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.”
Airline Workers Ask Appeals Courts to Invalidate Union Dues Opt-Out Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Cases challenge requirement that workers opt out of union political spending or else pay full dues
Just “plane” wrong: United Airlines fleet service employee Arthur Baisley (left) and JetBlue Airways pilot Christian Popp (right) are fighting to end schemes that deduct union political expenses out of workers’ paychecks without their consent.
NEW ORLEANS, LA – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, two airline workers have filed cases challenging union boss policies that require workers to opt out in order to exercise their First Amendment right not to fund union political activities, as recognized in the Foundation-argued 2018 Janus v. AFSCME Supreme Court decision.
The two federal class-action lawsuits were brought for United Airlines fleet service employee Arthur Baisley and JetBlue Airways pilot Christian Popp. They are currently pending in the U.S. Courts of Appeals for the Fifth and Eleventh Circuits respectively.
Workers Challenge Compelled Political Speech
Baisley’s case against the International Association of Machinists (IAM) union has been fully briefed and is tentatively set for oral argument the week of November 30. Meanwhile, the opening brief for Popp’s case against the Air Line Pilots Association (ALPA) union was filed in early October.
The lawsuits contend that under Janus and the 2012 Knox v. SEIU Supreme Court cases — both argued and won by Foundation staff attorneys — no union dues or fees can be charged for union political activities without a worker’s affirmative consent.
Despite this, union officials at the IAM and ALPA enforce complicated opt-out policies that require workers to object to funding union political activities or else pay full union dues. Foundation staff attorneys argue that the Janus decision’s opt-in requirement applies to airline and railroad employees covered by the Railway Labor Act (RLA), taken together with longstanding precedent protecting private sector workers from being required to pay for union political and ideological activities.
Mr. Baisley and Mr. Popp both work in Right to Work states (Texas and Florida, respectively), but the RLA preempts state law. Consequently, they can be forced to pay union dues or fees or be fired. Even under the RLA, however, union bosses cannot legally force workers to pay for political activities.
Cases Could Expand Janus Protections to Private Sector
The lawsuits argue IAM and ALPA’s opt-out policies are designed to trap unwilling participants into full dues in violation of their First Amendment rights. This forces workers to subsidize union political activities against their will, including the part of full dues that union officials use to support their radical political agenda and handpicked candidates for office.
“IAM and ALPA union officials have demonstrated a blatant disregard for the rights of the very workers they claim to represent by creating complicated obstacles for independent-minded workers who want to exercise their right not to fund union ideological activities,” said National Right to Work Foundation Vice President Patrick Semmens. “Although Janus’ biggest impact was to secure the First Amendment rights of all public employees across the nation not to be required to fund Big Labor, these cases demonstrate that Janus’ implications can also protect the rights of private sector workers.”
Wall Street Journal: Texas AG Seeks to Enforce Government Employees’ First Amendment Rights Under Janus v AFSCME
The Editorial Board at The Wall Street Journal published a column on May 31, 2020, detailing efforts in Texas to enforce the landmark Janus v AFSCME U.S. Supreme Court decision argued and won by National Right to Work Foundation staff attorneys:
The Attorney General of Texas, Ken Paxton, plans to release an advisory opinion soon that could help free public employees who are fed up with their union. In 2018 in Janus v. Afscme, the Supreme Court said that union fees couldn’t be deducted from the paycheck of a government worker who didn’t ‘affirmatively consent.’
“The question is what flows from this logic. Last fall Alaska Governor Michael Dunleavy, citing Janus, signed an order to let state workers quit the union anytime, instead of only during 10 enchanted days once each year. Union members also would have to refresh their consent forms periodically.
The move by Attorney General Paxton came after Foundation President Mark Mix and staff attorney William Messenger — who argued the Janus case at the Supreme Court — called on states like Texas to emulate Alaska. They wrote that “state officials, along with federal agencies, should follow Alaska’s example” in an op-ed for The Wall Street Journal last August.
In addition, Mix and Messenger highlighted how Janus requires that government workers must voluntarily waive their First Amendment rights before union dues or fees can be deducted from their paycheck through a voluntary waiver:
Fourteen months ago the Supreme Court held that the First Amendment protects government employees from being forced to subsidize unions. Janus v. Afscme affirmed that some five million state and local workers have the legal right to stop such payments.
Another aspect of Janus, however, has been overshadowed. The decision requires that the government obtain proof that workers voluntarily, knowingly and intelligently waived their First Amendment rights not to subsidize union speech before deducting union dues or fees from their paychecks. “To be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence,” Justice Samuel Alito wrote. “Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”
Yet the federal government and many states and localities continue to deduct union dues without evidence that workers waived their speech rights, usually based on pre-Janus authorization forms that come nowhere close to demonstrating a waiver. Labor Department figures suggest unconstitutional deductions could be coming out of the paychecks of as many as 7.2 million government employees nationwide. The fix is simple: Governments must cease transferring wages to unions until they amend their dues-deduction policies to comply with Janus.
Labor Board to Prosecute NNOC Union for Violating Texas Nurse’s Rights, Union Forced to Settle Other Charge for Ripping Down Nurse’s Posters
National Labor Relations Board complaint says union officials are illegally refusing to turn over to worker a secret agreement between the employer and union bosses
Fort Worth, TX (November 7, 2019) — National Right to Work Legal Defense Foundation staff attorneys have won a settlement against the National Nurses Organizing Committee/Texas-National Nurses United union for Esther Marissa Zamora, a nurse at a hospital who was trying to educate her co-workers about unions, only to have her informational material seized by union officials. The National Labor Relations Board (NLRB) also issued a complaint against the union for refusing to give Zamora a copy of a “neutrality agreement” entered into by union officials and her employer.
Zamora works for Corpus Christi Medical Center-HCA in Corpus Christi, Texas, where unions hold monopoly bargaining power over the nurses. According to Zamora’s charge, she was informing her co-workers about the effects of unionization, only to have union officials rip down or confiscate her educational materials.
Faced with Zamora’s evidence, union officials agreed to settle that part of the case and now must post workplace notices that inform all workers about their rights to not join unions. The notices, which the union is required to post for 60 days, also tell workers that the NNOC/Texas-NNU will not “restrain or coerce you in the exercise of the above rights” and “will not confiscate or remove any employee’s flyers related to the union and/or union decertification efforts.”
On October 30, NLRB Region 16 in Fort Worth also issued a formal complaint against the union for refusing to turn over to Zamora a so-called “neutrality agreement” created in secret between the hospital chain where she works and the NNOC/NNU union officials. As an employee, Zamora is entitled to any agreements that the NNOC/NNU union makes with her employer.
So-called neutrality agreements often include special protections for union bosses that allow them access to workers on site and prevent the employer from voicing any opposition to unionization attempts. Some such agreements include promises by union officials to limit contract demands, in some cases even agreeing to wage or benefit limitations in exchange for company assistance in organizing workers.
In this case, Zamora argues that she is entitled to the secret agreement between her employer and NNOC/NNU because it controls her and other employee’s terms and conditions of employment by limiting how the hospital can deal with the union. Zamora’s unfair labor practice charge alleged that union officials accepted “unlawful support and assistance from the employer.”
As part of the NLRB’s complaint about the neutrality agreement, the Regional Office set a hearing date for January 27, 2020 before an NLRB administrative law judge.
“It is telling that union bosses are determined to keep rank-and-file nurses in the dark about the terms of the backroom deal the union struck with hospital officials in exchange for company assistance in organizing these nurses,” National Right to Work Foundation President Mark Mix said. “So-called ‘neutrality agreements’ often sell-out workers to advance the interests of greedy union bosses, which is probably why the union refuses to disclose it to a nurse whom they know is educating her co-workers about the effects of unionization in her workplace.”
Teamsters Local Faces Complaint for Blocking UPS Worker from Exercising Right to Work
Union officials are violating federal law by failing to provide worker with paperwork to end the collection of union dues from his paycheck
El Paso, TX (May 9, 2017) – The National Labor Relations Board (NLRB) for Region 28 has filed a complaint against Teamsters Local 745 for violating the National Labor Relations Act (NLRA). The complaint states that Teamsters union officials have continuously refused to provide a worker with basic information necessary to exercise his workplace rights.
The worker, Sal Olivas, is a driver for the United Parcel Service UPS (NYSE: UPS) in El Paso, Texas. On January 9, 2017, with free legal assistance from National Right to Work Legal Defense Foundation staff attorneys, Olivas resigned his formal union membership and sent a letter to Teamsters Local 745 union officials seeking a copy of his dues checkoff authorization form, the steps to needed to revoke his dues checkoff authorization, and the specific “window period” in which he has to do so. Union officials did not respond to his initial letter or an additional letter he sent a week later.
Even though union officials have not provided Olivas with his requested checkoff and information about the “window period,” because of the legal assistance provided by Foundation staff attorneys union officials have ceased collecting forced dues from him. However, by failing to provide Olivas with the requested information, union officials have violated the NLRA.
The NLRB Regional Director for Region 28 has issued a complaint against the union for continuously stonewalling Olivas’ requests for his dues checkoff authorization and information about the “window period.” As a result, a hearing before an NLRB administrative law judge is scheduled for August 1 in El Paso.
“It is outrageous that Teamsters union bosses are stonewalling this worker’s simple request,” National Right to Work President Mark Mix commented. “This case is another reminder that even in a Right to Work state like Texas, where union dues and fees are supposed to be strictly voluntary, enforcement of the statutory employee protections are vital. Otherwise the law is just words on paper.”
