Multiple cases headed to High Court seeking ruling against arrangements that violate workers’ rights under 2018 Janus v. AFSCME Supreme Court decision

Washington, DC (June 21, 2021) – Staff attorneys from the National Right to Work Legal Defense Foundation have just submitted petitions for writ of certiorari in two class-action civil rights cases seeking to enforce workers’ First Amendment rights. In both cases public educators are challenging union boss-created restrictions on their First Amendment right to refrain from funding unwanted union hierarchies in their workplaces.

One petition was filed for Chicago Public Schools educators Joanne Troesch and Ifeoma Nkemdi, whose lawsuit against the Chicago Teachers Union (CTU) and the Chicago Board of Education challenges a union boss-created “escape period” scheme that blocks workers from exercising their right to terminate dues deductions from their paychecks outside the month of August.

The second petition was filed in a lawsuit brought by New Jersey teachers Susan Fischer and Jeanette Speck, who are suing the New Jersey Education Association (NJEA) union for enforcing a similar annual window that restricts employees in the exercise of their Janus rights to just 10 days annually, less than 3% of the year.

Both lawsuits argue that these union dues “escape periods” run afoul of the U.S. Supreme Court’s landmark ruling in Janus v. AFSCME, which was won by Foundation staff attorneys in 2018. In Janus, the court ruled that no public worker can be forced to pay union dues or fees as a condition of keeping his or her job. The Court further held that union bosses contravene the First Amendment if they seize any money from an employee’s paycheck without an affirmative consent and a knowing waiver of that employee’s First Amendment rights.

Fischer and Speck, who both work in Ocean Township, NJ, attempted to exercise their Janus rights in July 2018, just a month after the High Court handed down the Janus decision. But Township officials told the teachers they could only stop payments and withdraw their memberships during an annual 10-day window. Unbeknownst to them, union partisans in the New Jersey legislature had actually established that “escape period” by law in May 2018 in an apparent attempt to defang the pending Janus decision.

Fischer and Speck’s suit argues that because the Janus ruling gave public employees the First Amendment right not to financially support union activities, the New Jersey law is unconstitutional and must be nixed. In addition to eliminating the “escape period” scheme, they seek a refund of membership dues for themselves and all other public employees who were blocked by NJEA officials from stopping dues deductions following Janus.

Nkemdi and Troesch’s original lawsuit explains that both educators “did not know they had a constitutional right not to financially support” the union hierarchy until the fall of 2019, when they discovered their Janus rights while looking for information on how to continue working during a strike that CTU bosses ordered that October. They sent letters the same month to CTU officials to exercise their Janus right to resign union membership and cut off all dues deductions.

Both educators received no response until November of that year, when CTU officials confirmed receipt of the letters but said that they would continue to seize dues from the teachers’ paychecks “until September 1, 2020,” as per the union’s “escape period” scheme. Troesch and Nkemdi demanded in their lawsuit that CTU union officials and the Board of Education stop enforcing the “escape period,” notify all bargaining unit employees that they can end dues deductions any time, and permit bargaining unit employees to claim back dues that were already seized without their consent.

“‘Escape periods’ like those forced on Troesch, Nkemdi, Fischer, and Speck serve no purpose other than to keep the hard-earned cash of public servants who oppose union officials’ so-called ‘representation’ flowing into union coffers even after those employees have clearly exercised their First Amendment right to object to such payments,” commented National Right to Work Foundation President Mark Mix. “With opposition to these schemes growing among public employees, the Supreme Court must quickly take up this issue and clarify that Janus does not permit union bosses to profit from curtailing workers’ constitutional rights.”

To avoid prosecution, Teamsters agree to inform workers of their legal rights & correct false statements claiming membership was mandatory

Queens, NY (June 21, 2021) – Teamsters union officials at a UPS warehouse in Queens, New York, settled charges brought by Kamil Fraczek, an employee who was misled by union officials about his legal rights. Fraczek received free legal aid from the National Right to Work Legal Defense Foundation.

When Fraczek began working at the UPS warehouse full time, a Teamsters representative told him he must become a union member and sign documents authorizing dues deductions from his paycheck. The official said Teamsters officials would ask UPS to fire him if he did not comply.

Because New York is a forced-unionism state that doesn’t protect workers with a Right to Work law, Fraczek can be required to pay some union fees as a condition of his job. However, under the Supreme Court’s 1988 CWA v. Beck decision, won by attorneys at the National Right to Work Legal Defense Foundation, no private-sector worker can be compelled to financially support certain union activities unrelated to bargaining, like political lobbying. Further, under longstanding federal law, workers cannot be required to become formal union members.

When Fraczek independently learned of his rights, he returned to the Teamsters official and asked to become a non-member and a Beck objector. He provided a letter to the representative stating his intention to pay only reduced fees and decline union membership.

The Teamsters official doubled down on his prior misrepresentations, insisting that Fraczek must pay full dues and sign membership documents. The Teamsters official again threatened to have Fraczek fired if he did not comply with these demands. The official falsely claimed that only supervisors can opt out of the union, and that the federal laws protecting workers from funding union political activities only apply in Right to Work states, not in forced-unionism states like New York.

In response, Fraczek filed his NLRB charge asserting his right to pay reduced fees under Beck and not to join the union. Fraczek later was able to free himself from the union altogether by being promoted to supervisor, and Teamsters officials settled Fraczek’s charges. Under the terms of the settlement, Teamsters officials will post a notice to all employees informing them of their right to become a nonmember and pay reduced union fees. The notice also promises that union officials will not threaten to have nonmember employees fired, as the official did to Fraczek.

“Teamsters officials lied to Kamil Fraczek about his legal rights by telling him he would be fired if he didn’t become a full dues-paying member,” said National Right to Work Legal Defense Foundation President Mark Mix. “Fraczek escaped Teamsters bosses’ clutches on his own by getting promoted, but thanks to the charges he filed Teamsters officials will not get away with their illegal threats, as union bosses are being required to notify other workers in Fraczek’s warehouse about their legal right not to join the union.”

Labor Board decertification election confirms Teamsters lack support of majority of employees in bargaining unit

Del Rio, TX (June 16, 2021) – Salesmen for Frito Lay in Del Rio and Eagle Pass, Texas have successfully removed officials of Teamsters Local 657 from their workplace. On May 13, 2021, John Adams filed a petition with the National Labor Relations Board (NLRB) for a decertification election, and gathered enough of his coworkers’ signatures to trigger an NLRB-supervised vote to remove the union from his workplace. He received free legal assistance from the National Right to Work Legal Defense Foundation in exercising his right to have the vote conducted by the NLRB.

The workers at both facilities voted on June 3. In the NLRB tally of ballots, Teamsters union officials failed to gain the support of a majority of the salesmen voting. On June 11 the NLRB certified the results of the decertification election and announced that Teamsters bosses no longer have the monopoly authority to impose their “representation” on the Frito Lay salesmen.

Adams was able to remove the union less than a month after filing his petition in part because of NLRB reforms finalized in 2020 limiting union tactics previously used to delay or block workers from exercising their right to vote out an unwanted union. Before the change, union lawyers could file so-called “blocking charges” to stall a vote union officials expected to lose. These “charges” were often unproven allegations against the employer used as pretense to hold up an election, even when the charges had nothing to do with the employees’ dissatisfaction with the union.

In July 2020, new NLRB rules went into effect limiting the use of “blocking charges,” and making other changes to enforce workers’ right not to be trapped in union ranks when the union lacks the support of a majority of workers. Under the NLRB’s new policy, which draws extensively on comments the National Right to Work Foundation filed, union charges cannot indefinitely stall employee votes. In most cases workers can remove an unwanted union without delay.

“Even in a Right to Work state like Texas, a union can negotiate for workers without their permission thanks to federally-granted monopoly bargaining powers,” said National Right to Work Legal Defense Foundation President Mark Mix. “Thanks to the Foundation-backed rulemaking curtailing union bosses’ ability to block workers from removing a union they oppose, votes like the one Mr. Adams and his colleagues held to boot the Teamsters from their place of work cannot so easily be derailed by unproven union allegations.”

“We will continue to work towards a day when unions can’t impose their so-called ‘representation’ on individual workers against their will,” added Mix.

NLRB still investigating union officials for fine issued after worker exercised right to end union membership and began working for firm outside union’s control

Colorado Springs, CO (June 11, 2021) – With free legal aid from National Right to Work Foundation staff attorneys, Colorado Springs metal worker Russell Chacon has forced International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART) Local 9 union officials to abandon their illegal demands against him for tens of thousands of dollars in fines.

Chacon filed an unfair labor practice charge at Region 27 of the National Labor Relations Board (NLRB) in Denver last month after he received a message from SMART union bosses imposing $21,252 in union disciplinary fines on him. The demand came despite the fact that Chacon had resigned his union membership and left a job at a contractor under SMART Local 9’s power several months earlier to work at a Pueblo facility free from union control.

Now, just weeks after the charge was filed, SMART union bosses have rescinded their fine demands. However, an NLRB investigation is ongoing into SMART union officials’ actions surrounding the ruinous fine they attempted to impose against Chacon.

SMART agents claimed in correspondence with Chacon that the fine was for an alleged “loss of funds” supposedly resulting from his working for an employer outside SMART’s influence. Decades-old federal law prohibits union officials from forcing internal union discipline on workers who have exercised their right to refrain from union membership, and from restricting the exercise of that basic right.

Chacon used to work for Colorado Sheet Metal, a Colorado Springs-based contractor whose employees are under the monopoly bargaining power of the SMART Local 9 union. According to his unfair labor practice charge, he sent a letter to SMART union officials resigning his union membership in November 2020, and soon after went to work for Rocky Mechanical, a Pueblo-based firm outside the SMART union’s control.

The union fine demand, which came several months after his change in jobs, ordered Chacon to fork over money to cover the alleged union “loss of funds” for a period through May 31, which at that time included days that Chacon had not even worked yet.

“While we are pleased that Mr. Chacon no longer faces this outrageous and unlawful fine, rank-and-file workers should not have to file federal charges just to have rights respected,” commented National Right to Work Foundation President Mark Mix. “Colorado still lacks Right to Work protections for its private sector workers to ensure that no employee is forced to pay tribute to union bosses just to get or keep a job, including union officials who blatantly ignore decades of longstanding law to retaliate against workers seeking not to associate with a labor union.”

Court asked to consider two dues refund cases that divided lower court judges

Washington, DC (May 26, 2021) – With free legal aid from the National Right to Work Legal Defense Foundation, New Hampshire state employees Patrick Doughty and Randy Severance filed a reply brief with the U.S. Supreme Court in their case against a union that unconstitutionally forced them to pay union dues as a condition of their employment. The workers’ case is now fully briefed, and has been distributed to the justices to consider in their conference on June 10, 2021. The case will be reviewed alongside Wenzig, another Foundation-supported case involving unconstitutional union dues seizures from state employees.

Both the Doughty and Wenzig cases are against Service Employees International Union (SEIU) locals. They argue that the petitioners, who were not union members, are entitled to refunds of dues seized from their paychecks without their consent. The seizures violated the First Amendment under the Court’s landmark ruling in Janus v. AFSCME. In Janus, National Right to Work Foundation attorneys successfully argued that forcing public-sector employees to pay dues to a union they do not support violates their First Amendment rights to free speech and free association.

The Supreme Court’s ruling in Janus made clear that public employees must affirmatively consent to union dues payments and knowingly waive their constitutional right not to pay. The Court also stated in its opinion that union officials had been on notice since the Foundation-won Knox v. SEIU case in 2012 that forced union dues in the public sector likely violated the First Amendment.

Foundation attorneys argue in these cases that longstanding precedent allows victims of First Amendment violations to sue for damages or restitution. Lower courts are divided on how to approach the legal questions presented in these challenges, which the petitions argue heightens the need for the Supreme Court to weigh in on the issue.

In Wenzig alone, the three judges on the U.S. Court of Appeals for the Third Circuit had three separate interpretations of the workers’ case. One agreed with union lawyers’ legal argument for why they should get to keep dues seized from workers in violation of Janus. A second also found for union officials but rejected the first judge’s legal theory. The third dissented, rejecting the first two judges’ explanations altogether and favoring refunds for the workers.

Meanwhile in Doughty, the three judge panel rejected the union lawyer’s so-called “good faith” defense, but created yet another legal standard that justified SEIU bosses keeping the unconstitutionally seized dues.

Foundation attorneys argue that the Supreme Court must step in and clarify the confusion among the lower courts. The Doughty reply brief was submitted early so it can be considered for certiorari during the same conference as Wenzig, giving the justices a better sense of the disunity in the lower courts’ responses.

While the appellate-court decisions against the workers conflict with one another, Foundation Attorneys argue they also conflict with Supreme Court precedent. Their petition for certiorari in Doughty argues that the First Circuit went searching for a reason why union bosses’ violations of workers’ First Amendment rights didn’t need to be remedied by the courts, and crafted such a reason by incorrectly applying the standards used in common-law torts, an entirely different type of violation. Then, the judges reasoned, under those standards union bosses’ actions could be justified because they had relied on the ill-gotten dues money to fund their operations. But the Supreme Court in Janus already rejected the reliance argument. The workers’ petition for certiorari asks the Supreme Court to overrule these decisions at odds with the Court’s own rulings.

“Once again, Foundation attorneys are asking the Supreme Court to rule that money taken from workers’ pockets to fund unions they do not support should be returned,” said National Right to Work Legal Defense Foundation President Mark Mix. “The several lower court judges in these cases before the court have been unable to agree on the legal principles that apply. It is now time for the justices to set the record straight.”

“The Supreme Court should take up this issue and side with workers who were forced for years to pay dues to union officials in violation of the First Amendment,” Mix added. “Even if the Supreme Court does rule that public employees are entitled to refunds, because of the statute of limitations union bosses will still only be returning a small portion of the billions of dollars nationwide that were unlawfully stolen from public employees’ paychecks.”

Worker slammed with unlawful demands after he exercised right to end union membership and began working for firm outside union’s control

Colorado Springs, CO (May 25, 2021) – A Colorado Springs metal worker has just filed a federal unfair labor practice charge against International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART) Local 9 union officials, whom he asserts are illegally trying to fine him tens of thousands of dollars after he resigned his union membership and went to work for a contractor not under union control.

He filed his charge at Region 27 of the National Labor Relations Board (NLRB) in Denver with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.

The worker, Russell Chacon, maintains in his charge that by “issuing unlawful fines and or internal charges” SMART union officials violated his right under Section 7 of the National Labor Relations Act (NLRA) to refrain from all union activities. Under federal law, union officials cannot forbid workers from ending their formal union memberships or mete out internal union discipline on employees who refrain from union membership.

Although federal law going back to 1947 also prohibits union bosses from requiring union membership as a condition of employment, states like Colorado which lack Right to Work protections grant union officials the power to force workers to pay them fees as a condition of getting or keeping a job. In Right to Work states, both union membership and financial support are completely voluntary.

Chacon used to work for Colorado Sheet Metal, a Colorado Springs-based contractor whose employees are under the monopoly bargaining power of the SMART Local 9 union. According to his charge, he sent a letter to SMART union officials resigning his union membership in November 2020 and soon after went to work for Rocky Mechanical, a Pueblo-based firm outside the SMART union’s control.

Chacon’s charge reports that he later received a message from union officials ordering him to pay $21,252 to make up for an alleged “loss of funds” supposedly resulting from his working at a contractor outside the SMART union’s bargaining power. The period for which SMART officials are demanding this payment goes through May 31, 2021, and includes days Chacon has not even worked yet.

“It’s shameful that SMART union officials claim to ‘represent’ rank-and-file metal workers while demanding a devastating sum of money from a worker who has clearly exercised his right to refrain from union activities, and doesn’t even work for an employer under their power anymore,” commented National Right to Work Foundation President Mark Mix. “Colorado workers need the protection of a Right to Work law to ensure that employees cannot be required as a condition of employment to fund a union hierarchy that so flagrantly violates workers’ rights.”

Mix continued: “Other Colorado metal workers who have suffered similar malfeasance from SMART union officials should not hesitate to reach out to the National Right to Work Foundation for free assistance in defending their rights.”

Foundation attorneys argue IAM union “opt-out” requirement to escape payment for union officials’ political activities violates Supreme Court’s Janus standard

Washington, DC (May 24, 2021) – Today staff attorneys from the National Right to Work Foundation filed a petition for writ of certiorari in United Airlines employee Arthur Baisley’s federal class-action civil rights case, which charges International Association of Machinists (IAM) union bosses with forcing him and his coworkers by default to pay for union political expenditures in violation of the First Amendment and the Railway Labor Act (RLA).

In particular, Baisley challenges a union requirement that employees who choose not to join the union must opt out of funding the union’s political and ideological activities during a brief annual “window period,” or else have money automatically seized from their paychecks for those purposes against their will.

Baisley’s attorneys argue the opt-out arrangement violates workers’ rights under the RLA, and the First Amendment under the standard laid out in the landmark 2018 Supreme Court Janus v. AFSCME decision.

They contend that, under Janus and the 2012 Knox v. SEIU Supreme Court case – both of which were argued at the High Court by National Right to Work Foundation staff attorneys – no employee can be charged for union political or ideological expenditures without first giving their affirmative and knowing consent, because language from a 1961 case that union lawyers use to prop up “opt out” language was only dicta.

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 bargaining.

Baisley’s petition details 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.

The lawsuit challenges this union-created policy on the grounds that it requires employees to withdraw from paying union fees that they have no legal obligation to pay and thus breaches workers’ First Amendment rights. The complaint also alleges that the IAM’s opt-out requirement violates the RLA, which governs labor in the air and rail 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.

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 sordid goal of these kinds of union ‘opt-out’ requirements is clear: trap unsuspecting workers into subsidizing union bosses’ radical political agenda without their consent and in violation of their constitutional rights,” said National Right to Work Foundation President Mark Mix. “The Supreme Court ruled in the Foundation-won Janus case that union officials must first seek the affirmative approval of public sector workers before charging them for union politics, and this case simply seeks to ensure that Mr. Baisley and all employees subject to the Railway Labor Act enjoy those same basic protections.”

Emails obtained through Freedom of Information Act request show NLRB staff praising Biden’s controversial firings and “Acting General Counsel” appointment

Washington, DC (May 19, 2021) – Newly released emails show National Labor Relations Board (NLRB) staff celebrating President Biden’s controversial, unprecedented and possibly illegal firing of NLRB General Counsel Peter Robb. The emails were obtained by the National Right to Work Legal Defense Foundation through a Freedom of Information Act (FOIA) request.

Mere minutes into Biden’s presidency the White House Office of Presidential Personnel sent an email to Robb demanding he resign by 5pm the same day or be fired. In response, Robb declined to resign, saying the demand was “unprecedented since the nascence of the National Labor Relation Act (NLRA) and the NLRB” and “undermines Congress’s intent that the Office of the General Counsel be independent of the Board and the Executive Branch.”

“Indeed, my own experience, as well as my conversations with those who held this position before me, have confirmed the need for the NLRB General Counsel to act independently without constant fear of removal,” Robb continued. “The prosecution of violations of the NLRA will now be subject to the political influence of the White House, in violation of Congressional action to improve the function of the NLRB to achieve the NLRA’s mission to fairly resolve labor disputes.”

Despite Robb’s warning about the politicization of NLRA enforcement, his deputy, Alice Stock, was also removed the next day after being designated Acting General Counsel. Soon after, Biden selected long time NLRB bureaucrat Peter Sung Ohr as Acting General Counsel.

The FOIA-requested emails show that although some NLRB officials were surprised by Biden’s actions – with one career NLRB attorney noting the move was “not expected” – some current and former NLRB officials voiced their approval of the unprecedented and arguably illegal actions.

Los Angeles-based NLRB Region 31 director Mori Rubin sent an email to her colleagues reacting to the news that Stock had been fired along with Robb. Rubin derided Stock as a “clone” of Robb. She said “there is talk that Peter Ohr may be appointed acting GC, which would be wonderful!” Respondents to the thread, whose names are redacted, proclaimed: “Go Biden!!” “That would be terrific!” and “Hope this comes true!”

Once appointed, Ohr swiftly began to do the bidding of union officials, withdrawing pleadings in cases filed by workers with National Right to Work Foundation legal aid, thereby preventing the cases from being decided by the full Board in Washington, DC. Among others, Ohr ordered the withdrawal of two cases in which workers contended that their employers’ “neutrality agreements” unlawfully aided union officials during organizing drives.

Ohr also rescinded almost a dozen guidance memos issued by Robb, including memos ensuring workers could avoid funding union political and lobbying activities, allowing workers to intervene in legal actions that were used to block efforts to secure decertification votes, and strengthening unions’ duty of fair representation for workers subject to monopoly bargaining. In all these instances Ohr took the position advocated by union officials who had backed Biden’s election campaign, and against those of the Foundation-backed employees.

Ohr earned praise for his aggressive implementation of the Biden agenda. Among the emails unearthed in the FOIA request was a message to Ohr from a redacted individual (identified in a subsequent FOIA as longtime NLRB attorney Emily Hunt) describing her reaction on the day of Biden’s inauguration when she learned that Robb had been removed: “I exclaimed to myself, ‘This day just keeps getting better and better!’” The email commends Ohr for rescinding Robb’s memos.

Biden followed his unprecedented removal of Robb by nominating Jennifer Abruzzo to be General Counsel. Until her nomination Abruzzo was a lawyer for the Communications Workers of America (CWA) union, which endorsed Biden and pledged huge resources to his campaign. At a Senate hearing Abruzzo admitted she was part of the NLRB review team advocating Robb’s removal, thus undermining the independence of the very office she seeks to hold. At the hearing Abruzzo also refused to commit to recusing herself from cases involving her former employer or its affiliates.

Abruzzo’s refusal to commit to recusal is consistent with the relaxed ethics standards Biden has been applying to former Big Labor officials in his administration. In order to hire former high-ranking union officials, Biden has abandoned ethics requirements that prevent former members of lobbying groups from dealing with their old employers when they join the Administration. Last week it was reported that Biden had already waived ethics rules for Celeste Drake, a former employee of the AFL-CIO, and Aletha Predeoux, once a top lobbyist for the American Federation of Government Employees.

The Foundation’s FOIA-requested emails, combined with other messages discovered by a similar FOIA request from the Freedom Foundation, demonstrate a fawning approval among NLRB staff for Biden’s undermining of the NLRB’s independence. This approval reaches the top levels of the bureaucracy at the NLRB’s main office in Washington. The Freedom Foundation’s FOIA request revealed that NLRB Senior Attorney Neelam Kundra responded to the news with “so exciting!” and “such a REFRESHING change!!!”

“The President’s unprecedented attack on the NLRB’s Congressionally-established independence should have shocked any NLRB official concerned about neutrally applying the law, rather than twisting it to the benefit of the President’s political allies,” said National Right to Work Legal Defense Foundation President Mark Mix. “Yet the documents obtained show the Biden power grab was celebrated by many inside the agency who are supposed to impartially apply the law.”

“Independent-minded workers should not have their cases adjudicated by officials who celebrate partisan, pro-union boss attacks on the NLRB,” added Mix. “The Biden Administration continues to stack the deck in favor of union bosses and against the rights of workers who want nothing to do with union affiliation, and these emails show many at the NLRB seem all too happy to go along.”