Foundation comments expose flimsy statutory foundations of proposed rule, also show it violates federal workers’ First Amendment Janus rights

Washington, DC (January 25, 2023) – The National Right to Work Foundation just filed comments at the Federal Labor Relations Authority (FLRA), opposing the agency’s plan to restrict federal employees’ right to stop unwanted union financial support for over 99 percent of the year.

The FLRA announced in December 2022 the proposed rule, which would rescind a 2020 regulation that permits federal employees to stop union dues deductions from their paychecks any time after one year from the date employees authorize such deductions. Foundation attorneys in 2020 filed comments supporting the current regulation that eliminated an FLRA-created limit on federal workers’ legal right to stop union payments.

The Foundation’s comments argue that the slated rule would return the FLRA to an incorrect interpretation of federal law in which dues deductions are “perpetually irrevocable for consecutive years,” except for one day to opt out between yearly periods. The Foundation points out that the statute simply says that dues deduction authorizations “may not be revoked for a period of 1 year,” (emphasis added) not multiple “periods,” which lets employees quit dues deductions any time after an initial yearlong period of irrevocability. Subsequent yearly restrictions, Foundation attorneys argue, are not supported by the statute.

Such a flawed interpretation would trap employees into subsidizing an entire year of unwanted union “representation” and expenditures merely because they miss the arbitrary one-day opt-out deadline. “The Authority will violate [federal law] if it . . . decrees that dues deduction assignments can be made irrevocable for multiple yearly periods,” the comments say.

Biden FLRA Rule Change Will Block Federal Employees’ First Amendment Janus Rights

The Foundation also points out that the 2020 rule lets federal employees exercise their First Amendment rights recognized in the 2018 Foundation-won Janus v. AFSCME Supreme Court decision to the greatest extent possible under the governing federal law. In Janus, the Court ruled that all American public sector workers have a First Amendment right to refrain from paying dues to an unwanted union, and that union dues deductions from a public sector worker’s paycheck can only occur with his or her affirmative consent.

If the Biden FLRA rescinds the 2020 rule and makes union dues deductions irrevocable for consecutive yearly periods, the federal government would be allowed to “disregard its employees’ wishes and continue to seize monies from their wages for a cause they oppose,” the comments read. That would be a blatant violation of the First Amendment principles recognized in Janus.

The 2020 rule instead sought to bring the dues deduction statute in line with Janus’ First Amendment standard “by construing the irrevocability period in [federal law] to be as short as possible,” the comments say.

The comments also refute union officials’ claims that rescinding the 2020 rules is necessary to maintain union financial interests and protect employee choice. The comments point out that union financial interests do not trump the right of workers to stop unwanted union financial support, and that eliminating the greater freedom to do so provided by the 2020 rule cannot possibly safeguard employee free choice.

“The Federal Labor Relations Authority, now stocked with union-label Biden appointees, is moving to limit the rights of rank-and-file workers just to give federal union bosses expanded powers to seize union dues over the objections of the workers they claim to represent,” commented National Right to Work Foundation President Mark Mix. “All American public sector workers have a First Amendment right under Janus to freely make this choice, and by changing the rules the FLRA will deliberately undermine the constitutional rights of the federal workforce.”

Union sought to interrogate teenage cashier over his religious beliefs after he asserted his rights and presented religious objections to supporting the union

Pittsburgh, PA (January 17, 2023) – North Huntingdon Giant Eagle employee Josiah Leonatti – a high school student – has filed federal discrimination charges against the United Food and Commercial Workers (UFCW) Local 1776KS union. He maintains that union officials refused to consider his religious beliefs after he expressed religious objections to joining and paying dues to the union. Union officials, according to his charges, subjected him to an illegal “religion test” to determine whether his religious beliefs count.

Leonatti is receiving free legal aid from National Right to Work Legal Defense Foundation staff attorneys, who filed charges for him against the union at both the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB). They also filed charges against Giant Eagle for firing him after he asked for a religious accommodation. Giant Eagle falsely told him that he must join the union to keep his job.

Leonatti charges that the UFCW union and Giant Eagle are breaching Title VII of the Civil Rights Act of 1964, as well as the National Labor Relations Act (NLRA). Title VII requires unions and employers to accommodate employees who have religious objections to joining or supporting a union. The NLRA also prohibits forced union membership regardless of a worker’s reason for not wanting to affiliate with a union. Leonatti’s Title VII claims will be investigated by the EEOC; the NLRB will handle his NLRA claims.

Pennsylvania’s lack of Right to Work protections means that union officials may force private sector workers in unionized workplaces, like Leonatti, to pay them fees or be fired. Under federal law, employees with religious objections cannot be compelled to pay such fees. Right to Work states broaden that protection; in Right to Work states, no worker can be fired for refusal to join or financially support a union no matter the reason for objecting to subsidizing union activities.

High School-Age Employee Dismissed After Presenting Religious Objection

Leonatti’s charges report that he attended employee training last year as a cashier trainee. There an official told new hires that they “must sign papers to join the United Food And Commercial Workers.” According to the NLRB charges, “No other options were even hinted at.”

After reviewing the papers with his family, Leonatti’s charges explain, he mailed a letter to UFCW officials detailing his sincere religious objections to joining and supporting the union. He also presented the same letter in person at training. Rather than accommodate his sincere religious beliefs, a company official “dismissed [Leonatti] from training and sent [him] home.” The same official later called Leonatti and told him that union membership is compulsory at Giant Eagle, and the grocery store had terminated him over his refusal to join.

UFCW officials also responded to Leonatti’s letter by mail on November 10, rejecting the written explanation of Leonatti’s religious objection and demanding he “complete its religious examination” before they even considered granting him an accommodation. Even if he passed this “test,” the charges say, union officials threatened that he would still have to pay an amount equal to full UFCW union dues to a charity.

A religious test is forbidden by federal law. The Supreme Court ruled in its 1981 Thomas v. Review Board of the Indiana Employment Security Division decision that “religious beliefs need not be…comprehensible to others in order to merit First Amendment protection.”

Leonatti’s father called Giant Eagle’s HR department, according to the charges, to gain more clarity. A Giant Eagle employee reiterated that employment depended on union membership. After missing several weeks of work because the store had terminated him, Leonatti got an email from Giant Eagle inviting him to return to work.

To date, however, no Giant Eagle agent ever offered or discussed a religious accommodation with Leonatti, and the union has not retracted its threats or agreed to accommodate.

Employee Seeks Re-Training for Accommodation-Denying Union Officials

Leonatti’s EEOC charges seek to compel the UFCW union and Giant Eagle to provide him a legally-required religious accommodation. In addition, the NLRB charges state that relief must include unit-wide information and corporate retraining, among other remedies.

“Union bosses’ attempt to coerce a high schooler to violate his religious beliefs is unconscionable, and illegal,” commented National Right to Work Foundation President Mark Mix. “We’re proud to support Mr. Leonatti as he defends his rights, but this should serve as a stark reminder that all Americans deserve Right to Work protections. Regardless of their particular reasons for not wanting to affiliate with a union, no employee’s job should hinge on whether he or she pays dues to a private organization.”

District Court ordered Southwest to announce that airline may not discriminate on basis of religion; airline instead effectively denied wrongdoing despite jury verdict

Dallas, TX (January 9, 2023) – With free legal aid from National Right to Work Foundation attorneys, Southwest Airlines flight attendant Charlene Carter is seeking sanctions against Southwest for flouting the U.S. District Court for the Northern District of Texas’ decision in her case. Carter sued both Transport Workers Union (TWU) Local 556 and Southwest in 2017 for firing her over opposing the union’s political stances – a violation of both the Railway Labor Act and Title VII of the Civil Rights Act.

The District Court in December 2022 ordered Southwest and the union to give Carter the maximum amount of compensatory and punitive damages permitted under federal law, plus back-pay, and other forms of relief that a jury originally awarded following Carter’s victory in a July trial. The Court also mandated that Southwest reinstate Carter, ruling that only requiring Southwest and the TWU union to pay out future monetary damages to Carter “would complete Southwest’s unlawful scheme” of firing dissenting employees.

Carter’s latest motion calls on the District Court to impose sanctions against Southwest for releasing a misleading “Recent Court Decision” notice to its roughly 17,000 flight attendants, arguing that the notice papers over the airline’s significant rights violations found by the Court. The notice states that Southwest “does not discriminate” against its employees based on religious belief, despite the Court’s finding that Southwest did discriminate against Carter on religious grounds. The motion also says Southwest’s notice fails to make a court-ordered announcement that the airline is forbidden from discriminating in the future.

Foundation attorneys also contend that an “Inflight Information On The Go” memo the airline issued chills flight attendants’ religious expression, beliefs, and practices. The memo implies that Southwest will be the final arbiter of what kind of religious speech is acceptable in the workplace, while characterizing Carter’s speech challenging the TWU union’s political positions as “inappropriate, harassing, and offensive,” and thus worthy of punishment.

The motion asks the District Court to find the airline in contempt so it can issue monetary sanctions against Southwest, and further order the airline to immediately issue corrective notices.

Flight Attendant Called Out Union Officials for Their Political Activities

As a Southwest employee, Carter joined TWU Local 556 in September 1996. A pro-life Christian, she resigned her membership in September 2013 after learning that her union dues were being used to promote causes that violate her conscience and have nothing to do with her work.

Carter resigned from union membership, but was still forced to pay fees to TWU Local 556 as a condition of her employment. State Right to Work laws do not protect her and her fellow flight attendants from forced union fees because airline and railway employees are covered by the federal Railway Labor Act (RLA). The RLA allows union officials to have a worker fired for refusing to pay union dues or fees. But it does protect the rights of nonmembers of the union who are forced to associate with a union, including the rights to criticize the union and its leadership, and advocate for changing the union’s current leadership.

In January 2017, Carter learned that Audrey Stone, the union president, and other TWU Local 556 officials used union money to attend the “Women’s March on Washington D.C.,” which was sponsored by political groups she opposed, including Planned Parenthood.

Carter, a vocal critic of Stone and the union, took to social media to challenge Stone’s leadership and to express support for a recall effort that would remove Stone from power. Carter also sent Stone a message affirming her commitment to both the recall effort and a National Right to Work law after the union had sent an email to employees telling them to oppose Right to Work.

After Carter sent Stone that email, Southwest managers notified Carter that they needed to have a mandatory meeting as soon as possible about “Facebook posts they had seen.” During this meeting, Southwest presented Carter screenshots of her pro-life posts and messages and questioned why she made them.

Carter explained her religious beliefs and opposition to the union’s political activities. Carter said that, by participating in the Women’s March, President Stone and TWU Local 556 members purported to represent all Southwest flight attendants. Southwest authorities told Carter that President Stone claimed to be harassed by Carter’s messages. A week after this meeting, Southwest fired Carter.

Flight Attendant Wins Jury Verdict and District Court Decision

In 2017, Carter filed her federal lawsuit with help from Foundation staff attorneys to challenge the firing as an abuse of her rights, alleging she lost her job because of her religious beliefs, standing up to TWU Local 556 officials, and criticizing the union’s political activities and how it spent employees’ dues and fees. In July 2022, she won a federal jury verdict awarding millions of dollars in damages for Southwest’s and TWU’s violations of her rights, and in December 2022 the District Court issued its judgment in her favor.

“First, Southwest Airlines violated Charlene Carter’s rights by firing her at the union’s behest. Now, the airline is doubling down by misleading other workers about its wrongdoing in defiance of a federal court order,” commented National Right to Work Foundation President Mark Mix. “Foundation attorneys will continue to defend Ms. Carter’s rights, and will ensure that Southwest’s attempts to dodge the requirements of the decision in her favor will not go unopposed.”

Union and CVS face federal charges after UFCW officials initiated firing of worker who exercised legal right to refrain from union membership

Chicago, IL (December 22, 2022) – Evanston CVS employee Lynn Gray has won reinstatement after United Food and Commercial Workers (UFCW) Local 881 union officials had her illegally fired for refusing to join the union. Gray received free legal aid from National Right to Work Legal Defense Foundation staff attorneys.

Gray filed federal unfair labor practice charges on December 16 at the National Labor Relations Board (NLRB) against both the union and her employer, stating that CVS management illegally fired her after UFCW officials sent her letters threatening termination if she did not become a union member. The National Labor Relations Act (NLRA), the federal law the NLRB is responsible for enforcing, forbids union bosses from having workers fired for refusing formal union membership.

Almost immediately after Gray filed the charges with free Foundation legal representation, CVS reinstated her, likely knowing that the union-initiated termination was a clear violation of federal law.

Although forced union membership is prohibited under the NLRA, Illinois lacks Right to Work protections for its private sector workers, meaning union bosses can force workers under their control to pay them money just as a condition of staying employed. However, the 1988 CWA v. Beck Supreme Court decision won by Foundation attorneys prevents union officials from forcing nonmembers to pay for any activities beyond the union’s bargaining functions, such as political and ideological expenses.

In contrast, in states with Right to Work protections (including Illinois’ neighbors Iowa, Wisconsin, Indiana, and Kentucky), no worker can be fired for refusal to pay money to unwanted union officials.

Employee Paid Union Dues Under Protest, But UFCW Bosses Still Ordered Firing

Gray’s charge says she began working part-time shifts at the CVS in early October. In late November she received a letter from UFCW union officials stating that she needed to pay full union dues to keep her job, and alleging that she already owed nearly $200 in back union dues. Gray responded on December 5, sending the amount that the union declared she owed but clarifying that she was doing so “under protest and solely to protect my job with CVS.”

“Please note that the enclosed payment in no way indicates my consent to becoming a member of UFCW or any of its affiliates,” Gray’s letter read. She also demanded the union provide her the calculation for the amount they claimed she owed.

Union officials at no point informed Gray of her rights under Beck to pay reduced union dues as a nonmember, or her right to abstain from union membership.

Although a union official acknowledged the receipt of her letter, CVS management contacted Gray only days later to tell her that she had been terminated at union officials’ behest. With Foundation legal aid, Gray filed federal charges against the union and CVS on December 16. Her charge sought an NLRB 10(j) injunction, which if granted would let a court order her immediate reinstatement.

Before NLRB officials could take any action on her charge, however, CVS officials hastily reinstated Gray on December 19.

Foundation President: Forced Dues Are Always Wrong, Even in Non-Right to Work States

Foundation staff attorneys earlier this year aided another Illinois employee, Murphysboro Penn Aluminum International employee Mary Beck, after International Brotherhood of Electrical Workers (IBEW) union officials threatened to fire her for refusal to pay union fees. Foundation attorneys argued that the union officials’ contract was so sloppily written that it didn’t even let IBEW bosses enforce their legal privilege (due to Illinois’ lack of a Right to Work law) to force Beck to pay some money to the union just to keep her job.

“Union officials in non-Right to Work states like Illinois have a tendency to play fast and loose with workers’ rights and livelihoods. That’s because the core assumption behind the laws in those states is that union officials’ ability to stock their coffers should trump worker free choice,” commented National Right to Work Foundation President Mark Mix. “While Beck and other Foundation-won court decisions provide at least a check on that privilege in non-Right to Work states, every American worker deserves Right to Work protections so workers can make up their own minds about whether union officials have earned their support.”