Austin Worker Files Federal Constitutional Challenge Against Biden-Harris Labor Board
National Labor Relations Board facing numerous worker-brought lawsuits citing unconstitutional structure
Fort Worth, TX (November 2, 2024) – Dallas Mudd, an employee of Aunt Bertha (d/b/a FindHelp), has launched a federal lawsuit against the National Labor Relations Board (NLRB) on the grounds that the agency’s structure violates the U.S. Constitution. National Right to Work Legal Defense Foundation staff attorneys representing Mudd filed the suit in the U.S. District Court for the Northern District of Texas. The lawsuit joins a string of cases challenging the NLRB’s structure on separation of powers principles.
Mudd’s case comes on the heels of his own employer’s suit against the NLRB. In that case, a federal district court judge ruled in favor of FindHelp and granted an injunction to halt proceedings against the company.
Mudd filed a decertificiation petition with the NLRB back in September, requesting a vote to remove the Office & Professional Employees International Union (OPEIU) from his workplace. Instead of allowing the vote to proceed, NLRB officials blocked the election, leaving the workers indefinitely trapped in a union they oppose. Mudd is appealing that decision to the full Board in Washington DC.
Mudd’s federal lawsuit argues he is entitled to have his appeal adjudicated before a federal agency that is accountable to the president. The case joins four other constitutional challenges to the NLRB’s structure from Foundation-backed rank-and-file workers, including the first-ever such lawsuit challenging NLRB Board Member removal protections, which is currently being briefed at the DC Circuit Court of Appeals by Foundation attorneys representing Buffalo, NY-based Starbucks employees Ariana Cortes and Logan Karam.
Mudd’s lawsuit points to recent Supreme Court rulings, including Seila Law LLC v. CFPB and Collins v. Yellen, which emphasized that the President has direct authority to remove executive officials who exercise significant authority. Mudd argues that the NLRB’s structure, as defined by the National Labor Relations Act (NLRA), places unlawful limitations on the president’s power to oust NLRB officials who exercise significant executive authority.
The complaint, filed in the U.S. District Court for the Northern District of Texas, joins a similar suit at the same court from Reed Busler. Similar to Mudd, Busler, a Starbucks employee, filed a petition asking the NLRB to hold a vote to remove the incumbent Starbucks Workers United (SBWU) union, only to have the vote blocked by NLRB officials. In all the cases the employees argue they are entitled to have their cases heard by Board officials who are not exercising powers in violation of the Constitution.
“Independent-minded workers should not be forced to depend on biased agencies staffed by bureaucrats, that exercise power in violation of the Constitution, just to free themselves of unwanted union affiliation,” said National Right to Work Foundation President Mark Mix. “The Constitution does not permit a powerful federal agency to operate as the judge, jury, and executioner without oversight, and these legal challenges seek to ensure that the Labor Board functions within the law, for the sake of all workers.”
WV, TX Employees Defend Rights as Biden NLRB Appointee Attempts to Block Cases
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2021 edition. To view other editions or to sign up for a free subscription, click here.
‘Acting’ GC tries to stop prosecution of union bosses for illegal dues, secret-organizing deal
Marissa Zamora is challenging the authority of NLRB “Acting” General Counsel Peter Ohr, who was installed by Pres. Biden in an unprecedented power grab and began attacking the rights of workers opposed to associating with union officials.
WASHINGTON, DC – President Biden’s unprecedented removal of National Labor Relations Board (NLRB) General Counsel Peter Robb, and subsequent installation of forced-unionism zealot Peter S. Ohr as Robb’s “Acting” replacement, quickly threatened workers’ individual rights. It also threatened the independence of the Board itself, including in multiple ongoing cases brought with National Right to Work Foundation legal aid.
In two cases brought by Foundation staff attorneys that are already before the NLRB, Ohr is attempting to stop the Board from ruling against union officials. One is a case for Texas-based nurse Marissa Zamora, which challenges union officials’ ability to hide secret “neutrality agreements” that limit workers’ rights. The other, brought for West Virginia Kroger employee Shelby Krocker, seeks to prosecute union officials for coercing workers into signing dues checkoff authorizations that are supposed to be voluntary.
Former NLRB General Counsel Peter Robb, who supported the workers in both of these cases, was removed by President Biden just minutes after his inauguration, despite the fact that Robb still had nearly 11 months remaining in his Senate-confirmed four-year term.
This unprecedented and possibly illegal maneuver flies in the face of the law creating the NLRB, which envisioned an independent General Counsel. Since the office of NLRB General Counsel was established in 1947, no sitting General Counsel of the NLRB has ever been fired by a president before the end of their term, even when the White House changed hands.
Zamora’s case progressed to the full NLRB in Washington, D.C., after an NLRB Administrative Law Judge (ALJ) dismissed a complaint that former NLRB General Counsel Peter Robb had issued, prosecuting the National Nurses Organizing Committee (NNOC) for refusing to disclose to represented employees its secret “neutrality agreement.”
TX Nurse Fights Biden Appointee Move to Shield Union’s Secret Deal
Though Zamora’s Foundation-provided attorneys and Robb had both filed exceptions urging the full Board to reverse the ALJ’s decision, NLRB Acting General Counsel Peter Ohr filed a motion on February 23, 2021, seeking unilaterally to send the complaint back to the NLRB Fort Worth regional office to be dismissed.
So-called “neutrality agreements” are organizing deals struck 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. In Zamora’s situation, the neutrality agreement was used to limit her ability to inform her coworkers about their right to vote out the union.
Zamora’s opposition brief challenges Ohr’s attempt to kill the case. It argues that the case is already before the full Board, and she “is a full party with a right to have her pending exceptions decided by the Board.” It notes that letting Ohr shut her out at this stage would “infringe on the Board’s exclusive power to adjudicate violations of” federal labor law.
Further, the brief contends that because of Robb’s unlawful removal, Ohr lacks the legal authority to even ask the NLRB to end the case. Allowing “the President to fire the General Counsel at will would do irreparable damage to the NLRB’s function as an independent agency,” the brief says.
In Krocker’s case, NLRB Region 6 in Pittsburgh initially dismissed Krocker’s charge challenging United Food and Commercial Workers Union (UFCW) checkoff cards which falsely stated that they “MUST BE SIGNED.”
West Virginia Kroger Employee Stands Up to Union-Allied Ohr
Foundation attorneys successfully appealed this dismissal to General Counsel Peter Robb, who sustained the charge and ordered NLRB Region 6 to issue a complaint prosecuting UFCW Local 400 for the violation.
In fact, Robb ordered Region 6 to issue the complaint on several additional grounds, including maintenance of a checkoff that prohibited employees from ending dues deductions after the expiration of a contract.
After an ALJ declined to rule that UFCW Local 400 officials violated the law with their “MUST BE SIGNED” demands and other unlawful provisions, Krocker’s Foundation staff attorneys and General Counsel Robb both appealed the case to the NLRB. Their appeals have been fully briefed before the Board since September.
After Ohr’s appointment, Region 6 entered into an inadequate informal settlement over Krocker’s objection and filed a motion to send the case back to Region 6.
Biden Appointee Shielding Union Boss Privileges
Krocker’s opposition to that motion argues, as does Zamora’s, that her case is already pending before the full NLRB and that Ohr lacks the authority to divert it away from the Board’s judgment.
“‘Acting’ NLRB General Counsel Peter Ohr’s unabated attacks on Foundation cases seeking to defend workers’ individual rights clearly show how imminent a threat our cases are to union bosses’ coercive and greedy behavior,” commented National Right to Work Foundation Vice President Patrick Semmens. “Ohr demonstrates repeatedly that he has no problem with turning the NLRB into the Biden Administration’s tool for stifling the rights of independent-minded workers who dare to stand up to Biden’s union boss allies.”
