Workers Who Voted Against Union Oppose Order Forcing Union on Them
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Biden NLRB seeks to overturn vote of Red Rock Casino workers against Unite Here
Red Rock Casino employees bearing the messages “We Despise Union Lies” and “Respect Their Votes” protested outside Culinary Union headquarters in Las Vegas after union bosses tried to block Red Rock Casino workers’ emphatic vote to remove the union.
LAS VEGAS, NV – A large majority of the workers at Red Rock Casino in Las Vegas, Nevada, voted “no” to unionization, but a federal district court judge later issued an order forcing their employer to bargain with union officials anyway.
The Casino appealed the judge’s order to the U.S. Court of Appeals for the Ninth Circuit. National Right to Work Legal Defense Foundation attorneys assisted Red Rock food service employee Raynell Teske for free in filing her legal brief at the Ninth Circuit, arguing the judge was wrong to impose a union monopoly on the workers after the union had already lost an election.
Judge Overrides Workers’ Election Choice
In December 2019, the National Labor Relations Board (NLRB) administered a secret-ballot election on whether to unionize Red Rock. A majority of those voting rejected union officials’ effort to become their monopoly bargaining “representatives.”
Nevertheless, NLRB Region 28 Director Cornele Overstreet sought a federal court injunction demanding the union be imposed over the workers’ objections. On July 20, 2021, notoriously partisan Judge Gloria Navarro, appointed by Barack Obama, granted the NLRB Director’s request. She fired off a rare “Gissel” order forcing Red Rock to bargain with union officials despite the employees’ vote against unionization. The judge based her order on union officials’ claim that a majority of workers had signed union authorization cards before the vote. Teske’s legal brief argues that those “card check” signatures are unreliable, and not reason enough to conclude the union ever had majority support. After all, the level of union support was tested by the secret-ballot election and the results were clear: union officials received only 40% support from the eligible employees’ votes. As the Supreme Court has long recognized, secret ballots are a far more reliable way of gauging worker support for a union, because workers are often pressured, harassed, or misled by union organizers into signing cards.
Union Handbook Admits: ‘Card Check’ Is Unreliable
Unions themselves know that “card check” signatures do not reliably indicate worker support. The AFL-CIO admitted in its 1989 organizing handbook that it needed at least 75% card check support before having even a 50-50 chance of winning a secret-ballot election. An earlier guidebook acknowledged that some workers sign cards just to “get the union off my back.” Teske’s brief argues the union’s possession of so-called “cards” does not give union officials permission to take over, especially after they lost a secret-ballot election.
Brief: A Judge’s Order Shouldn’t Overturn Workers’ Clear Choice
The Foundation-aided brief urges that the “Gissel” order be overturned and says that imposing the union’s monopoly power despite the workers’ vote against it treats workers “like children” who did not understand what they were doing when they voted against union affiliation.
“Ms. Teske and her coworkers chose to reject unionization at the ballot box, but Judge Navarro decided to use her power to overturn the election,” said National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “Time and time again, we see workers pressured, misled and even bribed to sign union cards, which is why ‘Card Check’ is widely accepted as unreliable, especially compared to an NLRB-supervised secret-ballot election.”
“The Court of Appeals should promptly overturn Judge Navarro’s coercive order, and restore the actual choice workers made at the ballot box. Federal judges and NLRB bureaucrats cannot be allowed to override workers’ choices,” added LaJeunesse.
Foundation Opposes Biden Rule to ‘Authorize’ Illegal Union Skim of Medicaid Funds
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Comments: Federal law prohibits diverting Medicaid funds away from homecare providers
Harris v. Quinn plaintiff Susie Watts (left) said her victory against forced dues for homecare providers was really a win for her disabled daughter Libby: “It’s not even about me as a homecare provider…They’re her benefits that are being siphoned off.”
WASHINGTON, DC – The National Right to Work Foundation filed formal comments with the Centers for Medicaid and Medicare Services (CMS), a division of the Department of Health and Human Services, asking the agency to reject an attempt to authorize state officials to redirect Medicaid funds into union coffers.
The Biden Administration’s pending proposal would overturn a 2018 Foundation-backed rule that confirmed that federal law prohibits union officials from skimming union dues payments from Medicaid funds intended for those who provide home-based assistance to people with disabilities. The Foundation’s comments argue that the Trump-era rule simply ensured that Medicaid regulations conformed to long-standing statutory law, and that the federal statute governing Medicaid prohibits diverting payments to any third parties, including unions and union PACs.
Under Obama, Union Bosses Cashed Out at Expense of Medicaid Recipients
The comments also detail the Obama Administration’s role in permitting union officials to violate the law, explaining that a special exemption created in 2014 by the Administration gave union officials legal cover to siphon upwards of $1 billion from Medicaid payments.
Union officials, especially at the Service Employees International Union (SEIU), have long used deceptive and even unconstitutional tactics to divert taxpayer-funded Medicaid payments into union coffers. Before the Supreme Court’s ruling in the Foundation-won 2014 Harris v. Quinn decision, homecare providers in over a dozen states were required to fund union activities. State governments automatically deducted fees from providers’ Medicaid payments even though such union dues diversions violated federal law regarding Medicaid funds. In Harris, the court held that mandatory union payments violate the First Amendment rights of homecare workers who do not wish to support union activities. Even after the Harris decision was issued, union officials continued seizing money from hundreds of thousands of providers across the country under cover of the Obama-era rule creating an exception to the prohibition against skimming Medicaid funds. Union officials used numerous underhanded tactics to keep the dues skim going, including, according to providers’ reports, claiming the dues payments were mandatory, blocking or ignoring requests to stop the deductions, and even forging signatures to authorize them.
Unlawful System Exists to Subsidize Union Politics
“[Home and Community Based Service] Medicaid payments are supposed to pay for care for the severely disabled,” the Foundation’s comments state. “Diverting these payments to third-party special interests to subsidize their political agendas, lobbying and recruitment campaigns is as unconscionable as it is unlawful” under the federal law governing Medicaid.
“What you’re seeing is a misuse of Medicaid funds being steered away from paying for care to disabled people and being used for politics,” Foundation staff attorney William Messenger, who argued Harris, told The Washington Free Beacon in its report about the Foundation’s comments. “They set up an entire system to pressure Medicaid providers to assign a portion of their Medicaid funds over to” union officials and their political action committees.
Under the 2018 rule, union officials may still collect payments from caregivers who voluntarily support union activities, but cannot use taxpayer-funded government payment systems to deduct the dues from Medicaid payouts. Voluntary union supporters could still personally make payments just as millions of Americans make regular payments to private businesses or other organizations.
“The Biden Administration’s plan to reauthorize the Medicaid union dues skim is a cynical ploy to allow their political allies to divert funds that federal law makes clear should be going to help those who are homebound or have significant disabilities,” observed National Right to Work Foundation Vice President Patrick Semmens. “Homecare providers’ own free choice should determine whether union bosses receive their support, not politically motivated, federally imposed special exemptions.”
Victory: CO Worker Wins Against Union Bosses Who Demanded Illegal $21,000 Fine
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Union must back down after trying to punish worker who left union, found new job
Foundation staff ensured Russell Chacon’s frustrations with Sheet Metal union bosses’ illegal fines were covered by the Colorado Springs Gazette. Shortly after the article appeared, Sheet Metal union officials backed down from their demand.
COLORADO SPRINGS, CO – Colorado metal worker Russell Chacon was angry when he received a letter from International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART) Local 9 union officials in May, demanding he pay $21,252 in disciplinary fines. Six months earlier he had resigned his union membership, and had left his job at Colorado Sheet Metal to work for Rocky Mechanical, an employer that isn’t under the control of Sheet Metal union bosses.
Union officials demanded Chacon fork over the ruinous sum to cover an alleged union “loss of funds” for a period through May 31, which included days that Chacon had not even worked yet.
Sheet Metal Union Officials Violated Established Law to Harass Worker
Chacon obtained free legal representation from National Right to Work Foundation staff attorneys and filed federal unfair labor practice charges against the Sheet Metal union at National Labor Relations Board (NLRB) Region 27 in Denver. He asserted that the fines were levied against him specifically in retaliation for his leaving the union and finding new work.
Soon after the Foundation-assisted charges, Sheet Metal union officials dropped the illegal fine demands, and are now forced by a settlement to inform workers that they will not subject them to internal union discipline if they exercise their right to end union membership.
Decades-old federal law prohibits union officials from forcing internal union discipline on workers who have resigned union membership, and from restricting the exercise of that basic right to refrain.
“If union officials were really concerned about us workers they would be happy I was able to get a better opportunity, even though it was at a facility that isn’t unionized,” Chacon told the Colorado Springs Gazette in May. “Instead they are violating my rights with this outrageous fine threat and harassment, just because I did what was best for me and my family.”
Although Sheet Metal union bosses informally rescinded their fine demands soon after Chacon filed his charge, NLRB Region 27 continued to investigate Chacon’s charge that union officials had instigated the discipline specifically in retaliation for his leaving the union.
Settlement Follows NLRB Finding Merit in Worker’s Charges of Retaliation
The NLRB found merit in Chacon’s claims of retaliation in July, forcing union officials to settle in order to avoid NLRB prosecution.
The settlement requires Sheet Metal union officials to post a notice at the union office stating that they “will not fail to inform or misinform you about the proper process for resigning your membership,” “will not fail to give effect to resignations of membership from the Union,” and “will not restrain and coerce you by instituting and prosecuting disciplinary proceedings and levying fines after failing to give effect to resignations.” The notice also confirms that Chacon is no longer subject to the fine demands.
“As the conclusion of this case shows, Sheet Metal union officials were caught red-handed violating workers’ most basic right to refrain from associating with an organization to which they don’t want to belong,” commented National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “Although we are pleased that Mr. Chacon is no longer saddled with an outrageous fine demand, unfortunately other Colorado workers can still be forced to pay dues to union bosses because The Centennial State lacks a Right to Work law.”
LaJeunesse continued, “Right to Work protections ensure that all union financial support is strictly voluntary, and that no worker can be fired just for refusal to pay dues to unwanted union bosses.”
Sixteen States Back Foundation’s Petition to High Court in Chicago Educator Case
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Amicus brief: Unions “refuse to stop collecting dues despite unequivocal employee demands”
“Janus has been ignored,” wrote sixteen attorneys general in their amicus brief supporting Ifeoma Nkemdi and Joanne Troesch’s petition pressing the Supreme Court to hear their case and declare “escape periods” a First Amendment violation.
WASHINGTON, DC – In July, sixteen attorneys general threw the support of their states behind Chicago Public Schools educators Ifeoma Nkemdi and Joanne Troesch, who are urging the U.S. Supreme Court to hear their case defending their First Amendment right to cut off union financial support as recognized in the Foundation-won Janus v. AFSCME decision.
In an amicus brief encouraging the High Court to hear the case, attorneys general from Alaska, Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia argue that “escape period” restrictions like the one that Chicago Teachers Union (CTU) bosses foisted on Troesch and Nkemdi are a widespread threat to public employees’ rights under the Janus Supreme Court decision.
In 2018, the Supreme Court ruled in Janus v. AFSCME that public employees’ First Amendment rights are violated when they are forced to fund a union as a condition of employment. The Court also held that union dues can only be taken from a public employee with an affirmative and knowing waiver of that employee’s First Amendment right not to pay.
Unions Are Seizing Money from ‘Tens of Thousands’ Unconstitutionally, Brief Says
The CTU-concocted “escape period” Nkemdi and Troesch are challenging blocks employees from exercising their First Amendment Janus right to end union financial support except during one month per year. The educators’ petition for writ of certiorari presses the High Court to hear their case to affirm that Janus does not permit union bosses to profit from schemes that constrict workers’ constitutional right to refrain from subsidizing a union.
The states’ amicus brief emphasizes how glaringly union officials have flouted Janus with restrictions, as well as how widespread the schemes are: “Janus has been ignored. Across the country public-sector unions have resisted Janus’s instructions and devised new ways to compel state employees to subsidize union speech. Unions place onerous terms on dues forms that prohibit state employees from opting out of paying dues except during narrow (and undisclosed) windows during the year.”
The brief continues: “Unions refuse to inform state employees that they have a First Amendment right not to pay union dues. And unions refuse to stop collecting dues despite unequivocal employee demands. The result is that tens of thousands of state employees across the country are having dues deducted to subsidize union speech without any evidence that they waived their First Amendment rights . . . .”
Nkemdi and Troesch’s case “implicates these precise concerns” and the Court must hear it, the brief maintains.
In addition to the states’ brief, policy groups Goldwater Institute, Cato Institute, Freedom Foundation, and Liberty Justice Center filed amicus briefs backing the case.
Justices May Already Be Showing Interest in Foundation-Backed Case
In late July, the Supreme Court ordered lawyers for CTU and the Chicago Board of Education to file a response brief to Troesch and Nkemdi’s petition, a signal that some Justices may be interested in taking up the case.
Also pending at the High Court is Foundation attorneys’ anti- “escape-period” case for Susan Fischer and Jeanette Speck, two New Jersey teachers. Both that case and Troesch and Nkemdi’s case are expected to be fully briefed in October, after which the Justices will decide whether to take them.
“As union bosses continue to use deceptive ‘escape period’ arrangements to keep worker money flowing unconstitutionally into their coffers, support continues to roll in from across the country for Troesch and Nkemdi, who are sticking up for independent-minded public servants who simply want to serve their communities without being forced to fund union activities,” observed National Right to Work Foundation President Mark Mix. “The High Court must weigh in to affirm that public workers’ First Amendment rights cannot be confined to union officials’ arbitrary schedules.”
Ohio Worker Defeats Unconstitutional ‘Administration Fee’ Imposed by IUOE Bosses
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Union officials tried to rename forced fees outlawed by Janus Supreme Court victory
Above are just a few of the other Buckeye State public servants whom Foundation staff attorneys have aided in safeguarding their First Amendment Janus rights since that case was decided in 2018 by the Supreme Court.
CINCINNATI, OH – City of Hamilton (OH) employee Timothy Crane has successfully defended his First Amendment right to refrain from funding the International Union of Operating Engineers (IUOE) Local 20 hierarchy in his workplace.
Crane, who is not a union member, filed a lawsuit in December 2020 with free legal aid from the National Right to Work Foundation that challenged so-called “agreement administration fees” that IUOE officials forced him to pay as a condition of keeping his job. IUOE bosses have now backed down by eliminating the forced-fees scheme and have refunded to Crane all fees that they seized from him under that arrangement.
Crane’s lawsuit maintained that the “agreement administration fee” requirement violated his rights under the Foundation-argued 2018 Janus v. AFSCME Supreme Court decision. In Janus, the High Court ruled that no public worker can be coerced into paying union dues or fees as a condition of getting or keeping a job, and that union dues and fees can only be deducted from public servants’ paychecks with their affirmative and knowing consent.
The Court reasoned that, because all public sector union boss activities are directed at the government, forcing a public sector employee to pay anything to union officials counts as forced political speech and for that reason violates the First Amendment.
IUOE Officials Seized Deceptive Fee after Worker Exercised Janus Rights
“This case was about protecting my right to not pay for a political agenda that I oppose,” Crane told the Hamilton Journal-News this May. “I’m in favor of fair wages and a safe working environment. What I’m not in favor of is a union using my hard earned money to support a political party that I disagree with and that is dividing the country.”
According to Crane’s lawsuit, he sent letters to IUOE union officials in both August and September of last year attempting to exercise his First Amendment Janus right to end dues deductions from his paycheck. After sending these two letters, he discovered that instead of dues an “agreement administration fee” was being taken from his pay by municipal officials at the behest of IUOE union bosses.
His suit contended that this fee was indistinguishable from a so-called “agency fee” — a forced union payment charged to employees who refrain from formal union membership that was definitively outlawed by the Janus decision — and therefore unconstitutional despite masquerading under a different name.
Five Similar Illegal Dues Schemes Now Bucked by Buckeye State Employees
With this victory, Crane’s suit is now the fifth resolved favorably by Foundation staff attorneys for Buckeye State employees whose First Amendment Janus rights were being restricted by Ohio government union bosses.
This includes the July 2020 victory in the Allen v. AFSCME case, in which nearly 30,000 Ohio public employees were freed from an “escape period” scheme imposed by Ohio Civil Service Employees Association (OCSEA) union chiefs. That scheme limited to just a handful of days every few years the time when a public employee could exercise Janus rights.
“Once again, a Foundation-backed Ohio public employee has prevailed over a duplicitous attempt by union officials to keep worker money flowing illegally into union coffers while trampling workers’ First Amendment rights,” observed National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “The fact that Ohio union bosses have backed off enforcing these schemes several times now shows that they know the arrangements cannot stand up to serious legal scrutiny. With that in mind, Ohio public servants should not hesitate to reach out to the Foundation to defend their Janus rights.”
Foundation Freedom of Information Act Request Exposes NLRB Bias against Workers
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Emails show NLRB insiders cheered Biden’s unprecedented attack on agency’s ‘independence’
After Foundation attorneys’ FOIA request revealed pro-Biden bias pervading the “independent” NLRB, Foundation staffers secured coverage for the findings in some of the nation’s top outlets.
WASHINGTON, DC – National Right to Work Foundation attorneys have uncovered, through a Freedom of Information Act (FOIA) request, National Labor Relations Board (NLRB) staff emails that expose the partisan response to unprecedented power grabs launched by the Biden Administration at the behest of Organized Labor.
Biden Power Grab Prompts Records Request
The FOIA request was filed to provide further details surrounding Biden’s unprecedented and legally dubious removal of Trump-appointed NLRB General Counsel Peter Robb, who had sided with Foundation-represented workers in several cases in which they sought to resist union boss coercion. The emails show widespread partisan bias throughout the agency, which is charged with neutrally enforcing federal labor law.
Under long-standing federal law, the NLRB General Counsel has unreviewable authority to prosecute unfair labor practice charges, including those brought by workers against union officials. To protect that authority from blatant political interference, Congress gave the General Counsel a four-year term. Once appointed by the president and approved by the Senate, no General Counsel in the history of the NLRB had ever been fired. That changed when, just minutes after Biden took office on January 20, 2021, his administration moved to fire Robb despite 11 months remaining on his term.
NLRB Officials Celebrated Biden Attack on Labor Board’s Top Prosecutor
Following Biden’s election with the backing of Big Labor officials who wanted to shield themselves from accountability at the NLRB, Biden was encouraged by union bosses to remove General Counsel Robb and replace him with a union partisan. Five days after the removal of Robb, Biden fully obliged, selecting career 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 actions that fly in the face of the prosecutorial independence that Congress sought to protect when the General Counsel’s office was established. Los Angeles-based NLRB Region 31 Director Mori Rubin sent an email to her colleagues reacting to the news that Alice Stock, then the number-two attorney at the agency, 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!”
Within days Ohr rescinded almost a dozen guidance memos issued by Robb, including one ensuring workers could avoid funding union political and lobbying activities, another allowing workers to intervene in legal actions that are used to block efforts to secure decertification votes, and yet another strengthening unions’ obligations to workers subject to union boss 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 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 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!’” Hunt, whose career with the NLRB spanned over 30 years, commended Ohr for rescinding Robb’s memos.
Foundation Spreads the Word About Activism within NLRB
The NLRB emails received coverage from multiple outlets including Fox Business, The Epoch Times, and Reuters. The coverage exposed the favoritism of many inside the NLRB towards union officials despite the Board’s directive to apolitically enforce federal labor law.
“By celebrating Joe Biden’s unprecedented attack on the Board’s independence so openly, the NLRB officials in these emails make it clear that those inside their agency do not want the Board to be an independent enforcer of the law as Congress intended,” said National Right to Work Foundation Vice President Patrick Semmens. “Instead, these partisans want the Board to be an activist agency with a mission of advancing union boss power at the expense of the rights of rank-and-file workers.”
NJ, Chicago Educators Push for Supreme Court Review of Anti-Janus Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Two petitions ask High Court to hear challenges to union boss-concocted ‘escape periods’
Plaintiff and Chicago Public Schools teacher Ifeoma Nkemdi called CTU union militants’ retaliation against her “a dishonor to the profession of education.” Her lawsuit seeks to force CTU bosses to respect her Janus rights.
WASHINGTON, DC – 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 fighting 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 an “escape period” scheme that blocks workers from exercising, outside the month of August, their right to terminate dues deductions from their paychecks.
A 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.
Constraints Clearly Violate Janus Mandate of Affirmative Consent to Dues
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 argued and 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 their job.
The Court further held that union bosses contravene the First Amendment if they seize any money from an employee’s paycheck without their affirmative consent and a knowing waiver of that employee’s First Amendment rights. Both petitions say public sector union officials’ “escape period” schemes breach this requirement.
Union Honchos Snubbed Exercise of Janus Rights, Kept Taking Money
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 the teachers, 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.
In Chicago, Troesch and Nkemdi’s complaint explains, 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.
Teachers Urge Dissolution of ‘Escape Periods,’ Refunds for Them and Coworkers
Both lawsuits demand that union and government officials cease enforcing “escape periods,” properly apprise the educators’ coworkers of their right to end dues deductions any time, and allow any bargaining unit member to reclaim dues that have already been seized from them under such arrangements. Additionally, both cases seek to overturn state laws that codify “escape periods.”
“‘Escape periods’ like those forced on Troesch, Nkemdi, Fischer and Speck serve no purpose other than to keep shoveling into union coffers the hard-earned cash of public servants who oppose union officials’ so-called ‘representation,’ even after those employees have clearly exercised their First Amendment right to object to such payments,” commented National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “With opposition to these schemes growing among public employees, the Supreme Court should quickly take up this issue and clarify that Janus does not permit union bosses to profit from curtailing workers’ constitutional rights.”
Labor Board Rejects Biden Appointee’s Attempt to Scuttle Case Against Union
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Texas nurse challenges concealment of secret union-employer deal which stifles decertification
With Foundation legal aid, Texas nurse Marissa Zamora shut down NLRB “Acting” General Counsel Ohr’s attempt to block her case.
WASHINGTON, DC – The National Labor Relations Board (NLRB) recently rejected a move by NLRB Acting General Counsel Peter Ohr to prematurely end Texas nurse Marissa Zamora’s case before the Board could rule. The case challenges National Nurses Organizing Committee (NNOC) union officials’ refusal to disclose a secret agreement they signed with the parent company of her hospital that limits Zamora’s ability to remove the union from her workplace.
Ohr is a career NLRB bureaucrat, who was installed as General Counsel by President Biden this January after Biden made the unprecedented move of removing Trump-appointed NLRB General Counsel Peter Robb before his Senate-confirmed four-year term expired. Ohr filed a motion in February seeking unilaterally to send Zamora’s complaint back to the NLRB’s Fort Worth regional office to be dismissed — after Zamora’s case had already been fully briefed at the full Board in Washington.
Zamora is represented for free by National Right to Work Foundation staff attorneys, who in March opposed Ohr’s attempted maneuver. Their brief argued that snuffing
the case out now would jeopardize the NLRB’s power to decide cases involving violations of federal labor law, and also contended that Ohr lacked any authority to make his motion because of Biden’s illegal ouster of Robb. In a May decision, the NLRB agreed with Zamora’s Foundation staff attorneys that the case should continue, observing that the matter “has been fully litigated, and the controversy at issue, which remains active, is ripe for Board adjudication.” The case began when Zamora demanded a copy of the secret so-called “neutrality agreement.” Such agreements are deals between union officials and employers — usually without the knowledge of employees in a workplace — that seek to assist the union in gaining monopoly bargaining powers over rank-and-file workers.
NNOC Agents Shrouded, Lied About Deal Which Stymied Info about Decertification
“The Board correctly rejected Peter Ohr’s attempt to scuttle this case so he could let union officials off scot-free despite their secret backroom deal to undermine the rights of nurses like Marissa Zamora who are subjected to unwanted union representation,” National Right to Work Foundation President Mark Mix said about the decision to let the case move forward. These controversial top-down organizing deals 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 help stifle workers’ efforts to decertify, i.e. remove, the union.
In Zamora’s case, she began circulating fliers and other materials in June 2018 to educate her coworkers on how they could obtain a vote to decertify the union. Legal documents she filed in her case explain that union agents “repeatedly ripp[ed] down her fliers” and that hospital officials referenced a secret agreement with the union when they denied “her access to post material on protected bulletin boards, where her material would be shielded from vandalism.”
Zamora subsequently asked both NNOC and hospital officials to show her any “neutrality agreement” that might have triggered those efforts to block her and her coworkers’ rights. All her requests were denied, and NNOC even denied that such an agreement exists. This was despite statements by hospital agents to her that indicated a “neutrality agreement” was indeed in effect.
Trump-Appointed NLRB GC Robb Backed Nurse’s Case Until Unprecedented Firing
Zamora filed federal unfair labor practice charges at the NLRB, challenging NNOC bosses’ refusal to disclose the secret agreement. Then- NLRB General Counsel Robb issued a complaint supporting the claims in Zamora’s charges.
Nevertheless, a Labor Board Administrative Law Judge (ALJ) dismissed the complaint Robb issued, even revoking subpoenas that would have compelled NNOC union bosses to reveal the covert deal.
Zamora challenged the ALJ’s dismissal, filing exceptions at the full Board in Washington. Briefs she filed supporting those exceptions pointed out that, during a two-day trial, it came out that the “neutrality agreement” existed, but it was a closely guarded secret between the hospital and union officials “to be kept strictly confidential from employees and all third parties.” Robb also submitted exceptions buttressing Zamora’s exceptions.
Robb’s pro-employee decisions preceded Ohr’s controversial installation by Biden in January, and Ohr’s subsequent attempt to remand or dismiss the case, which the NLRB has now rejected.
“The Board should now promptly rule for Ms. Zamora on the merits of the case so union bosses cannot keep secret pacts with employers to the detriment of rank-and-file employees’ protected rights,” Mix said.
TX Airline Employee Urges High Court to Take Up Forced-Dues-for-Politics Challenge
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
IAM bosses automatically seize money for politics if workers miss tiny ‘escape window’ to opt out
IAM officials left Arthur Baisley just a small annual “escape window” to opt out of automatic dues deductions taken for union politics. Will the High Court hear his case against this scheme?
WASHINGTON, DC – Arthur Baisley, a United Airlines employee in Texas, filed a petition for writ of certiorari asking the U.S. Supreme Court to hear his case in which he is battling International Association of Machinists (IAM) union bosses. They are seizing dues for union political expenditures from him and his coworkers in violation of the First Amendment and the Railway Labor Act (RLA).
Baisley filed the cert petition this May with free legal aid from the National Right to Work Foundation. Baisley’s lawsuit 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 “escape window,” or else have money automatically seized from their paychecks for those purposes against their will.
Worker Contends Janus Standard Should Nullify ‘Opt-Out’ Language
Baisley’s attorneys argue the “opt-out” arrangement violates workers’ rights found in the RLA, and the First Amendment under the standard laid out in the landmark 2018 Supreme Court Janus v. AFSCME decision, won by Foundation staff attorneys. The RLA is a federal law that governs labor relations in the railway and airline industries.
In Janus, the High Court ruled that no public worker can be coerced into paying union dues or fees as a condition of getting or keeping a job. The Court also held that union dues or fees can only be deducted from a public employee’s paycheck with his or her affirmative consent and a knowing waiver of his or her constitutional right not to pay.
Baisley’s staff attorneys extend this logic and argue that, under Janus and other Supreme Court precedents, union bosses infringe on the First Amendment rights of private sector employees under the RLA by forcing them to pay for union boss political or ideological activities without their consent. The union boss “opt-out” scheme offends this principle by forcing workers to object to dues for politics within a small “escape window” and seizing those dues as a condition of employment if they don’t opt out.
IAM Officials’ Scheme Seizes Forced-Dues-for-Politics from Non-Members
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 long-standing law established in Foundation-supported cases, even without Right to Work protections non-members 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 the next year or else be charged full union dues.
IAM Union Officials Contravened Both Janus and Long-Standing Federal Law
In addition to running afoul of the Janus First Amendment standard, Foundation staff attorneys also assert that the complicated “opt-out” scheme contravenes the RLA, which protects the right of employees under its jurisdiction to “join, organize, or assist in organizing” a union of their choice, as well as the right to abstain from all union activities.
“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 rights,” said National Right to Work Foundation Vice President Patrick Semmens. “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 RLA enjoy those same basic protections.”
Cuyahoga County Probation Officer Hits Union with Federal Lawsuit for Years of Unconstitutional Dues Seizures
Union officials took full union dues from nonmember officer without consent, then ignored requests to return illegally-seized money
Cleveland, OH (August 25, 2021) – Cuyahoga County probation officer Kimberlee Warren is suing the Fraternal Order of Police (FOP) union in her workplace, charging union officials with breaching her First Amendment right as a public employee to refuse to support union activities. She is receiving free legal representation from National Right to Work Legal Defense Foundation staff attorneys, in partnership with attorneys with the Ohio-based Buckeye Institute.
Foundation staff attorneys contend that FOP union officials ignored her constitutional rights recognized in the landmark 2018 Janus v. AFSCME U.S. Supreme Court decision, which was argued and won by Right to Work Foundation staff attorneys.
In Janus, the Justices declared it a First Amendment violation to force any public sector employee to pay union dues or fees as a condition of keeping his or her job. The Court also ruled that public employers and unions cannot take union dues or fees from a public sector employee unless they obtain that employee’s affirmative consent.
The federal lawsuit says that Warren was not a member of the FOP union before the Janus decision in June 2018, but FOP union bosses collected union dues from her wages without her consent. According to the complaint, this continued until around December 2020, when Warren notified union officials that they were violating her First Amendment rights by taking the money and demanded that the union stop the coerced deductions and return all money that they had taken from her paycheck since the Janus decision.
When the deductions ended, FOP chiefs refused to give back the money that they had already seized from Warren in violation of her First Amendment rights. They claimed the deductions had appeared on her check stub and thus any responsibility to cease the deductions fell on her – even though to her knowledge they had never obtained permission to opt her into membership or to take cash from her paycheck in the first place.
According to the lawsuit, Warren also asked FOP bosses to provide any dues deduction authorization document she might have signed. FOP officials rebuffed this request as well.
The High Court ruled in Janus that, because all activities public sector unions undertake involve lobbying the government and thus are political speech, forcing a public employee to pay any union dues or fees as a condition of keeping his or her job is forced political speech the First Amendment forbids.
Union bosses were permitted by state law before the Janus ruling to seize from nonmember workers’ paychecks only the part of dues they claimed went toward “representational” activities. FOP union officials took this amount from Warren prior to Janus. However, they furtively designated her as a member following the decision, and began taking full dues, deducting even more money from her wages than they did before Janus despite the complete lack of any consent.
Warren is now suing the FOP union in the U.S. District Court for the Northern District of Ohio. Her lawsuit seeks the return of all dues that FOP union officials garnished from her paycheck since the Janus decision was handed down. It also seeks punitive damages because FOP showed “reckless, callous” indifference toward her First Amendment rights by snubbing her refund requests.
Warren’s lawsuit 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 union dues deductions, 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.
“All over the country, union officials are stopping at nothing to ensure they can continue ignoring workers’ First Amendment Janus rights and continue siphoning money from the paychecks of dissenting employees,” commented National Right to Work Foundation President Mark Mix. “After Janus was handed down, FOP union officials in Warren’s workplace could have come to her to attempt to get her to support the union voluntarily, but tellingly instead they began surreptitiously siphoning full dues out of her paycheck without her consent in direct contravention of the Supreme Court.”
“Despite her repeated requests, FOP bosses have continued to trample Warren’s Janus rights, and Foundation staff attorneys are fighting to stop this gross injustice against her and punish FOP bosses for their brazen behavior,” Mix added.
