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.

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.

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.”

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.”

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.”