Decertification vote finally scheduled at Gompers Preparatory Academy after nearly two years of union-created legal delays stalled teachers’ petition

San Diego, CA (September 7, 2021) – Teachers at Gompers Preparatory Academy in San Diego will have a long-awaited chance to remove San Diego Education Association (SDEA) union bosses from their school. State labor board officials had refused to schedule the teachers’ requested election until the board resolved “blocking charges” union officials filed against the school.

Gompers teachers petitioned the California Public Employment Relations Board (PERB) for a decertification election back in January 2020, but union officials filed strategically-timed unfair labor practice charges against the school to block the vote. Under PERB’s rules, any pending litigation against an employer is automatically presumed to affect employees’ desire to remove a union, so PERB blocked the teacher’s vote.

The petitioners obtained free representation from National Right to Work Legal Defense Foundation attorneys, who argued the behavior alleged by the union’s charges had not affected the teachers’ desire to remove the union. A PERB administrator refused to grant the teachers a vote without even holding a hearing on the merits of the union’s blocking charges.

Foundation attorneys appealed that decision, arguing the policy of automatically accepting union blocking charges without investigation was an unacceptable infringement on workers’ freedom to choose their own workplace representatives.

The Board refused to overturn its policy. As a result, the teachers were forced to wait nearly two years for the charges to be dropped. Now that the union has dropped the charges as part of a settlement agreement among the parties, PERB finally scheduled a decertification election. Ballots will be mailed to Gompers teachers on September 8, and the teachers will have until October 4 to return them.

This is the first time in recent years the SDEA will be subject to a secret ballot vote at Gompers. The union took over in January 2019 through a “card check” unionization drive. During a card check drive, professional union organizers approach employees, often in the presence of union militants, and demand they sign cards that count as official “votes” for unionization.

Card Check is notoriously a far less reliable way of gauging employee support for unionization, as pressure from coworkers and union organizers often force workers to sign off on unionization they would not have accepted had their decision been private. According to Gompers teacher Jessica Chapman, the union “got signatures using deceptive tactics…unionization was forced upon us – we were never even given the respect of a vote.”

“Finally, the teachers at Gompers Preparatory Academy will get their long-sought-after vote to remove union officials, but the PERB should never have allowed union officials to manipulate the process for so long just to avoid a secret ballot vote,” said National Right to Work Legal Defense Foundation President Mark Mix. “The PERB’s no-evidence-required rule for union blocking charges is just one of many examples of biased labor laws and regulations that benefit union officials looking to shield themselves from accountability from the workers they supposedly represent.”

“Now that they finally get their vote, the teachers of GPA should be on guard against union misinformation and coercive tactics during the mail ballot election,” added Mix. “Unfortunately, there is a long and documented history of union bosses’ willingness to say or do anything just to maintain their own power, even if it means selling out the very people they claim to represent.”

Mark Mix, president of the National Right to Work Legal Defense Foundation and the National Right to Work Committee, issued the following statement on the occasion of Labor Day 2021:

“On this Labor Day, workers’ freedoms are at a crossroads. Though union officials and their allies in government use this day to claim to speak for America’s workers, they are simultaneously hard at work trying to undermine the individual liberty of those same American workers.

“The last decade saw record advances for workers’ right to free association, with five new states enacting Right to Work protections which defend a worker from being fired merely for refusal to pay dues to a labor union he or she does not support. Twenty-seven states now protect this basic, fundamental freedom, and, as of last year, a majority of America’s working men and women now work in Right to Work states. That’s on top of the National Right to Work Foundation-won 2018 Janus v. AFSCME Supreme Court victory, which recognized the First Amendment right of every public worker to choose for him or herself whether or not to fund a labor union.

“Unfortunately, rather than embrace voluntarism and worker choice, union officials have instead doubled down on coercion. Their top priority in Congress, the so-called “PRO-Act,” would add tens of millions of workers to union bosses’ “pay up or be fired” ranks by wiping out all state Right to Work laws by federal fiat. Meanwhile, despite the Janus ruling, government union bosses have continued to undermine and outright ignore the First Amendment right of public employees to cease all funding of the political activities of all government unions. This has resulted in dozens of Janus enforcement lawsuits nationwide, including two Foundation cases currently pending at the U.S. Supreme Court.

“Yet Big Labor’s push for more power to impose their so-called “representation” and mandatory dues payments on workers remains at odds with an overwhelming majority of Americans. Polls show Americans still overwhelmingly oppose forced unionism – consistently finding that around 80% of Americans agree with the Right to Work principle that union membership and dues payment should be voluntary, not coerced.

“On this Labor Day, as hardworking rank-and-file workers continue to grapple with economic uncertainty and lingering COVID disruptions, it is more important now than ever that we reject Big Labor’s schemes to expand forced unionism over more workers, and instead respect the individual freedom to decide whether or not a union deserves their support.”

Cameraman already won charge against NABET officials for seizing money illegally, now full board in DC cites union lawyers for misconduct

Portland, OR (August 27, 2021) – Portland-area ABC cameraman Jeremy Brown has just prevailed decisively in his National Labor Relations Board (NLRB) case against the National Association of Broadcast Employees and Technicians (NABET-CWA) union. He first charged the union in July 2019 with demanding and seizing illegal dues from him, and for ignoring his multiple attempts to exercise his right to refrain from union membership and not pay for union political activities. Following his original charge, he submitted another charge asserting NABET lawyers had sent him threatening and over-the-top demand letters.

Brown received free legal aid from the National Right to Work Legal Defense Foundation (NRTWLDF). A unanimous NLRB decision has now vindicated every charge he made against the union, and refers NABET’s lawyers for disciplinary sanctions on account of unprofessional conduct.

An NLRB Administrative Law Judge (ALJ) ruled in December 2020 that NABET union officials had illegally snubbed Brown’s attempts to stop paying for union politics among other activities and had seized dues from him in excess of the amount they could compel nonmembers to pay by law. Brown had invoked his rights under the Foundation-won CWA v. Beck Supreme Court decision, which mandates that in states like Oregon lacking Right to Work protections nonmember workers can’t be forced to pay dues for anything beyond certain union core activities. Brown’s charges detailed that union officials had failed to inform him that requests to reduce dues as per Beck had to be directed to the union’s national headquarters.

However, the ALJ let NABET off the hook for the union lawyers’ intimidating evidence preservation letters sent during the litigation, despite the fact that they illegally threatened to seek “damages” from Brown if he didn’t comply with their demands, and absurdly ordered that he hold onto things like pedometer and GPS data.

Brown’s Foundation provided attorneys urged the NLRB to prosecute the NABET lawyers for the outrageous demands. Peter Robb, the NLRB General Counsel at the time, also filed a brief supporting Brown’s attempt to put the issue before the full Board. This effort met resistance when Peter Ohr, whom President Biden in January 2021 installed as NLRB Acting General Counsel after a hasty and premature ouster of Robb, sought to withdraw the brief that Robb had filed. Foundation attorneys opposed Ohr’s motion, arguing that he had no legal authority to rescind Robb’s brief.

Despite Ohr’s opposition, the NLRB took up Brown’s case challenging the NABET lawyers’ evidence preservation letters. In a decision this week, three current Board members, including the Biden-appointed Chairman, agreed that “the threatened aggressive pursuit of sanctions and penalties” in the letters “viewed in conjunction with the breadth of the information covered by the letters, sends the message that the Respondent is willing to go to extreme—and perhaps harassing—lengths to penalize the Charging Party, placing the letters outside the bounds of legitimate efforts to ensure evidence preservation.”

In addition to demanding that NABET officials stop failing to respond to workers’ Beck requests and that they return the dues seized from Brown in excess of the limit established by Beck, the NLRB also orders the union and its agents to cease sending “charging-party employees evidence preservation letters that reasonably tend to restrain or coerce them in the exercise of their right to avail themselves of the Board’s processes.”

Moreover, the Board in its decision found that the record in the case suggests that NABET’s lawyers “have not conformed their conduct to the standards of ethical and professional conduct required of practitioners appearing before the Agency,” i.e., by “repeatedly misidentifying NRTWLDF in [their] filings with the Board.” The Board decision therefore referred the union counsels’ conduct “to the attention of the Investigating Officer for investigation and such disciplinary action as may be appropriate.”

“NABET officials and lawyers subjected Jeremy Brown to layers upon layers of union malfeasance and intimidation just because he exercised his right to remain a nonmember and didn’t want to pay for union bosses’ political expenditures,” commented National Right to Work Foundation President Mark Mix. “He courageously stood up for his rights for well over two years, and we at the National Right to Work Foundation were proud to support him in a case where his rights have now been fully vindicated.”

Mix continued: “The fact that NABET officials and lawyers’ behavior elicited condemnation from even Biden-selected Chairman Lauren McFerran demonstrates how radical former NLRB Acting General Counsel Peter Ohr’s throwing of obstacles in Brown’s case was.”

Foundation attorneys argue IAM scheme violates Supreme Court’s Janus standard by seizing political dues from nonmembers without their consent

Washington, DC (August 17, 2021) – Yesterday, National Right to Work Legal Defense Foundation staff attorneys filed the final brief supporting Texas United Airlines employee Arthur Baisley’s petition for writ of certiorari in the United States Supreme Court. He is urging the Court to hear his federal class-action civil rights case contesting a dues arrangement imposed by International Association of Machinists (IAM) union officials. The scheme forces him and his coworkers by default to subsidize union political activities in violation of the First Amendment and Railway Labor Act (RLA).

The policy that Baisley is challenging requires employees who choose not to join the union to opt out of funding the union’s political and ideological activities during a brief annual “window period,” or else have money exacted from their wages for those purposes against their will. Baisley’s Foundation-provided attorneys argue that this violates employee rights under both the 2018 Foundation-won Janus v. AFSCME Supreme Court decision, and the RLA.

The RLA governs labor relations in the rail and airline 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. In Janus, the High Court ruled it violates the First Amendment to force a public-sector employee to pay union fees as a condition of keeping his or her job, citing the fact that all union dues for public employees are inherently political because government union speech is directed towards the government. As part of its ruling, the High Court affirmed that union dues could only be deducted from a public employee’s paycheck with an affirmative waiver of that employee’s right not to pay.

Foundation staff attorneys argue that under both Janus and another Foundation-won Supreme Court decision, Knox v. SEIU, no employee can be charged for union political or ideological expenditures without first giving their affirmative and knowing consent. This is because language from a 1961 case that union lawyers use to prop up “opt out” schemes, like the one foisted by IAM union officials on Baisley and his coworkers, was not only dicta, but was also found flawed by the Supreme Court in Knox.

Foundation attorneys also reiterate in the latest brief that the government is involved in enforcing the RLA and thus First Amendment scrutiny should apply to the IAM bosses’ scheme, stating, “The Court should grant review to make clear that the First Amendment and federal law protect employees regulated under the Railway Labor Act from opt-out regimes—regimes which ‘create[ ] a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree.’”

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 monopoly bargaining.

Baisley’s petition detailed 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.

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 final brief in Baisley’s case comes as other Foundation-backed lawsuits for employees defending their First Amendment Janus rights seek writs of certiorari from the Supreme Court. This includes cases brought for Chicago and New Jersey public educators which challenge “window periods” that severely limit when they and their fellow educators can exercise their First Amendment right to stop dues deductions for union bosses, sometimes to periods as short as ten days per year. In a California federal court, Foundation staff attorneys are also aiding a University of California Irvine lab assistant in fighting an anti-Janus state law that gives union bosses full control over whether employers can stop sending an employee’s money to the union after that employee exercises his or her Janus rights.

Baisley’s case is expected to be conferenced by the Justices on September 27, after which the Court will announce whether it will be heard.

“Baisley is simply seeking to stop the presumption that he wants his hard-earned money to go to union political ventures that he does not want to prop up. IAM officials’ ‘opt-out’ scheme is quite clearly meant to frustrate employees’ attempts to exercise that basic right and to keep pumping their money into those political activities,” observed National Right to Work Foundation President Mark Mix. “Judging by other pending Foundation litigation, it seems that union officials across the country are not willing to respect this right for either public or private sector workers.”

“Employee support of union political expenditures should come only voluntarily, not through underhanded, complex arrangements designed to trick nonmember workers into funding political activities they oppose,” Mix added.

Labor board agent revealed how individual workers voted in latest example of why in-person, secret-ballot voting better protects workers from retaliation and pressure tactics

Las Vegas, NV (August 10, 2021) – Technicians at a Fox Television Stations, Inc. facility in Las Vegas will get another chance to vote on whether they will remove National Association of Broadcast Employees & Technicians (NABET-CWA) union officials from their workplace.

The rerun election follows a National Labor Relations Board (NLRB) agent’s gross mishandling of the first mail-in ballot count. The employee who submitted a worker-backed petition for a vote to remove the union, Victor Morales, received free legal representation from National Right to Work Foundation staff attorneys in challenging the tainted vote count.

Under NLRB policies, workers have the right to vote unwanted union officials out of their workplace, but first must submit a petition demonstrating that at least 30 percent of the workplace desires such a vote. If enough workers are interested, the NLRB will conduct a “decertification election” after which union officials will lose their status as monopoly bargaining agent in the workplace.

Voting in person by secret ballot has been the default way the NLRB conducts all elections, including decertification votes, and has long been recognized as the most secure election method. However, the vote in Morales’ workplace occurred via mail, a method in which balloting is completely unsupervised by the NLRB and each ballot must be returned in an envelope bearing the employee’s name and address.

According to a brief filed by Morales with free Foundation legal aid, an agent of NLRB Region 28 in Phoenix exposed the choices of every voter in Morales’ workplace, an occurrence that would not be possible in a secret-ballot in-person vote. Morales’ brief noted that, as he and other parties observed the vote count via Zoom, the agent read the choice on each ballot immediately after removing it from both its blue interior security envelope and its exterior yellow mailing envelope containing each voter’s name. In doing so, the agent “destroyed ballot secrecy and revealed how every employee voted.” Morales’ brief demanded a rerun election.

NLRB Region 19 in Seattle, which investigated the miscount by NLRB Region 28, agreed that the integrity of the vote had been wholly compromised. Its report noted that the “Board has a longstanding policy of voiding ballots which reveal the identity of the voter.” The report recommended a rerun vote because there is “sufficient evidence to establish that the Board agent did not safeguard the secrecy of the votes cast which raises a reasonable doubt as to the fairness and validity of the election.”

The go-ahead for a new election in Morales’ workplace comes as Foundation staff attorneys are aiding a Los Angeles transportation worker, Nelson Medina, in preventing the NLRB from tossing out his objections to a mail ballot election in his workplace pushed by Teamsters Local 848 union officials. Medina asserts that several of his fellow employees’ ballots weren’t counted due purely to errors by NLRB agents or the US Post Office, and that union lawyers had access to tracking numbers for ballots that were originally considered late, indicating unlawful mail ballot harvesting by union officials.

These two cases are just the latest examples of the inferiority of mail and electronic ballots, both of which are preferred by union organizers who can game the system to the detriment of workers who wish to keep their vote private.

Because balloting in such union-preferred election methods is conducted outside the supervision of the NLRB, union agents can and do employ pressure tactics while the vote is ongoing. Unions often send multiple organizers to make unsolicited visits to workers at their homes shortly after they receive their ballots. The organizers at times actually handle ballots and/or watch how individual workers cast their vote.

These coercive tactics are already employed in “card check” union organizing campaigns, a method which allows union officials to bypass a secret-ballot election entirely and install themselves in a workplace merely by sending agents to collect union authorization cards from workers, also while unmonitored by the NLRB.

The latest NLRB missteps in non-in-person unionization votes have occurred as top Organized Labor officials and their allies in Congress push for the NLRB to promote electronic ballot elections, which would allow union officials to deploy “card check” pressure tactics in the same way as they do with mail ballot votes.

In a recent appropriations bill (H.R. 4502), the House of Representatives recently included a rider requiring the NLRB to create an electronic voting system.

The so-called “PRO-Act,” a bill designed to increase union boss power over workers opposed to union representation, also contains a provision requiring the NLRB to implement an electronic voting system for representation elections, with voting taking place by either internet or telephone.

“Mr. Morales and his coworkers deserve a secure, in-person, election so they can freely choose who will speak for them in the workplace. Foundation staff attorneys will keep fighting for them until they get it,” commented National Right to Work Foundation President Mark Mix. “Union officials favor any voting method that takes away the private, secret-ballot process that allows workers to vote yes or no in unionization elections. Under these voting schemes, union organizers can confront and pressure workers until enough have been intimidated into supporting unionization.”