Class action lawsuit challenges a NJ law that blocks workers from exercising First Amendment rights outside 10 day “escape period”

Philadelphia, PA (September 29, 2020)  – On Wednesday, a three judge panel of the United States Court of Appeals for the Third Circuit will hear arguments in a class action lawsuit brought by two New Jersey teachers against the Township of Ocean Education Association (TOEA), New Jersey Education Association (NJEA) and the National Education Association (NEA) unions. The teachers are receiving free legal representation from National Right to Work Foundation staff attorneys.

Susan G. Fischer and Jeanette Speck are asking the Court of Appeals to order NJEA union bosses to return illegally-seized dues taken without the teachers’ consent in violation of the Supreme Court’s landmark decision in Janus v. AFSCME. The teachers will be represented during arguments by Foundation staff attorney William Messenger, who also successfully argued for Mark Janus at the US Supreme Court.

In Janus the High Court ruled it unconstitutional to require public employees to subsidize a labor union. The Court further held that any union dues or fees taken without a public employee’s affirmative consent violate the employee’s First Amendment rights.

In their complaint, Fischer and Speck say union officials continued to collect dues without their consent, even after they resigned their membership in July 2018. Township officials told the teachers they could only stop payments and withdraw their membership during an annual 10-day window.

In May 2018, New Jersey’s legislature created the escape period while the Janus case was pending a decision. The teachers’ 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 struck down. They seek a refund of membership dues for themselves and all other public employees who attempted to resign following Janus but were denied by union officials.

Similar union-created “escape period” schemes have been challenged in dozens of Foundation cases, including the recently concluded Allen v. Ohio Civil Service Employees Association. In that case, OCSEA union officials ultimately settled by eliminating the union’s escape period restriction and promising to pay back dues collected from more than 150 state employees who had been blocked from exercising their rights under Janus.

“Once again, rather than work to win the voluntary support of those they claim to represent, union officials are resorting to legal tricks to trap workers in dues payments,” said Mark Mix, president of the National Right to Work Legal Defense Foundation. “Contrary to the wishes of union bosses and their political allies, civil servants enjoy the protection of the Constitution every day of the year.”

“Neither a union policy nor state law can limit teachers’ or other public employees’ First Amendment rights to an arbitrary ‘escape period,’” Mix added. “The Foundation remains committed to fully enforcing the constitutional rights of Susan, Jeanette, and millions of other public sector workers as guaranteed by the Supreme Court in Janus.”

Labor Board considering ending 2014 policy that forces employers to disclose workers’ private phone and email information to union officials, even over workers’ objections

Washington, DC (September 28, 2020) – Today the National Right to Work Legal Defense Foundation submitted comments to the National Labor Relations Board (NLRB) in support of a proposal amending its rules governing voter list contact information to better protect workers’ privacy. The public comment period for the proposed changes closes September 28^th, with reply comments accepted until October 13^th.

The new rule, if adopted by the Board, would eliminate a requirement imposed by the Obama-era NLRB in 2014 that expanded the information employers must provide to union organizers to include personal phone numbers and email addresses. The current rule requires that union officials be given the information even over the objections of individual workers.

In the comments, Foundation Vice President and Legal Director Raymond LaJeunesse argues that the 2014 rule violates workers’ privacy and leaves them vulnerable to harassment, identity theft, and property crime. As the comments point out, union militants have a history of misusing workers’ private information.

For example, agents of Communication Workers of America Local 1103 in Connecticut signed Patricia Pelletier up for hundreds of unwanted magazines and consumer products in apparent retaliation for her leading the effort to hold a vote to remove the union from her workplace. As noted in the Foundation’s comments, “Not only was Pelletier forced to spend several hours each day canceling individual subscriptions and products, but she was billed for thousands of dollars by unwitting marketers and publishing companies, jeopardizing her credit rating and causing her severe emotional distress.”

The comments also cite examples of how union militants can use that information to harass independent-minded workers: “Militant union supporters may use personal information to retaliate against individuals who dare oppose the union that they support—incessant and late night phone calls, threatening emails, using the email addresses to sign employees up for spam or malware, and the theft or destruction of their property when they are not at home. For example, UPS employee Rod Carter began to receive threatening late-night phone calls following his opposition to a strike by the Teamsters, and was ultimately stabbed with an ice pick by Teamsters militants who tracked his driving route.”

As the comments demonstrate, the potential for misuse of private information is significant, especially for those who speak out against a union. Yet, under the current NLRB rules an individual cannot even request to have his or her information withheld. Employers must disclose the phone numbers and email addresses of every employee to union organizers.

The NLRB’s current rules purport to limit misuse of personal data by limiting union officials’ use of the information to “the representation proceeding, Board proceedings, and related matters.” But, the Foundation’s comments argue that this supposed limitation is both “meaningless and unenforceable,” and that “the only way to protect employees’ privacy and safety in the first place is not to compel disclosure of their personal information to unions, or, at the very least, to allow employees to opt out of any mandatory disclosure of their personal information.”

“Given the long and sordid history of harassment, identity theft, stalking and worse by union militants against workers who refuse to toe the union line, limiting the private contact information required to be handed over to union organizers is just plain common sense,” said National Right to Work Legal Defense Foundation president Mark Mix. “The Board should adopt this rule without delay so that independent-minded workers do not find themselves targeted using private contact information handed over to union organizers even over workers’ objections.”

Labor Board charge comes as federal investigation into racketeering and embezzlement within UAW reaches 15 indictments

Evart, MI (September 22, 2020) – An employee of auto parts manufacturer Ventra Evart LLC has just filed federal unfair labor practice charges against the United Auto Workers (UAW) union local at her workplace, charging that union officials illegally ignored her request to cut off dues deductions from her paycheck and are still seizing money from her. Her charges were filed with Region 7 of the National Labor Relations Board (NLRB) in Detroit with free legal aid from the National Right to Work Legal Defense Foundation.

The employee, Meagan Holmes, works as an inspector for Ventra Evart. Her charge states that in May of this year she submitted to UAW bosses a letter resigning her union membership and requesting to end dues deductions. However, according to her filing, union officials never responded and continue to deduct full union dues out of her paycheck.

Holmes’ charge argues that this violates her rights under Section 7 of the National Labor Relations Act (NLRA), the federal statute which guarantees private sector workers the “right to refrain from any or all” union activities. The NLRB is the federal agency charged with enforcing the NLRA. Additionally, Michigan enacted Right to Work protections for its public and private sector workers in 2013, which ensure that no Wolverine State worker can be forced to subsidize a union hierarchy as a condition of getting or keeping a job.

The charge comes as a years-long federal probe into embezzlement and racketeering within the UAW’s top level continues to rack up convictions. In April, former UAW president Gary Jones pleaded guilty to pilfering more than $1 million in dues money paid by rank-and-file workers. The corruption count went up to 15 late last month after Jones’ predecessor, Dennis Williams, was indicted by federal prosecutors. He is expected to plead guilty as well. The workers’ money stolen in the scandal was spent on personal luxuries like opulent golf vacations, high-end liquor, wine and cigars, and lavish steak dinners, according to federal documents.

Another Michigan worker under UAW union officials’ bargaining power who recently obtained free legal aid from the Foundation in defending his rights is Lloyd Stoner, an employee at General Motors’ Dearborn, MI, plant. Stoner won a unanimous ruling from a three-member panel of the NLRB in Washington, D.C., last year, which ordered UAW honchos to return to him dues they had seized even after he had validly resigned his membership and revoked his dues checkoff.

“Ms. Holmes’ charge clearly demonstrates that UAW officials’ inclination to break the law is not just limited to the top bosses caught red-handed in the federal investigation,” commented National Right to Work Foundation President Mark Mix. “Now more than ever, all workers under the UAW’s bargaining regime need to have the power to hold union officials accountable by being able to cut off all union dues or fees.”

NLRB General Counsel prosecuting NNOC union officials for keeping so-called “neutrality agreement” hidden from workers opposed to union

Corpus Christi, TX (September 16, 2020) – A Corpus Christi-based nurse has just asked the National Labor Relations Board (NLRB) to review a decision by an Administrative Law Judge (ALJ) which denied her access to a nationwide union “neutrality agreement” struck in secret between her employer, HCA Holdings (which operates Corpus Christi Medical Center and Doctor’s Regional Medical Center, among many others) and National Nurses Organizing Committee (NNOC) union organizers.

The ALJ’s decision dismissed a complaint that the NLRB General Counsel had issued for the nurse, which sought to force union officials to disclose the secret bargain after both they and HCA agents had worked to limit the nurse and her coworkers from exercising their right to vote out the union.

The nurse is receiving free legal representation from National Right to Work Legal Defense Foundation staff attorneys, who have filed exceptions to the ALJ’s ruling and a brief supporting those exceptions with the full NLRB to get the ruling overturned. NLRB General Counsel Peter Robb, the agency’s top prosecutor, has also filed similar exceptions asking the Board to review and overturn the ALJ’s ruling.

“Neutrality agreements” are secret deals finalized between union officials and employers, usually without the knowledge of employees in a workplace. They frequently contain provisions that require employers to silence opposition to unionization, hand over workers’ personal information for coercive “card check” drives that bypass the protections of a secret ballot election, provide union organizers with preferential access to the workplace, and even ensure employers will assist union agents in squashing employee efforts to decertify, or remove, the union.

The nurse in this case, Marissa Zamora, began circulating fliers and other materials in June 2018 to educate her coworkers on how they could obtain a vote to decertify the union. Her brief states that union agents “repeatedly ripp[ed] down her fliers” and that HCA officials denied “her access to post material on protected bulletin boards, where her material would be shielded from vandalism.” Zamora subsequently asked both NNOC and HCA officials to show her a copy of any “neutrality agreement” that might have triggered those efforts to block her and her coworkers’ rights. All her requests were denied, despite her having conversations with HCA agents that suggested a “neutrality agreement” did exist.

Zamora filed federal unfair labor practice charges at the NLRB, challenging NNOC’s refusal to provide the secret agreement. The NLRB General Counsel issued a complaint supporting the claims in Zamora’s charges. During a two-day trial, her brief notes, it was shown that the “neutrality agreement” “in fact existed, but it was a closely guarded secret between NNOC and HCA, to be kept strictly confidential from employees and all third parties.” However, the ALJ presiding over the trial dismissed the complaint on the grounds that Zamora had never seen the agreement so her request for it was speculative. The ALJ also revoked several subpoenas that would have forced NNOC union bosses to reveal the agreement.

Zamora’s brief in support of her exceptions to the ALJ’s ruling now seeks a reversal of that decision, arguing that the ALJ erred because he held Zamora to “an impossible…Catch-22 standard” and dismissed the complaint because “she could not prove the contents of a neutrality agreement that was deliberately kept hidden from her.” The brief also argues that union officials, as the employees’ agents, have a duty to disclose everything they negotiate with the employer.

Foundation staff attorneys have assisted many employees who have been subjected to union coercion as the result of “neutrality agreements.” One of them is Seattle Embassy Suites housekeeper Gladys Bryant, who this summer received a favorable ruling from the NLRB General Counsel after UNITE HERE union bosses forced unionization on the hotel’s employees with a hasty “card check” drive. She asserted that, under a “neutrality agreement,” Embassy Suites had provided hotel workers’ personal information to union bosses, which went well beyond the “ministerial aid” standard limiting how employers can assist union bosses with unionization.

In light of Zamora’s and Bryant’s cases, and similar others filed by Foundation attorneys, the NLRB General Counsel issued a memo earlier this month instructing regional NLRB officials to take additional steps to enforce workers’ rights against such backroom “neutrality agreements.” This will end a longstanding double standard that allowed employers to provide more than “ministerial aid” as part of a “neutrality agreement” but not to equally assist workers seeking to vote out an unwanted union.

“Ms. Zamora’s case is just another example of how union bosses use secret backroom ‘neutrality agreements’ to maintain their grip on power in a workplace, even over the objections of the workers they claim to ‘represent,’” commented National Right to Work Foundation President Mark Mix. “It is long past time that the NLRB stopped looking the other way while union organizers use these backroom deals to undermine the rights of rank-and-file workers.”

Panel upholds National Labor Relations Board ruling in decade-long case that union officials can never charge nonmembers for union lobbying expenses

Boston, MA (September 15, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, Warwick, RI-based nurse Jeanette Geary has just prevailed again in a legal battle waged for over a decade by United Nurses and Allied Professionals (UNAP) union bosses seeking to force her to fund union lobbying as a condition of keeping her job.

Geary, who worked as a nurse at Kent Hospital in Warwick, Rhode Island, filed an unfair labor practice charge in 2009 against the United Nurses and Allied Professionals (UNAP) union with free legal aid from National Right to Work Legal Defense Foundation staff attorneys. She filed the charges after UNAP officials failed to provide her evidence of a legally required independent audit of its breakdown of expenditures. She also challenged the union’s forcing of her and other employees to pay for union lobbying activities in violation of the National Right to Work Foundation-won 1988 U.S. Supreme Court Beck decision.

In Beck, the High Court ruled that private sector workers in states without Right to Work protections could only be forced to pay union dues for union activities “directly germane” to the union’s bargaining functions, which excludes political activity like lobbying. In another Foundation-won case, Hudson, the Court held that union officials must provide an audited financial breakdown of how forced union dues are being spent.

The NLRB had issued a negative decision in 2012, but that decision was invalidated by the Supreme Court’s holding in NLRB v. Noel Canning that the Board lacked a valid quorum because of three unconstitutional “recess appointments” then-President Obama had made. Seven years later, Geary’s case was the only remaining case invalidated by Noel Canning still pending without a decision by the NLRB.

In January 2019, Foundation staff attorneys filed a mandamus petition at the U.S. Court of Appeals for the District of Columbia Circuit seeking a court order that the NLRB promptly decide Geary’s case. The Appeals Court then ordered the NLRB to respond to that petition by March 4, 2019, which caused the NLRB to issue its decision on March 1, 2019, just ahead of the deadline.

The NLRB ruled 3-1 in that decision that union officials violate workers’ rights by forcing nonmembers to fund union lobbying activities. It also ruled that union officials must provide independent verification that the union expenses they charge to nonmembers have been audited. Unwilling to stop forcing workers to fund lobbying activities, UNAP union bosses asked the First Circuit Court of Appeals to overturn this ruling.

Oral arguments were held before the First Circuit in March 2020, with veteran Foundation staff attorney Glenn Taubman arguing for Geary. One of the judges on the First Circuit panel which heard the case is retired Supreme Court Justice David Souter.

“In a long-overdue victory, after over a decade of litigation Ms. Geary has successfully affirmed her right not to fund union boss lobbying, a protection guaranteed by the Foundation-won Beck Supreme Court decision,” commented National Right to Work Foundation President Mark Mix. “No worker should be forced to pay for union political activity, including lobbying. But, the fact that Ms. Geary had to endure this drawn out legal fight shows why a National Right to Work Law should be passed allowing every worker the individual right to decide for themselves whether to subsidize any union boss activities, political or not.”

Union officials had required home healthcare providers to submit photo identification to exercise constitutional right to stop union dues deductions

Chicago, IL (September 11, 2020) – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, an Illinois home healthcare provider has just won a settlement against SEIU Healthcare Illinois and Indiana (SEIU-HCII) union bosses. Her class-action case challenged SEIU-HCII officials’ enforcement of an arbitrary restriction on providers’ First Amendment right not to subsidize union activities, as recognized by the Supreme Court in the Foundation-won Harris v. Quinn and Janus v. AFSCME decisions.

In Harris, won by Foundation staff attorneys in 2014, the High Court recognized that the First Amendment is violated by schemes to forcibly extract dues from home healthcare providers who assist individuals whose care is subsidized by the government. In the 2018 Janus decision, the Supreme Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights, and ruled that the government can only deduct union dues or fees with an individual’s affirmative and knowing consent.

Plaintiff Hydie Nance provides home-based healthcare under the auspices of Illinois’ Home Services Plan. This program provides Medicaid funds to people with disabilities so they can hire and pay “personal assistants” to help them with their day-to-day activities. In her class-action lawsuit, Nance asserted that the Illinois Department of Human Services deducted union dues from the subsidies of home healthcare providers without informing them that “that they have a First Amendment right not to financially support SEIU-HCII.”

Nance tried to exercise her right to stop these illegal dues deductions in both November 2019 and later in March 2020. Full dues continued to be deducted out of her subsidies after both requests, with SEIU-HCII agents claiming after her second request that they could not process her request “without [her] valid photo id.” Nance’s lawsuit also alleged that union and state officials did not notify home healthcare providers about the photo ID “requirement” until after a request to cut off dues had already been submitted.

Nance argued in her suit that the dues scheme imposed by SEIU-HCII union bosses “impedes and burdens personal assistants’ First Amendment right to stop subsidizing SEIU-HCII and its speech” and additionally “impinges on personal assistants’ right to privacy and exposes them to the threat of identity theft.” She sought a ruling from the US District Court for the Northern District of Illinois declaring illegal the deductions the union made after she exercised her rights, forbidding further enforcement of the unconstitutional restriction, and ordering refunds for all home healthcare providers from whom the union had seized money illegally under the policy.

SEIU-HCII bosses have now backed down from further litigation and settled the case. The settlement requires that union officials “not reject or refuse” a request to end dues deductions because an individual does not provide a photo ID and also orders a refund to Nance of all dues seized under the scheme in violation of her First Amendment rights. Under the settlement, union brass must also “identify from its records [home healthcare] providers whose requests to resign their union membership” were rebuffed because they did not provide photo ID and process those requests. The union also must stop rejecting or ignoring requests by providers to stop dues deductions made using forms provided by organizations which inform workers of their rights, something union officials were regularly doing.

“This scheme imposed by SEIU-HCII union officials forced Illinois home healthcare providers to produce photo IDs just to stop the flow of their own money that was going to fill union coffers in violation of the First Amendment,” commented National Right to Work Foundation President Mark Mix. “Though this settlement puts an end to this blatantly unconstitutional arrangement, it is outrageous that over two years after Janus was decided and over eight years after Harris was decided, union bosses still refuse to respect, and devise ways to circumvent, the constitutional rights of those they claim to represent.

“We urge any Illinois home healthcare provider who had a request to cut off dues rejected by SEIU-HCII to contact the Foundation so their rights can be vindicated,” Mix added.

In attempt to protect coercive powers over workers, CWA union lawyers now making last-minute attempt to intervene and delay case

Detroit, MI (September 9, 2020) – National Right to Work Legal Defense Foundation staff attorneys have just filed their brief on the merits in Michigan-based employee Veronica Rolader’s case charging AT&T officials with illegally deducting dues from her paycheck at the behest of Communications Workers of America (CWA) union bosses. The case seeks to overturn a National Labor Relations Board (NLRB) precedent from 1979 that grants union bosses the power to limit to a narrow “window period” when workers may revoke their dues deduction authorization forms.

According to Rolader’s brief, in January 2000 she signed a form authorizing AT&T to deduct union dues from her paycheck and remit them to CWA bosses. Eighteen years later, in April 2018, the contract between AT&T and CWA officials expired. In June 2018, Rolader attempted to exercise her right under federal law to end her union membership and cease dues deductions from her paycheck, as union officials have no legal power to coerce dues from individual workers when there is no contract in effect.

Acting at the behest of CWA bosses, AT&T rejected this request by Rolader, writing that her request was “untimely” and that dues would continue to be deducted from her paycheck. Rolader tried again in December 2018, only to have her request denied as “untimely” once more the following January. Neither response apprised Rolader of the period in which union officials or AT&T would consider her request valid. On top of that, both of her letters to the union were submitted well before CWA brass and AT&T officials finalized a new monopoly bargaining contract in August 2019.

Rolader’s case challenges the NLRB’s 1979 decision in Frito-Lay, in which a 2-1 union boss-friendly NLRB majority ruled that union bosses can limit to a “window period” when an employee can revoke his or her dues checkoff, even during a contract hiatus. Her brief points out that the Labor Management Relations Act clearly declares that workers may revoke their dues checkoffs any time “beyond the termination date” of a union contract, and argues that the NLRB’s decision in Frito-Lay flies in the face of the statute’s plain text.

Rolader’s brief also relies on the fact that her 2018 attempts to cease dues deductions came after Michigan’s Right to Work law had gone into effect. Right to Work protections ensure that no worker can be fired for refusing to pay dues or fees to a union. Because Rolader only agreed to the dues deductions in 2000 when she was compelled to pay as a condition of employment, the brief maintains that she should have been allowed to revoke her dues deduction authorization at will once Michigan enacted its Right to Work law.

The brief additionally contests the other obstacles to revocation in the CWA policy that AT&T enforced. Those obstacles include failing to tell employees when their requests would be considered valid and petty rules requiring requests to cut off dues to be sent only by certified mail in individual envelopes.

Although CWA union officials earlier backed down from further litigation in this case by settling after the NLRB had moved to prosecute the union, they now seek to intervene in the case between Rolader and AT&T in an attempt to prevent or delay the NLRB from overruling the pro-union boss Frito-Lay decision. Foundation staff attorneys earlier this month filed a brief in opposition to the union’s belated motion to intervene, arguing that “the Union should not be allowed to hijack and delay this CA case at the midnight hour,” especially after they had already voluntarily opted-out of the case by settling.

“It’s outrageous that the NLRB’s forty-year-old decision in Frito-Lay continues to grant union bosses the privilege to keep siphoning dues out of the pockets of dissenting workers, even when the underlying ‘justification’ for the dues payments no longer exists,” commented National Right to Work Foundation President Mark Mix. “The NLRB should overturn Frito-Lay and ensure that no worker can be trapped into funding a union against their will when there is not even a valid contract in effect between a union and employer.”

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 2020:

On this Labor Day, as our country strives to reopen and recover, we should all remember the sacrifices that America’s working men and women – including shelf stockers, delivery drivers, nurses, and other frontline workers – continue to make so our country can get through these uniquely challenging times. Many will pay lip service to honoring workers, but it will ring hollow absent a commitment to respect workers’ individual rights and trust each worker to decide for themselves what private organizations, including labor unions, to associate with or subsidize.

Thankfully, in the past decade America’s workers have seen significant advances in that field. The United States Supreme Court’s 2018 decision in Janus v. AFSCME, argued and won by National Right to Work Foundation staff attorneys, safeguarded the First Amendment right of every public worker to choose for themselves whether or not to fund a labor union. And since 2012, five new states have enacted Right to Work laws – meaning a majority of states now protect that same fundamental freedom for private sector workers. Not since the 1950s have we seen such a large expansion of state Right to Work laws in one decade.

Meanwhile, at the urging of workers represented by Foundation staff attorneys, the National Labor Relations Board continues to eliminate policies that trap workers in unwanted union ranks for months or even years, even when an overwhelming majority wants the union out of their workplace. These are significant advances in employee freedom, but there remains much more to do.

Millions of Americans can still be fired for refusing to pay union bosses they don’t want and never asked for. Plus, even where the law protects workers from forced union dues it often takes vigilant legal enforcement to get union officials to respect those rights. Meanwhile millions more American workers are forced to accept the one-size-fits-all “representation” of these union bosses, even if they think they would be better off without it.

And Big Labor’s top officials in their shiny multi-million-dollar headquarters continue to double down on compulsion. Instead of earning the voluntary support of those whom they claim to represent like private organizations, union bosses continue to look to government to grant them more special powers to compel workers to associate with unions against their will.

This is especially demonstrated by the overwhelming forced-dues-funded support from top union bosses for Joe Biden, whose platform includes wiping out every state Right to Work law by federal fiat, authorizing federal bureaucrats to impose forced dues contracts over the objections of both businesses and individual workers, and by mandating the abuse-prone “card check” process so union bosses can corral millions of workers into unions without even a secret-ballot vote.

But the American people know this is not the future workers want or deserve – they overwhelmingly agree with the Right to Work principle that no employee should be forced to join or support a union as a condition of keeping their jobs.

So this Labor Day, and come November, think back to the hardworking individuals who served you throughout the pandemic and remember: They deserve a choice. Let’s celebrate American workers by being vigilant for attempts to undercut their freedoms.