Casino Worker Challenges Order Installing Unwanted Union via ‘Card Check’
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2022 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Ninth circuit panel signals willingness to end precedent allowing for imposition of union
NLRB officials stacked the deck against rank-and-file Red Rock Casino employees by imposing an unpopular union on them despite worker objections.
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 ordered their employer to bargain with union officials anyway. Casino officials appealed, and Red Rock employee Raynell Teske supported their efforts to overturn the judge’s coercive order that overrides the choice workers made at the ballot box.
With free Foundation legal aid, Teske filed a brief arguing that the district judge had no reason to impose a union onto workers who had already soundly voted to reject it. A Ninth Circuit panel denied the initial appeal, but issued an unusual concurring opinion in which all three judges said they disagreed with that outcome, but were bound by Ninth Circuit precedent to uphold the district judge’s order.
Binding precedent can only be overturned through an en banc hearing before a larger Ninth Circuit panel. Red Rock lawyers filed for an en banc rehearing of their appeal. The court then ordered National Labor Relations Board (NLRB) lawyers defending the order to respond, another signal the judges may be willing to overturn this ridiculous precedent and rule in the workers’ favor. Teske filed a second amicus brief, urging the court to hear the case en banc.
Judge Overrides Workers’ Vote Against Union ‘Representation’
The situation at Red Rock began in December 2019, when the NLRB held a secret-ballot election on whether to unionize the Casino’s workers. Employees rejected union officials’ effort to become their monopoly bargaining “representatives” in an NLRB-supervised vote by a nearly 100-vote margin. Despite that outcome, NLRB Region 28 Director Cornele Overstreet sought a federal court injunction imposing the union over the workers’ objections.
On July 20, 2021, District Judge Gloria Navarro agreed with the NLRB Director’s request, and ordered Red Rock to bargain with union officials despite the employees’ vote against unionization. The judge said the order was justified because union officials claimed that, before the vote, a majority of workers had signed union authorization cards.
Teske’s amicus briefs argue those “Card Check” signatures don’t prove that union officials ever had majority support. She contends the level of union support was tested fairly by the secret-ballot election, in which workers voted 627-534 against unionization.
Her briefs point out that the NLRB and federal courts have long recognized that secret ballots are a 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 officials know that Card Check signatures do not indicate solid worker support. The AFL-CIO admitted in its internal organizing handbook that it needed at least 75% Card Check support before having even a 50-50 chance of winning a secret-ballot election. Union bosses prefer Card Check unionization because they can more easily take control of workplaces where they lack popular support, and partisan NLRB appointees now are working to grant their wish.
Partisan NLRB Pushes Unreliable ‘Card Check’
Past legislative attempts to enact Card Check unionization, including the so-called “PRO Act,” pending in the U.S. Senate right now, faced bipartisan opposition. However, NLRB General Counsel Jennifer Abruzzo, a former high-ranking union lawyer, believes she can implement Card Check without congressional approval. Abruzzo has expressed interest in resurrecting a decades-old NLRB doctrine that allows unions to sue employers to try to force them to automatically bargain whenever the union possesses a pile of untested union cards.
“There is no reason why district court judges or NLRB bureaucrats should be able to override workers’ choice at the ballot box,” said National Right to Work Foundation Vice President Patrick Semmens. “A favorable ruling for Raynell Teske and her colleagues could provide legal ammunition for future workers if the NLRB tries to force them to accept union officials for whom they never even had a chance to vote.”
Orange County Lifeguards Push for Rehearing of First Amendment Challenge to Union Scheme Trapping Them in Union Membership
Restrictions will trap lifeguards in union membership and full dues payments for almost four years after they opted out of union
Orange County, CA (May 16, 2022) – California lifeguard Jonathan Savas and 22 colleagues are pressing for a rehearing of their federal civil rights lawsuit before an en banc panel of judges of the U.S. Ninth Circuit Court of Appeals. Savas and the others are suing the State of California and the California Statewide Law Enforcement Association (CSLEA) union for violating their and their coworkers’ First Amendment right to abstain from forced union membership and compelled financial support.
Savas and his colleagues are asserting their rights under the National Right to Work Foundation-won 2018 Janus v. AFSCME U.S. Supreme Court decision, in which the Court declared that no public sector worker can be forced to bankroll a union without voluntarily waiving their First Amendment right to abstain from union payments.
A so-called “maintenance of membership” requirement enforced by CSLEA union bosses and the State of California is forcing the lifeguards to both remain union members and supply full dues payments to the CSLEA union against their will. Savas and the other plaintiffs sent messages resigning their union memberships and ending dues authorizations on or around September 2019, but union officials denied their requests, alleging they have to remain full members until 2023. Despite Janus, a three-judge panel of the Ninth Circuit ruled that this requirement does not violate the First Amendment.
Lifeguards’ Attorneys: ‘Maintenance of Membership’ Requirements Have Been Unconstitutional for Decades
Savas’ attorneys criticize the Ninth Circuit panel’s giving a pass to “maintenance of membership” requirements as contradicting Janus, and note that forcing dissenting employees to pay full union dues was unconstitutional even under Abood, the 1977 Supreme Court decision which Janus overruled. The lifeguards are receiving free legal representation from staff attorneys with the National Right to Work Legal Defense Foundation and the Freedom Foundation, along with Mariah Gondeiro of Tyler Bursh, LLP.
“The Supreme Court recognized decades prior to Janus, in Abood, that it violates the First Amendment for government employers and unions to require dissenting employees pay full union dues…If maintenance of membership requirements could not survive constitutional scrutiny under Abood,” Savas’ attorneys argue, the requirements are definitely foreclosed by the higher level of First Amendment protection applied in Janus.
Savas’ en banc request also refutes the Ninth Circuit panel’s claim that the lifeguards somehow “contractually consented to the maintenance of membership requirement.” Savas’ attorneys point out that the dues deduction authorization form that the lifeguards signed only vaguely alluded to the presence of the “maintenance of membership” requirement in the union contract with their state employer, and never explicitly informed the lifeguards what that requirement was.
On that same point, Savas’ attorneys point out that “the panel’s contract-law analysis is wrongheaded because Janus requires a constitutional-waiver analysis.” Janus requires that employees voluntarily waive their First Amendment right not to make dues payments before such payments are extracted. Savas’ attorneys state “[t]here is no evidence the Lifeguards knew of their First Amendment rights under Janus or intelligently chose to waive those rights.” Indeed, many of the lifeguards could not have known about those rights because they signed the dues deduction authorization forms before the Supreme Court decided Janus.
“Even if such evidence existed, any purported waiver would be unenforceable…because a four-year prohibition on employees’ exercising their First Amendment rights under Janus is unconscionable,” Savas’ attorneys continue.
Ninth Circuit Panel Ruling Completely Inconsistent with Janus, Rehearing Required
“So-called ‘maintenance of membership’ requirements have been unconstitutional for decades, and it’s outrageous that courts have looked the other way and allowed CSLEA union bosses to infringe Savas’ and his fellow lifeguards’ First Amendment rights under the guise of such restrictions for so long,” commented National Right to Work Foundation President Mark Mix. “A rehearing of Savas’ case is necessary so the plain meaning of Janus can be applied. Otherwise the Ninth Circuit will not only have ignored Janus, but turned back the clock over half a century on workers’ right to refrain from union membership.”
Case Closed: Nurse Prevails in 11-Year Legal Fight Over Forced Dues
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2022 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
100 Rhode Island hospital employees win refund of dues illegally seized for union lobbying
After over a decade of battling power-hungry UNAP union bosses in court, Jeanette Geary has secured not only refunds of dues seized for union politics, but a First Circuit decision clarifying non-members can never be charged for union lobbying.
WARWICK, RI – Jeanette Geary finally achieved a total victory in her 11-year legal battle against union bosses. She and 99 other current and former nurses at Kent Hospital in Rhode Island received refunds of forced dues that were illegally used to support union lobbying in state legislatures. Foundation attorneys represented Geary throughout her fight.
Geary’s journey began when she grew frustrated with United Nurses and Allied Professionals (UNAP) union bosses in her workplace. “I realized what the union was doing,” Geary explained. “The union leadership had no interest in nurses or our professional work. Their only interest was collection of dues and fees.”
Geary resigned her union membership, but union dues were still extracted from her paycheck because Rhode Island is a forced unionism state that lacks Right to Work protections. However, thanks to the Foundation-won CWA v. Beck Supreme Court decision, nonmember workers can only be forced to pay fees for union activities “germane” to union monopoly bargaining. They cannot be forced to pay the portion of dues that funds activities like union lobbying.
Nurse Harassed for Standing Up to Union Bosses
Geary demanded a breakdown of the union’s expenditures, but union bosses refused to give her a legally required independent auditor’s verification of how they calculated non-members’ reduced forced fees. Like many who speak up against union bosses, Geary became a target for union harassment. “They laughed at me. They had their workplace reps ridicule me on the job and tell me I could file grievances that would be thrown away and said so with a big smile,” Geary recalled.
In 2009, Geary filed federal charges against union officials. The trial revealed UNAP officials were charging non-member nurses for lobbying in state legislatures. Despite the Supreme Court’s clear mandate in Beck that non-members’ money could not be used to fund political causes, union lawyers argued the lobbying was “germane” to the union’s monopoly bargaining.
Thanks to delays caused by President Obama’s illegal recess appointments to the National Labor Relations Board (NLRB), Geary had to file two petitions with the U.S.
Court of Appeals in Washington, D.C., and didn’t get a final NLRB ruling for nearly a decade. Finally, in March 2019, the NLRB ruled 3-1 that union officials cannot charge non-members for lobbying of any kind. It also ruled that union officials must provide independent verification that the union expenses they force non-members to pay have been audited.
Union Bosses Ridiculously Claimed Some Union Lobbying Wasn’t Political
Union officials still wouldn’t abandon their argument that nonmembers could be forced to pay for some union lobbying as a condition of employment. Union lawyers appealed the NLRB’s decision to the U.S. Court of Appeals for the First Circuit. A three-judge panel that included retired Supreme Court Justice David Souter ruled unanimously in Geary’s favor, saying “we see no convincing argument that legislative lobbying is not a ‘political’ activity.”
Union officials made a last-ditch attempt to overturn the decision, requesting an en banc hearing by the entire Court of Appeals, but that request was denied. In September 2021, union bosses finally paid back, with interest, thousands of dollars taken from Geary and 99 other current and former Kent Hospital nurses who were not union members but were charged for the union’s lobbying, bringing the decade-long case to a close.
“Jeanette Geary faced workplace ridicule for her decision to stand up to union bosses, yet she persevered for eleven years,” said National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “In the process, she won important legal precedents that will protect thousands of other workers from having their money illegally used to fund union politics.”
Opposition Filed to Judge’s Order Imposing Culinary Union on Workers who Rejected Union in Secret Ballot Vote
Red Rock Casino workers vote against unionization, but nearly 2 years later judge ordered employer to bargain with union officials
Las Vegas, NV (August 24, 2021) – A large majority of the workers at Red Rock Casino in Las Vegas, Nevada voted “no” to unionization, but a federal district court judge is forcing their employer to bargain with union officials anyway.
The Casino is appealing the judge’s order at the U.S. Court of Appeals for the Ninth Circuit. Now Red Rock employee Raynell Teske has filed an amicus brief arguing the judge was wrong to impose the union on the workers, given the rejection of the union in the election. National Right to Work Legal Defense Foundation attorneys assisted Teske for free in filing the amicus brief with the appellate court.
In December 2019, the National Labor Relations Board held a secret ballot election whether to unionize Red Rock. A sizable majority of those voting rejected union officials’ effort to become their monopoly bargaining representatives. Despite that vote, NLRB Region 28 Director Cornele Overstreet filed a federal court injunction action seeking to have the union imposed over the workers’ objections.
On July 20, 2021, Judge Gloria Navarro agreed with the NLRB Director’s request, and issued a “Gissel” order forcing Red Rock to bargain with union officials despite the employees’ vote against unionization. The judge said the order was justified because, prior to the vote, union officials claimed that a majority of workers had signed union authorization cards.
Teske’s amicus brief argues those “card check” signatures are unreliable, and not reason enough to conclude the union ever had majority support. She contends the level of union support was tested fairly by the secret-ballot election, in which workers voted 627-534 against unionization. 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.
Unions themselves know that “card check” signatures do not indicate solid 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” is an insufficient legal basis for imposing unionization, especially after a secret ballot election in which the union lost. It agrees with the employer that the “Gissel” order should be overturned, and that Teske and her coworkers should not be subjected to monopoly bargaining by a union they rejected in an NLRB-supervised secret ballot election.
This is not the only case in which union bosses are battling casino employees in court. Red Rock’s parent company, Station Casinos, also owns Palms Casino in Las Vegas, where employees filed a petition to decertify union officials in March, 2021. Union lawyers blocked the petition with a slew of charges that were accepted by NLRB bureaucrats as reason to block the workers’ petition. The Palms Casino worker represented by National Right to Work Foundation attorneys who filed the petition is appealing the decision to block the vote he requested.
“Ms. Teske and her coworkers had good reasons to reject the union. It is outrageous that the judge’s order imposing unwanted unionization brushes aside the workers’ contrary preference clearly demonstrated in the secret ballot vote,” said National Right to Work Legal Defense Foundation President Mark Mix. “There have been countless examples of workers being 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.”
“If federal labor law is to be about defending the rights and freedoms of rank-and-file workers, then the Court of Appeals should promptly overturn Judge Navarro’s order substituting the wishes of NLRB bureaucrats for the actual choice workers made at the ballot box,” added Mix.
