Foundation Op-Ed: ‘Public Employees Never Waived Their 1st Amendment Rights’
Recently, Newsmax published an op-ed by National Right to Work Foundation President Mark Mix, highlighting a case from Alaska pending at the U.S. Supreme Court. In the case the State of Alaska seeks protect the First Amendment rights of public employees under the Foundation-won 2018 Janus v. AFSCME decision, by requiring an affirmative waiver before state agencies deduct any union dues:
If you’ve ever watched a television show featuring law enforcement, you probably know these words by heart, “You have the right to remain silent. Anything you say can and will be used against you in a court of law…”
Such a “Miranda” warning ends the following way, “Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
Police “Mirandize” suspects because, although a citizen can waive a constitutional right they have, the government cannot assume that such a right has been waived.
Miranda warnings protect citizens’ Fifth Amendment rights, but the principle applies to any constitutional right. (See Miranda v. Arizona, 384 U.S. 436 1966).
The State of Alaska has recently asked the U.S. Supreme Court to hear a case about Alaska Gov. Mike Dunleavy’s attempt to apply this principle to protect the First Amendment rights of state employees.
Five years ago, National Right to Work Legal Defense Foundation staff attorneys argued and won the landmark Janus v. AFSCME case at the U.S. Supreme Court.
That decision established that the First Amendment prohibits government unions from requiring that public employees pay union dues and fees without their explicit and informed consent.
In the wake of Janus, the State of Alaska was among the first jurisdictions to proactively enforce the decision.
Citing Janus, Gov. Dunleavy issued an executive order directing state officials not to deduct union dues from the paychecks of public employees, unless the state has clear evidence that a worker has knowingly waived their First Amendment Janus rights.
Dunleavy set up a system that required such proof be submitted annually as a condition of the state continuing to deduct union dues.
The state cannot assume state employees want to waive their rights indefinitely: Talking to a police officer voluntarily years ago is not evidence of waiving Fifth Amendment rights in perpetuity.
Despite the straightforward justification, not to mention the fact that Dunleavy’s order doesn’t prevent a single worker from having dues deducted voluntarily, government union bosses in Alaska were livid…
Find the rest of the op-ed online on the website of Newsmax here.
Foundation Op-Ed: ‘Biden’s Labor Board Wants to Trap Workers in Unions they Oppose’
In an op-ed for The Hill published on Labor Day (September 5, 2023) entitled “Biden’s labor board wants to trap workers in unions they oppose,” National Right to Work Foundation President Mark Mix highlighted the coercive pro-union boss policies being pushed by Biden-majority National Labor Relations Board to the detriment of the rights of independent-minded workers:
Big Labor bosses have a problem: Despite their vitriolic rhetoric and a small number of loud online activists, most workers want nothing to do with unions.
A Gallup poll released last Labor Day spotlighted the issue: A strong majority of nonunion workers in the U.S. (58 percent) say they are “not interested at all” in joining a union, whereas just 11 percent say they are “extremely interested.”
Since it takes a majority of workers in a given workplace to support a union before monopoly union representation can be imposed, union organizers face a basic math problem — one that explains why only 6 percent of private-sector workers are unionized today.
Yet rather than consider ways of making unionization more attractive to rank-and-file workers, politically-connected union bosses have a different plan: Rig the rules to force more workers into their ranks, willing or not.
President Biden, who campaigned on being “the most pro-union president in American history” and is counting on Big Labor’s multi-billion-dollar political machine again in 2024, is unleashing his administration to the benefit of his favorite special interest.
The National Labor Relations Board (NLRB), stocked with Biden appointees and former union lawyers, has been busy doing just that. If workers won’t voluntarily vote unions in, Biden’s NLRB, whose rules cover most private sector workers, wants to take their vote away.
That’s why the NLRB, at the end of August, effectively mandated the “card check” unionization process by bureaucratic fiat. Never mind that numerous union-backed measures in Congress to require this abuse-prone unionization process have failed to pass into law.
Card-check drives occur when employers, usually in the face of union-applied political and economic pressure, waive workers’ right to a secret ballot election. During these drives, union officials are allowed to demand union authorization cards directly from workers using coercive tactics that would be unlawful during a secret ballot vote.
Union organizers can show up at workers’ homes over and over again demanding signatures, in some instances requiring workers to call the police to get organizers to leave. Workers report being misled about the true implications of signing the cards, and some have been told they would be fired if they didn’t sign just before the union successfully took over.
Some workers even face threats of violence. In one SEIU organizing drive, a worker reported being told that the union would “come and get her children” and “slash her tires” if she didn’t sign a union card…
Read the rest of Mark’s piece on the website of The Hill here.
National Right to Work Foundation in the Detroit News: Big Labor’s Latest Attack on Michigan Right to Work
A recent op-ed from National Right to Work Foundation President Mark Mix in the Detroit News discusses union bosses never-ending attempts to overturn or undermine Michigan’s Right To Work protections for workers.
The article explains how union officials wield their monopoly power against workers in the union-controlled “grievance process” and why the Foundation recently filed an amicus brief in a case currently at the Michigan Supreme Court in which union officials are attempting to circumvent Right to Work:
Courts have long recognized that, in unionized workplaces, union kingpins effectively own the process through which workplace grievances regarding alleged misapplications or misinterpretations of company policies are handled.
Five-and-a-half decades ago, U.S. Supreme Court Justice William Brennan’s majority opinion in NLRB v. Allis Chalmers bluntly acknowledged that America’s national labor policy “extinguishes the individual employee’s power to order his own relations with his employer,” while “clothing” union bosses with monopoly-bargaining power.
And Justice Thurgood Marshall’s 1975 Emporium Capwell opinion resoundingly affirmed that a union controls all grievances under “exclusive” union bargaining, notwithstanding any employee attempts to redress grievances independently.
Their ironclad control over employee grievances is undoubtedly a boon for union bosses. Two current federal lawsuits filed by Michigan workers against United Auto Workers union bosses and Fiat Chrysler executives vividly illustrate why.
In one of these cases, 42 current and former employees of FCA (now known as Stellantis) charge that they were cheated out of wages and benefits they were promised by UAW bosses when their pay was cut from $28 an hour to $16 an hour after they switched from part-time to full-time jobs.
When the workers complained about the pay cut, local UAW bosses allegedly promised to file grievances on their behalf — but never did.
In the other case, 47 current and former engineers allege that FCA violated the union contract when it transferred them from a facility in Auburn Hills to another one in Trenton. Grievances they filed regarding the matter were mishandled or withdrawn without explanation by the UAW brass.
As outrageous as UAW bosses’ failure to follow up adequately on workers’ grievances in these two cases may seem to ordinary citizens, the fact is that federal law permits union bosses with monopoly-bargaining power to refuse to advance workers’ legitimate grievances simply because they don’t think it’s in the interest of the union to do so.
[…]
But even this extraordinarily privileged status isn’t enough to satisfy government union officials in Michigan. In Technical, Professional, and Officeworkers Association of MI v. Daniel Renner, a case now pending before the Michigan Supreme Court, they are brazenly contending they may vindictively refuse to process the grievances of union nonmembers to punish them for not joining and bankrolling the union, even when the union contract prohibits the individual employee from filing grievances on his or her own behalf.
Though union lawyers’ outrageous claims in Renner’s case have already been rejected at the Michigan Employment Relations Commission and at the State of Michigan Court of Appeals, there is no guarantee they will be dismissed by the Michigan Supreme Court.
That’s why the National Right to Work Legal Defense Foundation filed a brief Friday in the case defending Daniel Renner’s rights under Michigan’s right-to-work law.
The Michigan Supreme Court must reject this cynical attack on Wolverine State workers’ legal protections against being forced to fund a union they disapprove of.
Read the entire article on the Detroit News website.
More details on the case and the Foundation’s brief can be found here. Read the brief here (PDF).
Biden’s Agenda at the NLRB: Protect Union Bosses at the Expense of Rank-and-File Workers
The Federalist Society recently published a piece by veteran Foundation Attorney Glenn Taubman describing the “seismic policy shifts” at the National Labor Relations Board (NLRB) that have occurred in the first 100 days of the Biden administration.
Taubman explains the unprecedented nature of Biden’s decision to fire NLRB general Counsel Peter Robb, who had 10 months left on his Senate-confirmed term:
“No previous president had ever fired a General Counsel in the 75-year history of the agency, presumably out of respect for the Constitution’s “advice and consent” process for Senate confirmation, and Congress’ statutory provision of a four-year term for General Counsels that overlaps the staggered five-year terms of the Board members.”
Taubman also discusses how Biden replaced Robb with Peter Ohr, a longtime NLRB bureaucrat, who quickly and aggressively moved to undo efforts to protect workers from having their rights violated by union officials:
[O]nce installed, Acting General Counsel Ohr quickly set to work reversing the policies of his predecessor. Only days after being appointed he issued Memo 21-02, rescinding ten of General Counsel Robb’s guidance memoranda. Such a mass rescission of guidance memos is both astonishing and unprecedented. Moreover, General Counsel Robb had issued those memos precisely to protect individual employees from labor union abuses…
Acting General Counsel Ohr has moved to withdraw cases and briefs filed by his predecessor, all to prevent those issues from being decided by the current NLRB, which still maintains a majority of President Trump’s appointees. For example, Ohr ordered two cases challenging neutrality agreements withdrawn, just weeks before they were set for trial. He asked the Board to remand for dismissal a fully briefed case challenging a union’s refusal to give a copy of its neutrality agreement to an adversely affected employee, stating that he would have never issued that complaint. He successfully withdrew an amicus brief General Counsel Robb had filed in a case of nationwide importance concerning modifications to the “contract bar.” Most recently, Ohr has sought to enforce a last-minute unilateral settlement to moot a fully briefed case challenging the legality of a dues checkoff authorization that contained threatening “MUST BE SIGNED” language.
In sum, President Biden and his Acting General Counsel are working to benefit union officials, to the detriment of individual employee rights in the workplace. The speed of their policy shifts has been staggering to behold, and worker advocates are preparing for even more pro-union decisions from Biden’s upcoming appointees.
By firing Peter Robb, President Biden violated 75 years of precedent, and possibly the law, to enact an agenda that protects union bosses at the expense of rank-and-file workers
Read Glenn Taubman’s full Federalist Society article here.
Foundation President: “A Rigged System Is Keeping a California Charter School Under Union Rule”
Recently, Reason Magazine published an article by National Right to Work Legal Defense Foundation President Mark Mix describing the ongoing legal battle between teachers at San Diego’s Gompers preparatory academy and San Diego Education Association union officials.
Gompers teachers have been fighting to hold a decertification vote that would remove union officials from the school for over a year, but have been met with resistance from union lawyers and the state bureaucracy. The teachers are defending their rights with free legal representation from National Right to Work Foundation staff attorneys:
“Kristie Chiscano, a teacher who left a career as a surgeon to serve Gompers students, sought a school that wasn’t unionized: “I chose to work at a school that didn’t have a union and now they’ve come in and they’re running everything about my contract and my work.”
Chiscano and many of her fellow teachers wanted a secret-ballot vote to remove the union. Under California law, enforced by the Public Employment Relations Board (PERB), public employees must wait one year to request a decertification vote after a union is certified. Chiscano and others collected enough signatures from teachers (over the 30 percent needed) and planned to file the petition with the PERB soon after the one-year waiting period expired.
But when the union got wind of the teachers’ push for that vote, SDEA lawyers preemptively filed “blocking charges” against the school, leading to the PERB’s regional attorney blocking the decertification petition from moving forward. Now, a year after the petition, the election is still blocked because the board’s rules favor union officials over independent-minded employees.
Under PERB policy, public employees’ right to decertify can be blocked even if the employees who signed and filed the petition are not alleged to have done anything wrong. In deciding whether to block a vote, proof of the union officials’ allegations is irrelevant because the PERB must treat them as true. So when Chiscano appealed the regional attorney’s ruling blocking the decertification election, the PERB in Sacramento upheld the block because the regional official was right to assume the veracity of the union’s allegations with no independent investigation.
With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Chiscano and her fellow teachers continue to fight for a vote, now two years after the union was installed without a vote and over a year after the teachers requested the decertification election.”
You can read the full article here.
Dr. Chiscano spoke to the Foundation last year about the effect union monopoly control has had on Gompers, its teachers and its students:
In the News: “Foundation Sues to Give Public Employees Their Right Not to Pay Union Dues”
The National Right to Work Foundation-won Janus v. AFSCME U.S. Supreme Court decision allows public employees to stop paying dues or fees to a union at any time they choose. Janus affirmed that the First Amendment protects government workers from supporting a union against their wishes.
But ever since the Janus decision in June 2018, many union bosses have refused to comply with the High Court’s decision. So Foundation staff attorneys have filed dozens of cases across the country to enforce the Janus decision and compel union bosses to respect the First Amendment rights of the workers they claim to “represent.”
Journalist Mark Tapscott recently reported on a number of these cases for The Epoch Times, including a newly filed case for a police officer serving on the front lines in Las Vegas:
Las Vegas Police Officer Melodie DePierro is the latest in a growing line of public sector employees suing in federal court to demand recognition of their rights under a 2018 Supreme Court decision.
DePierro’s action was filed in the U.S. District Court for Nevada against the Las Vegas Metropolitan Police Department (LVMPD) and the local Police Protective Association (PPA) union.
In Janus v American Federation of State, County and Municipal Employees (AFSCME) decided by a 5-4 vote in June 2018, the high court ruled that public sector employees cannot be forced to pay union dues in the form of agency fees without being given a chance to consent or refuse the deduction.
DePierro noted in her suit that the department’s monopoly bargaining agreement with the union only allowed a 20-day window of opportunity to request agency fee refunds and that she had never agreed to the deduction in the first place.
Right-to-Work advocates cheered Janus as a landmark decision that would prompt millions of employees at all levels of government to demand an end to hundreds of millions of dollars in agency fees that helped fund partisan union political activities with which they disagreed.
…
“Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to keep imposing an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” NRTWLDF President Mark Mix said in a statement announcing the suit.
“The High Court made perfectly clear in Janus that affirmative consent from employees is required for any dues deductions to occur. Yet PPA union bosses are clearly violating that standard here,” Mix said.
…
A week before the DePierro filing, NRTWLDF attorneys issued a special notice to more than 28,000 Ohio state employees advising them of their right not to pay agency fees. The notice was part of a settlement of the foundation’s suit against the state government and the Ohio Civil Service Employees Association, AFSCME Local 11 (OCSEA).
Other Janus suits currently working their way through the courts include NRTWLDF actions against the Chicago Teachers Union, the Alaska State Employees Association (ASEA), the United Teachers of Los Angeles (UTLA), California Service Employees International Union (SEIU), the University Professional and Technical Employees (UPTE) union and the University of California, and the Township of Ocean Education Association (TOEA), New Jersey Education Association (NJEA) and the National Education Association (NEA) unions. The latter suit has reached a federal appeals court.
Read the entire article online at The Epoch Times here.
Mark Mix in the Washington Examiner: Why We Should End ‘Anti-Democratic’ Government Union Boss Monopoly Bargaining Powers
An op-ed from National Right to Work Foundation President Mark Mix appeared in the Washington Examiner today which exposes the detrimental effects of monopoly bargaining privileges for government union bosses.
Mix explains that giving union officials the power to force workers under their so-called “representation” not only allows them to put a massive burden on taxpayers with wasteful contracts, but also stops the worst government employees from being held accountable for wrongdoing:
The problem with government unions protecting bad and dangerous workers is not isolated to police departments. In New York City, for instance, firing bad teachers has long been next to impossible. One teacher accused of sexual misconduct against students was “warehoused” for 20 years, collecting $1.7 million from taxpayers despite not setting foot in a classroom. Others continue to receive payments under similar arrangements as well.
Despite calls for reform, especially around police unions, most fail to address the central role played by government union monopoly bargaining power. So-called “collective bargaining” in the government sector is inherently anti-democratic. It forces officials elected to set public policy to “negotiate” that policy with a special interest group whose aims are frequently in direct opposition to the public’s interests. It also forces good civil servants to associate with union officials who will bend over backward to shield their corrupt or inefficient coworkers from any kind of accountability.
Read the full article here.
Foundation Case for Mountaire Worker Could Nix Longstanding Curb on Employee Rights
The Federalist Society just published an article by veteran Foundation staff attorney Glenn Taubman, which demonstrates how Selbyville, DE, Mountaire Farms employee Oscar Cruz Sosa and his coworkers’ effort to vote United Food and Commercial Workers (UFCW) union officials out of their workplace now has the potential to abolish, or at least significantly limit, a longstanding restriction on worker rights at the National Labor Relations Board (NLRB).
Taubman first explains that the restriction, the “contract bar,” exists nowhere in the National Labor Relations Act (NLRA) and arbitrarily stifles the free choice of workers:
“Under that Board-created doctrine, employees are forbidden from decertifying their incumbent union representative for as long as three years, simply because the union and employer have reached a collective bargaining agreement. The text of the NLRA is silent about such a bar limiting employees’ rights. Indeed, the only ‘bar’ Congress established in the NLRA is a one-year ‘election bar’ (no more than one valid election can be held per year), which is a far cry from the Board-created three-year contract bar…”
Taubman goes on to recount how UFCW lawyers kept claiming that the non-statutory “contract bar” should have blocked Cruz and his fellow employees from having the vote they petitioned for, even after a regional NLRB official had ruled against them:
“In the Mountaire Farms case, employee Oscar Cruz Sosa collected a petition from more than 30% of his fellow employees and filed it with the NLRB seeking an election. The United Food & Commercial Workers (UFCW) union responded by asserting that the election was barred by the contract bar, since the petition was filed in year two of a five-year agreement. However, the Director of NLRB Region 5 held that the compulsory dues clause in the contract was facially unlawful because it lacked a mandatory 30-day grace period, and therefore no contract bar applied.”
The union lawyers immediately requested that the NLRB in Washington review this decision and in fact expand the “contract bar” to apply even to their invalid contract. But, as Taubman says, Foundation staff attorneys countered that the NLRB should, if it decided to review the case, consider doing away with or significantly limiting the “contract bar.” And that’s just what the NLRB did:
“Alternatively, Mr. Cruz Sosa argued that if the Board granted the UFCW union’s Request for Review, it should take up the entire contract bar doctrine with a view towards overruling it or significantly shortening it.
“On June 23, 2020, the Board granted the Union’s request for review of the regional director’s Decision and Direction of Election, finding that it raised substantial issues warranting review…On July 7, 2020, the Board issued a Notice and Invitation to File Briefs, allowing the public to weigh in on the continuing viability of the contract bar doctrine.”
Read the whole piece here.
More on the case can be found here and here. Legal documents are available on the NLRB’s case page.
Wall Street Journal: Texas AG Seeks to Enforce Government Employees’ First Amendment Rights Under Janus v AFSCME
The Editorial Board at The Wall Street Journal published a column on May 31, 2020, detailing efforts in Texas to enforce the landmark Janus v AFSCME U.S. Supreme Court decision argued and won by National Right to Work Foundation staff attorneys:
The Attorney General of Texas, Ken Paxton, plans to release an advisory opinion soon that could help free public employees who are fed up with their union. In 2018 in Janus v. Afscme, the Supreme Court said that union fees couldn’t be deducted from the paycheck of a government worker who didn’t ‘affirmatively consent.’
“The question is what flows from this logic. Last fall Alaska Governor Michael Dunleavy, citing Janus, signed an order to let state workers quit the union anytime, instead of only during 10 enchanted days once each year. Union members also would have to refresh their consent forms periodically.
The move by Attorney General Paxton came after Foundation President Mark Mix and staff attorney William Messenger — who argued the Janus case at the Supreme Court — called on states like Texas to emulate Alaska. They wrote that “state officials, along with federal agencies, should follow Alaska’s example” in an op-ed for The Wall Street Journal last August.
In addition, Mix and Messenger highlighted how Janus requires that government workers must voluntarily waive their First Amendment rights before union dues or fees can be deducted from their paycheck through a voluntary waiver:
Fourteen months ago the Supreme Court held that the First Amendment protects government employees from being forced to subsidize unions. Janus v. Afscme affirmed that some five million state and local workers have the legal right to stop such payments.
Another aspect of Janus, however, has been overshadowed. The decision requires that the government obtain proof that workers voluntarily, knowingly and intelligently waived their First Amendment rights not to subsidize union speech before deducting union dues or fees from their paychecks. “To be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence,” Justice Samuel Alito wrote. “Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”
Yet the federal government and many states and localities continue to deduct union dues without evidence that workers waived their speech rights, usually based on pre-Janus authorization forms that come nowhere close to demonstrating a waiver. Labor Department figures suggest unconstitutional deductions could be coming out of the paychecks of as many as 7.2 million government employees nationwide. The fix is simple: Governments must cease transferring wages to unions until they amend their dues-deduction policies to comply with Janus.
West Virginia Supreme Court Cites Foundation-Won Janus Case in Decision to Uphold Right to Work Law
In April the West Virginia Supreme Court upheld West Virginia’s Right to Work law, ending a multi-year union boss legal challenge.
National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse wrote an article for The Federalist Society analyzing the decision in the case: Morrisey v. West Virginia AFL-CIO. LaJeunesse just published piece highlights how the justices relied heavily on the Foundation-won Janus v. AFSCME U.S. Supreme Court decision to uphold the law protecting workers against being forced to subsidize union activities:
“Four of the five Justices concluded in Morrisey that the United States Supreme Court’s decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018), required that result. Janus held that forcing nonmembers to pay union fees as a condition of public employment violates the First Amendment. As Justice Workman put it, concurring in the judgment of the Court in Morrisey, ‘there is no principled basis on which to conclude that under the legal analysis upon which Janus is based, a prohibition on the collection of agency fees is constitutional for public employees’ unions but unconstitutional for private employees’ unions.'”
Foundation staff attorneys filed 10 legal briefs in Morrisey in defense of West Virginia’s Right to Work law. Foundation President Mark Mix hailed the decision as a “a great victory for Mountain State employees.”
Since 2012, Foundation staff attorneys have defended and enforced five newly passed Right to Work in states including West Virginia.
