Brief argues union boss schemes limiting dues revocations to short periods violate the High Court’s landmark Janus v. AFSCME 2018 decision

Washington, DC (March 19, 2021) – Five public employees forced to pay union fees by dues deduction schemes have just submitted an amici curie brief urging the U.S. Supreme Court to hear Belgau v. Inslee. The amici are Chicago public school employees Ifeoma Nkemdi and Joanne Troesch, University of California Santa Barbara employee Cara O’Callaghan, Maumee City (Ohio) School District employee Chelsea Kolacki, and Springfield (Ohio) Local School District employee Michelle Cymbor, all of whom have been subjected to First Amendment violations similar to those at issue in Belgau.

The brief was submitted for the five public employees by staff attorneys with the National Right to Work Legal Defense Foundation, Liberty Justice Center, and Buckeye Institute.

Belgau is a class-action case in which a group of Washington State employees are challenging a union boss-created arrangement that limits to a 10-day per year “escape period” employees’ ability to exercise their First Amendment right to refrain from subsidizing a union. The right of public sector employees to refrain from paying union dues was guaranteed to them by the 2018 Janus v. AFSCME Supreme Court decision.

Mark Janus, a former Illinois child support specialist and plaintiff in the landmark 2018 case, was represented at the Supreme Court by attorneys from both the Foundation and Liberty Justice Center, with Foundation attorney Bill Messenger presenting oral argument.

In Janus, the Supreme Court ruled that compelling public workers to pay union dues or fees as a condition of employment violates their First Amendment rights. The Court also held that union dues or fees can only be taken from public workers’ paychecks if they clearly and affirmatively waive their right not to pay, with Justice Samuel Alito writing in the Court’s decision that “such a waiver cannot be presumed.”

In Belgau, lead plaintiff Melissa Belgau and six other Washington State employees sued Washington Governor Jay Inslee and the Washington Federation of State Employees (WFSE) union for enforcing an unconstitutional “escape period” scheme. The plaintiffs all resigned their memberships and asked to cut off dues just a couple months after Janus was decided, but dues continued to be seized from their paychecks under the restrictive policy.

Their lawsuit demands that the state and union officials cease blocking workers from exercising their First Amendment right not to financially support the union, and that the union refund all dues seized from any worker who sought to end dues deductions after the Janus decision, but was denied under the policy. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled against the workers in September.

The five employees’ amici brief encourages the Supreme Court to hear Belgau because the Ninth Circuit’s ruling flouted the High Court’s Janus decision by finding that it is “constitutional for a state and a union” to keep seizing “payments for union speech from objecting, nonmember employees” until an arbitrary 10-day period. The brief contends that the Constitution does not allow “states and public-sector unions” to “prohibit employees from exercising their First Amendment right to refrain from subsidizing union speech for 355-56 days of every year.”

Staff attorneys from the National Right to Work Foundation and Liberty Justice Center are currently litigating more than thirty Janus-related cases, including seven jointly. Buckeye Institute attorneys are litigating two such cases, including one challenging monopoly union representation that is currently pending at the Supreme Court.

“It is outrageous to claim that any government or public sector union boss policy can limit a worker’s constitutional rights to just ten days each year,” said National Right to Work Legal Defense Foundation President Mark Mix. “The Supreme Court needs to take up this issue to affirm that its Janus ruling protects public employees every day of the year.”

Worker’s attorneys argue Biden-installed Peter Ohr has no authority to force inadequate settlement in blatant attempt to shield union from NLRB ruling

Washington, DC (March 17, 2021) – West Virginia-based Kroger employee Shelby Krocker has filed an opposition to National Labor Relations Board (NLRB) Acting General Counsel Peter Ohr’s attempt to shut down her case, which charges the United Food and Commercial Workers (UFCW) Local 400 union with maintaining illegal dues checkoffs and taking dues money pursuant to those checkoffs.

The opposition was filed with free legal aid from National Right to Work Legal Defense Foundation staff attorneys. It was submitted in response to Ohr’s joint motion with the union to remand the case to NLRB Region 6 in Pittsburgh to impose a settlement designed to shield the union from being forced to provide a full remedy.

Foundation attorneys argue that Ohr’s maneuver is forbidden by NLRB rules and that Ohr is attempting to undermine the Board’s authority. They also argue that Ohr lacks authority because President Biden installed Ohr after firing his predecessor, Peter Robb, without any legal basis.

Krocker initially charged the union with illegally demanding employees sign dues checkoff authorization forms for the deduction of union dues from employee paychecks. The checkoff form union officials used blatantly misleads workers about their rights by prominently stating it “MUST BE SIGNED” in large print.

Krocker’s charge also maintains that union officials unlawfully rebuffed her request to cut off union dues. Because West Virginia has Right to Work protections for its workers, Krocker can’t be legally forced to fund union boss activities as a condition of keeping her job.

NLRB Region 6 initially dismissed Krocker’s charge, but Foundation attorneys successfully appealed this dismissal to former NLRB General Counsel Peter Robb, who sustained the charge and ordered NLRB Region 6 to issue a complaint prosecuting UFCW Local 400 for the violations. Robb found that UFCW Local 400 officials had violated the law in even more ways than Krocker originally asserted, including failing to tell employees that they could end dues deductions at the expiration of a contract.

After an NLRB Administrative Law Judge (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 appealed the case to the NLRB. Her appeal was supported by NLRB General Counsel Robb and has been fully briefed before the Board since September.

Krocker’s opposition contends that Ohr’s latest motion and the inadequate settlement are “bare political attempts to strip the Board of its ability to hear the important issues raised in this case,” and that “the proposed agreement does not fully remedy the unfair labor practices alleged in the Complaint and as shown by the stipulated factual record.” Foundation staff attorneys also point out that it is too late for Ohr and UFCW union officials to seek an informal settlement because the case is already before the NLRB.

More broadly, Foundation attorneys argue for Krocker that Ohr himself lacks authority to file motions in this case because President Biden ousted Peter Robb when he still had several months left on his term as NLRB General Counsel. Since the establishment of the office of NLRB General Counsel in 1947, no sitting General Counsel has ever been terminated by a president before the end of their Senate-confirmed four-year term, even when the White House changed hands. For example, Obama’s pick for General Counsel, former union lawyer Richard Griffin, remained the General Counsel for most of Trump’s first year (until his term expired on 10/31/17).

Allowing Ohr to exercise authority in this case, Foundation attorneys argue, “will do irreparable damage to the Board’s status as an independent quasi-judicial agency responsible for the neutral and even-handed resolution of unfair labor practice and representation cases.”

“Almost every day, so-called ‘Acting’ NLRB General Counsel Peter Ohr demonstrates 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,” commented National Right to Work Foundation President Mark Mix. “Ms. Krocker’s case is one of a growing number in which Foundation-backed workers whose rights were violated by union bosses are challenging Ohr’s authority.”

Saint Vincent Nurses have right to rebuff Union officials’ demands that workers abandon their patients amidst pandemic

Worcester, MA (March 16, 2021) – National Right to Work Legal Defense Foundation staff attorneys have issued a special legal notice to the approximately 800 nurses at Saint Vincent Hospital in Worcester, Massachusetts, affected by a strike ordered by Massachusetts Nurses Association (MNA) union officials that began on March 8.

The legal notice informs rank-and-file nurses of the rights MNA bosses won’t tell them about, including their right to refuse to abandon their patients and keep working to support their families despite the union-ordered strike. The notice discusses why workers across the country frequently turn to the National Right to Work Foundation for free legal aid in such situations.

“This situation raises serious concerns for employees who believe there is much to lose from a union-boss ordered strike,” the notice reads. “Employees have the legal right to rebuff union officials’ strike demands, but it is important for them to be fully informed before they do so.”

The full notice is available at www.nrtw.org/saint-vincent-legal-notice.

The notice outlines the process that Saint Vincent nurses should follow if they want to exercise their right to return to work during the strike and avoid punishment by union bosses, complete with sample union membership resignation letters.

Further, the notice reminds the nurses of their rights to cut off all union dues payments in the absence of a monopoly bargaining contract with the hospital. The notice encourages employees to seek free legal aid from the Foundation if they experience union resistance as they attempt to exercise any of these rights.

The Foundation has defended nurses in a number of recent cases. It provided free legal aid to Jeanette Geary, who filed charges against United Nurses and Allied Professionals bosses in Rhode Island who ignored her right not to fund union lobbying. Foundation staff attorneys are also assisting Texas nurse Marissa Zamora in her National Labor Relations Board case against officials of the National Nurses Organizing Committee for concealing a “neutrality agreement” struck in secret between union bosses and the hospital company that was apparently designed to limit nurses’ ability to exercise their right to remove the union.

“Saint Vincent nurses should know they unequivocally have the right to reject union boss strike orders and continue to care for those in need,” commented National Right to Work Legal Defense Foundation President Mark Mix.  “Nurses who question whether the ongoing union-ordered strike is really best for themselves, their families, and their patients cannot be forced by union officials to stop working.”

“Rank-and-file nurses at Saint Vincent should immediately contact the Foundation for free legal aid if MNA bosses violate their legal rights,” added Mix.

Recent NLRB case reveals that UFCW officials attempted illegal surveillance by demanding decertification petitioner’s attendance record from employer

Baltimore, MD (March 10, 2021) – Selbyville, DE-based Mountaire Farms employee Oscar Cruz Sosa has hit the United Food and Commercial Workers (UFCW) Local 27 union at his workplace with a second round of federal charges.

This charge, filed at Region 5 of the National Labor Relations Board (NLRB) in Baltimore with free legal aid from National Right to Work Foundation staff attorneys, maintains the union violated his rights by illegally retaliating against him and attempting illegal surveillance of his activities because he spearheaded his coworkers’ exercising their right to vote UFCW bosses out of the workplace.

Cruz Sosa’s charge comes as his election case, defending his and his coworkers’ right to oust UFCW officials, is pending before the National Labor Relations Board (NLRB) in Washington. Cruz Sosa submitted a petition in February 2020 signed by enough of his fellow employees to prompt a vote to decertify the union (also known as a “decertification election”), but UFCW officials sought to block the vote by claiming that a “contract bar” exists that prevents any election.

The “contract bar” is a non-statutory NLRB rule that forbids workers from voting out unpopular union bosses for up to three years after management and union officials broker a monopoly bargaining contract.

Over the union’s objections, the NLRB Regional Director in Baltimore allowed the vote Cruz Sosa and his coworkers requested to proceed because he found that the union contract contains an illegal forced dues clause, and thus the “contract bar” cannot apply. However, unwilling to lose power over 800 forced-dues payers in Cruz Sosa’s workplace, UFCW lawyers petitioned the full NLRB to re-impose the “contract bar.”

In response, Cruz Sosa’s Foundation-provided lawyers argued that, if the NLRB granted review of the union’s appeal, it should reconsider the entire contract bar policy.  On July 7, 2020, the NLRB granted that request and threw the case open to nationwide briefing on whether to get rid of the contract bar because it stymies employee free choice.

Although the election finally occurred in June and July 2020, the ballots have been impounded until the NLRB issues its ruling. UFCW bosses are seeking to have the NLRB destroy all of the ballots Cruz Sosa and his coworkers have already cast in that election.

Cruz Sosa’s Foundation-provided attorneys continue to argue that the “contract bar” violates workers’ free choice rights and should be eliminated because it confines workers under the “representation” of unpopular union bosses, even when there is clear evidence workers want them gone.

Previously, Foundation staff attorneys filed a charge for Cruz Sosa challenging the union’s illegal forced dues clause and the requirement that he and others continue to pay dues under that clause. That case seeks a refund of dues collected from workers under the unlawful mandatory dues clause in the union boss-negotiated monopoly bargaining agreement. That case too is on hold pending the NLRB’s decision in the election case.

Cruz Sosa’s current charge was filed after the NLRB issued a complaint against Mountaire Farms in a separate case UFCW union officials filed. That complaint and associated documents reveal that Mountaire Farms officials have not acquiesced to union officials’ demands for “[c]opies of the daily hours of work and the time and attendance records for employee Oscar Cruz Sosa between August 1, 2019 and March 15, 2020.” Mountaire Farms has also not, according to the complaint, turned over to UFCW honchos “the daily admission log…for all access points to the Selbyville plant identifying by name” anyone who has accessed the plant since March 2020.

“From the moment Oscar Cruz Sosa filed his election petition, UFCW bosses have been attempting to disenfranchise workers. They even engaged in a campaign of surveillance against this employee, all to maintain their power. UFCW Local 27 bosses are happy to trample the rights of the very rank-and-file workers they claim to represent,” commented National Right to Work Foundation President Mark Mix. “No workers should be subjected to surveillance or retaliation just because they assist their coworkers in exercising their statutory right to remove an unwanted union.”

National Right to Work Foundation staff attorneys are helping other workers who are challenging the “contract bar” before the full NLRB in Washington. In early January, Foundation staff attorneys assisted a group of Puerto Rico armored transport guards in asking the Board to overturn the contract bar, which was used to block their request for an election to remove union representation from their workplace.

More recently, Foundation staff attorneys filed a Request for Review for Virginia Transdev employees who are seeking to remove unpopular Office and Professional Employees International Union (OPEIU) Local 2 officials from their Fairfax Connector office. In that case, an OPEIU agent triggered the contract bar by secretly signing a contract only about a week before Transdev employees submitted to the NLRB a majority-backed decertification petition.

Teamsters bosses disclaim interest in KWK Trucking rather than face a vote after nearly 80 percent of workers signed a decertification petition

Los Angeles, CA (March 9, 2021) – With free legal aid from the National Right to Work Legal Defense Foundation, employees of KWK Trucking, Inc. in Los Angeles, California have freed themselves from unwanted “representation” by officials of Teamsters union Local 986.

Petitioner Eliseo Haro submitted a decertification petition with the National Labor Relations Board (NLRB) with free legal assistance from Foundation staff attorneys. The petition, signed by nearly 80 percent of the members in the 119-employee bargaining unit, called for an NLRB supervised decertification election, in which KWK employees could vote out the unpopular union officials.

Late last month, rather than face an overwhelming defeat in the decertification election, Teamsters bosses chose to walk away from the unit. The union disclaimed interest in the unit, and NLRB region 21 revoked Local 986’s certification as the worker’s monopoly bargaining agent.

Union officials frequently attempt to delay or block decertification votes by filing “blocking charges,” unfair labor practice charges that can be used to hold up an election, even when they have nothing to do with the employees’ dissatisfaction with the union.

Union officials’ ability to use this tactic to block or delay votes has been limited by recent NLRB rulemaking, finalized in 2020. Under the NLRB’s new policy, which draws on comments filed by the National Right to Work Foundation, union charges cannot indefinitely stall employee votes, and in most instances votes occur without delay.

Additionally, as the Foundation advocated in its comments, the NLRB modified its original proposed new rule so that after employees vote, the ballots are tallied and the vote announced in most cases instead of being impounded for months or even years while “blocking charges” are resolved.

“Union bosses can stick around for years in workplaces where they face overwhelming opposition from the rank-and-file due to the various legal barriers workers face in exercising their right to hold a decertification vote,” said National Right to Work Legal Defense Foundation President Mark Mix. “Thanks to Foundation-backed reforms to the NLRB’s blocking charge policy, union officials’ ability to trap workers in union ranks through legal trickery despite overwhelming opposition has been significantly curtailed.”

“While we’re pleased that the employees of KWK Trucking were able to free themselves from Teamsters’ coercive ranks, no worker should have to face a complicated legal process just to escape unwanted union boss ‘representation,’” added Mix.

New brief contends Biden-appointed Acting NLRB General Counsel Peter Ohr lacks authority to kill case already under consideration by full Board

Washington, DC (March 4, 2021) – Corpus Christi, TX-based nurse Marissa Zamora has just filed an opposition brief defending her case charging National Nurses Organizing Committee (NNOC) union bosses in her workplace with concealing a “neutrality agreement” struck in secret between union officials and HCA Holdings management that covers her hospital. The brief was filed at the National Labor Relations Board (NLRB) with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.

Zamora’s case has progressed to the full NLRB in Washington, DC, after an NLRB Administrative Law Judge (ALJ) dismissed a complaint that then-NLRB General Counsel Peter Robb had issued prosecuting the NNOC for hiding the agreement. Though Zamora 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.

Zamora’s brief challenges Ohr’s attempt to kill the case on the grounds that it is already before the full Board, and she “is a full party with a right to have her pending exceptions decided by the Board.” Letting Ohr shut her out at this stage would “infringe on the Board’s exclusive power to adjudicate violations of” federal labor law, the brief asserts.

Further, the brief contends that Ohr lacks the legal authority to even ask the NLRB to end the case because Ohr’s predecessor, Robb, was unlawfully removed by President Biden almost a full year before his term was scheduled to end. “The General Counsel of the Board does not serve at the pleasure of the President,” the brief argues, also asserting that allowing “the President to fire the General Counsel at will would do irreparable damage to the NLRB’s function as an independent agency.”

Robb’s firing was unprecedented. 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 Senate-confirmed four-year term, even when the White House changed hands. For example, Obama’s pick for General Counsel, former union lawyer Richard Griffin, remained the General Counsel for most of the first year after Trump’s election (until his term expired on 10/31/17).

“Neutrality agreements” are deals 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, hand over workers’ personal information for coercive “card check” drives that bypass the protections of a secret ballot election, provide union organizers with preferential access to the workplace, and even ensure employers will oppose later efforts to decertify, or remove, the union.

In Zamora’s case, she began circulating fliers and other materials in June 2018 to educate her coworkers on how they could obtain a vote to decertify the union. A brief supporting her exceptions recounts that union agents “repeatedly ripp[ed] down her fliers” and that HCA officials referenced a secret agreement with the union when they denied “her access to post material on protected bulletin boards, where her material would be shielded from vandalism.”

Zamora subsequently asked both NNOC and HCA officials to show her any “neutrality agreement” that might have triggered those efforts to block her and her coworkers’ rights. All her requests were denied, despite statements by HCA agents to her that indicated a “neutrality agreement” existed.

“By moving to have Ms. Zamora’s case tossed out, so-called ‘Acting General Counsel’ Peter Ohr is laying bare President Biden’s purely ideological motive behind removing Peter Robb: to allow his union boss cronies to escape legal scrutiny when they violate the rights of workers who refuse to toe the union line,” commented National Right to Work Foundation President Mark Mix. Ohr has acted to squelch several cases of nationwide import brought by Foundation staff attorneys for workers.

“The fact is, even if Ohr were not installed in this position in utter defiance of law and precedent, this issue is already before the full Board whose members would be fully justified in ruling on the case purely on the exceptions Ms. Zamora filed to the ALJ’s decision,” Mix added.

Every employee in the workplace signed petition for vote to oust Indiana Carpenters Union, but Regional NLRB officials are blocking the election

Crown Point, IN (March 4, 2021) – Mike Halkias and his coworkers at Neises Construction Corp. in Crown Point, Indiana are subject to monopoly “representation” by officials of the Indiana/Kentucky/Ohio Regional Council of Carpenters union (IKORCC). Every bargaining unit member has exercised the right under Indiana’s Right to Work law to decline formal union membership and to refuse to pay any union dues or fees, but union officials still have the authority under federal law to “negotiate” with Neises for the employees despite their objections to that representation.

With free legal aid from the National Right to Work Legal Defense Foundation, Halkias submitted a decertification petition to Region 13 of the National Labor Relations Board (NLRB), signed by every member of his unit, to remove IKORCC officials from their workplace.

Despite unanimous agreement by the unit’s workers to hold a vote to oust IKORCC bosses, Region 13 officials rejected the decertification petition. The Board is demanding that the Indiana employer bargain with IKORCC bosses, even though none of its employees want the union to “represent” them.

So far union officials have stymied the vote through “blocking charges,” unfair labor practice charges filed by union lawyers that, before they are resolved, prevent a vote from taking place. Union officials claim the vote cannot proceed until the company negotiates “in good faith” with the union. However, under federal law it is illegal for an employer to engage in monopoly bargaining with a union that it knows lacks the support of at least a bare majority of workers.

The NLRB Regional official’s order dismissing the employees’ petition did not even address that every employee in Mr. Halkias’ bargaining unit has demonstrated a desire to be independent from the union by resigning union membership and asking for a decertification vote.

The Foundation staff attorneys who represent Halkias have appealed to the NLRB in Washington to overturn the rejection of the decertification petition and to allow the workers to vote so they can be rid of the union whose so-called representation they oppose.

“It is outrageous that federal law forces workers under a union’s so called ‘representation,’ despite clear evidence that every single worker wants the union gone,” said National Right to Work Legal Defense Foundation President Mark Mix. “The fact that this appeal is even necessary demonstrates how rigged federal law is against independent-minded workers seeking to exercise their right not to associate with a union.”

“This case is a reminder that, while Right to Work states provide critical protections for workers against being forced to fund a union they oppose, federal law still forces workers under union monopoly control even when those employees oppose the union and believe they would be better off without it.”