NOTE: This article is from the upcoming issue of Foundation Action, our bi-monthly newsletter. You can sign up to receive a print edition of the newsletter here.

Indiana and Wisconsin Right to Work Protections Upheld in Federal Court

Foundation attorneys help thwart bogus union legal challenges to recent labor reforms  

SPRINGFIELD, VA?- In the span of two days, Foundation attorneys scored resounding victories defending Indiana’s newly-enacted Right to Work law and Wisconsin’s 2010 public sector Right to Work law in two federal courts.

The legal victories both highlight the need and the success of the Foundation’s litigation program.

Indiana union bosses soundly defeated in court

A United States District Court Judge dismissed a federal lawsuit challenging Indiana’s Right to Work law filed by International Union of Operating Engineers (IUOE) Local 150 lawyers. IUOE Local 150, headquartered in suburban Chicago, filed the lawsuit to undo what thousands of Hoosier citizens worked hard to achieve through the legislative process immediately after the law was enacted last February.

Unfortunately for the IUOE, the constitutionality of state Right to Work laws has long been a settled question. And National Right to Work Foundation staff attorneys, representing four Indiana workers who support the Right to Work law, advised lawyers for the State of Indiana about arguments that were made to defend the law in court.

The four Hoosier citizens who opposed the union’s legal challenge were David Bercot, a certified wastewater operator for the ITR Concession Company in Fort Wayne; Joel Tibbetts, a Minteq International assistant manager in Valparaiso; Douglas Richards, an employee with the Goshen-based Cequent Towing Products; and Larry Getts, a Dana Holding Corporation technician in Albion.

Judge Philip Simon dismissed all of the union lawyers’ claims. He did not rule on arguments contesting the law on the grounds that it violates Indiana’s constitution, leaving that to state courts to decide. A United Steel Workers legal challenge based on state laws is still proceeding in Indiana state court, where two other Foundation-assisted employees have filed a brief arguing that the law is consistent with their state’s constitution.

“We’re happy to report that the judge rejected IUOE union bosses’ frivolous arguments and ensured that millions of Indianans will continue to work free from union coercion,” said Patrick?Semmens, Vice President of National Right to Work.

Wisconsin public sector Right to Work law stands

A day after the Indiana victory, the U.S. Court of Appeals for the Seventh Circuit based in Chicago upheld all of Governor Scott Walker’s public sector unionism reform measures, also known as “Act 10.”

The court rejected union lawyers’ attempts to strike down the law’s annual union recertification requirements, ban on the use of taxpayer funded-payroll systems to collect union dues, new limits on the scope of what union officials can demand in contract negotiations, and a provision that granted most of Wisconsin’s public employees Right to Work protections.

With free legal assistance from Foundation and Wisconsin Institute for Law & Liberty attorneys, three Wisconsin public employees moved to intervene in the lawsuit in favor of the law after lawyers from seven unions, led by the Wisconsin Education Association Council, challenged it in federal court.

The three civil servants — Kenosha teacher Kristi Lacroix, Waukesha high school teacher Nathan Berish, and trust fund specialist at the Wisconsin Department of Employee Trust Funds Ricardo Cruz — were permitted to file amicus briefs in the district court and their Foundation attorney was allowed to argue on the merits of the law before the appeals court during a hearing.

“The appellate court upheld all of ‘Act 10’ as constitutional by relying on principles established in Foundation-supported Supreme Court victories. Those cases hold that union bosses have no constitutional power to force workers to pay union dues or fees as a condition of employment. Unions also don’t have a constitutional right to use government resources to deduct union dues or fees from workers’ paychecks,” said Semmens.

“The court’s decision strikes a mighty blow for individual workers who do not want anything to do with an unwanted union in their workplace. The text of the decision makes it clear that legal arguments presented by Foundation staff attorneys were critical to the ruling.”

Earlier this month, National Right to Work Foundation staff attorneys filed a petition in the U.S. Court of Appeals for the D.C. Circuit asking the court to order the National Labor Relations Board (NLRB) to suspend further action in a case that expanded union bosses’ powers to charge nonmember workers for union political lobbying.

The petition was filed after the Board held that a union hierarchy could force nurses in Rhode Island to pay for union bosses’ political lobbying, including lobbying in the state of Vermont.

Foundation attorneys filed the petition after the court ruled in January that President Barack Obama’s controversial purported "recess appointments" to the Board are unconstitutional. The court held President Obama could not constitutionality make those appointments without U.S. Senate confirmation because the Senate was not in recess.

Today, the court ordered the NLRB to respond to the Foundation’s petition within 30 days, and then allows Foundation attorneys to respond within 15 days after the NLRB responds.

The demand for briefing on the petition suggests the court’s willingness to grant the writ of prohibition that would order the NLRB to cease and desist action on the Geary case. Stay tuned.

Writing in The Orange County Register, former teacher Larry Sand exposes the hypocrisy of teacher unions’ rhetoric on Right to Work:

Teachers unions are forever telling its members how much the union does for them in the way of wages, job benefits, etc. You would think that an organization that does so much for its members wouldn’t have to resort to bullying to keep them in the fold. But the unions know that without forcing the issue, many teachers would just say, "No." For instance, in Wisconsin, after Act 10 came into law allowing teachers to quit their union, about 30 percent have already quit with more to follow this June when their contracts expire.

Well said. If unions are providing valuable services, as they claim, they shouldn’t have to rely on coercion to collect dues and attract members. And if teachers and other workers are no longer joining and paying dues voluntarily, union bosses should adjust their sales pitch instead of resorting to compulsion. 

Sand goes on to demolish the "free rider" myth peddled by anti-Right to Work advocates:

It is a compelling argument, but untrue. The National Labor Relations Act does not mandate unions exclusively represent all employees, but permits them to electively do so. Under the Act, unions can also negotiate "members-only" contracts that only cover dues-paying members. They do not have to represent other employees. 

Read the whole thing here. 

NOTE: This article is from the upcoming issue of Foundation Action, our bi-monthly newsletter. You can sign up to receive a print edition of the newsletter here.

For more on the issues covered in this article, check out the following news releases:

• Worker Advocate Seeks to Halt Obama Labor Board from Acting in Union Lobbying Case
• Right to Work Legal Director Testifies Before Congress on Barriers to Enforcing Employees’ Rights Not to Pay for Union Politics

WIN: Appeals Court Strikes Down Obama Labor Board Appointments

Another Foundation legal challenge against unconstitutional recess appointees continues

WASHINGTON, DC?- In late January, the U.S. Court of Appeals for the District of Columbia struck down President Barack Obama’s controversial “recess” appointments to the National Labor Relations Board (NLRB).

National Right to Work Foundation staff attorneys filed an amicus curiae (“friend of the court”) brief against the appointments in that case for four workers who are receiving free legal assistance from the Foundation in cases pending before the NLRB.

In January 2012, Obama announced the recess appointments of three new NLRB members, including former union lawyer Richard Griffin, despite the fact that the Senate was not officially in recess. If the three members were not legitimately appointed — as the court ruled — the Board lacks the necessary three member quorum to issue rulings, thus invalidating a year’s worth of pro-Big Labor decisions.

“Today, the Court of Appeals agreed with Foundation attorneys: Barack Obama’s so-called recess appointments to the NLRB clearly violate the Constitution,” said Mark Mix, President of the National Right to Work Foundation, when the decision was announced. “This is a victory for independent-minded workers who have received unjust treatment at the hands of the pro-forced unionism NLRB.”

“We hope this decision will serve as a persuasive example to other federal courts examining the validity of Obama’s purported recess appointments,” continued Mix.

Foundation cases against the NLRB recess appointments proceed

Meanwhile, another legal challenge to the recess appointments spearheaded by Foundation staff attorneys is pending from Arizona.

Seven Fry’s Food Stores employees — including Shirley Jones of Mesa, Karen Medley and Elaine Brown of Apache Junction, Kimberly Stewart and Saloomeh Hardy of Queen Creek, and Tommy and Janette Fuentes of Florence — originally filed federal unfair labor practice charges against the United Food & Commercial Workers (UFCW) Local 99 union and Fry’s management after union and company officials continued to seize union dues from their paychecks despite repeated requests to stop.

Because Arizona has a Right to Work law, workers cannot be required to pay union dues as a condition of employment. Upset by union-instigated strike threats, the employees and hundreds of others resigned their union memberships and revoked their dues deduction authorizations when union officials did not have a contract at their workplaces.

After union bosses refused to honor their requests to cut off their dues payments, Jones and her coworkers approached the National Right to Work Foundation for help. Foundation staff attorneys had just announced an offer of free legal assistance to any workers who wished to leave the UFCW after union bosses announced their strike.

The employees’ charges prompted the NLRB Regional Director in Phoenix to agree that the dues deduction authorizations used by UFCW Local 99 union officials at all Arizona Fry’s Food Stores locations were revocable at will when there was no contract in effect.
Although the Regional Director issued a complaint on the workers’ charges, the NLRB — including Obama’s “recess appointments” — ruled in the union’s favor and dismissed the complaint.

In the workers’ latest brief to the U.S. Court of Appeals in Washington, D.C., Foundation staff attorneys argue that Obama’s “recess appointments” are unconstitutional and, therefore, the Board lacked the quorum necessary to rule on their case.

“This is just another example of how Obama’s recess appointees have consistently favored Big Labor over independent workers’ interests,” said Mix.

Opportunistic Teamsters lawyers also attack recess appointees

Ironically enough, Teamster lawyers have actually latched on to the legal arguments against Obama’s NLRB recess appointees in an effort to overturn a recent Foundation legal victory.

Last summer, the U.S. Court of Appeals for the Tenth Circuit upheld an?NLRB ruling against a local Teamster union policy that discriminated against nonunion workers employed by Interstate Bakeries in Oklahoma.

Oklahoma worker Kirk Rammage received free assistance from the National Right to Work Foundation during his six and a half year legal battle challenging the Teamster union’s discriminatory policy.

Rammage was the single nonunion sales representative with Dolly Madison for over 15 years before his division was merged in 2005 with Wonder Bread/Hostess. Although the company initially wanted to protect Rammage’s seniority during the merger, Teamsters Local 523 union officials insisted that union members receive preferential treatment by putting Rammage at the bottom of the seniority roster despite his longer workplace tenure. The company eventually caved in to the union bosses’ demand.

The Tenth Circuit upheld the NLRB’s ruling and slapped Teamster Local 523 with monetary sanctions for the frivolous nature of the union’s appeal. Undeterred, Teamster lawyers are now contesting the award of monetary compensation to Rammage at an NLRB compliance hearing, arguing among other things that a monetary award would be illegitimate because the Obama Administration NLRB appointees were illegitimately installed during a Senate session.

“Teamsters bosses have demonstrated how two-faced they are in defense of their forced-dues powers,”?said Mix. “For Big?Labor, the Constitution isn’t the law of the land. It’s a tool they usually ignore but occasionally use to attempt to justify pushing more workers into their forced-dues paying ranks.”

Today, National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse testified before the House Committee on Education and the Workforce. LaJeunesse explained how the National Labor Relations Board has allowed union bosses to erect bureaucratic hurdles that discourage independent workers from asserting their rights. A copy of LaJeunesse’s testimony can be found here.

Regular Freedom@Work readers are undoubtedly familiar with the Obama NLRB’s pro-forced unionism bias. For more on the Board’s troubling agenda, click here. 

Foundation staff attorney, Ave Maria law professor, and former National Labor Relations Board (NLRB) Member John Raudabaugh has published his latest installment to the Foundation’s "NLRB Watch." blog feature.  

In "NLRB Watch" #6, Raudabaugh explains how a recent NLRB decision to force a company to continue to bargin with union officials even though 18 of the company’s 21 employees stated they wanted nothing to do with the was overturned in federal court.

Click here to read the rest of this and other posts located at the "NLRB Watch" page. And be sure to follow the National Right to Work Foundation on Facebook and Twitter to get alerts on new "NLRB Watch" posts!

As the fight over Michigan’s Right to Work legislation heats up, many pro-forced unionism journalists and media outlets have suggested that a law protecting worker freedom would jeopardize the state’s economic prospects. The case for Right to Work has always rested on the importance of defending worker freedom, but Right to Work laws also have a proven track record of encouraging economic growth. In fact, the National Institute for Labor Relations Research recently put together a blog post debunking a particularly misleading column making the economic case against a Michigan Right to Work law:

Mr. Gallagher’s column left out several obvious and relevant facts. For example, he suggested Right to Work laws somehow lower incomes without acknowledging the basically undisputed fact that on average the cost of living is significantly lower in Right to Work states than in forced-unionism states.

As the National Institute for Labor Relations Research pointed out in a fact sheet published last month, in 2011 the cost of living in states where forced union dues are permitted was nearly 20% higher than in Right to Work states.

Read the whole thing here. 

Last week, Service Employees International Union (SEIU) Healthcare Workers West organizers in Orange County, California were booted out of a hospital for the second time this year.

SEIU officials have been trying to unionize workers at Chapman Medical Center through a backroom deal known as a "neutrality agreement" designed to grease the skids for workers to be forced into union ranks.

The agreement was anything but "neutral": Company officials granted union operatives access to company facilities to conduct a coercive "card check" organizing campaign in which union organizers pressure workers to fill out cards that count as votes for union control of the workplace. Meanwhile, Chapman waived the right to have a federally-supervised secret ballot election to determine whether employees really wish to be unionized.

SEIU organizers resorted to harassing late night phone calls, blocking workers’ driveways while they were heading to work, bribing workers with food to sign "cards" that would later count as "votes," and stalking workers.  One time, workers even had to resort to calling the police to remove the unwanted SEIU militants from their workplace.

Even though Chapman workers won a settlement from the SEIU over the summer which forced the union to renounce the "recognition" it received from Chapman and forego the use of card check, union organizers managed to force a unionization election. The SEIU hierarchy lost again, 90 to 48.

Meanwhile, across the nation, the California-based National Nurses Organizing Committee (NNOC) union hierarchy is on a crusade to unionize "every nurse in the nation." As a result, NNOC union bosses have entered into "neutrality agreements" with nationwide healthcare providers Tenet Healthcare Corporation (NYSE: THC) and HCA Holdings, Inc. (NYSE: HCA), among others. 

Nurses from across the country, from Texas to Pennsylvania and Florida are speaking out against the forced unionization of their workplaces.

One major flashpoint in this nationwide battle over nurses’ workplaces recently occurred in multiple Tenet-own hospitals in El Paso, Texas. In just 10 days, three nurses from two El Paso hospitals filed federal charges against the NNOC union and Tenet for denying nurses who oppose unionization equal access to discuss the effects of unionization in their workplaces. The NLRB Regional Office in Phoenix has already found merit to some of the charges. 

Moreover, in July, nurses in McAllen, Texas successfully voted the NNOC union hierarchy out of their HCA-owned hospital. And Tenet is facing federal charges in Boca Raton, Florida for enforcing a discriminatory neutrality agreement between its facility there and SEIU organizers.

In El Paso, the NLRB held a unionization election in Sierra Medical Center. And despite all the odds, a tenacious group of nurses managed to hold off the forced unionization of their workplace by 10 votes.

Despite union bosses’ crusade to unionize every nurse in the nation, nurses everywhere are fighting back against the forced unionization of their workplaces. 

Fox Business has a great report on union bosses’ extravagant spending habits, including lavish junkets and visits to luxury resort hotels:

Besides the tens-of-millions of dollars big labor spent buying luxury resorts, country clubs or Learjets, labor unions are also spending millions of dollars in tax-free union funds on conferences at lavish hotels and resorts — including junkets at resorts owned by the unions themselves . . .

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), run by Richard Trumka, is the largest umbrella federation of unions in the U.S., with 56 unions representing more than 12 million. Its officials have been living large at member expense.

AFL-CIO unions spent at least $2.6 million in union funds on junkets to nine conferences at places like the Flamingo Hotel or Golden Nugget in Las Vegas, including more than $1.7 million at the swanky union-ownedWestin Diplomat resort and golf club in Florida, from 2010 to 2011, government documents show . . .

Luxury getaways aren’t the only thing Big Labor is buying, however. According to The Wall Street Journal, unions spent over 4.4 billion dollars on electioneering from 2005 to 2011, a figure that exceeds previous estimates (except for two studies by the National Institute for Labor Relations Research) by a factor of four:

The usual measure of unions’ clout encompasses chiefly what they spend supporting federal candidates through their political-action committees, which are funded with voluntary contributions, and lobbying Washington, which is a cost borne by the unions’ own coffers. These kinds of spending, which unions report to the Federal Election Commission and to Congress, totaled $1.1 billion from 2005 through 2011,according to the nonpartisan Center for Responsive Politics.

The unions’ reports to the Labor Department capture an additional $3.3 billion that unions spent over thesame period on political activity.

The costs reported to the Labor Department range from polling fees, to money spent persuading union members to vote a certain way, to bratwursts to feed Wisconsin workers protesting at the state capitol last year. Much of this kind of spending comes not from members’ contributions to a PAC but directly from unions’ dues-funded coffers. There is no requirement that unions report all of this kind of spending to the Federal Election Commission, or FEC.

Much of this political cash is collected from nonunion workers forced to pay dues as a condition of employment. These employees aren’t affiliated with unions and often disagree with their political agenda. Technically, union officials are supposed to allow nonunion employees to opt out of paying for union political spending, but – as recent Right to Work cases demonstrate – that requirement is often ignored or actively subverted.

Whether it’s politics or luxury junkets, the only real solution to Big Labor’s lavish spending is right to work laws, which make the payment of union dues strictly voluntary. The power to extract dues from unwilling workers has made union bosses unaccountable. If unions were solely dependent on voluntary contributions, they’d be much less likely to risk alienating their supporters with divisive political lobbying or lavish getaways for the higher-ups. 

This morning, the U.S. Supreme Court took action in another case brought by Foundation staff attorneys. Instead of issuing an order granting or denying cert in the case, the High Court invited the U.S. Solicitor General to file a brief in the case Harris v. Quinn. That request shows that the Justices are interested in the case.

The case stems from a legal challenge initiated by eight Illinois homecare providers with the help of National Right to Work Foundation staff attorneys against executive orders issued by Illinois Governor Pat Quinn and his disgraced (and now incarcerated) predecessor, Rod Blagojevich.

Quinn and Blagojevich issued executive orders aimed at forcing unwilling homecare providers into a union. Under the Governors’ decrees, personal care providers are considered "public employees" for the purposes of union organizing, a move that has since forced thousands of unwilling care providers into the SEIU’s forced dues-paying ranks.

The providers, including lead plaintiff Pam Harris (interviewed in the video above), are challenging the executive orders on the grounds that forcing them to affiliate with a union and subsidize union activities violates their rights to free expression and association.

The U.S. Supreme Court will now decide whether or not to hear the case this Fall, after the U.S. Solicitor General files a brief.

For more information on the case, check out the Foundation’s Supreme Court petition. You can also read amicus curiae briefs filed in support of the Foundation’s petition from the Cato Institute and the Pacific Legal Foundation.