Ohio Municipal Employee Challenges Deceitful Unconstitutional Dues Deductions
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2021 edition. To view other editions or to sign up for a free subscription, click here.
IUOE bosses’ scheme renames forced-fee payments clearly outlawed in Janus decision
Veteran Foundation staff attorney William Messenger successfully argued Janus over two years ago, but union bosses are still concocting schemes to circumvent it. Timothy Crane is now fighting a particularly flagrant example.
CINCINNATI, OH – With free legal aid from National Right to Work Foundation staff attorneys, City of Hamilton employee Timothy Crane is suing International Union of Operating Engineers (IUOE) Local 20 union officials and the City of Hamilton for seizing a compulsory fee from his paycheck in violation of his First Amendment rights.
His complaint, filed in the U.S. District Court for the Southern District of Ohio, contends that union bosses are infringing on his rights under the Janus v. AFSCME decision by forcing him to pay a so-called “agreement administration fee” equal to more than 90 percent of full union dues as a condition of his employment.
In the 2018 Foundation-won Janus decision, the High Court ruled that no public worker can be forced to pay union dues or fees as a condition of getting or keeping a job. The Court also held that union dues or fees can only be deducted from a public employee’s paycheck if that employee clearly and affirmatively waives his or her right not to pay. Justice Samuel Alito wrote for the Court majority that “such a waiver cannot be presumed” by union or state officials.
Even After City Employee Exercised His Janus Rights, Union Honchos Seized Fees
Crane sent letters to IUOE union officials in both August and September of 2020, attempting to exercise his First Amendment Janus right to end dues deductions from his paycheck. After sending these two letters, however, he discovered that an “agreement administration fee” was now being taken from his pay by the City at the behest of IUOE union bosses.
Crane’s complaint contends that this is just a so-called “agency fee” — compulsory union payments charged to employees who refrain from formal union membership that were definitively outlawed by the Janus v. AFSCME decision — masquerading under a different name. The suit urges the District Court to declare it unconstitutional for IUOE Local 20 and the City of Hamilton to force him to pay this compulsory union fee. Crane’s lawsuit also seeks a refund of all money that the union has illegally taken from his paycheck under the unconstitutional arrangement.
Chain of Foundation-backed Janus Victories for Ohio Workers Likely to Continue
Since Janus was handed down by the Supreme Court, Foundation staff attorneys have already won favorable settlements in four cases for Buckeye State public workers who have challenged illegal union-created restrictions on the exercise of Janus First Amendment rights. In a July 2020 settlement in a class-action lawsuit filed by four state workers, nearly 30,000 Ohio public employees were freed from an “escape-period” scheme imposed by Ohio Civil Service Employees Association (OCSEA) union chiefs, which limited to just a handful of days every few years the time in which a public employee could exercise his or her Janus rights.
“IUOE bosses, who may have thought they were going to trick employees into funding their agenda against their will with this blatantly unconstitutional scheme, have now been caught red-handed,” commented National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “Rank-and-file workers like Mr. Crane now see that IUOE officials are far more interested in keeping hard-earned employee cash flowing into their coffers than in respecting the First Amendment rights of the workers they claim to represent.”
LaJeunesse continued: “The string of Foundation victories for independent-minded Buckeye State employees who just want to exercise their First Amendment rights is not going to end here.”
Del Rio, Eagle Pass Frito Lay Workers Successfully Free Themselves from Unwanted Teamster Union Bosses ‘Representation’
Labor Board decertification election confirms Teamsters lack support of majority of employees in bargaining unit
Del Rio, TX (June 16, 2021) – Salesmen for Frito Lay in Del Rio and Eagle Pass, Texas have successfully removed officials of Teamsters Local 657 from their workplace. On May 13, 2021, John Adams filed a petition with the National Labor Relations Board (NLRB) for a decertification election, and gathered enough of his coworkers’ signatures to trigger an NLRB-supervised vote to remove the union from his workplace. He received free legal assistance from the National Right to Work Legal Defense Foundation in exercising his right to have the vote conducted by the NLRB.
The workers at both facilities voted on June 3. In the NLRB tally of ballots, Teamsters union officials failed to gain the support of a majority of the salesmen voting. On June 11 the NLRB certified the results of the decertification election and announced that Teamsters bosses no longer have the monopoly authority to impose their “representation” on the Frito Lay salesmen.
Adams was able to remove the union less than a month after filing his petition in part because of NLRB reforms finalized in 2020 limiting union tactics previously used to delay or block workers from exercising their right to vote out an unwanted union. Before the change, union lawyers could file so-called “blocking charges” to stall a vote union officials expected to lose. These “charges” were often unproven allegations against the employer used as pretense to hold up an election, even when the charges had nothing to do with the employees’ dissatisfaction with the union.
In July 2020, new NLRB rules went into effect limiting the use of “blocking charges,” and making other changes to enforce workers’ right not to be trapped in union ranks when the union lacks the support of a majority of workers. Under the NLRB’s new policy, which draws extensively on comments the National Right to Work Foundation filed, union charges cannot indefinitely stall employee votes. In most cases workers can remove an unwanted union without delay.
“Even in a Right to Work state like Texas, a union can negotiate for workers without their permission thanks to federally-granted monopoly bargaining powers,” said National Right to Work Legal Defense Foundation President Mark Mix. “Thanks to the Foundation-backed rulemaking curtailing union bosses’ ability to block workers from removing a union they oppose, votes like the one Mr. Adams and his colleagues held to boot the Teamsters from their place of work cannot so easily be derailed by unproven union allegations.”
“We will continue to work towards a day when unions can’t impose their so-called ‘representation’ on individual workers against their will,” added Mix.
Sheet Metal Union Bosses Back Down After Colorado Springs Metal Worker Files Federal Charges Challenging $20,000 Fine
NLRB still investigating union officials for fine issued after worker exercised right to end union membership and began working for firm outside union’s control
Colorado Springs, CO (June 11, 2021) – With free legal aid from National Right to Work Foundation staff attorneys, Colorado Springs metal worker Russell Chacon has forced International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART) Local 9 union officials to abandon their illegal demands against him for tens of thousands of dollars in fines.
Chacon filed an unfair labor practice charge at Region 27 of the National Labor Relations Board (NLRB) in Denver last month after he received a message from SMART union bosses imposing $21,252 in union disciplinary fines on him. The demand came despite the fact that Chacon had resigned his union membership and left a job at a contractor under SMART Local 9’s power several months earlier to work at a Pueblo facility free from union control.
Now, just weeks after the charge was filed, SMART union bosses have rescinded their fine demands. However, an NLRB investigation is ongoing into SMART union officials’ actions surrounding the ruinous fine they attempted to impose against Chacon.
SMART agents claimed in correspondence with Chacon that the fine was for an alleged “loss of funds” supposedly resulting from his working for an employer outside SMART’s influence. Decades-old federal law prohibits union officials from forcing internal union discipline on workers who have exercised their right to refrain from union membership, and from restricting the exercise of that basic right.
Chacon used to work for Colorado Sheet Metal, a Colorado Springs-based contractor whose employees are under the monopoly bargaining power of the SMART Local 9 union. According to his unfair labor practice charge, he sent a letter to SMART union officials resigning his union membership in November 2020, and soon after went to work for Rocky Mechanical, a Pueblo-based firm outside the SMART union’s control.
The union fine demand, which came several months after his change in jobs, ordered Chacon to fork over money to cover the alleged union “loss of funds” for a period through May 31, which at that time included days that Chacon had not even worked yet.
“While we are pleased that Mr. Chacon no longer faces this outrageous and unlawful fine, rank-and-file workers should not have to file federal charges just to have rights respected,” commented National Right to Work Foundation President Mark Mix. “Colorado still lacks Right to Work protections for its private sector workers to ensure that no employee is forced to pay tribute to union bosses just to get or keep a job, including union officials who blatantly ignore decades of longstanding law to retaliate against workers seeking not to associate with a labor union.”
Oregon ABC Cameraman Wins Ruling Against Illegal Dues-Seizing NABET Bosses
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2021 edition. To view other editions or to sign up for a free subscription, click here.
Administrative Law Judge orders union boss to refund all illegally taken money
He’s done playing games: After cameraman Jeremy Brown sought free legal aid from the Foundation, an NLRB Administrative Law Judge ruled against NABET bosses for violating his Beck rights for years.
PORTLAND, OR – Jeremy Brown, a “daily hire” cameraman for ABC who had worked on and off for the company since 1999, would not have thought that a new president taking over the National Association of Broadcast Employees and Technicians (NABET) Local 51 union would mean anything for him when he resumed work in 2016. After all, he had worked for ABC for nearly three years, and the union had never even contacted him and he had never joined the union.
Then, in 2019, he received a series of letters from the new union honcho, demanding he pay nearly $10,000 in initiation fees and so-called “back-agency dues.” Brown quickly obtained free legal aid from National Right to Work Legal Defense Foundation staff attorneys and asserted his rights under the Foundation-won CWA v. Beck Supreme Court decision.
Beck prevents private sector union bosses from forcing employees who have abstained from formal union membership to pay for anything unrelated to the union’s bargaining functions, such as political expenses. Moreover, it requires union officials to provide information on the union’s fee calculation and expenditures to non-members.
New NABET Chief Demanded Thousands, Then Snubbed Cameraman’s Beck Rights
Because Brown works primarily in non-Right to Work states, he can be legally forced as a condition of employment to pay some fees to union bosses.
After receiving the baffling, belated dues demands, Brown emailed the new union president, Carrie Biggs-Adams, asking for clarification. He also exercised his Beck rights by objecting “to the collection and expenditure by the union of a fee for any purpose other than” certain bargaining activities. Believing that he would be fired if he did not agree to pay union dues, he filled out a form authorizing NABET to take full dues from his paycheck, but did so under duress.
Biggs-Adams ignored several follow-ups by Brown. According to legal documents, she “believed Local 51 had no obligation to [reply to Brown] because Beck objections” are handled only by the union’s national headquarters under NABET rules. Even so, she never apprised Brown of NABET’s national mailing address, or provided him the dues reduction or any of the information mandated by Beck.
In December, Brown won a decision from a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) about the union’s Beck rights violations. The ALJ’s decision holds the NABET union violated Brown’s rights under the National Labor Relations Act (NLRA) through its officials’ omissions and the failure to reduce his dues.
The ALJ ordered NABET Local 51 to provide Brown with “a good faith determination of the reduced dues and fees objectors must pay,” and “reimburse Brown for all dues and fees collected” beyond what is required under Beck, with interest.
“While this decision vindicated Mr. Brown’s legal rights, it also demonstrates why every American worker deserves the protection of a Right to Work law to shield them from union boss threats to pay up or be fired,” commented National Right to Work Foundation Vice President Patrick Semmens.
New Hampshire Workers’ Petition Asking Supreme Court to Hear Case Seeking Refund of Unconstitutionally Seized Union Dues is Fully Briefed
Court asked to consider two dues refund cases that divided lower court judges
Washington, DC (May 26, 2021) – With free legal aid from the National Right to Work Legal Defense Foundation, New Hampshire state employees Patrick Doughty and Randy Severance filed a reply brief with the U.S. Supreme Court in their case against a union that unconstitutionally forced them to pay union dues as a condition of their employment. The workers’ case is now fully briefed, and has been distributed to the justices to consider in their conference on June 10, 2021. The case will be reviewed alongside Wenzig, another Foundation-supported case involving unconstitutional union dues seizures from state employees.
Both the Doughty and Wenzig cases are against Service Employees International Union (SEIU) locals. They argue that the petitioners, who were not union members, are entitled to refunds of dues seized from their paychecks without their consent. The seizures violated the First Amendment under the Court’s landmark ruling in Janus v. AFSCME. In Janus, National Right to Work Foundation attorneys successfully argued that forcing public-sector employees to pay dues to a union they do not support violates their First Amendment rights to free speech and free association.
The Supreme Court’s ruling in Janus made clear that public employees must affirmatively consent to union dues payments and knowingly waive their constitutional right not to pay. The Court also stated in its opinion that union officials had been on notice since the Foundation-won Knox v. SEIU case in 2012 that forced union dues in the public sector likely violated the First Amendment.
Foundation attorneys argue in these cases that longstanding precedent allows victims of First Amendment violations to sue for damages or restitution. Lower courts are divided on how to approach the legal questions presented in these challenges, which the petitions argue heightens the need for the Supreme Court to weigh in on the issue.
In Wenzig alone, the three judges on the U.S. Court of Appeals for the Third Circuit had three separate interpretations of the workers’ case. One agreed with union lawyers’ legal argument for why they should get to keep dues seized from workers in violation of Janus. A second also found for union officials but rejected the first judge’s legal theory. The third dissented, rejecting the first two judges’ explanations altogether and favoring refunds for the workers.
Meanwhile in Doughty, the three judge panel rejected the union lawyer’s so-called “good faith” defense, but created yet another legal standard that justified SEIU bosses keeping the unconstitutionally seized dues.
Foundation attorneys argue that the Supreme Court must step in and clarify the confusion among the lower courts. The Doughty reply brief was submitted early so it can be considered for certiorari during the same conference as Wenzig, giving the justices a better sense of the disunity in the lower courts’ responses.
While the appellate-court decisions against the workers conflict with one another, Foundation Attorneys argue they also conflict with Supreme Court precedent. Their petition for certiorari in Doughty argues that the First Circuit went searching for a reason why union bosses’ violations of workers’ First Amendment rights didn’t need to be remedied by the courts, and crafted such a reason by incorrectly applying the standards used in common-law torts, an entirely different type of violation. Then, the judges reasoned, under those standards union bosses’ actions could be justified because they had relied on the ill-gotten dues money to fund their operations. But the Supreme Court in Janus already rejected the reliance argument. The workers’ petition for certiorari asks the Supreme Court to overrule these decisions at odds with the Court’s own rulings.
“Once again, Foundation attorneys are asking the Supreme Court to rule that money taken from workers’ pockets to fund unions they do not support should be returned,” said National Right to Work Legal Defense Foundation President Mark Mix. “The several lower court judges in these cases before the court have been unable to agree on the legal principles that apply. It is now time for the justices to set the record straight.”
“The Supreme Court should take up this issue and side with workers who were forced for years to pay dues to union officials in violation of the First Amendment,” Mix added. “Even if the Supreme Court does rule that public employees are entitled to refunds, because of the statute of limitations union bosses will still only be returning a small portion of the billions of dollars nationwide that were unlawfully stolen from public employees’ paychecks.”
Colorado Springs Metal Worker Hits Sheet Metal Union Bosses with Federal Charges for Demanding Over $20,000 in Illegal Fines
Worker slammed with unlawful demands after he exercised right to end union membership and began working for firm outside union’s control
Colorado Springs, CO (May 25, 2021) – A Colorado Springs metal worker has just filed a federal unfair labor practice charge against International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART) Local 9 union officials, whom he asserts are illegally trying to fine him tens of thousands of dollars after he resigned his union membership and went to work for a contractor not under union control.
He filed his charge at Region 27 of the National Labor Relations Board (NLRB) in Denver with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
The worker, Russell Chacon, maintains in his charge that by “issuing unlawful fines and or internal charges” SMART union officials violated his right under Section 7 of the National Labor Relations Act (NLRA) to refrain from all union activities. Under federal law, union officials cannot forbid workers from ending their formal union memberships or mete out internal union discipline on employees who refrain from union membership.
Although federal law going back to 1947 also prohibits union bosses from requiring union membership as a condition of employment, states like Colorado which lack Right to Work protections grant union officials the power to force workers to pay them fees as a condition of getting or keeping a job. In Right to Work states, both union membership and financial support are completely voluntary.
Chacon used to work for Colorado Sheet Metal, a Colorado Springs-based contractor whose employees are under the monopoly bargaining power of the SMART Local 9 union. According to his charge, he sent a letter to SMART union officials resigning his union membership in November 2020 and soon after went to work for Rocky Mechanical, a Pueblo-based firm outside the SMART union’s control.
Chacon’s charge reports that he later received a message from union officials ordering him to pay $21,252 to make up for an alleged “loss of funds” supposedly resulting from his working at a contractor outside the SMART union’s bargaining power. The period for which SMART officials are demanding this payment goes through May 31, 2021, and includes days Chacon has not even worked yet.
“It’s shameful that SMART union officials claim to ‘represent’ rank-and-file metal workers while demanding a devastating sum of money from a worker who has clearly exercised his right to refrain from union activities, and doesn’t even work for an employer under their power anymore,” commented National Right to Work Foundation President Mark Mix. “Colorado workers need the protection of a Right to Work law to ensure that employees cannot be required as a condition of employment to fund a union hierarchy that so flagrantly violates workers’ rights.”
Mix continued: “Other Colorado metal workers who have suffered similar malfeasance from SMART union officials should not hesitate to reach out to the National Right to Work Foundation for free assistance in defending their rights.”
TX United Airlines Employee Asks Supreme Court to Hear Challenge to Dues Scheme Forcing Workers to Pay for Union Political Expenses
Foundation attorneys argue IAM union “opt-out” requirement to escape payment for union officials’ political activities violates Supreme Court’s Janus standard
Washington, DC (May 24, 2021) – Today staff attorneys from the National Right to Work Foundation filed a petition for writ of certiorari in United Airlines employee Arthur Baisley’s federal class-action civil rights case, which charges International Association of Machinists (IAM) union bosses with forcing him and his coworkers by default to pay for union political expenditures in violation of the First Amendment and the Railway Labor Act (RLA).
In particular, Baisley challenges a union requirement that employees who choose not to join the union must opt out of funding the union’s political and ideological activities during a brief annual “window period,” or else have money automatically seized from their paychecks for those purposes against their will.
Baisley’s attorneys argue the opt-out arrangement violates workers’ rights under the RLA, and the First Amendment under the standard laid out in the landmark 2018 Supreme Court Janus v. AFSCME decision.
They contend that, under Janus and the 2012 Knox v. SEIU Supreme Court case – both of which were argued at the High Court by National Right to Work Foundation staff attorneys – no employee can be charged for union political or ideological expenditures without first giving their affirmative and knowing consent, because language from a 1961 case that union lawyers use to prop up “opt out” language was only dicta.
Baisley is not a member of the IAM but is still forced to pay some union fees despite being based in the Right to Work state of Texas. The RLA preempts state Right to Work protections which make union membership and all union financial support strictly voluntary. However, under longstanding law, even without Right to Work protections nonmembers cannot, as a condition of keeping their jobs, be required to pay fees for anything beyond the union’s expenses directly related to bargaining.
Baisley’s petition details the convoluted union boss-created process that workers must navigate just to prevent money from being taken from their paychecks in violation of their First Amendment rights. In Baisley’s situation, even though he sent a letter to IAM agents in November 2018 objecting to funding all union political activities, union officials only accepted his objection for 2019, and told Baisley he had to renew his objection to full dues and fees the next year or else be charged full union dues.
The lawsuit challenges this union-created policy on the grounds that it requires employees to withdraw from paying union fees that they have no legal obligation to pay and thus breaches workers’ First Amendment rights. The complaint also alleges that the IAM’s opt-out requirement violates the RLA, which governs labor in the air and rail industries and protects the right of employees to “join, organize, or assist in organizing” a union of their choice, as well as the right to abstain from all union activities.
Baisley’s lawsuit seeks to strike down the opt-out requirement not only as it is applied to him, but also for his coworkers whose rights are similarly restricted by the IAM’s opt-out policy. Union officials would then be required to get nonmember workers to give affirmative consent to paying for union boss activities beyond the bargaining-related expenses they can legally be required to subsidize under the RLA.
“The sordid goal of these kinds of union ‘opt-out’ requirements is clear: trap unsuspecting workers into subsidizing union bosses’ radical political agenda without their consent and in violation of their constitutional rights,” said National Right to Work Foundation President Mark Mix. “The Supreme Court ruled in the Foundation-won Janus case that union officials must first seek the affirmative approval of public sector workers before charging them for union politics, and this case simply seeks to ensure that Mr. Baisley and all employees subject to the Railway Labor Act enjoy those same basic protections.”
NLRB Allows Deficient Settlement in West Virginia Kroger Employee’s Case Challenging UFCW Bosses’ Illegal Dues Cards
Biden-installed “Acting” NLRB General Counsel pushed inadequate settlement over worker’s objections
Washington, DC (May 20, 2021) – Region 6 of the National Labor Relations Board has approved a settlement resolving unfair labor practice charges filed against United Food and Commercial Workers (UFCW) Local 400 by a worker despite the worker’s objections to the settlement’s adequacy.
With free legal aid from the National Right to Work Legal Defense Foundation, West Virginia-based Kroger employee Shelby Krocker filed unfair labor practice charges against UFCW Local 400 alleging primarily that the union illegally coerced employees into signing dues checkoff authorization forms that allowed union dues to be deducted dues from their paychecks. The dues forms the Kroger employees signed prominently stated that they “MUST BE SIGNED.” Employees cannot legally be required to sign dues checkoff authorizations, which usually contain severe restrictions on an employee’s ability to stop dues deductions.
NLRB Region 6 initially dismissed Krocker’s charge. Foundation attorneys appealed for her to then NLRB General Counsel Peter Robb, who sustained the charge and ordered the Region to issue a complaint against UFCW Local 400 for its violations. Robb found that UFCW officials had violated the law in multiple ways, some beyond what was in Krocker’s original charge, including failing to allow employees to end dues deductions upon expiration of a contract. The Region issued a complaint as Robb directed, but an Administrative Law Judge determined that UFCW Local 400 did not violate the Act. Krocker and Counsel for the General Counsel then filed exceptions to the ALJ’s flawed decision, taking the case to the NLRB.
While the case was pending with the Board, President Biden removed General Counsel Robb with more than ten months remaining in his Senate-confirmed four year term. This was the first time in the NLRB’s 74-year history that a President fired a General Counsel whose statutory term had not yet expired. Biden then installed career NLRB bureaucrat Peter Ohr as Acting General Counsel, who since has reversed many of Robb’s actions that defended workers from union boss abuses, including Robb’s exceptions in this case.
Instead of allowing the fully-briefed exceptions to be decided by the Board, under Ohr NLRB Region 6 in Pittsburgh engaged in belated negotiations with the union and Ohr jointly moved with union lawyers to send the case to the Region. The imposed settlement shields the union from being forced to provide a full remedy to all affected workers. Krocker’s Foundation-provided attorneys urged the Board to deny the joint motion. They argued that the joint motion and the proposed inadequate settlement were “bare political attempts to strip the Board of its ability to hear the important issues raised in this case” and violated the Board’s own rules. Further, their response to the joint motion asserted that “the proposed agreement does not fully remedy the unfair labor practices alleged in the Complaint and as shown by the stipulated factual record,” and that any settlement should provide relief to all employees who signed the unlawful checkoffs.
Ignoring Krocker’s arguments, the NLRB granted Ohr’s and the union’s motion to remand, allowing Ohr and UFCW Local 400 to settle Krocker’s case over her objections, and allowing the Administrative Law Judge’s flawed decision to stand.
“Thanks to President Biden’s unprecedented, partisan attack on the NLRB’s independence by removing General Counsel Robb and replacing him with Peter Ohr, along with NLRB members who were unwilling to go to bat for individual worker rights, union bosses have once again been able to escape legal accountability for their actions,” said National Right to Work Legal Defense Foundation President Mark Mix. “UFCW bosses intentionally misled workers into thinking they were required to pay union dues, even though West Virginia is a Right to Work state. Thanks to union bosses’ new ally in the General Counsel’s office and the compliant board, other workers whose rights were violated like Krocker’s are receiving no remedy.”
“UFCW bosses are already reaping the rewards for supporting Joe Biden’s campaign, and workers like Shelby Krocker and her fellow employees are paying the price,” Mix added.
Las Vegas Police Officer Counters Union, Police Department Claims in Case Challenging Unconstitutional Union Dues Deductions
Legal briefs filed for veteran officer expose specious legal arguments attempting to justify union dues seizures that violate clear Supreme Court precedent
Las Vegas, NV (May 20, 2021) – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Las Vegas police officer Melodie DePierro has filed response briefs in her case seeking to vindicate her First Amendment right to abstain from union membership and financial support.
DePierro’s original complaint, filed in the US District Court for the District of Nevada, challenged an “escape period” scheme created by Las Vegas Police Protective Association (PPA) union bosses and enforced by the Las Vegas Metropolitan Police Department (LVMPD). This arrangement forbids her for over 90% of the year from exercising her First Amendment right under the Foundation-won Janus v. AFSCME Supreme Court decision to resign her union membership and cut off dues deductions.
In Janus, which was argued and won by Foundation staff attorneys, the High Court ruled that forcing public sector workers to subsidize a union hierarchy as a condition of employment violates the First Amendment. The justices also declared that union dues can only be deducted from a public sector employee’s pay with an affirmative and knowing waiver of his or her First Amendment right not to pay union dues.
According to DePierro’s original complaint, she began working for LVMPD in 2006 and voluntarily joined the PPA union at that time. Her response explains that in 2006, the union monopoly bargaining contract permitted employees to terminate dues deductions “at will.”
In January 2020 she first tried to exercise her Janus rights, sending letters to both union officials and LVMPD that she was resigning her membership. The letters demanded a stop to all union dues being taken from her paycheck.
Her complaint reports that union and police department agents rejected that request because of a union-imposed “escape period” restriction previously unknown to DePierro that limited the time when employees could exercise their Janus rights. Union agents rebuffed her again after she renewed her demands in February 2020. When she filed her lawsuit, full union dues were still being seized from her paycheck.
DePierro’s latest briefs were filed in response to motions for summary judgment submitted by PPA and LVMPD. DePierro’s Foundation-provided attorneys notably refute a union argument that DePierro had “somehow consented to the 20-day annual escape period.” They contend that the “fact that the CBA was later amended to introduce the escape period does nothing to rectify LVPPA’s failure to obtain DePierro’s valid consent to such a limitation…Without such a voluntary agreement, there is no basis to enforce it against her.”
Foundation attorneys also reject union contentions that DePierro’s claims are moot because police department and union officials recently stopped seizing money from her paycheck.
“DePierro has not been reimbursed for the amount of money equal to the unlawfully withheld union dues collected subsequent to her revocation demand,” her response to the union’s motion for summary judgment reads. “As such, this is a live controversy enabling her to challenge the constitutionality of the restrictive revocation policy imposed on her, as well as to ask the Court to determine the rights and duties of the parties under the collective bargaining agreement.”
DePierro still demands that the US District Court declare the “escape period” scheme unconstitutional, forbid PPA and LVMPD from further enforcing it, and order PPA and LVMPD to refund with interest all dues that were unlawfully withheld from her pay since she tried to stop the deductions.
“Officer DePierro is a distinguished veteran of the Las Vegas Metropolitan Police Department. With their motion for summary judgment, PPA union bosses are doubling down on their rank violations of DePierro’s First Amendment right to abstain from union membership and monetary support,” commented National Right to Work Foundation President Mark Mix. “PPA officials’ seizures of DePierro’s money with no consent from her whatsoever is a textbook violation of the Supreme Court’s standard in Janus, and the District Court must ensure that she receives justice.”
Documents Reveal NLRB Staff Celebrated Biden’s Unprecedented Attack on Agency’s Independence, Installation of Union Partisan
Emails obtained through Freedom of Information Act request show NLRB staff praising Biden’s controversial firings and “Acting General Counsel” appointment
Washington, DC (May 19, 2021) – Newly released emails show National Labor Relations Board (NLRB) staff celebrating President Biden’s controversial, unprecedented and possibly illegal firing of NLRB General Counsel Peter Robb. The emails were obtained by the National Right to Work Legal Defense Foundation through a Freedom of Information Act (FOIA) request.
Mere minutes into Biden’s presidency the White House Office of Presidential Personnel sent an email to Robb demanding he resign by 5pm the same day or be fired. In response, Robb declined to resign, saying the demand was “unprecedented since the nascence of the National Labor Relation Act (NLRA) and the NLRB” and “undermines Congress’s intent that the Office of the General Counsel be independent of the Board and the Executive Branch.”
“Indeed, my own experience, as well as my conversations with those who held this position before me, have confirmed the need for the NLRB General Counsel to act independently without constant fear of removal,” Robb continued. “The prosecution of violations of the NLRA will now be subject to the political influence of the White House, in violation of Congressional action to improve the function of the NLRB to achieve the NLRA’s mission to fairly resolve labor disputes.”
Despite Robb’s warning about the politicization of NLRA enforcement, his deputy, Alice Stock, was also removed the next day after being designated Acting General Counsel. Soon after, Biden selected long time NLRB bureaucrat Peter Sung Ohr as Acting General Counsel.
The FOIA-requested emails show that although some NLRB officials were surprised by Biden’s actions – with one career NLRB attorney noting the move was “not expected” – some current and former NLRB officials voiced their approval of the unprecedented and arguably illegal actions.
Los Angeles-based NLRB Region 31 director Mori Rubin sent an email to her colleagues reacting to the news that Stock had been fired along with Robb. Rubin derided Stock as a “clone” of Robb. She said “there is talk that Peter Ohr may be appointed acting GC, which would be wonderful!” Respondents to the thread, whose names are redacted, proclaimed: “Go Biden!!” “That would be terrific!” and “Hope this comes true!”
Once appointed, Ohr swiftly began to do the bidding of union officials, withdrawing pleadings in cases filed by workers with National Right to Work Foundation legal aid, thereby preventing the cases from being decided by the full Board in Washington, DC. Among others, Ohr ordered the withdrawal of two cases in which workers contended that their employers’ “neutrality agreements” unlawfully aided union officials during organizing drives.
Ohr also rescinded almost a dozen guidance memos issued by Robb, including memos ensuring workers could avoid funding union political and lobbying activities, allowing workers to intervene in legal actions that were used to block efforts to secure decertification votes, and strengthening unions’ duty of fair representation for workers subject to monopoly bargaining. In all these instances Ohr took the position advocated by union officials who had backed Biden’s election campaign, and against those of the Foundation-backed employees.
Ohr earned praise for his aggressive implementation of the Biden agenda. Among the emails unearthed in the FOIA request was a message to Ohr from a redacted individual (identified in a subsequent FOIA as longtime NLRB attorney Emily Hunt) describing her reaction on the day of Biden’s inauguration when she learned that Robb had been removed: “I exclaimed to myself, ‘This day just keeps getting better and better!’” The email commends Ohr for rescinding Robb’s memos.
Biden followed his unprecedented removal of Robb by nominating Jennifer Abruzzo to be General Counsel. Until her nomination Abruzzo was a lawyer for the Communications Workers of America (CWA) union, which endorsed Biden and pledged huge resources to his campaign. At a Senate hearing Abruzzo admitted she was part of the NLRB review team advocating Robb’s removal, thus undermining the independence of the very office she seeks to hold. At the hearing Abruzzo also refused to commit to recusing herself from cases involving her former employer or its affiliates.
Abruzzo’s refusal to commit to recusal is consistent with the relaxed ethics standards Biden has been applying to former Big Labor officials in his administration. In order to hire former high-ranking union officials, Biden has abandoned ethics requirements that prevent former members of lobbying groups from dealing with their old employers when they join the Administration. Last week it was reported that Biden had already waived ethics rules for Celeste Drake, a former employee of the AFL-CIO, and Aletha Predeoux, once a top lobbyist for the American Federation of Government Employees.
The Foundation’s FOIA-requested emails, combined with other messages discovered by a similar FOIA request from the Freedom Foundation, demonstrate a fawning approval among NLRB staff for Biden’s undermining of the NLRB’s independence. This approval reaches the top levels of the bureaucracy at the NLRB’s main office in Washington. The Freedom Foundation’s FOIA request revealed that NLRB Senior Attorney Neelam Kundra responded to the news with “so exciting!” and “such a REFRESHING change!!!”
“The President’s unprecedented attack on the NLRB’s Congressionally-established independence should have shocked any NLRB official concerned about neutrally applying the law, rather than twisting it to the benefit of the President’s political allies,” said National Right to Work Legal Defense Foundation President Mark Mix. “Yet the documents obtained show the Biden power grab was celebrated by many inside the agency who are supposed to impartially apply the law.”
“Independent-minded workers should not have their cases adjudicated by officials who celebrate partisan, pro-union boss attacks on the NLRB,” added Mix. “The Biden Administration continues to stack the deck in favor of union bosses and against the rights of workers who want nothing to do with union affiliation, and these emails show many at the NLRB seem all too happy to go along.”
