Foundation Defends New Rules Protecting Right to Remove Unwanted Unions
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2020 edition. To view other editions or to sign up for a free subscription, click here.
AFL-CIO kingpins suing to overturn NLRB rules slashing barriers to decertification votes
Over the past few years, the Foundation has provided free legal aid to workers
across the country who were blocked by pro-union boss NLRB rules from voting
out an unwanted union. Above are just a handful of them.
WASHINGTON, DC – The National Labor Relations Board’s (NLRB) new rules, designed to safeguard the right of workers to remove an unwanted union hierarchy in their workplace, went into effect on July 31. The policies, which were finalized in April, closely followed comments submitted by National Right to Work Foundation staff attorneys and petitions sent by thousands of Foundation supporters.
The policies specifically curtailed the non-statutory “blocking charge” and “voluntary recognition bar” policies used to trap workers in unions they oppose, and also eliminated a scheme used by union bosses in the construction industry to impose unionization without any evidence of worker support.
Less than a month before the reforms went into effect, union lawyers with the AFL-CIO filed a lawsuit against the NLRB in an attempt to reimpose these coercive restrictions on workers. Foundation attorneys are primed to defend the reforms and counter the wild claims AFL-CIO legal operatives make in the lawsuit.
New Rules Designed to Shield Workers from Unwanted Unions
The new rules are meant to eliminate virtually all union “blocking charges,” which are filed by union bosses to prevent rank-and-file employees from exercising their right to vote to remove a union.
Under the NLRB’s new policy, union charges cannot indefinitely stall the employees’ vote from taking place, and in most instances the vote will occur without delay. Additionally, as the Foundation advocated in comments, the NLRB modified its original proposed rule so that after employees vote, the ballots will be tallied and the vote announced in most cases instead of being impounded for months or even years while “blocking charges” are resolved.
The NLRB also reversed an Obama-era ruling imposing the so-called “voluntary recognition bar” policy. Under that policy, workers were blocked for up to a year from requesting a secret-ballot election to challenge a union which was installed as their monopoly bargaining agent through an abuse-prone “Card Check” drive, which bypasses the NLRB-supervised secret-ballot election process. In reversing the Obama NLRB, the current Labor Board reinstated a precedent won by Foundation staff attorneys for workers in the 2007 Dana Corp NLRB decision.
Under the Dana Corp. system, employees subject to “Card Check” drives and so-called “voluntary recognition” can promptly file for a secret-ballot election to contest the installation of a monopoly representative at their workplace.
Foundation Prepares to Counter Dubious Claims of AFL-CIO Suit Against NLRB
Unwilling to lose their power to block workers’ efforts to vote them out, the AFL-CIO filed suit against the rules even before they went into effect. The union boss lawsuit alleges, among other things, that the NLRB was misusing the rulemaking process by advancing these protections for independent-minded workers, even though union bosses widely cheered Obama NLRB efforts to use rulemaking to expand union boss power.
Foundation staff attorneys quickly began preparing to counter the AFL-CIO’s lawsuit aiming to reverse these reforms.
“Anyone who is familiar with the tactics of union bosses knows that they will fight tooth and nail to keep government-granted privileges in place that allow them to force their one-size-fits-all ‘representation’ on workers, even when a majority oppose their presence,” observed National Right to Work Foundation Vice President Patrick Semmens. “Foundation supporters should be proud that their advocacy helped obtain these new protections for workers opposed to unionization, but as the union boss lawsuit shows, the Foundation’s litigation program will continue to be critical to defending the rights of independent-minded workers.”
Ohio Public Employee Asks Supreme Court to Hear Class Action Lawsuit Seeking Return of Forced Union Dues
Lawsuit joins others pending at the Supreme Court seeking refunds of forced union fees seized from nonmembers in violation of Janus v. AFSCME
Washington, DC (October 9, 2020) – Yesterday, National Right to Work Legal Defense Foundation staff attorneys filed a petition for certiorari, asking the United States Supreme Court to hear the case of Nathaniel Ogle. Ogle is an employee of the Ohio Department of Taxation who, despite never being a member, still had mandatory union fees deducted from his paycheck by officials of the Ohio affiliate of the American Federation of State County and Municipal Employees (AFSCME) union.
In 2018, the Supreme Court ruled in Janus v AFSCME that it is unconstitutional to require public sector employees like Ogle to subsidize union activities. Soon after, Ogle filed his class action lawsuit seeking a return of fees seized before the Janus decision from himself and potentially thousands of other state employees.
AFSCME officials have thus far relied on the so-called “good faith” defense to avoid paying back money they took from nonmembers before the ruling in violation of the First Amendment as Janus recognized. However, in the Janus decision, not only did the Supreme Court not rule out retroactive relief, it also observed that union officials have been “on notice” for years that mandatory fees likely would not comply with the High Court’s heightened level of First Amendment scrutiny articulated in the 2012 Knox v. SEIU Supreme Court decision.
Foundation staff attorneys argue that in addition to there being no valid basis for the “good faith” defense under existing law, AFSCME officials also understood the dubious constitutionality of what they were doing when they extracted payments from nonmembers but still went forward with their legally suspect collection of forced union fees.
Ogle’s case was dismissed by the district court in July of 2019. A three judge panel of the U.S. Sixth Circuit Court of Appeals later held that the union could avoid paying back its victims, despite the Supreme Court’s assertion that unions had been “on notice,” leading to today’s petition for a writ of certiorari.
Ogle is the fifth dues repayment case the Court is being asked to consider. The other four, including Foundation-backed cases Casanova v. IAM and the Janus case itself, are fully briefed and scheduled to be considered at the Court’s October 9th conference. Foundation staff attorneys are actively litigating about 20 of these cases which collectively seek the return of an estimated $130 million or more in forced union fees seized from workers in violation of the First Amendment.
In a recent supplemental brief in Janus, Mark Janus’ attorneys from the National Right to Work Foundation and Illinois-based Liberty Justice Center point out that two of three judges on a panel of the Third Circuit Court of Appeals recently opined that the “good faith” defense is invalid, while other federal judges have upheld it. This, they argue, makes it especially vital that the Court hear the case to clear up the confusion among lower courts and ultimately reject this spurious argument allowing union officials to profit from violating workers’ constitutional rights.
“The so-called ‘good faith’ defense, which permits union bosses to continue to ignore an established Supreme Court precedent, has already been rejected by two federal judges. It is vital that the Supreme Court take up this issue to disabuse all lower courts of this flawed argument, and to ensure that the victims of union officials’ First Amendment violations finally get some justice,” National Right to Work President Mark Mix said. “The Court already ruled in Janus that public workers cannot be forced to pay union dues. It is past time for the victims of these First Amendment violations, including Mr. Ogle and his coworkers, to receive justice.”
Interview: Mark Mix Discusses Two Foundation Cases Pending at the US Supreme Court
Recently National Right to Work Foundation President Mark Mix spoke to WISN’s Vicki McKenna about two cases that could have major implications for public sector workers if the Supreme Court decides to hear them. Janus v. AFSCME and Casanova v. International Association of Machinists both deal with employees seeking refunds of dues unconstitutionally seized before the 2018 Janus decision.
When Janus v. AFSCME was originally decided, the court held that public sector workers can’t be forced to support a union as a condition of their employment, and that nonmembers can’t have dues deducted from their paychecks without their consent. As Mix said in the interview, “When you rule on the first amendment there’s a legal concept called black letter law, which means ‘as if it was the law from the beginning’. These workers ought to be able to go back and get their money back through the statute of limitations.”
He also pointed out that the Supreme Court specifically recognized in Janus that unions have known since the 2012 Foundation-won Knox v. SEIU case that mandatory union fees for public sector employees likely did not comply with the First Amendment.
In the majority opinion in Janus, Justice Alito wrote:
public-sector unions have been on notice for years regarding this Court’s misgivings about Abood. In Knox, decided in 2012, we described Abood as a First Amendment “anomaly.” 567 U. S., at 311. Two years later in Harris, we were asked to overrule Abood, and while we found it unnecessary to take that step, we cataloged Abood’s many weaknesses. In 2015, we granted a petition for certiorari asking us to review a decision that sustained an agency-fee arrangement under Abood. Friedrichs v. California Teachers Assn., 576 U. S.___. After exhaustive briefing and argument on the question whether Abood should be overruled, we affirmed the decision below by an equally divided vote. 578 U. S. ___(2016) (per curiam). During this period of time, any public sector union seeking an agency-fee provision in a collective bargaining agreement must have understood that the constitutionality of such a provision was uncertain.
If the Supreme Court takes one of these cases and rules in favor of the workers seeking refunds, it would set a precedent that would result in the return of hundreds of millions of dollars in dues for workers around the country.
You can listen to the entire interview below:
UGSOA Union Officials Hit With Another Federal Charge for Seizing Forced Union Fees in Violation of Security Guards’ Rights
NLRB Charge: Union bosses illegally failed to disclose financials and restricted workers’ rights to opt out of union political spending
Newark, NJ (October 5, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, William J. Sona is taking his case against the United Government Security Officers of America (UGSOA) union Local 171 to the National Labor Relations Board (NLRB).
The Paragon Systems employee’s federal unfair labor practice charge states that union officials illegally failed to provide a mandated independent audit justifying union fees, and imposed unlawful restrictions on workers seeking to challenge the calculation of the fees workers must pay as a condition of employment.
Because Sona is employed in New Jersey, a forced-unionism state, he can legally be fired for refusing to pay union fees. However, these forced fees cannot be used for union political activities or lobbying. Union officials must comply with certain legal requirements to justify the amount they can force workers to pay as a condition of employment.
Under the precedent established in the Right to Work Foundation-won Beck Supreme Court case and subsequent California Saw NLRB precedent, unions must provide verification of chargeable expenses through an independent audit, provide escrow if workers dispute charges, and provide an independent system for workers to challenge the fees.
Sona’s case against UGSOA charges that union officials failed to comply with any of these requirements. Additionally the charge states union officials illegally required Beck objectors like Sona to file two separate objections to funding union political activity—one to Local 171 and one to the International.
Union officials at UGSOA have a history of illegally seizing dues from workers. Previously, UGSOA union bosses illegally demanded union dues from nonmember workers while there was no contract in effect between the union and the employer.
With free legal aid from the National Right to Work Legal Defense Foundation, Sona and five other Paragon employees won $4,000 in illegally seized back dues. That case was settled in 2019 and formally adopted by the NLRB in August of 2020, but Sona’s new charge says union officials have not stopped violating the law.
“Union brass at UGSOA have demonstrated again that they will violate the rights of the very workers they claim to ‘represent’ just to stuff their pockets with more forced dues,” commented National Right to Work Foundation President Mark Mix.
“They use their special government-granted privileges to force workers to pay up or be fired, and then refuse to provide the information needed to confirm that at least these forced fees are not being illegally funneled into union lobbying and campaign expenses. If union bureaucrats are afraid of transparency, there’s probably a reason for that.”
Federal Judge Rejects Michigan Unions’ Request for Injunction Against Janus Enforcement Rule for State Employees, Cites Arguments First Raised in National Right to Work Brief
Lansing, MI (October 2, 2020) – The U.S. District Court for the Eastern District of Michigan has just rejected a request by union lawyers for a preliminary injunction against the Michigan Civil Service Commission’s (MiCSC) new rule protecting employee freedom of choice under Janus v. AFSCME.
The court cited arguments first raised in the case in an amicus brief filed by National Right to Work Legal Defense Foundation Vice President and Legal Director Ray LaJeunesse. Foundation President Mark Mix commented on the ruling:
“The District Court was absolutely right in rejecting union officials’ attempt to block the Civil Service Commission’s commonsense rule to ensure the state is not deducting union dues from public employees in violation of their First Amendment rights. As pointed out in our amicus brief to the court, not only are the union lawyers’ arguments wrong on the merits of the issue, but a recent Sixth Circuit Court of Appeals decision specifically forecloses their ability to even bring one of their two claims in this lawsuit.”
The new MiCSC rule requires Michigan state agencies to annually obtain the consent of state employees prior to deducting any union dues from them, while reminding them that they have a right to refuse such payments. The rule helps ensure that the state is not deducting dues from any state employee who has not clearly and affirmatively waived his or her First Amendment rights, as prescribed by the Supreme Court in Janus.
The amicus brief, which was formally accepted by the court in yesterday’s order, was filed jointly by the National Right to Work Legal Defense Foundation and Mackinac Center Legal Foundation. In accepting the brief, the order notes the court found “the amici’s contribution to be timely and helpful.”
Third Circuit Court of Appeals to Hear New Jersey Teachers’ Class Action Lawsuit against NEA Union to Enforce Janus Rights
Class action lawsuit challenges a NJ law that blocks workers from exercising First Amendment rights outside 10 day “escape period”
Philadelphia, PA (September 29, 2020) – On Wednesday, a three judge panel of the United States Court of Appeals for the Third Circuit will hear arguments in a class action lawsuit brought by two New Jersey teachers against the Township of Ocean Education Association (TOEA), New Jersey Education Association (NJEA) and the National Education Association (NEA) unions. The teachers are receiving free legal representation from National Right to Work Foundation staff attorneys.
Susan G. Fischer and Jeanette Speck are asking the Court of Appeals to order NJEA union bosses to return illegally-seized dues taken without the teachers’ consent in violation of the Supreme Court’s landmark decision in Janus v. AFSCME. The teachers will be represented during arguments by Foundation staff attorney William Messenger, who also successfully argued for Mark Janus at the US Supreme Court.
In Janus the High Court ruled it unconstitutional to require public employees to subsidize a labor union. The Court further held that any union dues or fees taken without a public employee’s affirmative consent violate the employee’s First Amendment rights.
In their complaint, Fischer and Speck say union officials continued to collect dues without their consent, even after they resigned their membership in July 2018. Township officials told the teachers they could only stop payments and withdraw their membership during an annual 10-day window.
In May 2018, New Jersey’s legislature created the escape period while the Janus case was pending a decision. The teachers’ suit argues that because the Janus ruling gave public employees the First Amendment right not to financially support union activities, the New Jersey law is unconstitutional and must be struck down. They seek a refund of membership dues for themselves and all other public employees who attempted to resign following Janus but were denied by union officials.
Similar union-created “escape period” schemes have been challenged in dozens of Foundation cases, including the recently concluded Allen v. Ohio Civil Service Employees Association. In that case, OCSEA union officials ultimately settled by eliminating the union’s escape period restriction and promising to pay back dues collected from more than 150 state employees who had been blocked from exercising their rights under Janus.
“Once again, rather than work to win the voluntary support of those they claim to represent, union officials are resorting to legal tricks to trap workers in dues payments,” said Mark Mix, president of the National Right to Work Legal Defense Foundation. “Contrary to the wishes of union bosses and their political allies, civil servants enjoy the protection of the Constitution every day of the year.”
“Neither a union policy nor state law can limit teachers’ or other public employees’ First Amendment rights to an arbitrary ‘escape period,’” Mix added. “The Foundation remains committed to fully enforcing the constitutional rights of Susan, Jeanette, and millions of other public sector workers as guaranteed by the Supreme Court in Janus.”
National Right to Work Foundation Files Comments in Support of NLRB Rulemaking to Protect Workers’ Private Contact Information
Labor Board considering ending 2014 policy that forces employers to disclose workers’ private phone and email information to union officials, even over workers’ objections
Washington, DC (September 28, 2020) – Today the National Right to Work Legal Defense Foundation submitted comments to the National Labor Relations Board (NLRB) in support of a proposal amending its rules governing voter list contact information to better protect workers’ privacy. The public comment period for the proposed changes closes September 28th, with reply comments accepted until October 13th.
The new rule, if adopted by the Board, would eliminate a requirement imposed by the Obama-era NLRB in 2014 that expanded the information employers must provide to union organizers to include personal phone numbers and email addresses. The current rule requires that union officials be given the information even over the objections of individual workers.
In the comments, Foundation Vice President and Legal Director Raymond LaJeunesse argues that the 2014 rule violates workers’ privacy and leaves them vulnerable to harassment, identity theft, and property crime. As the comments point out, union militants have a history of misusing workers’ private information.
For example, agents of Communication Workers of America Local 1103 in Connecticut signed Patricia Pelletier up for hundreds of unwanted magazines and consumer products in apparent retaliation for her leading the effort to hold a vote to remove the union from her workplace. As noted in the Foundation’s comments, “Not only was Pelletier forced to spend several hours each day canceling individual subscriptions and products, but she was billed for thousands of dollars by unwitting marketers and publishing companies, jeopardizing her credit rating and causing her severe emotional distress.”
The comments also cite examples of how union militants can use that information to harass independent-minded workers: “Militant union supporters may use personal information to retaliate against individuals who dare oppose the union that they support—incessant and late night phone calls, threatening emails, using the email addresses to sign employees up for spam or malware, and the theft or destruction of their property when they are not at home. For example, UPS employee Rod Carter began to receive threatening late-night phone calls following his opposition to a strike by the Teamsters, and was ultimately stabbed with an ice pick by Teamsters militants who tracked his driving route.”
As the comments demonstrate, the potential for misuse of private information is significant, especially for those who speak out against a union. Yet, under the current NLRB rules an individual cannot even request to have his or her information withheld. Employers must disclose the phone numbers and email addresses of every employee to union organizers.
The NLRB’s current rules purport to limit misuse of personal data by limiting union officials’ use of the information to “the representation proceeding, Board proceedings, and related matters.” But, the Foundation’s comments argue that this supposed limitation is both “meaningless and unenforceable,” and that “the only way to protect employees’ privacy and safety in the first place is not to compel disclosure of their personal information to unions, or, at the very least, to allow employees to opt out of any mandatory disclosure of their personal information.”
“Given the long and sordid history of harassment, identity theft, stalking and worse by union militants against workers who refuse to toe the union line, limiting the private contact information required to be handed over to union organizers is just plain common sense,” said National Right to Work Legal Defense Foundation president Mark Mix. “The Board should adopt this rule without delay so that independent-minded workers do not find themselves targeted using private contact information handed over to union organizers even over workers’ objections.”
Two Cert Petitions Seeking Refunds of Union Dues Seized in Violation of First Amendment Janus Rights Now Fully Briefed at SCOTUS
Chicago transit worker’s suit, Mark Janus’ petition and two other cases seeking refunds all now scheduled to be considered at High Court’s October 9 conference
Washington, DC (September 25, 2020) – Staff attorneys at the National Right to Work Legal Defense Foundation have just filed their reply brief with the US Supreme Court in the class-action case Casanova v. International Association of Machinists, Local 701. Thus, the petition asking the Supreme Court to hear the case is now fully briefed. The case will now be considered at the Court’s October 9 conference.
The plaintiff, Benito Casanova, a Chicago Transit Authority worker, is seeking a refund of union fees that were seized from his paycheck and the paychecks of similarly situated coworkers in violation of the First Amendment, as the landmark 2018 Janus v. AFSCME Supreme Court decision recognized.
In Janus, which was argued and won by National Right to Work Foundation staff attorneys, the High Court ruled that requiring public sector workers to pay union dues as a condition of getting or keeping a job violates the First Amendment. The Court also held that union dues can only be deducted from the paycheck of a public worker with his or her affirmative consent. Casanova wants the Court to rule that International Association of Machinists (IAM) union bosses must return money deducted from nonmember workers’ paychecks from 2016 through 2018, in accordance with Illinois’ two-year statute of limitations.
This is now the second Foundation-backed case seeking such a refund that is currently waiting on a certiorari petition from the Court. The other is the continuation of the Janus case itself, in which the original plaintiff, former Illinois child support specialist Mark Janus, is asking the High Court to hear his case which demands a return of unconstitutional union dues from 2013 (two years before his case began) to the day the Janus decision was handed down in 2018. Janus continues to be litigated by Foundation staff attorneys in partnership with attorneys from the Liberty Justice Center, an Illinois nonprofit.
Union bosses have been using a so-called “good faith” defense at lower courts to avoid returning forced fees that were unconstitutionally seized from public employees’ paychecks. In a recent supplemental brief in Janus, Foundation attorneys point out that two of three judges on a panel of the Third Circuit Court of Appeals recently opined that such a defense is invalid, while other federal judges have upheld it. This, they argue, makes it especially vital that the Court hear the case to clear up the confusion among lower courts and ultimately reject this spurious argument allowing union officials to profit from violating workers’ constitutional rights.
Both Foundation-supported cases have been scheduled for the Court’s conference on October 9. Two other class-action cases dealing with the same issue, Danielson and Mooney, have been scheduled for the same conference. Foundation staff attorneys are actively litigating about 20 of these cases which collectively seek the return of an estimated $130 million or more in forced union fees seized from workers in violation of the First Amendment.
“The Supreme Court pointed out in the Janus decision two years ago that public sector union bosses had unjustly gained a ‘considerable windfall’ by violating the First Amendment rights of public servants who wanted to disassociate with unions,” commented National Right to Work President Mark Mix. “We are proud to stand with Mr. Janus, Mr. Casanova, and scores of other public sector workers across the country as they seek to reclaim their hard-earned dollars that union bosses refuse to return despite the Supreme Court’s clear ruling in Janus.”
“The so-called ‘good faith’ defense, which permits union bosses to continue ignoring an established Supreme Court precedent, has already been rejected by two federal judges. It is vital that the Supreme Court take up this issue to disabuse all lower courts of this flawed argument, and to ensure that the victims of union officials’ First Amendment violations finally get some justice,” Mix added.
Ventra Evart Auto Parts Worker Hits UAW Local with Federal Charges for Illegal Dues Seizures
Labor Board charge comes as federal investigation into racketeering and embezzlement within UAW reaches 15 indictments
Evart, MI (September 22, 2020) – An employee of auto parts manufacturer Ventra Evart LLC has just filed federal unfair labor practice charges against the United Auto Workers (UAW) union local at her workplace, charging that union officials illegally ignored her request to cut off dues deductions from her paycheck and are still seizing money from her. Her charges were filed with Region 7 of the National Labor Relations Board (NLRB) in Detroit with free legal aid from the National Right to Work Legal Defense Foundation.
The employee, Meagan Holmes, works as an inspector for Ventra Evart. Her charge states that in May of this year she submitted to UAW bosses a letter resigning her union membership and requesting to end dues deductions. However, according to her filing, union officials never responded and continue to deduct full union dues out of her paycheck.
Holmes’ charge argues that this violates her rights under Section 7 of the National Labor Relations Act (NLRA), the federal statute which guarantees private sector workers the “right to refrain from any or all” union activities. The NLRB is the federal agency charged with enforcing the NLRA. Additionally, Michigan enacted Right to Work protections for its public and private sector workers in 2013, which ensure that no Wolverine State worker can be forced to subsidize a union hierarchy as a condition of getting or keeping a job.
The charge comes as a years-long federal probe into embezzlement and racketeering within the UAW’s top level continues to rack up convictions. In April, former UAW president Gary Jones pleaded guilty to pilfering more than $1 million in dues money paid by rank-and-file workers. The corruption count went up to 15 late last month after Jones’ predecessor, Dennis Williams, was indicted by federal prosecutors. He is expected to plead guilty as well. The workers’ money stolen in the scandal was spent on personal luxuries like opulent golf vacations, high-end liquor, wine and cigars, and lavish steak dinners, according to federal documents.
Another Michigan worker under UAW union officials’ bargaining power who recently obtained free legal aid from the Foundation in defending his rights is Lloyd Stoner, an employee at General Motors’ Dearborn, MI, plant. Stoner won a unanimous ruling from a three-member panel of the NLRB in Washington, D.C., last year, which ordered UAW honchos to return to him dues they had seized even after he had validly resigned his membership and revoked his dues checkoff.
“Ms. Holmes’ charge clearly demonstrates that UAW officials’ inclination to break the law is not just limited to the top bosses caught red-handed in the federal investigation,” commented National Right to Work Foundation President Mark Mix. “Now more than ever, all workers under the UAW’s bargaining regime need to have the power to hold union officials accountable by being able to cut off all union dues or fees.”
Corpus Christi Nurse Asks National Labor Relations Board to Rule that Union Bosses Cannot Hide Secret Deal with Nurses’ Employer
NLRB General Counsel prosecuting NNOC union officials for keeping so-called “neutrality agreement” hidden from workers opposed to union
Corpus Christi, TX (September 16, 2020) – A Corpus Christi-based nurse has just asked the National Labor Relations Board (NLRB) to review a decision by an Administrative Law Judge (ALJ) which denied her access to a nationwide union “neutrality agreement” struck in secret between her employer, HCA Holdings (which operates Corpus Christi Medical Center and Doctor’s Regional Medical Center, among many others) and National Nurses Organizing Committee (NNOC) union organizers.
The ALJ’s decision dismissed a complaint that the NLRB General Counsel had issued for the nurse, which sought to force union officials to disclose the secret bargain after both they and HCA agents had worked to limit the nurse and her coworkers from exercising their right to vote out the union.
The nurse is receiving free legal representation from National Right to Work Legal Defense Foundation staff attorneys, who have filed exceptions to the ALJ’s ruling and a brief supporting those exceptions with the full NLRB to get the ruling overturned. NLRB General Counsel Peter Robb, the agency’s top prosecutor, has also filed similar exceptions asking the Board to review and overturn the ALJ’s ruling.
“Neutrality agreements” are secret deals finalized 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 assist union agents in squashing employee efforts to decertify, or remove, the union.
The nurse in this case, Marissa Zamora, began circulating fliers and other materials in June 2018 to educate her coworkers on how they could obtain a vote to decertify the union. Her brief states that union agents “repeatedly ripp[ed] down her fliers” and that HCA officials 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 a copy of any “neutrality agreement” that might have triggered those efforts to block her and her coworkers’ rights. All her requests were denied, despite her having conversations with HCA agents that suggested a “neutrality agreement” did exist.
Zamora filed federal unfair labor practice charges at the NLRB, challenging NNOC’s refusal to provide the secret agreement. The NLRB General Counsel issued a complaint supporting the claims in Zamora’s charges. During a two-day trial, her brief notes, it was shown that the “neutrality agreement” “in fact existed, but it was a closely guarded secret between NNOC and HCA, to be kept strictly confidential from employees and all third parties.” However, the ALJ presiding over the trial dismissed the complaint on the grounds that Zamora had never seen the agreement so her request for it was speculative. The ALJ also revoked several subpoenas that would have forced NNOC union bosses to reveal the agreement.
Zamora’s brief in support of her exceptions to the ALJ’s ruling now seeks a reversal of that decision, arguing that the ALJ erred because he held Zamora to “an impossible…Catch-22 standard” and dismissed the complaint because “she could not prove the contents of a neutrality agreement that was deliberately kept hidden from her.” The brief also argues that union officials, as the employees’ agents, have a duty to disclose everything they negotiate with the employer.
Foundation staff attorneys have assisted many employees who have been subjected to union coercion as the result of “neutrality agreements.” One of them is Seattle Embassy Suites housekeeper Gladys Bryant, who this summer received a favorable ruling from the NLRB General Counsel after UNITE HERE union bosses forced unionization on the hotel’s employees with a hasty “card check” drive. She asserted that, under a “neutrality agreement,” Embassy Suites had provided hotel workers’ personal information to union bosses, which went well beyond the “ministerial aid” standard limiting how employers can assist union bosses with unionization.
In light of Zamora’s and Bryant’s cases, and similar others filed by Foundation attorneys, the NLRB General Counsel issued a memo earlier this month instructing regional NLRB officials to take additional steps to enforce workers’ rights against such backroom “neutrality agreements.” This will end a longstanding double standard that allowed employers to provide more than “ministerial aid” as part of a “neutrality agreement” but not to equally assist workers seeking to vote out an unwanted union.
“Ms. Zamora’s case is just another example of how union bosses use secret backroom ‘neutrality agreements’ to maintain their grip on power in a workplace, even over the objections of the workers they claim to ‘represent,’” commented National Right to Work Foundation President Mark Mix. “It is long past time that the NLRB stopped looking the other way while union organizers use these backroom deals to undermine the rights of rank-and-file workers.”
