Seattle Mariners Retail Employee Challenges Seattle NLRB Officials’ Refusal to Certify Overwhelming Vote Against Union
By not certifying vote of over 80+ percent against UFCW, NLRB Region 19 officials permit union to dodge legal consequences of losing vote
Seattle, WA (October 20, 2023) – Following an overwhelming workplace vote to remove United Food and Commercial Workers (UFCW) union officials, Seattle Mariners MLB retail employee Tami Kecherson filed a Request for Review defending the election result at the National Labor Relations Board (NLRB) in Washington, DC. The Request for Review comes after NLRB Region 19 officials in Seattle refused to certify the 50-9 vote result, and instead permitted UFCW union officials to “disclaim” interest in the bargaining unit and avoid restrictions on regaining control over the employees that normally apply to unions that lose elections.
National Right to Work Foundation staff attorneys are providing free legal aid to Kecherson in her effort to defend the election victory. The Request for Review recounts that, after the worker-requested union decertification vote finally took place, UFCW union officials filed “blocking charges” against Mariners management in an attempt to delay the certification of the vote. “Blocking charges” contain unverified and often groundless allegations of employer interference in a union election.
NLRB Region 19’s investigation of UFCW officials’ “blocking charges” delayed the certification of the employees’ vote for months, the Request for Review notes, but in September UFCW bosses withdrew their apparently frivolous blocking charges and instead filed paperwork announcing they were “voluntarily” leaving the facility.
When Foundation attorneys contacted NLRB Region 19 to determine when the vote certification would occur now that the meritless charges were withdrawn, NLRB officials instead declared that certification would not occur, presumably because the union had just disclaimed interest and walked away. Further, NLRB officials effectively stated that the UFCW union would be allowed to skirt the statutory one-year restriction on regaining control in the workplace that applies to unions that lose elections, and would only be barred from the workplace for a much shorter period.
“This is akin to an employee fired for insubordination yelling ‘you can’t fire me, I quit,’ but only much worse,” the Request for Review argues. “That is so because Region 19 is arbitrarily allowing Local 3000 to get away with a rather grotesque form of gamesmanship…This cannot be allowed to occur under the [National Labor Relations Act] and the Board’s rules.”
Union Legal Maneuvering Shouldn’t Be Allowed to Diminish Worker Vote
Foundation-backed reforms that the NLRB adopted in 2020 (also known as the “Election Protection Rule”) permitted the Seattle Mariners employees to challenge UFCW officials’ ascent to power, which the union accomplished via “card check” – a scheme that bypasses the NLRB secret-ballot election process. The Election Protection Rule permitted the employees to petition for a secret ballot decertification election and vote the union out after the card check occurred. However, the Biden NLRB has already announced a proposal to repeal the “Election Protection Rule” and make card check organizing drives much harder for employees to contest.
In light of that, the one-year period of freedom from union control that the NLRB denied the Seattle Mariners workers is absolutely vital. Without it, UFCW officials could move to foist the union back on the employees through card check in less than a year, and, if the Election Protection Rule has been wiped out by then, the workers may be unable to challenge the card check with a secret ballot vote.
“The game UFCW union officials are playing with Seattle Mariners employees’ rights is sinister, but obvious: Game the system to avoid the full consequences of losing an election among the workers they claimed to ‘represent,’” commented National Right to Work Foundation President Mark Mix. “It doesn’t help that the Biden NLRB is simultaneously pursuing policies that make it nigh impossible for employees to free themselves of the control of union officials who attempt such manipulation.”
“Refusing to certify an overwhelming worker vote against a union due simply to union legal maneuvering is disrespecting workers’ free choice rights, plain and simple,” Mix added.
Federal Charge: East Bay-Area Construction Materials Worker Illegally Fired for Refusing to Join Union
NLRB investigating IUOE union bosses for retaliatory termination and seizing dues from employee’s paycheck in violation of longstanding law
Pleasanton, CA (October 17, 2023) – Alexandra Le, an employee of Pleasanton-based materials testing company Construction Testing Services (CTS), has hit International Union of Operating Engineers (IUOE) officials and CTS with federal charges. The charges state IUOE bosses illegally demanded she join the union as a condition of keeping her job and instigated her firing by CTS when she refused to join. Additionally, Le’s charges maintain that company and union officials violated the law by deducting union dues directly from her paycheck without her permission.
Le, a firestop inspector, filed the charges at National Labor Relations Board (NLRB) Region 32 in Oakland, CA, with free legal aid from the National Right to Work Legal Defense Foundation. She notes in her charges that IUOE officials not only failed to inform her of her right to abstain from union membership, but also never notified her of her right to pay a reduced amount of union dues as a nonmember.
Because California lacks Right to Work protections for its private sector workers, Le and her coworkers can be forced to pay some dues to the union as a condition of keeping their jobs, even if they’ve abstained from formal union membership. However, as per the Foundation-won CWA v. Beck Supreme Court decision, even in non-Right to Work states union officials can’t force nonmember employees to pay for union expenses beyond what the union claims goes to bargaining, such as union politics. Other Supreme Court precedents and federal labor laws protect workers’ right to refrain from formal union membership and require union bosses to seek workers’ express consent before deducting dues directly from their paychecks.
In Right to Work states, union membership and all union financial support are fully voluntary.
“It’s outrageous that IUOE union officials believe they can get me fired simply because I don’t agree with their organization and don’t want to support or affiliate with them,” Le said. “IUOE union officials have been far more concerned with consolidating power in the workplace and collecting dues than caring about me and my coworkers, and I hope the NLRB will hold them responsible for their illegal actions.”
Worker Demands NLRB Step in to Reverse Union-Instigated Firing, Illegal Demands
Le’s charge against the IUOE union states that, after she refused to affiliate with the union, IUOE bosses “caused Charging Party to be removed from the work schedule by her Employer as of October 2nd.” The NLRB v. General Motors Corp. U.S. Supreme Court decision protects the right of workers to refuse formal union membership, even in a non-Right to Work state.
As a remedy, the charge asks the NLRB Regional Director in Oakland to “invoke its authority under Section 10(j)” of the National Labor Relations Act (NLRA), which empowers the Board to seek an injunction from a federal court to stop IUOE and CTS management from committing the unfair labor practices.
“Le’s charges show that IUOE union officials, in their apparent greed for forced dues, have ignored numerous longstanding legal protections for workers opposed to union affiliation,” commented National Right to Work Foundation President Mark Mix. “While the union’s anti-worker actions would be wildly unlawful in any state in the country, they reveal the importance of state Right to Work protections: No worker should be forced to give any amount of their hard-earned paycheck to union officials who threaten and misinform the employees they claim to ‘represent,’ or simply haven’t earned workers’ support.”
One year after highly publicized unionization efforts, workers from coffee shops in at least seven different states move to remove SBWU
Oklahoma City, OK (October 10, 2023) – An employee of a Starbucks store in the Nichols Hills neighborhood of Oklahoma City has submitted a petition to the National Labor Relations Board (NLRB) asking the federal agency to hold a vote among her colleagues to remove the Starbucks Workers United (SBWU) union from the workplace. The employee, Amy Smith, is receiving free legal representation from National Right to Work Foundation staff attorneys.
Smith’s petition contains signatures from enough of her coworkers to prompt a union decertification election under the NLRB’s rules. While Oklahoma is a Right to Work state, meaning SBWU bosses cannot compel Smith or her coworkers to pay union dues or fees as a condition of staying employed, SBWU is still empowered by federal law to impose a union contract on all employees of the coffee shop, including those who oppose the union. A successful decertification vote would strip union officials of that power.
Oklahoma City Starbucks Workers Join Burgeoning Worker Movement Against SBWU
Smith and her coworkers’ effort is the latest in a chain of SBWU decertification pushes across the country. Since May, Starbucks employees in Manhattan, NY; Buffalo, NY; Pittsburgh, PA; Bloomington, MN; Salt Lake City, UT; and Greenville, SC, have all sought free Foundation legal aid in pursuing their decertification petitions at the NLRB. Last month, workers at Good Karma Café, an independent coffee shop in Philadelphia, successfully voted out the SBWU union with Foundation help.
The flurry of decertification attempts is occurring roughly one year after SBWU union agents engaged in an aggressive unionization campaign against Starbucks employees. Federal labor law forbids workers from decertifying a union for a year after its installation, meaning many workers are seizing on the earliest possible opportunity to rid themselves of the SBWU union’s “representation.”
Outside of Starbucks, union decertification efforts are becoming much more common. Currently, the NLRB’s data shows two consecutive years of increased decertification efforts, with a nearly 30% increase in decertification petitions last year versus 2021.
However, union officials have many ways to manipulate federal labor law to prevent workers from voting them out, including by filing unrelated or unverified charges against management. Foundation attorneys are assisting workers who have been targeted with such tactics by union officials.
“SBWU union officials are leveraging their legal privileges and the deep pockets of their affiliate, the Service Employees International Union, to try to install union control over as many Starbucks employees as they can as quickly as they can,” commented National Right to Work Foundation President Mark Mix. “But as Starbucks and other coffee employees across the country continue to try to flee the union’s power, it’s becoming clearer that the SBWU’s campaign is rooted more in generating political buzz and expanding union power than actually standing up for workers’ interests.”
“Such union behavior is precisely why workers’ right to vote to remove unwanted union officials is so vital, and Foundation attorneys will continue to fight alongside Ms. Smith and numerous other coffee employees across the country to defend this right,” Mix added.
Employee Advocate Issues Legal Notice After Labor Board Fast-Tracks Union Control Over Workers Without Secret Ballot Votes
“Employees who are the targets of union organizing campaigns, and who do not want to be subject to monopoly union representation, must be vigilant about their rights after Cemex.”
Washington, DC (October 6, 2023) – The National Right to Work Legal Defense Foundation has released a special legal notice informing workers across the country about the National Labor Relations Board’s (NLRB) significant rollback of workers’ right to vote in secret ballot elections to determine whether or not to unionize. The Biden NLRB’s August ruling in the Cemex Construction Materials Pacific case effectively mandates the “card check” method of union installation, which lets union officials seize power in a workplace without winning an election, or even after workers vote against union affiliation in a secret ballot vote.
“Employees who are the targets of union organizing campaigns, and who do not want to be subject to monopoly union representation, must be vigilant about their rights after Cemex,” the notice warns. “Under Cemex, unions can impose their mandatory representation on employees quickly and without employees being able to vote on whether they want union representation.”
The card check process is a union organizing tactic in which a union becomes the monopoly representative of all employees in a unit—including employees who want nothing to do with the union—by collecting union authorization cards directly from a majority of workers. The lack of privacy during a card check exposes workers to coercive tactics from union officials, including misinformation about the true purpose of the cards or threats made against workers who refuse to sign.
The notice emphasizes that the Cemex ruling forces employers to make a decision after union bosses simply claim majority support that will often result in the union gaining power without a worker vote. Under Cemex, if a union claims a majority of workers signed union cards, within two weeks the employer must either “[r]ecognize the union as the monopoly representative of its employees without allowing employees to vote,” or petition the board to hold an election – though the NLRB can strip workers of their right to vote under this option if it believes the employer has committed an unfair labor practice, even if the employees themselves have done nothing wrong.
The full notice is available at: www.nrtw.org/Cemex
Workers Have Right to Campaign Against Unwanted Unions and Can Refuse to Sign Union Cards
The notice explains that all employees have the right to refuse to sign a union authorization card, and to revoke any union authorization card they previously signed. It also reminds workers that “it is a good practice to inform both the union and your employer in writing that you revoked the card so that the union and your employer do not wrongfully count you as a supporter of union representation during a card check.”
Workers also have the right to “sign and circulate cards or petitions against union representation, on non-work time and in non-work areas,” the notice states. Such petitions or cards can be used later to request the NLRB hold an election at the workplace to remove (or “decertify”) the union, and can also be provided to the employer as evidence to contest union claims of majority support.
The notice provides links to sample letters revoking union authorization cards and sample union decertification petitions. “If you have questions about your rights during a union organizing campaign, you can contact Foundation staff attorneys for more information and assistance with exercising your rights,” the notice concludes.
“Not that long ago, bipartisan opposition in Congress blocked legislation to mandate coercive card check unionization. In an unprecedented move, the Biden NLRB is bypassing Congress to mandate this abuse-prone process all on its own by federal fiat,” commented National Right to Work Foundation President Mark Mix. “Make no mistake, this is not about the rights or freedom of rank-and-file workers, but empowering union bosses to the detriment of regular workers and their freedom of choice.”
“While this is a significant blow to the rights of independent-minded workers, they still have options to oppose unwanted union representation. It’s vital that they know those rights going into this new legal landscape, and National Right to Work Foundation staff attorneys stand ready to defend their rights,” added Mix. “Foundation staff attorneys have a long history of helping employees challenge union card check schemes, and workers should not hesitate to contact the Foundation for free legal aid if they believe union organizers are attempting to use Cemex to impose a union in their workplace.”
Buffalo Starbucks Worker Files Groundbreaking Lawsuit Challenging Constitutionality of NLRB Structure
Regional NLRB blocked employee and her coworkers from voting out union majority disapproved of, new lawsuit challenges agency’s authority
Buffalo, NY (October 4, 2023) – Buffalo “Del-Chip” Starbucks employee Ariana Cortes has hit the National Labor Relations Board (NLRB) with a federal lawsuit, arguing that the federal agency’s current structure violates the separation of powers. The lawsuit, filed with the District Court for the District of Columbia, follows Cortes’ challenge to an NLRB Regional Director’s dismissal of her and her coworkers’ petition seeking a vote to remove Starbucks Workers United (SBWU) union officials from their store.
Cortes is receiving free legal aid in both proceedings from the National Right to Work Legal Defense Foundation. The lawsuit contends that, because NLRB Board Members cannot be removed at-will by the President, the NLRB’s structure violates Article II of the Constitution.
The National Labor Relations Act (NLRA), the law which established the Board, restricts a president’s ability to remove Board members except for neglect of duty or malfeasance. The complaint argues that “[t]hese restrictions are impermissible limitations on the President’s ability to remove Board members and violates the Constitution’s separation of powers. Thus, the Board, as currently constituted, is unconstitutional.”
“The Supreme Court made clear in Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) and Collins v. Yellen, 141 S. Ct. 1761 (2021) that under Article II of the Constitution, the President must be able to remove federal officials who exercise substantial executive power,” the complaint states. “The five-member NLRB exercises substantial executive power because it issues binding rules, adjudicates unfair labor practices and representation disputes, issues subpoenas, and decides whether and how to direct and conduct elections in representation cases.”
Regional NLRB Dismisses Starbucks Employees’ Request to Vote Out Union
On April 28, Cortes filed a petition, backed by the majority of her coworkers, that requests the NLRB conduct a decertification election at her workplace to end the monopoly bargaining power of SBWU union officials. NLRB Region 3 dismissed Cortes’ petition based on unfair labor practice charges SBWU union officials filed against Starbucks, despite there being no proven connection between those allegations and the decertification petition.
Cortes’ Foundation-provided attorneys filed a Request for Review with the Board challenging this dismissal order. That appeal contrasted the standard the NLRB often applies to petitions to certify unions, which usually proceed with little to no delay, with the standard the NLRB applies to petitions to decertify unions, which are often hamstrung and delayed.
New Federal Lawsuit Seeks to Temporarily Enjoin Unconstitutional Proceedings
Cortes’ new federal lawsuit seeks a declaration from the District Court that the structure of the NLRB as it currently exists is unconstitutional, and an injunction halting the NLRB from proceeding with her decertification case until her federal lawsuit is resolved.
“For too long the NLRB, especially the current Board, has operated as a union boss-friendly kangaroo court, complete with powerful bureaucrats who exercise unaccountable power in violation of the Constitution,” commented National Right to Work Foundation President Mark Mix. “As the story of Ms. Cortes shows, the NLRB’s unchecked power creates real harms for workers’ rights, especially when workers seek to free themselves from the control of union bosses they disagree with.”
National Right to Work Foundation Files SCOTUS Brief Defending Alaska’s Protections Against Forced Union Dues
Alaska facing ASEA union lawsuit over arrangement which requires union bosses to obtain affirmative consent from employees before deducting dues
Washington, DC (September 29, 2023) – Today, the National Right to Work Legal Defense Foundation filed an amicus brief with the U.S. Supreme Court in the case Alaska v. Alaska State Employees Association. The brief supports the State of Alaska’s attempt to safeguard public sector workers’ First Amendment right to refrain from paying dues to a union they disapprove of. This right was first recognized in the Janus v. AFSCME Supreme Court decision, which was successfully argued at the High Court by Foundation Legal Director William Messenger.
In the 2018 Janus decision, the Supreme Court held that the First Amendment protects public sector employees from being forced to pay union dues as a condition of getting or keeping a job. The High Court further recognized that unions must obtain a worker’s freely given waiver of his or her Janus rights before deducting union dues or fees from his or her paycheck.
In an attempt to ensure his state wasn’t violating its employees’ constitutional rights, Alaska Gov. Mike Dunleavy issued an executive order to protect workers’ Janus rights: The order requires the state to obtain consent from workers each year to deduct union dues from their paychecks. This arrangement ensures that the “freely given consent” element of Janus is satisfied, while also preventing union bosses from continuing to deduct money from a worker’s wages based on a “yes” given years ago.
However, Alaska State Employees Association (ASEA) union bosses sued the State of Alaska over its Janus protections, and were able to get the state’s highest court to block the arrangement. Even worse, as Foundation staff attorneys point out in the amicus brief, “five Circuit Courts have now held that states and unions can constitutionally seize payments for union speech from dissenting employees without proof they waived their constitutional rights.”
Amicus Brief: Lower Courts and States Are Letting Unions Seize Dues Without Workers’ Consent
The Foundation’s amicus brief maintains that, after the Janus decision, at least seventeen states either “amended their dues deduction laws…to require government employers to enforce restrictions on when employees can stop payroll deductions of union dues,” or “enforced restrictions on stopping payroll deductions under preexisting state laws.” Both lead to unacceptable restraints on public sector workers’ Janus rights, the amicus brief argues.
The amicus brief further contends that lower courts, especially the Ninth Circuit, have misinterpreted Janus to not require public employers to notify public workers of their Janus rights before collecting dues, which dips below the “waiver” standard mandated by the decision. Additionally, the amicus brief points out that the Ninth Circuit has issued decisions that free public employers from any obligation to prove that union bosses obtained authentic consent from workers before dues are taken from their wages.
“Unless the Court grants review and breathes new life into Janus’ waiver requirement, unions and their government allies will continue to severely restrict the right of millions of employees to stop subsidizing union speech,” the amicus brief concludes. “The Court should not tolerate this resistance to its holding in Janus.”
“Public sector union bosses, who prize their own dues-funded political influence far above the individual rights of the employees they claim to ‘represent,’ have tried everything in their power to dodge the Janus ruling and keep siphoning money from workers,” commented National Right to Work Foundation Vice President Patrick Semmens. “The Supreme Court has an opportunity in the State of Alaska’s case to set the record straight and ensure that workers’ free association rights can’t simply be molded according to their own schemes.”