Federal statute must be interpreted to protect employees’ First Amendment rights under Janus

Washington, DC (April 9, 2020) – Today the National Right to Work Legal Defense Foundation filed comments with the Federal Labor Relations Authority (FLRA) supporting the agency’s proposed final rule to permit federal employees to exercise their right to cut off union dues deductions from their paychecks any time one year or more after authorizing such deductions. The comments are submitted in response to the FLRA’s February request for comments on the proposed rule.

The FLRA noted in its request that such a standard would adhere better to the statute governing dues deductions for federal employees. It would also stop federal union officials from limiting workers to just a small “escape period” once every year in the exercise of their right to end dues deductions. On the other hand, the proposed rule would not prevent any employee from voluntarily paying union dues.

The Foundation supports the proposed rule’s elimination of non-statutory restrictions on employees’ right to stop union dues deductions because the rule would effectuate employees’ right to choose whether to support a union under both the applicable federal statute and the First Amendment.

In the Foundation-won Janus v. AFSCME U.S. Supreme Court decision, the Court ruled that public employees have a First Amendment right not to subsidize union speech and that the government violates that right by seizing union dues from nonconsenting employees. The proposed rule will be a step forward to bringing federal labor law into compliance with the Supreme Court’s decision in Janus.

“We are encouraged by the FLRA’s attempt to stop federal union bosses from unfairly restricting the rights of the workers they claim to represent just to fill their coffers with more dues,” commented National Right to Work Foundation President Mark Mix. “However, more still needs to be done. To fully comply with the Janus decision, the FLRA also should ensure that affirmative and knowing consent is obtained from federal workers before union dues are deducted from their paychecks so none are compelled to support union activities against their wishes.”

The FLRA is also currently accepting comments on whether or not union officials can legally use official time, which occurs when union officials are paid by taxpayers while doing union business, on lobbying activities. The agency has sought those comments – due April 24th – because of a request filed by the National Right to Work Legal Defense Foundation which argued that such activities violate longstanding federal law.

Union officials attempted to use technicality to block employees’ right to vote despite clear showing workers opposed union

Shrewsbury, NJ (April 9, 2020) – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Loundy Saint Louis, an employee of the Meridian Health Nursing and Rehabilitation facility in Shrewsbury has successfully petitioned the National Labor Relations Board (NLRB) for a vote to remove the Service Employees International Union (SEIU) 1199 at her workplace. In a ruling Monday the NLRB overturned an earlier decision by a regional office in Newark, which had blocked her original petition despite a sufficient showing of interest by the employees for a vote.

According to the NLRB’s decision, a different employee of the nursing home had submitted a petition for a vote to remove the SEIU union on June 11, 2019, which contained signatures from enough employees to trigger the election. Though that employee withdrew the petition a week later, NLRB Region 22 maintained possession of the employees’ showing of interest in having the vote. Loundy Saint Louis then stepped up and submitted a new decertification petition on June 25. She asked the Regional Director to schedule a vote based on the recent showing of interest that it still had in its possession from the prior petition.

The Regional Director sided with union bosses and rebuffed Saint Louis’ petition, on the grounds that the employee that submitted the first petition “had not instructed or requested the Region to transfer the showing of interest to the Petitioner,” according to the NLRB’s decision.

Saint Louis then filed a petition for review, which pointed out that the prior petitioner’s permission is “irrelevant to whether the showing of interest is valid” in proving there is sufficient interest among the employees in a vote whether to oust the union, and that Saint Louis was merely acting for her coworkers.

The full NLRB in Washington granted Saint Louis’ request for review filed by National Right to Work Foundation staff attorneys. It ruled that “the petitioner in a decertification case merely acts ‘[on] behalf of employees’” and that the showing of interest in the earlier petition “still reflects the wishes of the employees.”

The Board reversed Region 22’s dismissal of Saint Louis’ petition and ordered that the Region take “further appropriate action” consistent with the Board’s decision, i.e., schedule the requested election.

This decision comes after the NLRB issued a final rule last week which removed some of the barriers employees face when trying to exercise their right to vote out a union that they oppose. These reforms, long-advocated for by the National Right to Work Foundation, included a reform in how the NLRB handles union “blocking charges” filed against employers with the intent of stopping employee attempts to decertify a union.

The final rule also substantially eliminates the “voluntary recognition bar,” which union bosses manipulate to block workers from requesting a secret ballot election after a union is installed as the monopoly bargaining agent through an abuse-prone “card check” drive. In justifying these rule changes the NLRB cited the Foundation’s comments submitted during the rulemaking process dozens of times.

“Although this victory is certainly good news, it is outrageous that SEIU union bosses were able to delay for months the right of Ms. Saint Louis and her coworkers to vote to decertify the union when, as the NLRB observed, there was clear evidence that more than enough workers were interested in having such an election,” observed National Right to Work Foundation President Mark Mix. “As the NLRB pointed out in its decision, mere technicalities like a change in petitioner should never serve as grounds to erase proof that a sufficient number of workers are interested in a decertification election.”

Workers blocked from simply holding a vote to remove unpopular ATU union for months following union bosses’ unproven claims

Lansing, MI (April 8, 2020) – A Lansing transportation worker has just submitted a petition to the National Labor Relations Board (NLRB) in Washington, D.C., requesting that the Board permit her and her coworkers to vote whether to remove the Amalgamated Transit Union (ATU) from power at their workplace. The petition was filed with free legal aid from National Right to Work Legal Defense Foundation attorneys and responds to “blocking charges” ATU officials filed against her employer which have delayed the election.

The petition comes after the NLRB issued a final rule last week reforming the process by which union “blocking charges” are handled. “Blocking charges” are filed by union officials to prevent rank-and-file employees from exercising their right to vote whether to remove a union. The new rules generally permit employees to proceed with a vote whenever they demonstrate the necessary showing of interest. In the past unions could stay in power by blocking workers’ votes for months or even years while often unrelated allegations against employers were litigated. The new rule is set to go into effect this June.

According to this petition, the employee, Sandy Harris, filed a request for an election to remove the union in November 2019. Before her request was filed, the petition says, ATU union bosses filed “blocking charges” against her employer, Transdev Services. The NLRB Regional Director in Detroit then blocked the vote from taking place without an investigation or a hearing into whether the charges have merit. Harris’ petition notes that five months have now passed since an election was requested and that further delays are likely to occur now due to the impact of coronavirus on the NLRB’s operations.

In light of the NLRB’s new rules, Harris’ petition contends that the NLRB should process the employees’ request for a decertification election now and permit them to vote as soon as reasonably possible. This, according to the petition, would “vindicate the employees’ right to petition for a decertification election” under the National Labor Relations Act (NLRA), and prevent them from being “stuck in limbo” while waiting for the new rules to take effect this June. The petition also points out that union lawyers could and are likely to challenge the NLRB’s new rules in court, which could further slow the process.

The NLRB cited comments the Foundation submitted earlier this year dozens of times when it issued the final rule last week. Those comments pointed out that the NLRB’s old rules regarding “blocking charges” served only to keep union bosses in power while forbidding employees from exercising their right to vote to eliminate unwanted unions, and were merely the product of forced unionism-friendly board decisions, and not required by the NLRA itself.

“NLRB Region 7, by clinging to outdated, union boss-friendly rules, has allowed the ATU to remain in power at Ms. Harris’ workplace while needlessly stifling Ms. Harris’ and her coworkers’ right to vote out an unwanted union from their workplace,” commented National Right to Work Foundation President Mark Mix. “The NLRB should quickly enforce the new protections for employees.”

“It is outrageous that union officials continue to contend that workers’ right under the National Labor Relations Act to a decertification vote should be restricted based on unproven allegations of employer conduct,” added Mix.

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.”