New brief contends Biden-appointed Acting NLRB General Counsel Peter Ohr lacks authority to kill case already under consideration by full Board

Washington, DC (March 4, 2021) – Corpus Christi, TX-based nurse Marissa Zamora has just filed an opposition brief defending her case charging National Nurses Organizing Committee (NNOC) union bosses in her workplace with concealing a “neutrality agreement” struck in secret between union officials and HCA Holdings management that covers her hospital. The brief was filed at the National Labor Relations Board (NLRB) with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.

Zamora’s case has progressed to the full NLRB in Washington, DC, after an NLRB Administrative Law Judge (ALJ) dismissed a complaint that then-NLRB General Counsel Peter Robb had issued prosecuting the NNOC for hiding the agreement. Though Zamora and Robb had both filed exceptions urging the full Board to reverse the ALJ’s decision, NLRB Acting General Counsel Peter Ohr filed a motion on February 23, 2021, seeking unilaterally to send the complaint back to the NLRB Fort Worth regional office to be dismissed.

Zamora’s brief challenges Ohr’s attempt to kill the case on the grounds that it is already before the full Board, and she “is a full party with a right to have her pending exceptions decided by the Board.” Letting Ohr shut her out at this stage would “infringe on the Board’s exclusive power to adjudicate violations of” federal labor law, the brief asserts.

Further, the brief contends that Ohr lacks the legal authority to even ask the NLRB to end the case because Ohr’s predecessor, Robb, was unlawfully removed by President Biden almost a full year before his term was scheduled to end. “The General Counsel of the Board does not serve at the pleasure of the President,” the brief argues, also asserting that allowing “the President to fire the General Counsel at will would do irreparable damage to the NLRB’s function as an independent agency.”

Robb’s firing was unprecedented. Since the office of NLRB General Counsel was established in 1947, no sitting General Counsel of the NLRB has ever been fired by a president before the end of their Senate-confirmed four-year term, even when the White House changed hands. For example, Obama’s pick for General Counsel, former union lawyer Richard Griffin, remained the General Counsel for most of the first year after Trump’s election (until his term expired on 10/31/17).

“Neutrality agreements” are deals between union officials and employers, usually without the knowledge of employees in a workplace. They frequently contain provisions that require employers to silence opposition to unionization, hand over workers’ personal information for coercive “card check” drives that bypass the protections of a secret ballot election, provide union organizers with preferential access to the workplace, and even ensure employers will oppose later efforts to decertify, or remove, the union.

In Zamora’s case, she began circulating fliers and other materials in June 2018 to educate her coworkers on how they could obtain a vote to decertify the union. A brief supporting her exceptions recounts that union agents “repeatedly ripp[ed] down her fliers” and that HCA officials referenced a secret agreement with the union when they denied “her access to post material on protected bulletin boards, where her material would be shielded from vandalism.”

Zamora subsequently asked both NNOC and HCA officials to show her any “neutrality agreement” that might have triggered those efforts to block her and her coworkers’ rights. All her requests were denied, despite statements by HCA agents to her that indicated a “neutrality agreement” existed.

“By moving to have Ms. Zamora’s case tossed out, so-called ‘Acting General Counsel’ Peter Ohr is laying bare President Biden’s purely ideological motive behind removing Peter Robb: to allow his union boss cronies to escape legal scrutiny when they violate the rights of workers who refuse to toe the union line,” commented National Right to Work Foundation President Mark Mix. Ohr has acted to squelch several cases of nationwide import brought by Foundation staff attorneys for workers.

“The fact is, even if Ohr were not installed in this position in utter defiance of law and precedent, this issue is already before the full Board whose members would be fully justified in ruling on the case purely on the exceptions Ms. Zamora filed to the ALJ’s decision,” Mix added.

Every employee in the workplace signed petition for vote to oust Indiana Carpenters Union, but Regional NLRB officials are blocking the election

Crown Point, IN (March 4, 2021) – Mike Halkias and his coworkers at Neises Construction Corp. in Crown Point, Indiana are subject to monopoly “representation” by officials of the Indiana/Kentucky/Ohio Regional Council of Carpenters union (IKORCC). Every bargaining unit member has exercised the right under Indiana’s Right to Work law to decline formal union membership and to refuse to pay any union dues or fees, but union officials still have the authority under federal law to “negotiate” with Neises for the employees despite their objections to that representation.

With free legal aid from the National Right to Work Legal Defense Foundation, Halkias submitted a decertification petition to Region 13 of the National Labor Relations Board (NLRB), signed by every member of his unit, to remove IKORCC officials from their workplace.

Despite unanimous agreement by the unit’s workers to hold a vote to oust IKORCC bosses, Region 13 officials rejected the decertification petition. The Board is demanding that the Indiana employer bargain with IKORCC bosses, even though none of its employees want the union to “represent” them.

So far union officials have stymied the vote through “blocking charges,” unfair labor practice charges filed by union lawyers that, before they are resolved, prevent a vote from taking place. Union officials claim the vote cannot proceed until the company negotiates “in good faith” with the union. However, under federal law it is illegal for an employer to engage in monopoly bargaining with a union that it knows lacks the support of at least a bare majority of workers.

The NLRB Regional official’s order dismissing the employees’ petition did not even address that every employee in Mr. Halkias’ bargaining unit has demonstrated a desire to be independent from the union by resigning union membership and asking for a decertification vote.

The Foundation staff attorneys who represent Halkias have appealed to the NLRB in Washington to overturn the rejection of the decertification petition and to allow the workers to vote so they can be rid of the union whose so-called representation they oppose.

“It is outrageous that federal law forces workers under a union’s so called ‘representation,’ despite clear evidence that every single worker wants the union gone,” said National Right to Work Legal Defense Foundation President Mark Mix. “The fact that this appeal is even necessary demonstrates how rigged federal law is against independent-minded workers seeking to exercise their right not to associate with a union.”

“This case is a reminder that, while Right to Work states provide critical protections for workers against being forced to fund a union they oppose, federal law still forces workers under union monopoly control even when those employees oppose the union and believe they would be better off without it.”

Building on 2018 Janus decision, Ohio educator argues government-imposed union boss monopoly representation violates teachers’ First Amendment rights

Washington, DC (February 25, 2021) – Today the National Right to Work Legal Defense Foundation submitted an amicus curie brief to the United States Supreme Court urging the High Court to take up the case of Thompson v. Marietta Education Association. The case seeks a ruling that government-imposed monopoly union “representation” for bargaining with the government violates the rights of public sector employees.

The Foundation’s amicus brief was filed by William Messenger, the veteran staff attorney who successfully argued the Janus case before the Supreme Court. It argues that designating an organization to speak for an individual without their consent violates their First Amendment rights.

The case was filed by the Buckeye Institute, based in Columbus, Ohio for a Spanish teacher in Marietta, Ohio who chose not to join the Marietta Education Association (MEA).

Thanks to the 2018 Foundation-won Janus v. AFSCME case, teachers and other public employees cannot be required to pay dues or fees to unions with which they disagree. However, teachers are still forced by Ohio law to accept union bosses as their “representatives” when dealing with their employers.

Because MEA union officials are the monopoly bargaining agent and set the terms and conditions of employment for all teachers, even those teachers who oppose the union’s so-called representation and believe they would be better off without it. Teacher union officials regularly use this power to oppose merit-based pay increases and instead enforce strict seniority that results in the most recently hired teachers being terminated first irrespective of the effectiveness of their teaching or of the difficulty of finding qualified teachers for the subjects they teach.

Despite claiming to “represent” all teachers, union officials often make political statements with which many disagree. In this case, the plaintiff Jade Thompson was shocked when her so-called “representatives” attacked her husband during his campaign to become an Ohio state representative. At the time, prior to the Janus decision, Thompson was still forced to pay union dues to keep her job.

The Right to Work Foundation’s brief points out that the Supreme Court held in Janus that monopoly representation was “a significant impingement on associational freedoms.” Further, the amicus brief notes that if the Court declines to scrutinize government-imposed union monopoly representation, there is potentially no limit to the lawmaker’s ability to decide who speaks for someone when they deal with the government.

Those limits have already been tested, the brief points out, as state governments have tried to extend exclusive representation beyond government employees. Several states notoriously designated home healthcare providers, parents who are paid by Medicaid to care for their children, as public employees subject to union representation.

“Forcing individuals to accept union boss representation against their will is at the core of all of Big Labor’s coercive powers,” said National Right to Work Legal Defense Foundation President Mark Mix. “The Supreme Court should take up Mrs. Thompson’s case and acknowledge that government-appointed representation is compatible with neither First Amendment freedom of association nor its own ruling in Janus.”

Regional NLRB official asked worker to amend the charge against SEIU following successful appeal, now dismisses specifically-requested charges

Washington, DC (February 23, 2021) – With free legal aid from the National Right to Work Legal Defense Foundation, Seattle building services employee Roger White is appealing the dismissal of his case charging Service Employees International Union (SEIU) 1199NW officials with maintaining deceptive dues practices and illegally siphoning money from his paycheck.

White’s appeal follows the dismissal of his case by the National Labor Relations Board’s (NLRB) Seattle Regional Office, which was on track to issue a complaint against union officials as instructed by former NLRB General Counsel Peter Robb. The abrupt reversal on the case comes after President Biden’s unprecedented and legally groundless removal of Robb ten months before his term was supposed to end, and the President’s subsequent installation of union apologist Peter S. Ohr as NLRB “Acting General Counsel.”

Since his January installation, Ohr has ordered NLRB regional officials to cease prosecuting unions in several Foundation cases where workers accused union officials of illegal dues practices, or of using underhanded tactics to install themselves in workplaces without workers’ consent. In White’s case, Seattle NLRB officials have now dismissed accusations they had specifically asked White to include in amendments to his original charge, based on his successful first appeal in November 2020.

White charged SEIU bosses in April 2020 of seizing dues from his paycheck illegally after he twice attempted to exercise his right to end union membership and as a nonmember pay only the portion of dues directly related to bargaining. He also argued that his second request to end membership and pay reduced dues should have actually stopped dues deductions completely, because at the time there was a strike going on and there was no contract in effect between Swedish Medical Center (his employer) and SEIU 1199NW.

Because Washington State has not enacted Right to Work protections for its employees, White and his coworkers can be forced to pay a fee to the union as a condition of employment when a contract so requiring is in effect. However, the fee is limited by the Foundation-won 1988 CWA v. Beck Supreme Court decision to only the portion of union dues that is directly germane to the union’s bargaining functions, which excludes expenditures on political and lobbying activities.

Union officials must also follow certain Beck procedures before collecting such fees, such as providing workers an independent audit of the union’s expenses. While White’s case was being litigated, General Counsel Robb issued a memo ordering NLRB regional officials to prosecute unions whose officials failed to follow Beck procedures, but that memo and others protecting workers’ rights were rescinded by Ohr on February 1, 2021.

The NLRB Regional Director in Seattle initially threw out White’s charges, ruling that SEIU officials were not obliged to inform White that he was not required to pay union fees during a contract hiatus. Foundation attorneys appealed that decision to then-NLRB General Counsel Robb, arguing that the SEIU owed White a “duty of truth and honesty,” and decrying the fact that the SEIU was able to “‘hide the ball’ and continue collecting dues” during the contract hiatus despite White’s clear “notice that he want[ed] to disassociate” from the union as much as possible.

In response to the appeal, Robb agreed with the Foundation staff attorneys’ arguments on November 6, 2020, concluding union officials violated the National Labor Relations Act (NLRA) by keeping White in the dark about his rights during the contract hiatus. The General Counsel further found that the union had maintained a “confusing and ambiguous Membership Application, Voluntary Check-Off Authorization and Payroll Deduction document.”

These checkoff documents, which employees are pushed to sign to allow dues deductions, did not provide enough information to enable workers to make an informed decision on whether to opt-out of membership and full dues, violating the principles of Beck. Robb also found that the SEIU’s dues checkoff authorization form “may be interpreted to preclude employees from revoking their authorization upon expiration of the contract.”

Robb ordered NLRB Region 19 in Seattle to issue a complaint against SEIU officials for the violations, and the Regional Director asked Mr. White twice to amend his charge to cover everything that Robb had mentioned when he sustained White’s first appeal. However, following Biden’s termination of Robb and elevation of Ohr in his place, the Region 19 Director suddenly dismissed the case, undoing explicit instructions he had given White only months earlier. Foundation staff attorneys are now appealing this dismissal, arguing that the current administration’s agenda to protect union boss privileges has tainted the NLRB’s judgment.

“Biden sought to turn the NLRB, an independent agency, into a tool of his pro-forced unionism ideology by removing Peter Robb without precedent or legal basis, and installing a union boss puppet in his place. The repercussions of that action on workers’ rights are being felt every day by independent-minded employees across the country,” commented National Right to Work Foundation President Mark Mix. “This has yielded some truly outrageous results: in Mr. White’s case, Seattle NLRB officials are now dismissing charges against SEIU 1199NW officials that they specifically told Mr. White to present to them.”

Mix continued: “Top SEIU bosses spent big to put Biden in the White House. Apparently their reward is a ‘get out of jail free’ card for their violations of the rights of independent-minded workers.”

NLRB asked to deny motion filed for Ohr on grounds that Biden illegally fired and replaced Senate-Confirmed General Counsel Peter Robb

Washington, DC (February 17, 2021) – Oregon-based ABC cameraman Jeremy Brown is challenging an attempt by National Labor Relations Board (NLRB) so-called “Acting General Counsel” Peter Ohr to withdraw a brief that Ohr’s predecessor, Peter Robb, filed defending Brown from threats he received from a union lawyer. Brown submitted his opposition brief to the full NLRB with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.

Foundation staff attorneys argue that Ohr has no legal authority to withdraw Robb’s brief because President Biden’s unprecedented firing of Robb breached federal law, and Biden’s subsequent elevation of Ohr to Acting General Counsel violated the U.S. Constitution’s Appointments Clause.

Ohr was installed as Acting General Counsel by President Biden in January, following Biden’s unprecedented move only minutes after his inauguration to oust Robb as General Counsel, despite nearly eleven months remaining on Robb’s Senate-confirmed term.

Since the office of NLRB General Counsel was established in 1947, no sitting General Counsel of the NLRB has ever been terminated by a president before the end of their Senate-confirmed four-year term, not even when the White House changed hands. For example, Obama’s pick for General Counsel, former union lawyer Richard Griffin, remained the General Counsel for most of the first year after Trump’s election (until Griffin’s term expired on 10/31/17).

Brown’s brief contends that the National Labor Relations Act’s “creation of a four-year term” for the NLRB General Counsel and the “absence of language providing that the position serves at the pleasure of the President” together demonstrate that Biden lacked authority to remove Robb. “[C]onverting the Agency’s General Counsel into a purely political position” as Biden attempted with Robb’s firing, the brief continues, “would do irreparable damage to the NLRB’s function as an independent agency responsible for” enforcing private sector labor law.

Regarding Ohr’s installment after Robb’s unprecedented removal, the brief explains that the Appointments Clause of the Constitution “draws a broad and stark distinction between inferior officers (who can themselves be hired by department heads) and principal officers (who must be nominated by the president personally and confirmed by a majority of the Senate).” The brief points out that, “if the President can remove a principal officer and indefinitely assign that officer’s responsibilities to someone who lacks Senate confirmation,” as Biden did, “this central distinction is largely illusory” and no longer provides the Senate a check on the president’s power.

Oregon Cameraman Wins Ruling Charging NABET Bosses with Illegal Dues Seizures

A December 3 ruling by an NLRB Administrative Law Judge (ALJ) found that National Association of Broadcast Employees and Technicians (NABET) Local 51 union bosses have, since April 2019, breached federal labor law by violating Jeremy Brown’s rights under the Foundation-won CWA v. Beck Supreme Court decision.

Beck stipulates that union bosses can only compel employees, like Brown, who decline formal union membership to pay for specific, limited costs directly related to the union’s bargaining functions. An employee cannot be required to pay for the union’s political, lobbying and other non-bargaining expenditures. As applied by the courts and the NLRB, Beck also requires union officials to provide such employees an independent audit of the union’s financial breakdown and the process by which they calculate the reduced fee amount, among other disclosures.

The ALJ ordered that NABET Local 51 provide Brown with “a good faith determination of the reduced dues and fees objectors must pay,” “reimburse Brown for all dues and fees collected” beyond what is required by Beck, with interest, and post notices informing the employees in Brown’s workplace of the decision.

While the case was being litigated, however, Brown received a series of intimidating messages from NABET’s lawyer, who threatened to seek “damages” against Brown if he did not comply with union demands to preserve evidence.

Brown’s charges against NABET concerning the menacing correspondence are now before the full NLRB. Robb’s brief, which Ohr’s motion asks to withdraw, supports Brown’s Foundation-provided attorneys’ argument that the Board should hold that the threats were unlawful.

“Almost every day of Peter Ohr’s ersatz tenure as NLRB ‘Acting General Counsel’ confirms the obvious: that President Biden fired Robb to protect the privileges of his union political allies and help them escape legal scrutiny with ease, always at the expense of workers’ individual rights,” commented National Right to Work Foundation President Mark Mix.

“The full NLRB should reject Ohr’s attempt to cancel Robb’s brief in this case, and rule both that Robb’s removal was unlawful and that Biden’s designation of Ohr as ‘acting’ General Counsel violates the Constitution’s Appointments Clause,” added Mix.

DC Board will review regional ruling ordering workers’ ballots be destroyed and not counted due to unrelated “blocking charges” union officials filed

Washington, DC (February 12, 2021) – The National Labor Relations Board (NLRB) in Washington, DC, will hear Michigan Rieth-Riley Construction Company employee Rayalan Kent and his coworkers’ case, following a Request for Review filed with free legal aid from National Right to Work Foundation staff attorneys.

This is the latest development in a months-long effort by Rieth-Riley employees to exercise their right to vote unpopular International Union of Operating Engineers (IUOE) Local 324 union bosses out of their workplace.

In November 2020, Detroit NLRB officials ruled that the ballots that Kent and his coworkers had already cast in their vote to remove the union should be destroyed. That decision will now be reviewed. Even though Kent had submitted two valid petitions requesting a decertification vote, Detroit NLRB officials dismissed both petitions just minutes before the ballots were slated to be counted due to so-called “blocking charges” filed by union bosses.

Kent submitted his latest petition for a vote to remove the union in August 2020, with signatures from well over the number of his coworkers required by law to trigger such a vote. The petition was submitted in the hopes that new July 2020 protections set by the NLRB in Washington, DC, would better safeguard from union legal maneuvering their right to vote out the union. Kent’s Foundation-provided attorneys also invoked those reforms in a Request for Review submitted in April 2020 in defense of his first decertification petition, which the Board denied.

The NLRB Regional Director in Detroit dismissed Kent and his coworkers’ two petitions by citing unproven allegations IUOE officials have made against Rieth-Riley management in “blocking charges.”

According to Kent’s appeal, the Region’s decision ignored a recent NLRB rule that largely eliminated “blocking charges” as grounds for curtailing decertification votes. The reforms mandate that in nearly all cases workers’ requested ballot should proceed immediately, with the votes then promptly tallied before the NLRB deals with any “blocking charge” allegations union officials filed.

The purpose of the reforms, which heavily cited comments the Foundation submitted to the NLRB, is to stop union officials from maintaining monopoly bargaining power despite widespread worker opposition for months or even years while often-unrelated union allegations against employers are litigated.

The NLRB’s final rule, in response to arguments made in the Foundation’s comments, requires that votes be tallied and results announced unless the charges allege the employer has improperly aided the decertification petition: Even then, the votes still will be counted unless a complaint against the employer has been issued within sixty days.

Nevertheless, the NLRB Regional Director declined to even hold an evidentiary hearing to determine whether there is a link between IUOE union bosses’ claims and Kent and his coworkers’ effort to remove the union: Instead, she claimed that the Region’s “investigation” was sufficient and takes priority over the NLRB’s new rules regarding “blocking charges.”

The workers’ appeal pointed out that, “even under the old rules, the Region is misapplying the law by dismissing the petitions.” It explains that the union bosses’ “unfair labor practice allegations do not relate to the election itself. Further, the Region did not conduct a hearing before it found a causal connection between the Employer’s alleged conduct and the decertification petitions.”

“While we are pleased that Region 7’s decision to destroy Mr. Kent and his coworkers’ ballots will now be reviewed, years of litigation should not be required just so workers can exercise their right to vote out union bosses they oppose,” commented National Right to Work Foundation President Mark Mix. “We proudly stand with Mr. Kent and all workers who seek to exercise this right without union boss interference.”

Top union bosses demanded Robb’s ouster, which was immediately followed by agency tossing Foundation cases challenging union officials’ violations of workers’ rights

Washington, DC (February 9, 2021) – Following the Biden Administration’s unprecedented and legally dubious removal of National Labor Relations Board (NLRB) General Counsel Peter Robb and his second-in-command, Alice Stock, the National Right to Work Legal Defense Foundation has just submitted a Freedom of Information Act (FOIA) request to the agency to dig deep into this unfolding scandal.

The FOIA request asks for all correspondence related to Robb’s and Stock’s firings, and two Foundation-supported cases for workers which were hastily suppressed by NLRB Acting General Counsel Peter Ohr shortly after he was installed in Robb’s place by President Biden. Both cases challenged union officials’ collusion with management to foist union representation on hotel workers without even an employee vote.

On January 20 at 12:23 PM, a mere 23 minutes after the President formally took office, President Biden’s Office of Presidential Personnel demanded that Robb resign or be fired. After Robb refused to resign, citing the unprecedented nature of the demand and his Senate confirmation to a four-year term, he was fired that same day. Robb’s deputy, Alice Stock, received a similar threat the next day only to be fired as well when she refused to resign.

Since the office of NLRB General Counsel was established in 1947, no sitting General Counsel of the NLRB has ever been terminated by a president before the end of their Senate-confirmed four-year term, even when the White House changed hands. For example, Obama’s pick for General Counsel, former union lawyer Richard Griffin, remained the General Counsel for most of the first year after Trump’s election (until his term expired on 10/31/17).

In addition to general information regarding the circumstances of Robb’s removal and Ohr’s installation, the FOIA request specifically asks for documents regarding two cases brought by hotel employees challenging so-called “neutrality agreements.” Robb had sustained employee appeals in both cases and ordered NLRB regional officials to issue complaints against UNITE HERE union officials and hotel management. Both cases were just a few weeks away from scheduled trials before NLRB Administrative Law Judges.

However, about a week after Robb’s unprecedented firing, Ohr directly ordered Seattle NLRB officials to withdraw the complaint and dismiss one of the cases, which had been filed by Foundation staff attorneys for Embassy Suites housekeeper Gladys Bryant. The Seattle Region did so on January 29. The next business day, Boston NLRB officials dropped the other case, which Foundation staff attorneys were litigating for four Boston Yotel housekeepers who had had UNITE HERE thrust upon them.

The FOIA request also demands all documents germane to Ohr’s rescission of a September 2020 memo issued by Robb, which advised NLRB regional officials to adopt a consistent standard in “neutrality agreement” cases. Foundation staff attorneys maintain in both the Boston and Seattle cases that because NLRB case law forbids employers from providing “more than ministerial aid” to employees who attempt to vote out, or decertify, an unwanted union, the same standard must apply in cases where union officials obtain employer assistance in installing a union as workers’ monopoly “representative.” Robb’s memo had endorsed that neutral application of the law.

The request demands “all documents and communications” concerning these issues between Ohr and “any Member of the U.S. House of Representatives or any U.S. Senator,” “any officer, employee or representative of a labor organization,” “any representative of…the Biden-Harris transition organization,” or “any official or employee of the U.S. Government, including officials and employees of the National Labor Relations Board,” among other parties.

“The Biden Administration’s radical, unprecedented firing of NLRB General Counsel Peter Robb immediately resulted in so-called Acting General Counsel Peter Ohr quashing two Foundation-backed cases which threatened a key privilege union bosses use to seize power over workers across the country,” commented National Right to Work Foundation President Mark Mix. “This FOIA request seeks documents related to this scandalous power grab, which is clearly designed to shut down multiple NLRB prosecutions of Biden’s union boss political allies for their violation of workers’ legal rights.”

Denial of union boss request for rehearing en banc leaves in place unanimous Appeals Court panel decision in favor of Rhode Island nurse

Boston, MA (February 4, 2021) – In another victory for longtime Rhode Island nurse Jeanette Geary, the First Circuit Court of Appeals has rejected a request by United Nurses and Allied Professionals (UNAP) union lawyers to rehear UNAP v. NLRB, a case in which they sought to overturn a National Labor Relations Board (NLRB) ruling in favor of Geary and her fellow nurses who objected to being forced to pay for union lobbying expenses. Geary was not a member of the UNAP union in her workplace and filed federal charges with free legal aid from National Right to Work Legal Defense Foundation staff attorneys in 2009 after union officials infringed on her and other nonmember nurses’ rights under the Foundation-won CWA v. Beck Supreme Court decision.

Geary, who worked as a nurse at Kent Hospital in Warwick, Rhode Island, filed unfair labor practice charges after UNAP officials failed to provide her evidence of a legally required independent audit of its breakdown of expenditures. She also challenged the union’s forcing her and other employees to pay for union lobbying activities in state legislatures.

The Foundation-won Beck decision mandates that private sector workers in states without Right to Work protections can only be forced to pay union dues for union activities “directly germane” to the union’s bargaining functions, which excludes political activity like lobbying. In another Foundation-won case, Hudson, the Court held that union officials must provide an audited financial breakdown of how forced union dues are being spent.

The NLRB ruled against Geary in a decision issued in 2012, but that decision was invalidated by the Supreme Court’s holding in NLRB v. Noel Canning that the Board lacked a valid quorum because of unconstitutional “recess appointments” then-President Obama had made. Seven years later, Geary’s case was one of the only remaining decisions invalidated by Noel Canning still pending without a decision by the NLRB.

In January 2019, Foundation staff attorneys filed a mandamus petition at the U.S. Court of Appeals for the District of Columbia Circuit, seeking a court order that the NLRB promptly decide Geary’s case. The Appeals Court then ordered the NLRB to respond to that petition by March 4, 2019, which caused the NLRB to issue its decision on March 1, 2019, just ahead of the deadline.

The NLRB ruled 3-1 that union officials violate workers’ rights by forcing nonmembers to fund any union lobbying activities. It also ruled that union officials must provide independent verification that the union expenses they charge to nonmembers have been audited. Unwilling to stop forcing workers to fund lobbying activities, UNAP union bosses then asked the First Circuit Court of Appeals to overturn this ruling.

Oral arguments were held before the First Circuit in March 2020, with veteran Foundation staff attorney Glenn Taubman arguing for Geary. One of the judges on the First Circuit panel was retired Supreme Court Justice David Souter. In September, the First Circuit decided unanimously in favor of Geary, ruling that “we see no convincing argument that legislative lobbying is not a ‘political’ activity,” while also finding that the NLRB was correct that Supreme Court precedent dictated that nonmembers could never be required to fund union lobbying.

Rather than accept this limitation on their power to force workers to fund union activities as a condition of employment, union lawyers requested that the case be reheard by every judge on the Court of Appeals. Finally today (February 4, 2021) the First Circuit denied the union lawyers’ request for a rehearing with no judge dissenting.

The decision to deny rehearing en banc and leave in place the panel’s unanimous decision that unions violate workers’ rights when they attempt to force them to pay for any lobbying comes just three days after ersatz NLRB acting General Counsel Peter Ohr rescinded a Guidance Memo to NLRB Regional Directors seeking the enforcement of workers’ rights under the Geary/Kent Hospital precedent. Ohr was installed as Acting General Counsel following President Biden’s unprecedented and likely unlawful firing of General Counsel Peter Robb, who authored the memo on enforcing employees’ rights under Kent Hospital.

“The First Circuit’s unanimous ruling for Ms. Geary, followed by denial of rehearing, demonstrates the clarity of the Supreme Court’s standard in Beck, and shows how flagrantly UNAP officials disregarded her and her coworkers’ Beck rights well over a decade ago,” commented National Right to Work Foundation President Mark Mix. “While it is just plain wrong to force workers to shell out cash for union political expenses as a condition of keeping their jobs, federal labor law as a whole needs reform so no worker is forced to accept or pay for the ‘representation’ of union hierarchies they don’t want and never requested.”