipline him for the postings. Actions by union officials that cause an employer to discriminate against workers on such grounds are prohibited by the National Labor Relations Act (NLRA).

Aubuchon resigned his own union membership and asserted his Beck rights. Aubuchon’s charge states that neither his resignation nor his Beck rights have been acknowledged by Teamsters bosses, and full dues are still being seized from his paychecks.

Employee Appeals to NLRB General Counsel with Free Foundation Legal Aid

After NLRB Region 14 officials rejected his case, Aubuchon petitioned the NLRB General Counsel to overturn the decision and order remedies for the retaliation he experienced from Teamsters officials.

“They spend union money on political activism without consideration of its members,” Aubuchon said of Teamsters officials to the St. Louis Record after his appeal was filed. “We have a right to not have our money used in that manner and in the end I hope employees are better educated on their rights and how to exercise them.”

In July 2019, the General Counsel reversed Region 14 officials’ dismissal of a similar case brought by Foundation staff attorneys for Kansas City-area hospital worker Kacy Warner. Warner charged officials of the National Nurses Organizing Committee (NNOC) union with illegally interfering with a petition she was circulating for a vote to remove the union. That included tearing down flyers she had hung in bathrooms and other common areas in her workplace informing employees of the petition. In her case the NLRB General Counsel reversed Region 14’s dismissal and ordered region officials to prosecute the charge.

Region 14 officials were also overturned by the full Labor Board in October 2019 after the Region dismissed a petition for a vote to remove the union from St. Elmo, Illinois-based ConAgra Foods worker Robert Gentry’s workplace. United Food and Commercial Workers (UFCW) union bosses had attempted multiple times to stop workers at the plant from exercising the right to vote out the union.

“The NLRB is charged with enforcing workers’ rights under the National Labor Relations Act, yet there is a disturbing pattern of Region 14 failing to enforce the rights of rank-and-file workers when doing so advances the interests of union bosses,” commented National Right to Work Foundation Vice President Patrick Semmens. “It should not take an appeal to Washington, D.C., for workers to have their rights fully protected against union boss abuses.”

19 Mar 2020

Right to Work Foundation Asks NLRB to Enforce Cannabis Industry Workers’ Rights against State Schemes to Force them into Union Ranks

Posted in News Releases

Several states are attempting to use industry licensing as a pretense to impose forced union dues on workers in violation of federal labor law

Washington, DC (March 19, 2020) – Today the National Right to Work Legal Defense Foundation called on National Labor Relations Board (NLRB) General Counsel Peter Robb to take action to protect workers subjected to forced unionism schemes interfering with workers’ rights under the National Labor Relations Act (NLRA) through state licensing requirements showing up in states.

A letter from Foundation Vice President and Legal Director Raymond LaJeunesse, Jr. seeks to bring the General Counsel’s attention to a “disturbing trend in state licensing regulation that, if left unchecked, will cause permanent damage to employees’ fundamental Section 7 rights under the National Labor Relations Act.”

The letter highlights how several states have already enacted schemes that infringe on the rights of employees in the medicinal cannabis industry. In New Jersey, for example, the law requires “a private sector employer to enter into a union bargaining agreement within 200 days of commencing operations” or forfeit their license to do business. Such a requirement does not allow employees to decide whether or not they would like to be represented by a union, a clear violation of their rights under the NLRA.

Other states like California and New York require cannabis employers to enter into so-called “labor peace agreements” (LPAs) as a condition of maintaining their license. These agreements violate workers’ privacy and also threaten their right to freely choose whether or not to join a union. In other states, including Pennsylvania and Illinois, state officials will give more “points” to cannabis license applicants who have LPAs, which is effectively preferential treatment for those businesses which have already chosen a union for their employees to work under. The states enacting these schemes have acted at the behest of several national labor unions, with the United Food and Commercial Workers being on the forefront of these forced unionism efforts.

The letter calls on the NLRB to act against these state and local governments whose regulations infringe on the rights of employees to join or not join labor organizations, and lays out the clear legal arguments that support challenging laws that violate the limited employee rights under the NLRA. It points out that such schemes are “directly contrary to the NLRA’s core principle that ‘under Section 9(a), the rule is that the employees pick the union; the union does not pick the employees.’”

In 2019, New Jersey amended its medicinal cannabis laws, requiring license applicants to sign “labor peace agreements.” According to the amended law, applicants must maintain and comply with an LPA as a condition of keeping their license. In addition, these private sector employers are forced to sign monopoly bargaining agreements within 200 days of opening, and if they do not, they lose the right to do business in the state. Essentially, the letter points out, “the state pressures employees to sign up for unionization solely to keep their employers afloat.”

Furthermore, the Foundation points out how New Jersey indirectly imposes monopoly representation on workers by giving priority to license applicants that already have agreements with union officials or who promise to use their “best efforts to utilize union labor in the construction or retrofit of the facilities associated with the permitted entity.”

The letter also points out that the NLRB has the clear authority to take action against such state activity that threatens the rights guaranteed to workers by the NLRA.

“The NLRB is tasked with protecting the rights of workers across the nation, including their right not to be coerced into union ranks. Our letter to NLRB General Counsel Peter Robb shows the pressing need for the agency to step in and take action against states and local governments who have passed laws that infringe on the rights of workers by mandating these businesses hand over their workers to union forced dues ranks,” said National Right to Work Foundation President Mark Mix.

“Absent swift action from the NLRB to challenge these state laws that fly in the face of the National Labor Relations Act, you can be certain that Big Labor allied politicians across the country will soon seek to force workers in other states or industries into union forced dues ranks under the auspices of occupational licensing.”

16 Mar 2020

Special Legal Notice for West Virginia Employees of AHF Products Issues by National Right to Work Foundation Staff Attorneys

Posted in Legal Notices

Beverly, WV (March 16, 2020) – Amid reports of a strike called by Teamsters union officials, and due to requests for legal assistance that often accompany such union-instigated work stoppages, National Right to Work Legal Foundation staff attorneys have issued a special legal notice to workers at the AHF Products plant in Beverly, West Virginia.

The special legal notice outlines workers’ rights that union officials won’t share with them, and specifies what steps workers should take if they wish to exercise their right to work during the strike:

Teamster union officials have ordered AHF Products workers at the company’s Beverly, West Virginia plant to abandon their jobs and go on strike.

The situation raises serious concerns for workers who believe there is much to lose from engaging in a union-ordered strike.

Employees have the right under federal labor law to rebuff union officials’ strike demands, but it is important for you to be informed before you do so.

IF YOU WOULD LIKE TO CONTINUE WORKING OR RETURN TO WORK DURING A STRIKE READ ALL OF THIS SPECIAL NOTICE BEFORE CROSSING A PICKET LINE TO WORK – IT MIGHT SAVE YOU THOUSANDS OF DOLLARS!

Read the complete legal notice here.

13 Mar 2020

UCSD Workers Hit Union with Federal Class-Action Lawsuit for Seizing Union Dues in Violation of First Amendment

Posted in News Releases

UC president Napolitano and California Attorney General Becerra named as defendants for facilitating policy to block university employees from exercising their rights

San Diego, CA (March 13, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, two UC San Diego Health employees filed a federal class action lawsuit against the University Professional and Technical Employees (UPTE) union and the University of California for seizing dues from their paychecks in violation of their First Amendment rights. The lawsuit states the dues seizures are unconstitutional under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, the Court ruled that deducting union dues from any public sector worker’s paycheck without his or her “affirmative and knowing” consent infringes the First Amendment of the U.S. Constitution.

The class action lawsuit names University of California President Janet Napolitano as a defendant for the university system’s role in perpetrating this scheme. It also names California Attorney General Xavier Becerra as a defendant for the state’s enforcement of the illegal union dues policy.

The lawsuit brought by two Service Desk Analysts, Pablo Labarrere and Sam Doroudi, recounts that UC San Diego Health officials had made all new employees “believe that it was a condition of employment to either join the union as full members or pay forced fees as nonmembers” during a mandatory orientation session. New employees were given and told to sign “dues deduction authorization cards” which provided that union officials would continuously collect dues from each employee’s paycheck unless a revocation letter was sent in a 30-day window before the annual anniversary of signing the card.

According to the lawsuit, the authorization cards did not explain, as Janus requires, that public sector employees “have a First Amendment right not to subsidize the union and its speech” and that signing the card would waive those rights. Labarrere and Doroudi eventually discovered their First Amendment Janus rights independently and sent letters to UPTE officials in December 2019 demanding that dues deductions be cut off. UPTE agents rebuffed both letters and continued to seize dues from Labarrere’s and Doroudi’s paychecks, ostensibly because they did not submit their requests within the “escape period” created by the union bosses.

The lawsuit contends that UPTE bosses are violating Labarrere’s and Doroudi’s First Amendment Janus rights by continuing to take dues from their paychecks without ever having received their “affirmative authorization and knowing waiver” of those rights. It also argues that the 30-day “escape period” illegally restricts Labarrere and Doroudi in the exercise of their Janus rights.

The class action lawsuit also seeks to stop UPTE bosses and the University of California system from enforcing the scheme against any other workers, and require UPTE officials to return all dues and fees to any member of the workplace that had their First Amendment rights violated under the policy.

Just last year, Ventura County Community College District math professor Michael McCain won a settlement in a similar class action lawsuit, also with free legal representation from National Right to Work Foundation staff attorneys. American Federation of Teachers (AFT) union officials illegally attempted to restrict the time period in which McCain and his colleagues could exercise their Janus rights and cut off dues payments. Instead of facing Foundation staff attorneys in court, AFT officials settled the case and paid refunds to workers who had dues seized because of the illegal policy.

Foundation staff attorneys have litigated about forty Janus-related cases around the country for workers following the 2018 landmark Supreme Court case, which was argued and won by a National Right to Work Foundation staff attorney. Ten of those cases have settled favorably with relief for the plaintiff employees.

“The Supreme Court made it absolutely clear in Janus that union officials violate public workers’ First Amendment rights when they seize union dues without their consent,” observed National Right to Work Foundation President Mark Mix. “Yet over a year and a half after the decision, California union bosses – with the assistance of state officials – continue to subject the state’s public servants to schemes that violate these rights, all to fill union coffers with more illegal dues.”

12 Mar 2020

Worker Advocate Files Brief for Flight Attendant Backing Rule Change for Voting Out Unwanted Airline & Railroad Unions

Posted in News Releases

Brief opposes union lawsuit challenging rule eliminating overly complex procedure for workers seeking to decertify an unwanted union

Washington, D.C. (March 12, 2020) – The National Right to Work Legal Defense Foundation filed an amicus brief in United States District Court for a flight attendant opposing an effort led by the AFL-CIO to overturn a recent rule by the National Mediation Board (NMB) that simplifies the process for workers seeking to vote out a union they oppose.

Foundation staff attorneys filed the amicus brief for Allegiant Airlines flight attendant Steven Stoecker to defend the NMB’s rule removing decertification election barriers. The brief was also filed for the Foundation itself, which has provided free legal representation to numerous workers under the jurisdiction of the Railway Labor Act (RLA), which the NMB is charged with enforcing.

Previously, to remove an unwanted union the NMB required an unnecessarily complex process in which workers had to create and solicit support for a fake “straw man” just to vote out the incumbent union. Under the NMB’s new rules finalized in July, workers can simply petition for a direct vote to decertify a union they oppose by a majority of the workers in their bargaining unit.

Stoecker, whose employment is governed by the RLA, attempted from 2014 to 2016 to remove the Transport Workers Union (TWU) from its monopoly bargaining status in his workplace, but those attempts ultimately failed when he lost his “straw man” election. The TWU is currently still the monopoly bargaining representative over his workplace.

“The National Mediation Board’s Final Rule simplifies the union selection or rejection process under the Railway Labor Act and erases nonstatutory barriers that hinder employees’ efforts to freely choose or reject a representative,” the amicus brief reads. “In response, the Plaintiffs, a group of labor unions that benefit from the complexities of the straw man decertification process, challenge the Final Rule and the Board’s statutory authority to establish it.”

Before the NMB issued the final rule last year, workers like Stoecker had to sign authorization cards designating an employee to be the “strawman” even though that employee had no intention of representing the unit. In the election that followed, the ballot options included the name of the union workers wished to decertify, the name of the straw man applicant, e.g., “John Smith,” the option for a write-in candidate and, confusingly, the option for “no union.”

Under the old guidelines, workers who voted for either the straw man or “no union” in hopes to oust union officials would unknowingly be splitting the vote opposed to unionization, as votes counted for these options were not tallied together but separately. The NMB’s final rule allows workers to vote out union representatives directly, without the cumbersome prior rules.

“That union bosses are suing the National Mediation Board for adopting this common-sense reform shows they are far more concerned with maintaining their power than respecting the right of rank-and-file workers to decide whether or not they actually want to remain in union ranks,” commented National Right to Work Foundation President Mark Mix. “The Foundation has long advocated this type of change in the union decertification process. We are pleased the NMB has – as we called upon it to do in comments filed last year – finally made this commonsense reform.”

“Ultimately the Railway Labor Act has many fundamental problems that require legislative action, not the least of which is that it grants union bosses the power to have workers fired for nonpayment of union dues or fees even in states with Right to Work laws,” observed Mix. “That makes it all the more important that while we wait for more sweeping reforms, workers are not trapped in forced dues ranks simply because of the unnecessarily complex ‘straw man’ decertification process.”