Federal Board Adopts Foundation-Advocated Reform to Union Decertification Rules
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
National Mediation Board simplifies process for workers under Railway Labor Act to remove a union they oppose
At the Foundation’s urging, the NMB removed unnecessary hurdles and simplified the process for rail and airline employees to remove unpopular unions from their workplaces.
WASHINGTON, D.C. – In late July the National Mediation Board (NMB) issued its final rule simplifying decertification procedures under the Railway Labor Act (RLA). The change enables workers in the airline and railway industries to more easily vote to remove a union that lacks the support of a majority of workers.
Before the decision to simplify the process, the NMB used a confusing process that required individual employees to create a fake “straw man” union to replace the incumbent union as the monopoly representative. The decertification process is particularly important because under federal law RLA unions can force workers to pay union dues or fees as a condition of employment even where state Right to Work laws protect other employees from forced union dues.
New Straightforward Rule Vindicates Foundation Campaign for Reform
“The Foundation has long advocated this type of change in the union decertification process and we are pleased the NMB has – as we called upon it to do in comments filed earlier this year – finally made this commonsense reform,” National Right to Work Foundation Vice President Patrick Semmens said at the time.
The NMB’s final decision provides a straightforward procedure for the decertification of a union, meaning workers who do not want union representation won’t have to jump through the hoops of creating and voting for a “straw man” union just to decertify the union that currently has monopoly bargaining power over their workplace.
The NMB’s final rulemaking notice reads: “The Board believes this change is necessary to fulfill the statutory mission of the Railway Labor Act by protecting employees’ right to complete independence in the decision to become represented, to remain represented, or to become unrepresented.”
“This change will ensure that each employee has a say in their representative and eliminate unnecessary hurdles for employees who no longer wish to be represented,” the NMB continued.
The National Right to Work Foundation has long called for these rules to be updated. Foundation attorneys participated in the formal comment period process and appeared at a public hearing to address the NMB and deliver the Foundation’s position. The final rule specifically references the Foundation’s comments, vindicating its efforts in the rulemaking process.
Board Eliminates Confusing ‘Straw Man’ Election Rules
“The National Right to Work Legal Foundation (Right to Work) stated that the proposed change is ‘long overdue,’ and the [Notice of Proposed Rulemaking] is ‘needed to ensure that all employees have an equal and fair choice regarding union representation. The Board has statutory authority to adopt the proposed rules, and should do so as soon as possible,’” the NMB final rule reads.
The confusing rules previously forced individual employees to concoct a “straw man” union to replace the incumbent union as the monopoly representative. Once elected by a majority of the workers, the new “straw man” representative could disclaim collective representation, but was not legally required to do so.
“At long last the National Mediation Board is providing airline and railroad workers covered by the Railway Labor Act a straightforward way to remove unwanted union ‘representation’ through a direct decertification vote,” Semmens said.
“The previous system – in which workers had to create a ‘straw man’ union just to challenge an incumbent union – only served to stymie workers’ rights and demonstrated the historic bias of the NMB in favor of compulsory unionism,” said Semmens. “It wasn’t until the Foundation-won case of Russell v. NMB in 1983 that workers even had an established legal right to throw off their union ‘representative,’ albeit only through the unnecessarily complicated “straw man” system which is finally being replaced with a simplified process to allow workers to exercise that right.”
In addition to submitting the formal comments in May, veteran Foundation staff attorney Glenn Taubman testified in favor of the rule change at the NMB hearing in late March.
General Motors Employee Hits UAW Union Bosses with Federal Unfair Labor Practice Charge for Illegal Discrimination
Charge: UAW officials illegally discriminated against nonmember worker causing GM to block possible promotion
Lansing, MI (September 18, 2019) – General Motors (GM) employee Joseph Small has filed an unfair labor practice charge against the United Auto Worker (UAW) Local 652 union with free legal aid from the National Right to Work Legal Defense Foundation.
According to the charge filed with the National Labor Relations Board (NLRB) by National Right to Work Foundation staff attorneys, union officials interfered in the interview and hiring process for an opening at GM for which Small had applied. Union officials later admitted the position went to a union member instead of Small because Small had exercised his legal right to refrain from union membership and from paying union dues.
This discrimination against Small by UAW union officials violates his legal rights under the National Labor Relations Act (NLRA). The NLRA outlaws discrimination by union officials against workers who elect to refrain from union activity. Small exercised his rights under Michigan’s Right to Work law, which not only allows workers to decline union membership but allows workers to stop any payment of union dues or fees as a condition of employment.
The unfair labor practice charge by Small comes as UAW officials have ordered a nationwide strike against GM affecting over 40,000 workers. The Foundation has issued a special notice to GM employees informing them about how to exercise their legal rights to refrain from participating in the strike and return to work.
The notice can be found here: www.nrtw.org/UAW-GM
Meanwhile, UAW officials have been caught up in an expanding corruption and embezzlement scandal that has resulted in numerous indictments, with the FBI reportedly recently raiding the home of current UAW President Gary Jones just weeks ago. In a separate case brought Foundation staff attorneys, the NLRB issued a decision earlier this month holding that UAW officials illegally seized dues from a Ford Motors employee’s paycheck while ordering the union to return the funds.
“UAW union officials continue to show a willingness to break the law, even violating the rights of the very workers they claim to represent,” said National Right to Work Foundation President Mark Mix. “Whether it be federal corruption prosecutions or unfair labor practice charges at the NLRB, UAW bosses must be held accountable when they break the law.”
Blog Post: Big Labor-Backed Senator Pushing Double Standard on NLRB Recusals
In a recent post on the Federalist Society website, National Right to Work Legal Defense Foundation Vice President Legal Director Ray LaJeunesse responded to demands by Senator Elizabeth Warren (D-Mass) that Trump’s lone remaining current NLRB nominee recuse himself from numerous potential cases:
“Senator Elizabeth Warren (D-Mass.) has suggested that Emanuel should ‘also sit out any case involving the hotly contested question of whether employers can force their workers to sign class action waivers,’ because he ‘has represented parties on the class action waiver issue in a case before the board, . . . his firm is counsel in a number of others . . . and he has also co-written briefs in U.S. Supreme Court cases arguing that the agreements aren’t unlawful restraints on employees’ right to engage in collective activity.’ (Emphasis added.)
However, unless the standards for recusal are more stringent for nominees of President Trump than they were for nominees of President Barack Obama, Emanuel can ethically ignore Senator Warren’s suggestion and need not recuse himself in all class-action waiver cases, even though that is a ‘hotly contested’ issue.”
The post goes on to cite Obama NLRB Member Craig Becker, who refused to recuse himself from a case to end protections for employees who had union monopoly bargaining imposed through the coercive and unreliable “card check” scheme. The Foundation’s press release on that case can be found here. Becker had previously weighed in on the issue as counsel for the AFL-CIO but that didn’t stop him from recusing himself when the NLRB voted 3-2 to end employees’ ability to force a secret ballot vote after a union was installed through card check.
To read the whole post, please click here.
Verizon Worker Hits CWA Union Officials with Labor Board Charges for Illegal $22,000 Retaliatory Fine
Union officials continue to illegally levy fines against Verizon employees who exercised right to work despite union boss-initiated strike
New York, NY (July 31, 2017) – A Brooklyn Verizon employee has filed a federal unfair labor practice charge against Communications Workers of America (CWA) union officials for violating federal labor law after she exercised her right to resign her union membership during a high-profile strike in May 2016. The charge was filed with the National Labor Relations Board (NLRB) with free legal assistance provided by National Right to Work Legal Defense Foundation staff attorneys.
In April 2016, CWA union officials began a coordinated work stoppage at Verizon facilities and ordered workers up and down the East Coast, from Massachusetts to Virginia, to abandon their jobs. CWA Local 1109, which is the subject of the ULP charges, participated in the multi-state strike.
Soon after CWA union officials ordered the strike, Verizon worker Pamela Ivy, who filed the unfair labor practice charges, returned to work on April 16. On April 19, she officially resigned union membership in a letter mailed to union officials. Under federal law, workers cannot be compelled to join a union-boss ordered strike.
However, under a 1972 National Labor Relations Board (NLRB) ruling, workers must resign their formal union membership before to returning to work to protect themselves from court-enforceable union fines. Despite the fact that Ivy resigned on April 19, union officials are attempting to fine her for working after that date. Specifically, it has fined her approximately $22,000 for working through the end of May.
“Once again union officers are blatantly violating the rights of the very workers they claim to represent,” said Mark Mix, President of the National Right to Work Foundation. “It is outrageous that union officials are resorting to this type of ugly retaliation to ‘punish’ workers who chose to return to work in order to provide for themselves and their families.”
“The Foundation has successfully defended a number of Verizon workers in the New York area who were also threatened with sham trials and five-figure illegal fines, and we are eager to assist them and any other workers in defending their workplace rights,” added Mix.
Before this case, Foundation staff attorneys have defended fifteen Verizon workers from retaliation by CWA and IBEW union officials after the April 2016 East Coast strike. Seven of those workers were fined up to $14,000 each for exercising their federally protected rights. The remaining eight were threatened by union bosses with “union discipline” that would have resulted in similar fines. In eleven of those cases, union officials have already been forced to settle with the workers and rescind the illegal strike fines and threats.
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Kentucky Workers Win Motion to Intervene to Defend Bluegrass State Right to Work Law
National Right to Work Foundation staff attorneys help Kentucky workers defend law to ensure union membership and dues payment remain voluntary
Frankfort, KY (July 26, 2017) – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, a group of Kentucky workers have won a motion to intervene in the recently filed Big Labor-backed lawsuit attacking Kentucky’s new Right to Work law.
“This ruling ensures that Kentucky workers, whose rights are protected by Kentucky’s new Right to Work law, can participate in the defense of the law,” said Patrick Semmens, Vice President of the National Right to Work Legal Defense Foundation. “Kentucky union bosses are offering spurious legal arguments in an attempt to restore their power to have workers fired for refusing to pay part of their hard-earned paycheck to a union they don’t support, and this ruling ensures that the Court will hear from pro-Right to Work Kentucky employees.”
For more information please refer to our June 29, 2017 press release on the motion to intervene.
Michigan Welder Forces UAW Bosses to Settle Case for Illegal Discrimination and Retaliation
Ludington, MI (July 21, 2017) – With free legal assistance from National Right to Work Foundation staff attorneys, Richard Dettman, a Ludington, MI welder, has won a settlement against United Autoworkers, Local 811 (UAW, Local 811) union officials and his employer Harsco Rail. The settlement dictates that Union officials and Harsco amend their collective bargaining agreement, as well as pay additional wages to Mr. Dettman for hours, worked between March 13 and April 23, 2017.
Since 1992, Dettman has worked as a Harsco welder and was a UAW member, but in February 2017 he exercised his right to resign his union membership. He had achieved “Journeyman” status because of his long tenure, which guaranteed him a $0.75 per hour premium based on the workplace contract. An employee’s “Journeyman” card is granted after years of apprenticeship or completion of work related qualifications.
Shortly after his resignation, union officials retaliated against Dettman by stripping him of his “Journeyman” card, and Harsco Rail lowered his wages under the union boss-negotiated monopoly bargaining contract. This violated not only the National Labor Relations Act but is contrary to Michigan’s Right to Work protections.
In response to the illegal retaliation, Dettman filed federal unfair labor practice charges against both the UAW and Harsco with the National Labor Relations Board, utilizing free legal representation from National Right to Work Foundation staff attorneys. Faced with clear evidence that they had violated Dettman’s legal rights, UAW and Harsco officials settled the case.
Harsco and UAW officials agreed to pay Dettman back wages for hours worked during March-April 2017. But the case was also a victory for all Harsco employees. Harsco and Union officials amended their monopoly bargaining agreement to respect Michigan’s Right to Work law. The agreement now allows any employee, union affiliated or not, to apply for and receive the Journeyman premium if they meet certain requirements.
“Rather than operating as an organization workers would want to join voluntarily, UAW officials resorted to illegal tactics against a worker who bravely exercised his rights under Michigan’s Right to Work law,” said Mark Mix, President of the National Right to Work Foundation. “As this case shows, passing Right to Work laws is only the first step in protecting the workplace rights of all workers. Without stringent enforcement of the law, greedy union bosses will do everything they can, including lowering workers’ wages, to stop workers from exercising their rights and resigning their union membership.”
Missouri Workers Ask MO Supreme Court to Review Misleading Anti-Right to Work Ballot Language
Workers opposed to forced union dues appeal ruling allowing deceptive ballot language for union boss-backed constitutional amendments
St. Louis, MO (July 13, 2017) – Yesterday, National Right to Work Legal Defense Foundation staff attorneys filed an appeal for a group of Missouri workers asking the state Supreme Court to review a lower court decision permitting misleading ballot language on a series of union boss-backed constitutional amendments designed to overturn the state’s recently enacted Right to Work law.
On June 27, 2017, the Missouri Court of Appeals overturned a lower court’s ruling on potential 2018 ballot amendments, determining that most of the amendments addressing the Right to Work law enacted in February adequately described the ballot propositions, even though none mentioned the recently-passed Right to Work law.
In December, Mike Louis, the Missouri AFL-CIO’s top official, submitted to the Missouri Secretary of State ten proposed amendments to the state constitution. Each seeks to overturn Missouri’s Right to Work law enacted in February. These amendments contain language that is confusing and misleading.
The language was approved by outgoing Secretary of State Jason Kander, who ran a failed U.S. Senate campaign that was funded by hundreds of thousands of dollars in union contributions. He approved the ballot language just hours before vacating office, ignoring the fact that none of the petitions even mentioned the Right to Work law that they are designed to nullify. One or more of the amendments could appear on the 2018 ballot if union organizers obtain a sufficient number of signatures.
Foundation staff attorneys argued that Kander’s summary statements contained misleading and insufficient language. In March, Judge Jon Beetem of the Cole County Circuit Court agreed, ruling that the proposed language was “unclear and insufficient” to accurately reflect that the amendments — if passed — would nullify the Right to Work law. Judge Beetem re-wrote the summary statements to provide a balanced and accurate description of the effect of the proposed amendments.
However, Judge Beetem’s decision was overturned by the Missouri Court of Appeals. The appellate court ruled that Kander’s summary statements for eight of the ten amendments contained sufficient language, while two needed minor revisions. The court also noted that it was an unusual case as it was the first occurrence of the legislature enacting a law that was simultaneously being addressed by the Secretary of State.
If any of the Big Labor-backed constitutional amendments are put on the ballot and approved by the voters, they would repeal the new Right to Work law and block future passage of any state legislation to protect workers from mandatory union fees. Any future attempt to pass Right to Work would first require another amendment of the state constitution.
“Big Labor continues to resort to any tactic in an attempt to block Missouri’s new Right to Work law,” said Mark Mix, President of the National Right to Work Foundation. “Big Labor knows that the citizens of Missouri believe it is wrong for an employee to be fired simply for refusing to pay union dues or fees to a union boss. That’s why the union bosses are so intent on confusing voters about their goal of restoring their forced dues powers.”
National Right to Work Foundation staff attorneys are also assisting Missouri employees in challenging misleading language in a repeal referendum being pushed by Missouri union bosses. In that case, not only was the Secretary of State’s language misleading, but it also included grammatical errors, something the judge noted when he rewrote it in that case.
Kentucky Workers Move to Defend Bluegrass State Right to Work Law
National Right to Work Foundation staff attorneys help Kentucky workers defend law to ensure union membership and dues payment remain voluntary
Frankfort, KY (June 29, 2017) – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, a group of Kentucky workers has filed a motion to intervene in the recently filed union-backed lawsuit attacking Kentucky’s new Right to Work law.
These pro-Right to Work Kentuckians wish to intervene to defend the law because their rights are at stake as workers’ who could be forced to pay union dues or fees without the protections of the Right to Work law which was signed into law in January. In addition to protecting workers freedom of choice when it comes to financial support for union activities, the law has been cited as a reason for historic levels of investment and job creation in the Commonwealth in the months since its passage.
The workers have chosen to intervene to support the law because they believe that it is their right to be free from compulsory unionism, and as workers currently employed in Kentucky, they may suffer from direct harm if union lawyers win their case. In the workers’ motion, National Right to Work Foundation staff attorneys argue that various union claims to overturn the Right to Work law have been correctly rejected by courts in other states.
Although the State of Kentucky is already defending the law in the case, the motion notes that these workers have a special interest in defending Right to Work and their attorneys can offer legal arguments distinct from those raised by state lawyers.
“Big Labor’s newest attack on the Right to Work comes in a state where there is dramatic support for the measure, and where the citizens are already starting to see the benefit of living in a Right to Work state,” said Mark Mix, President of the National Right to Work Foundation. “That’s why we’re committed to defending the rights of workers against any attempt to block or overturn Kentucky’s law making union membership and dues payment strictly voluntary.”
“Big Labor lawyers have been working overtime in recent years, unsuccessfully attempting to slow the spread of Right to Work and restore union bosses’ forced-dues powers,” continued Mix. “If union bosses spent more time making workers want to join a union voluntarily instead of seeking legal loopholes to keep them trapped into paying dues, maybe they wouldn’t fear the choice that Right to Work provides workers so much.”
Minnesota Court Employees File Federal Lawsuit Challenging Public Sector Forced Union Dues
Workers’ case follows up on Supreme Court split on constitutionality of mandatory union fees for government employees
Minneapolis, MN (June 8, 2017) – Assisted by National Right to Work Legal Defense Foundation staff attorneys, two Minnesota court employees are filing a lawsuit in federal court challenging the constitutionality of public sector union officials’ forced dues powers. The case being filed today argues that the state requirement that the plaintiffs pay union fees as a condition of government employment violates the First Amendment.
Carrie Keller is a Court Administrative Assistant, and Elizabeth Zeien is an Accounting Technician; both are employed by the State of Minnesota Court System. When they started working for the State, neither was a union member, and they both negotiated their own terms and conditions of employment and salaries, free from union interference.
In 2015, union officials started proceedings to force a number of state employees who were not in monopoly bargaining units into union ranks, where they could be required to pay union dues and fees. Ultimately, in March 2017, Minnesota state officials complied with the Teamsters’ demands and added a number of employees, including Keller and Zeien, to a Teamsters controlled bargaining unit without the employees’ permission or desire. Keller, Zeien and the other employees were never given a vote on whether they should be part of the union bargaining unit, and they objected to the new scheme.
Before being summarily forced under the union contract, Keller and Zeien had negotiated pay scales and benefits for themselves that equaled or exceeded what they received under the union-mandated contract. The lower compensation under the union contract and the imposition of mandatory union fees led Keller and Zeien to approach the National Right to Work Foundation for assistance in challenging the forced unionization scheme.
“These two workers were happily working and successfully representing themselves in dealing with their employer until Teamsters officials sought to bolster they forced dues ranks even though it meant a step back in their working conditions,” said Mark Mix, president of the National Right to Work Foundation. “This case is a prime example of the power of worker freedom being destroyed by union boss interference and why it is wrong to force employees to pay money to a union for representation they don’t want and never asked for.”
Nearly 40 years ago, the Supreme Court ruled in Abood v. Detroit Board of Education that public-sector workers could be compelled as a condition of employment to pay union fees. However, in two recent National Right to Work Foundation-won Supreme Court decisions, Knox v. SEIU (2012) and Harris v. Quinn (2014), the High Court suggested it is ready to revisit the 1978 precedent in Abood, expressing skepticism about the constitutionality of public sector union officials’ forced-dues privileges.
National Right to Work Foundation staff attorneys currently have seven other ongoing cases challenging the mandatory union payments as a violation of the First Amendment, including Janus v. AFSCME – on behalf of a Illinois government employee Mark Janus who is forced to pay fees to AFSCME union officials – which is currently before the Supreme Court on a petition for certiorari.
