John Kerry and John Edwards Formally Join Legal Battle To Deny Employees Secret Ballot Elections on Unionization
Washington, DC (July 20, 2004) – In an issue emerging as a top election-year priority for organized labor officials, Senators John Kerry (D-MA) and John Edwards (D-NC) have joined with Senator Ted Kennedy (D-MA) to file formal arguments at the National Labor Relations Board (NLRB) urging the agency governing America’s private sector workplaces to deny employees access to the less-abusive secret-ballot election process when choosing whether to unionize.
“For two politicians who claim they’ll stick up for America’s workers, taking away basic freedoms is a strange way to show it,” said Stefan Gleason, Vice President of the National Right to Work Foundation.
Kerry, Edwards, Kennedy, 14 other Senators, and 31 congressmen joined together to file the amicus curiae brief, perhaps the most noteworthy of dozens of briefs filed last week by representatives of management, unions, employees, public policy groups, and Members of Congress – arguing either in opposition to, or in favor of, the plight of disenfranchised employees aided by National Right to Work Legal Defense Foundation attorneys.
The Board invited the briefs after voting 3-2 to determine the enforceability of increasingly common arrangements intended to limit further employees’ freedom to determine whether union officials are authorized to represent them. These arrangements, sometimes called “card check” or “neutrality agreements,” involve high-pressure card solicitation drives that frequently result in complaints of union coercion from rank-and-file workers.
Replacing the less-abusive secret ballot election process with “card check” has become the number one requirement of candidates to obtain Big Labor’s support in the 2004 elections. According to the AFL-CIO’s recent statement to BNA’s Daily Labor Report, “we don’t have any issue that’s a litmus test, but this is as close as it gets.” According to the AFL-CIO, more than 80 percent of newly organized employees each year are already unionized through the controversial “card check” process while the traditional election process, favored by federal labor policy and the courts, is used far less frequently.
“Having trouble selling even a bare majority of workers on the merits of unionization, union officials are resorting to the in-your-face ‘card check’ process to intimidate workers into supporting a union,” said Gleason.
Congressman Charlie Norwood (R-GA), a signatory to a separate congressional brief and lead sponsor of legislation to reduce “card check” organizing abuses, said “Hard-working folks deserve the right to a fair and secret election – not the threats, arm-twisting, and shakedown tactics that come with ‘card check’ campaigns.”
The lead consolidated cases at the NLRB, brought by Foundation attorneys, arise out of the automotive industry where suppliers have cut deals with union officials to waive the secret ballot election process and to assist in pressuring employees to sign union authorization cards. The coercively obtained cards were then counted as “votes” in favor of authorizing the union to act as the employees’ monopoly bargaining agent.
These pacts also typically require employers to hand over their employees’ private information (including home addresses) to union organizers, subject employees to unsolicited “home visits,” and permit wide access to company facilities – resulting in employee complaints of browbeating and other harassment.
Firefighters Hit Union and Top City Officials with Federal Charges for Violating Constitutional Rights
Cincinnati, Ohio (July 19, 2004) – Five Cincinnati firefighters today filed a class-action lawsuit in federal court against an International Association of Fire Fighters (IAFF) union affiliate and top city officials for violations of the First Amendment by seizing compulsory union dues from the paychecks of scores of nonunion firefighters.
Receiving free legal aid from the National Right to Work Legal Defense Foundation, the firefighters charge that IAFF Local 48 union officials acted in concert with the City of Cincinnati and seized compulsory union dues from them without first providing an adequate independent audit of the union’s expenditures. The complaint also names Cincinnati Mayor Charlie Luken, among other top city officials, for signing and enforcing an agreement with the union that resulted in the unconstitutional acts.
The firefighters filed the complaint in the U.S. District Court for the Southern District of Ohio’s Western Division. They allege that IAFF Local 48 union officials intentionally seized the forced union dues without first providing the financial disclosure and procedures required by a long-standing U.S. Supreme Court ruling interpreting that the First and Fourteenth Amendments to the U.S. Constitution protect public employees from demands to pay for union political activity and other activities they may oppose.
Like many similar agreements around the country, the Cincinnati monopoly bargaining agreement included an “indemnification clause” whereby the union promises to pay all legal costs a city may incur in defending a suit that results from illegal seizures of compulsory dues. These agreements remove the incentive for the employer to ensure the union is not mistreating workers. Some courts, including the U.S. Court of Appeals with jurisdiction over Ohio, have stuck these agreements down as void as against public policy.
“IAFF union officials simply want nonunion firefighters to shut up and pay up,” said Stefan Gleason, Vice President of the National Right to Work Foundation. “Union operatives should not be allowed essentially to bribe city officials to do their dirty work by promising to reimburse all legal costs that arise out of violating firefighters’ First Amendment rights.”
The firefighters are asking the court to enjoin IAFF officials from seizing forced dues from any nonunion employee represented by Local 48 until they provide the legally required notice and procedures.
The workers also seek class-action status for their case, and restitution for all firefighters represented by IAFF Local 48 in the form of a refund of all past forced dues collected since July 2002. If the court grants class-action status, a remedy in the case could force significant financial reimbursements to all past and present nonunion firefighters who were forced to pay such union fees-an amount estimated as high as $100,000.
Under the Foundation-won U.S. Supreme Court decision Chicago Teachers Union v. Hudson, before collecting any forced dues, union officials must first provide an audited disclosure of the union’s expenses. Such audits are intended to ensure that forced union dues seized from nonunion public employees do not fund union activities unrelated to collective bargaining.
Former NLRB Members, Congress, Big Three Join Battle Over Pacts that Deny Employees Secret Ballot Elections on Unionization
Washington, DC (July 16, 2004) – Representatives of management, unions, employees, and Members of Congress filed a flurry of formal arguments on yesterday’s deadline in the National Right to Work Foundation’s lead case before the National Labor Relations Board (NLRB) that will determine to what extent employees may enjoy the protections of a secret ballot election when deciding whether to form a union.
Filing one of many briefs on the employees’ side, an unprecedented coalition of three former members of the NLRB (John Raudabaugh, J. Robert Brame, and Dennis Devaney) argued for 21 Members of Congress that employees should have a right to a secret ballot election conducted by the NLRB to “test” a union’s claims of majority support after an abusive “card check” organizing drive.
In a statement released today, Congressman Charlie Norwood (R-GA), a signatory to the congressional brief and lead sponsor of legislation to reduce “card check” organizing abuses, said “Hard-working folks deserve the right to a fair and secret balanced election — not the threats, arm-twisting, and shakedown tactics that come with card check campaigns.”
In contrast, the Big Three (and Delphi) argued that they should be entitled to cut deals and bargain without employee interference after a union is recognized pursuant to a so-called “neutrality” or “card check” agreement – even when a clear majority of employees opposing unionization immediately petition thereafter for a secret ballot decertification election.
Many other amicus curiae briefs, filed both for and against the disenfranchised employees, poured in from across America as the Board debates the enforceability of increasingly common arrangements intended to limit employees’ freedom to determine their union status. According to the AFL-CIO, more than 80 percent of newly organized employees each year are now unionized through this “card check” process.
“Increasingly unable to sell workers on union membership, union officials have resorted to coercive tactics such as ‘neutrality’ agreements and the in-your-face ‘card check’ solicitation process to intimidate workers into supporting a union,” said Stefan Gleason, Vice President of the National Right to Work Foundation. “The Big Three should be ashamed of themselves for selling their hard-working employees into forced unionism in return for concessions from United Auto Workers (UAW) officials.”
The NLRB solicited briefs from the legal community after granting review last month by a 3-2 vote in consolidated cases filed by Foundation attorneys for employees at Dana Corporation and Metaldyne that challenge the so-called “voluntary recognition bar rule” which prevents free employee elections. Under pressure from the Big Three – as well as a union “corporate campaign” – the automotive suppliers cut deals with the UAW to waive the secret ballot election process and to assist union organizers in pressuring employees to sign union authorization cards. The coercively obtained cards were then counted as “votes” in favor of unionization.
These pacts typically require that the employer hand over employees’ private information (including home addresses) to union organizers, subject employees to unsolicited “home visits,” and permit wide access to company facilities resulting in employee complaints of harassment. After Dana and Metaldyne granted recognition to the UAW union, large groups of employees immediately filed petitions – signed by 35 percent and more than 50 percent, respectively – opposing unionization and calling for a formal decertification election.
In a related development, the U.S. Senate today held hearings on the subject of “card check” organizing.
National Labor Board Strikes Blow for Academic Freedom by Disallowing the Forced Unionization of Grad Students
Washington, D.C. (July 15, 2004) – By a 3-2 vote, the National Labor Relations Board (NLRB) this week struck down an activist Clinton-era ruling which had allowed union officials to corral university graduate teaching assistants (TAs) into unwanted union affiliation, and ultimately to force them to pay union dues to maintain their status.
In the case involving the United Auto Workers (UAW) union’s attempt to forcibly unionize TAs at Brown University in Providence, Rhode Island, the NLRB voted to return to its long-standing position of more than 25 years that TAs have an academic, rather than economic, relationship with universities, and that TAs are not “employees” under federal labor law who can be subjected to union monopoly bargaining.
Agreeing with the position taken by National Right to Work Foundation attorneys in an amicus curiae (“friend of the court”) brief filed in early 2002, the NLRB found that, because TAs are admitted into, rather than hired by universities, they are students in, rather than employees of, the institution.
“While some students may have Marxist dreams that they are ‘workers,’ rather than students, who will be in the vanguard of an economic revolution when the workers of the world unite, the fact remains that they are students and not employees, and have little commonality of interest with most employees,” the Foundation pointed out in its brief.
In their brief, Foundation attorneys cited that grades are the central form of “compensation” for TAs and questioned whether grades would ultimately become a mandatory subject of monopoly bargaining if TAs were treated as “employees” for purposes of unionization. Foundation attorneys also argued that allowing union officials monopoly bargaining power over all TAs would violate the First Amendment freedom of association rights of dissenting TAs, thereby undermining academic freedom.
UAW union officials sought monopoly bargaining privileges over roughly 450 TAs at Brown University. While UAW officials relied on a NLRB decision in 2000 involving New York University which, for the first time, classified TAs as employees, Brown University contended that “[c]ommon sense dictates that students who teach and perform research as a part of their academic curriculum cannot properly be considered employees without entangling the…[National Labor Relations]Act into the intricacies of graduate education.”
“This was a shameless attempted power grab by UAW officials to corral graduate students into unwanted union affiliation and force them to pay dues for unwanted union ‘representation,’” stated Stefan Gleason, Vice President of the National Right to Work Legal Defense Foundation.
Jefferson, Wisc. (July 13, 2004) – The National Right to Work Legal Defense Foundation has filed an amicus curiae brief with the National Labor Relations Board (NLRB) in Washington, D.C., on behalf of Tyson Foods (Tyson) workers requesting to vote in a deauthorization election. If successful, the election would free nearly 400 workers at Tyson’s Jefferson, Wisconsin facility from being forced to pay union dues for unwanted union representation as a condition of employment.
In their “Friend of the Court” brief, Foundation attorneys argue that contrary to arguments made by lawyers for the United Food and Commercial Workers (UFCW) union, evidence clearly shows that the replacement workers are permanent employees and, accordingly, such workers have the right to vote in such an election. The NLRB accepted review of the appeal filed by UFCW union lawyers after the acting regional director in Milwaukee ruled in favor of the employees seeking to vote in the election.
Tyson Foods hired the permanent replacement workers after approximately 390 employees walked off the job in a crippling strike in February of 2003.
UFCW union lawyers somehow contend the workers are temporary replacements, despite a letter from Tyson to union officials to the contrary effect, and despite the fact that the company published announcements in 10 Jefferson-area newspapers from April 2003 to January 2004 stating that Tyson was in the process of hiring permanent replacement workers. Tyson also had replacement workers sign a “Permanent Replacement Acknowledgement” form affirming their permanent employment status upon hiring.
“UFCW union officials fear losing the power to mandate dues payments from all workers. Without the power to get employees fired for refusal to pay union dues, union officials could actually be held accountable for their actions,” said Foundation Vice President Stefan Gleason.
If the NLRB affirms the regional director’s finding, then the replacement employees at the Jefferson Tyson facility will be able to vote in the deauthorization election.
A deauthorization election has only one purpose and effect: to remove the forced-union-dues clause from the collective bargaining agreement. Even after a successful deauthorization, all employees remain fully subject to other terms of the collective bargaining agreement, including agreements regarding wages and benefits, and they are still barred from negotiating on their own behalf. However, the union hierarchy would lose its power to get employees fired for refusal to pay union dues and would instead be forced to persuade individual employees why it deserves their financial support.
Under the National Labor Relations Act, in order to request a deauthorization election, thirty percent of workers in a bargaining unit must sign a petition in support of holding the election. A majority of the workers in the bargaining unit, and not just of those voting, must then approve deauthorization.
Columbus, Ohio (July 12, 2004) — The U.S. Equal Employment Opportunity Commission (EEOC) has determined that the Ohio Environmental Protection Agency (OEPA) is guilty of religious discrimination for forcing a worker to affiliate with a union he believes to be involved in immoral activities. The determination follows a similar finding against the Ohio Civil Service Association (OCSA) union hierarchy last year.
The Cincinnati office of the federal agency found the OEPA’s and OCSA’s actions to be in violation of the 1964 Civil Rights Act after hearing the evidence and reviewing arguments provided by National Right to Work Legal Defense Foundation attorneys.
Glen Greenwood, an OEPA employee working in the agency’s Columbus facility, requested that OEPA officials place his forced union dues payments in escrow while he waited for a religious accommodation to paying dues to the union. As a devout Presbyterian, Greenwood believes that supporting this union violates his sincerely held religious beliefs because of the union’s support for abortion on demand and special rights for homosexuals.
In March, Greenwood received a letter from the General Counsel of the Department of Administrative Services. The letter stated that Greenwood’s request to place his forced-dues payments in escrow was denied on the basis that he did not belong to a “qualified” church. With the help of National Right to Work Foundation attorneys, Greenwood filed the religious discrimination charges with the EEOC in early May after the OCSA and OEPA refused to honor his objection to supporting the union.
“OCSA union officials simply want workers like Glen Greenwood to shut up and pay up,” said Stefan Gleason, Vice President of the National Right to Work Foundation. “Union officials’ actions show they care more about stuffing their coffers with forced union dues than with respecting the wishes of the very rank-and-file employees they claim to represent.”
The EEOC has now advised both the OEPA and OCSA that they may face prosecution in federal court if they refuse or otherwise fail to participate in informal conciliation with Greenwood.
Under Title VII of the Civil Rights Act of 1964, union officials may not force any employee to financially support a union if doing so violates the employee’s sincerely held religious beliefs. To avoid the conflict between an employee’s faith and a requirement to pay fees to a union he or she believes to be immoral, the law requires union officials to accommodate the employee – most often by designating a mutually acceptable charity to accept the funds.
“Glen Greenwood’s case shows that Big Labor believes paying tribute to a union is more important than paying tribute to your faith,” stated Gleason.
Court Cites Union Lawyers’ Misconduct, Allows Hundreds of City Workers to Challenge Funding of Union Political Activities
Albuquerque, N.M. (July 2, 2004) – Certifying a federal civil rights lawsuit as a class action, the United States District Court for the District of New Mexico authorized hundreds of nonunion employees of the City of Albuquerque to challenge the misuse of their forced union dues for politics and other activities.
National Right to Work Foundation attorneys filed the class action suit, Harrington v. Albuquerque, on behalf of roughly 300 blue-collar city government employees against the City of Albuquerque and American Federation of State, County, and Municipal Employees (AFSCME) Union Local 624, New Mexico Council 18, and AFSCME International.
Foundation attorneys filed the suit after the City unlawfully deducted forced union dues from the paychecks of nonmembers used for activities unrelated to collective bargaining, including support of union politics, without proper procedural protections. The unlawfully seized dues were deducted from workers’ paychecks between July 1999 and April 2000. The amount of unlawfully seized dues in question amounts to roughly $36,000, and the AFSCME union faces the possibility of a substantial judgment awarding punitive damages, particularly in light of its misconduct. AFSCME’s notice to nonunion workers also misrepresented how union officials were spending their forced dues.
Certification of the class action suit follows the remanding of a similar case, Wessel v. City of Albuquerque, by the U.S. Court of Appeals for the Tenth Circuit. In Wessel, which was not a class action, the Court of Appeals ruled that workers’ procedural rights had been violated, and that they could seek restitution of monies not used for lawful chargeable purposes.
Senior Judge C. Leroy Hansen dismissed the arguments of AFSCME union lawyers to prevent Foundation attorneys from being recognized as counsel for all employees who are similarly situated to the lead plaintiff, stating, “…all [AFSCME union] Defendants have shown is that Plaintiffs’ counsel want to win this lawsuit…The Defendants do not allege that Plaintiffs’ counsel has acted unethically or otherwise inappropriately, as the Defendants’ counsel have repeatedly done themselves.”
Judge Hansen’s comments referred to arguments by AFSCME union lawyers opposing class action certification that cited language from previous cases “…out of context under the apparent and mistaken impression that the court would not read the cases cited in their briefs…”
The actions of AFSCME union officials violated First Amendment protections as articulated in the Foundation-won Supreme Court decision in Chicago Teachers Union v. Hudson. Under Hudson, union officials must provide an independently audited disclosure of their books and justify expenditures before seizing any forced union dues from employees who have chosen to refrain from union membership.
“AFSCME officials are trying to get away with using City of Albuquerque employees as their personal piggy bank,” said Stefan Gleason, Vice President of the National Right to Work Foundation. “Rather than actually represent these workers, union operatives simply want them to shut up and pay up.”
Winston-Salem, N.C. (June 30, 2004) ¯ In a potentially precedent setting action, the Regional Director of the National Labor Relations Board (NLRB) has decided to prosecute the nation’s largest automotive union and Freightliner for illegally coercing workers to sign union recognition cards at the Thomas Built Bus facility in High Point, N.C., during a recent union organizing drive. Upon learning of the NLRB’s decision, Freightliner officials initially announced that they “suspended recognition” of the union — but quickly backpedalled, stating that they would merely “put everything on hold.”
The NLRB’s decision to issue a formal complaint comes in response to unfair labor practice charges filed by National Right to Work Legal Defense Foundation attorneys on behalf of Thomas Built employee Jeff Ward after his employer granted United Auto Workers (UAW) union officials wide access to company facilities. The employer and UAW officials jointly conducted mandatory pro-union “captive audience speeches” to coerce the plant’s workers to sign union recognition cards pursuant to the so-called “neutrality agreement.”
The decision to prosecute the union and Freightliner for unfair labor practices comes shortly after roughly 400 Thomas Built workers filed a petition demanding a secret ballot decertification election to strip UAW union officials of their newly granted “exclusive representation” power over roughly 1,100 of the company’s employees.
The illegal actions come after UAW union operatives pressured Freightliner, Thomas Built’s parent company, to sign a so-called “neutrality agreement” that prohibits a traditional and less abusive secret ballot election process in favor of a coercive “card check” campaign. Under the agreement, union organizers were given full access to employees’ personal information and company facilities to browbeat workers into signing union recognition cards that were counted as “votes” for unionization. Employees complained of “captive audience” speeches during which UAW officials coerced employees to sign cards.
The NLRB will prosecute the UAW for use of these coercive “captive audience” speeches, and Freightliner for granting UAW operatives sweeping access to Thomas Built facilities during work hours for the purposes of browbeating workers into signing union recognition cards. These actions rendered the so-called “card check” coercive and invalid.
“Until today, the NLRB’s general counsel and subordinate offices have failed to take action addressing the abuses under ‘neutrality agreements’ and ‘card check’ drives. This a small but encouraging first step towards protecting the rights of thousands of workers across the country facing this coercive union organizing tactic,” said Stefan Gleason, Vice President of the National Right to Work Foundation. “Workers ought to be able to decide their own representation in an atmosphere free of coercion from their employer and union officials.”
DSU Workers Hit Statewide Union, Top University Executives with Federal Charges for Unlawful Collection of Forced Union Dues
Dover, Del. (June 29, 2004) — Three employees of Delaware State University (DSU) today filed a class-action lawsuit in federal court against local and statewide union officials, as well as top DSU executives, for violating their constitutional rights by deducting compulsory union dues from the paychecks of nonunion employees.
The DSU technical facilities employees, receiving free legal aid from National Right to Work Legal Defense Foundation attorneys, charge that American Federation of State, County, and Municipal Employees (AFSCME) Union Locals 1007 and 1267, and statewide Council 81 officials, collected compulsory dues without properly disclosing the unions’ expenditures, as required under Supreme Court precedent applying the First Amendment.
The workers also charge DSU President Dr. Allen Sessoms and Vice President Ron Parr, who are ultimately responsible for overseeing the proper implementation of monopoly bargaining agreements affecting University employees, for allowing the unlawful deductions.
James Perry, Randy Hodges, and recently awarded Employee of the Year Mike Hudson, filed the complaint in the U.S. District Court for the District of Delaware. The workers allege that AFSCME union officials intentionally seized the forced union dues without first providing the independently audited financial disclosure required by a long-standing U.S. Supreme Court ruling. Chicago Teachers Union v. Hudson, a case argued and won by Foundation attorneys, established that under the First and Fourteenth Amendments to the U.S. Constitution, employees have due process rights to ensure they are not forced to pay for ideological and other non-collective bargaining activities they may oppose.
Perry, Johnson, and Hodges are asking the court to enjoin AFSCME union and DSU officials from collecting forced dues from any Delaware nonunion public employee until they provide an audited accounting as to how compulsory union dues are spent, along with the other required procedures that protect the First Amendment rights of nonmembers.
In addition, the workers seek class-action status for their case, as well as restitution for all Delaware public employees who pay “agency fees” to the AFSCME union of fees spent on non-bargaining activities since June 2002. If the court grants class-action status, a remedy in the case could force significant financial reimbursements to all past, present, and future nonunion Delaware public employees who were unlawfully forced to pay union fees — a number believed to exceed 100.
“Union officials simply want employees to shut up and pay up,” said Stefan Gleason, Vice President of the National Right to Work Legal Defense Foundation. “Unfortunately, without the protections of a Right to Work law, Delaware state employees can be forced to pay certain compulsory union dues or risk losing their jobs. However, they do have due process rights.”
Washington, D.C. (June 10, 2004) – The National Labor Relations Board (NLRB) voted 3-2 late Wednesday to consider whether union-opposition petitions signed by a majority of employees may be completely ignored during a “card check” organizing drive.
The NLRB announced its ruling in a case involving the United Steel Workers of America (USWA) union just two days after agreeing to decide related issues raised by employees coerced into union ranks by the United Auto Workers (UAW) union at Dana Corporation and Metaldyne. In those cases, the employees’ petitions seeking a secret ballot election to throw out the union were gathered after the employer recognized the union pursuant to a “card check” process.
National Right to Work Legal Defense Foundation attorneys brought this case on behalf of employees at Cequent Towing Product’s (Cequent) plant in Goshen, Indiana. Workers at the facility recently found themselves unionized by the USWA union despite the fact that a majority of employees had submitted a petition expressing their desire to remain union free in advance of the union’s recognition by their employer as their “exclusive bargaining representative.” Cequent officials had implemented a so-called “neutrality agreement” with the USWA union that severely limited employee freedoms.
The NLRB’s ultimate decision will impact the enforceability of so-called “neutrality agreements,” contracts between a union and an employer under which the employer agrees to actively assist organizers in unionizing its workers. Under these coercive agreements, employers typically grant union operatives sweeping access to their workplaces and employees’ personal information, strip workers of the opportunity to a secret ballot representation election, and hold mandatory “captive audience” speeches about why employees should be unionized. Workers are typically subjected to “card check” drives in which union operatives bully workers face-to-face to sign union authorization cards that count as a “vote” in favor of unionization.
The Cequent workers are seeking a decertification election to decide whether Steelworkers union officials truly enjoy the support of a majority of Cequent’s 450 employees and may lawfully act as their “exclusive representative.” An NLRB regional director had previously dismissed the election petitions, and the employees appealed to the NLRB in Washington, DC.
In granting review, the Board will reevaluate its so-called “voluntary recognition bar rule,” the non-statutory, Board-created rule stipulating that unions gaining so-called “voluntary recognition” from an employer may avoid all employee challenges and bargain with an employer for a “reasonable period” — sometimes lasting for up to one year.
“UAW and Steelworkers union officials insist that a small minority of union activists should have the power to force a dissenting majority into union ranks,” said Stefan Gleason, Vice President of the National Right to Work Foundation. “Employees should be allowed to decide for themselves whether to unionize – free of union and employer coercion.”
If the NLRB voids or revises the “voluntary recognition bar” and a decertification election is allowed and successful, the USWA union would lose its power to act as the “exclusive bargaining representative” of the employees at Cequent. The employees would then be free to negotiate their own terms and conditions of employment.