Comments argue against rule that would increase costs in order to discriminate against vast majority of American construction workers who are non-union

Washington, DC (October 17, 2022) – Today, the National Right to Work Legal Defense Foundation filed comments opposing a Federal Acquisition Regulatory (FAR) Council proposed rule to block non-union workers from working on federal contracts. The rule, which implements President Biden’s Executive Order 14063, requires federal agencies to impose PLAs (Project Labor Agreements) on contractors and employees who work on federal construction projects that will cost $35 million or more.

PLAs mandate that, to work on a construction project, contractors’ workers must be under union monopoly control. Given that around 80 percent of construction workers and contractors have opted against unionization, this union-only requirement discriminates against the vast majority of America’s construction workers. This also drives up the costs to taxpayers due to inefficient union work rules that union officials insist on.

Foundation attorneys note in the comments that “[t]here is no legitimate legal or policy basis for forcing employees and contractors to abide by union-only PLAs to work on major federal construction projects,” and that the executive order “is simply naked political payback by the current administration to its union supporters.”

The comments explain six ways in which the proposed rule violates federal law, particularly noting that the PLA requirement “will serve only to harm construction workers who reject union representation,” arguing they will be “subjected to unwanted union representation; forced to pay union dues as a condition of employment in non-Right to Work states…and will have large portions of their compensation diverted to union pension plans from which they will receive no benefits,” among other things.

Comments: Discriminating Against Majority of Construction Workers Violates Federal Law

The Foundation’s comments also point out that the proposed rule violates the Competition in Contracting Act (CICA), a federal law intended to improve costs by increasing competition for federal contracts. The comments state that shrinking the pool of contractors to only those that are willing to give into union boss demands “will inevitably lead to increased contracting costs for the federal government,” making the executive order and the rule it promulgates inconsistent with CICA.

In fact, as the comments explain, the proposed rule itself acknowledges that “between 2009 and 2021, federal contracting officers—who are trained to award contract to bidders that provide the best value to the government —required the use of PLAs in only 12 out of the approximately 2,000 instances where a Federal construction project cost $25 million or more.” This statistic underscores the inefficiency of PLAs.

The Foundation’s comments also argue that the proposed rule violates the Regulatory Flexibility Act (RFA) because it doesn’t analyze how small non-union contractors unwilling to submit to PLAs will be affected by the rule. The rule is also “arbitrary and capricious,” according to the comments, because of the rule’s failure to consider its cost impacts.

“So-called ‘Project Labor Agreements’ simultaneously discriminate against the over 8 in 10 American construction workers who exercise their right not to associate with a labor union, while forcing taxpayers to shoulder the extra cost of wasteful union work rules,” commented National Right to Work Foundation President Mark Mix. “Once again the Biden Administration shows its willingness to throw rank-and-file workers under the bus, just to enrich their special interest allies in Big Labor.”

Employee submitted majority-backed petition seeking ouster of union in accordance with federal Labor Board standards, but IAM officials fought it for years

Lexington, KY (October 7, 2022) – With free legal aid from the National Right to Work Legal Defense Foundation, Keith Purvis and his coworkers at furniture manufacturer Leggett & Platt have finally formally freed themselves from the control of unwanted International Association of Machinists (IAM) union officials. Purvis and his coworkers have been fighting since 2016 to exercise their right to remove the union.

The victory comes after a DC Circuit Court decision reversed the National Labor Relations Board (NLRB) and found that, under the Foundation-won Johnson Controls case, NLRB bureaucrats had arbitrarily allowed IAM union bosses to remain in power at the facility despite a petition showing a majority of workers wanted them gone. Following that DC Circuit decision, the NLRB finally confirmed that IAM union officials are no longer the bargaining “representatives” at Purvis’ workplace.

In the 2019 Johnson Controls decision, the NLRB established an employer’s power to cease recognition of a union in a workplace once the current monopoly bargaining agreement expires, provided employees have submitted a petition indicating the majority of them do not wish to be “represented” by the union. If union officials dispute their loss of majority support, the issue is resolved by a secret-ballot election among workers on whether the union should remain in power.

The Johnson Controls process is a marked improvement over the old standard, in which union officials could unilaterally invalidate a petition showing the majority of workers rejected the union by submitting “union cards” or other documentation purportedly showing the union had regained majority status. Before Johnson Controls, secret-ballot elections were generally not conducted to resolve these disputes, despite courts affirming that such elections are the best gauge of employee approval.

Even After Two Petitions for Union’s Ouster, Union Bosses Tried to Force Themselves Back into Facility

In 2016, Purvis submitted to Leggett & Platt management the first of two “decertification petitions,” which demonstrated a majority of his coworkers wanted the union removed from the facility. In response, his employer announced that it would stop recognizing IAM union officials on March 1, 2017. However, IAM union bosses filed charges with the NLRB immediately after, alleging that Leggett & Platt management’s withdrawal of recognition at employees’ behest was unlawful. Undeterred, Purvis gathered signatures for and submitted a second decertification petition, this time seeking a secret-ballot election conducted by the NLRB.

While litigation over union officials’ charges was pending before the DC Circuit Court in 2019, the NLRB issued the Johnson Controls decision. The DC Circuit Court sent the case back to the NLRB, ostensibly because Johnson Controls meant Leggett & Platt had acted lawfully by anticipatorily withdrawing recognition from the union when presented with a majority of employee signatures seeking that outcome.

The NLRB refused to apply the Johnson Controls standard to the case, but, when the case came before the DC Circuit Court again on appeal, the DC Circuit ruled that the NLRB’s refusal to do so was “arbitrary and capricious.” Finally, as September 2022 ended, the NLRB issued a decision confirming the IAM was no longer the majority representative, and IAM officials could not use litigation to foist monopoly bargaining power over the facility.

American Workers Increasingly Giving Boot to Unpopular Unions

Purvis and his coworkers’ successful exercise of their right to boot the unpopular IAM bosses comes as private sector workers across the country are increasingly moving to get rid of union officials that don’t serve their interests. The NLRB’s own data show that, currently, a unionized private sector worker is more than twice as likely to be involved in a decertification effort as the average nonunion worker is to be involved in a unionization campaign.

“No worker in America should be subjected to union control that they oppose, and the Foundation-won Johnson Controls NLRB decision safeguards a vital pathway for workers to exercise their free choice rights in that regard,” commented National Right to Work Foundation President Mark Mix. “Unfortunately, as was the case with Mr. Purvis’ effort, union bosses and Big Labor allies at the NLRB continuously try to pare back this decision so union officials can maintain their grip on workplaces even when it’s obvious workers want them gone.”

“We’re glad Mr. Purvis and his coworkers are finally free of the union and we were proud to assist him,” Mix added.

Federal labor board data show that workers across the country are increasingly likely to be involved in efforts to remove unions from workplaces

Sacramento, CA (September 23, 2022) – Seron Chand and her fellow nurses at Pine Creek Care Center, a Roseville nursing and rehabilitation facility, successfully exercised their right to vote unwanted Teamsters Local 150 union bosses out of their workplace. Chand obtained free legal aid from National Right to Work Legal Defense Foundation staff attorneys, who aided her in filing a petition asking the National Labor Relations Board (NLRB) to conduct a vote to remove the union (also known as a “decertification vote”).

The NLRB’s election certification showed more than 70% of the nurses voted to scrap the union. The NLRB is the federal agency responsible for enforcing private sector labor law, which includes holding employee votes to either remove or install a union in a workplace.

Chand and her colleagues benefitted from Foundation-backed reforms adopted by the NLRB in 2020, which make it easier for workers to exercise their right to boot unwanted union officials. Before the reforms, union officials could stop workers who had requested a decertification vote from casting a single ballot by filing so-called “blocking charges,” which often contain unverified and unrelated allegations of employer misconduct. The rule changes improved the process so employees can at least have a chance to vote before any allegations surrounding the election are handled.

Because California lacks Right to Work protections for its private sector workers, Chand and her fellow nurses were forced not only to accept the so-called “representation” of the clearly unpopular Teamsters union, but were required to subsidize union activities financially just to keep their jobs. In Right to Work states, union membership and all union financial support are strictly voluntary.

Pine Creek Nurses Join Nurses Across the Country Who Have Cut Ties with Unpopular Unions

Just a month before Chand and her colleagues’ successful decertification vote, Foundation attorneys aided nurses at Mayo Clinic in Mankato, Minnesota, in their successful effort to throw out the unpopular Minnesota Nurses Association (MNA) union from their workplace. About the same time, nurses from the St. James, Minnesota, branch of Mayo Clinic voted to decertify American Federation of State, County and Municipal Employees (AFSCME) Council 65 union officials by a nearly 9-to-1 margin, also with Foundation legal assistance.

In California, Foundation-backed nurses at Monterey’s Cypress Ridge Care Center voted to remove Service Employees International Union (SEIU) Local 2015 officials a few months ago.

The increase in efforts by workers to free themselves from unions they do not want is not limited to nurses. The NLRB’s own data show that, currently, a unionized private sector worker is more than twice as likely to be involved in a decertification effort as the average nonunion worker is to be involved in a unionization campaign.

“Big Labor is claiming that worker support for unions is soaring – a narrative that they will use ahead of midterm elections to convince their political allies to grant them even more coercive legal powers over rank-and-file workers,” commented National Right to Work Foundation President Mark Mix. “However, the NLRB’s own stats concerning unionization, as well as a spike in workers seeking Foundation aid in kicking out unwanted union officials, show that the real story is that workers are rejecting the increasingly politicized and coercive ‘representation’ today’s union officials are offering.”

Workers petitioned for election to oust union after first vote against contract, but union boss secretly signed unpopular contract in July anyway to maintain power

Franklin, PA (September 19, 2022) – Workers at Latrobe Specialty Steel’s facility (also known as Carpenter Technology) in Franklin, PA, are fighting Steelworkers union officials’ attempt to trap them under a union contract workers voted down twice. Their effort follows union bosses’ secret “ratification” of the unpopular contract despite telling workers that their votes would determine whether the contract would go into effect. Latrobe Specialty Steel employees are seeking to “decertify,” i.e. vote out, the Steelworkers Union with free legal assistance from National Right to Work Foundation staff attorneys.

Kerry Hunsberger leads an employee push to vote out the Steelworkers union at Latrobe Specialty Steel. Hunsberger’s attorneys filed a brief this week at the National Labor Relations Board (NLRB) arguing that union officials concocted an improbable contract ratification story to avoid being voted out by the workers they claim to “represent.” The union bosses admit to signing the unpopular contract behind workers’ backs in an attempt to trigger the NLRB’s so-called “contract bar” policy. The “contract bar” arbitrarily immunizes unions from employee decertification votes for up to three years after a contract between union and company officials is finalized.

Steelworkers Union Officials Signed Unpopular Contract to Avoid Being Voted Out by Workers

Latrobe Specialty Steel workers first voted July 25 on the contract drawn up by Steelworkers union officials. The workers soundly rejected the contract, and Hunsberger began collecting employee signatures for a “decertification petition” shortly afterwards. The NLRB will administer a union decertification election among the workers of a facility if the petition contains the signatures of 30% or more of the employees.

According to documents and transcripts filed with the NLRB, when Steelworkers union officials discovered a decertification petition was circulating, they secretly signed the disfavored contract on July 28, without telling the employees or the employer, in an attempt to activate the “contract bar” rule and avoid being voted out.

In their haste to enact the employee-rejected contract to trigger the “contract bar,” union officials didn’t even finalize critical details of the contract like the start and end dates. Even though the union claims this contract was supposedly in effect on July 28, union officials held a new employee ratification vote on August 1, encouraging workers to ratify the contract, but not telling them their “vote” was a meaningless formality because the contract was already signed and in effect.

Hunsberger submitted a valid decertification petition on August 1, just hours before the sham contract vote occurred. As with the previous vote, the workers again lopsidedly rejected the contract. But later that night, union officials suddenly announced to the employer that the contract was already in effect and the ratification vote was a nullity because of the union bosses’ covert signing on July 28. According to the trial transcript, one union boss admitted under oath that the Steelworkers union executes contracts despite employees voting them down, and that he did so in this case and ignored the employees’ vote against the contract “to protect the integrity of the union.” Apparently the Steelworkers bosses’ lust for monopoly bargaining power and compulsory union payments takes precedence over employee democracy.

In fact, the Steelworkers Union’s post-hearing brief openly admits that union officials “executed the contract on July 28 to… pre-empt the decertification petition circulating at the facility” and that the August 1 “vote was only taken as a courtesy to employees [and] was an attempt to obtain their blessing of the contract that the [union officials] had already executed.”

In the same brief union bosses doubled down on their deceptive practices, stating that “the Union’s representations to employees here are irrelevant… and the union was within its discretion to take a vote of its members and was not obligated to abide by the results of such a vote” (emphasis added).

Hunsberger now waits for Regional NLRB officials to decide if union bosses’ ploy to hastily “ratify” an incomplete and unpopular contract over the objections of multiple workers’ votes successfully blocked workers’ statutory right to a decertification vote.

Foundation President: “Contract Bar” Policy Encourages Anti-Democratic Gamesmanship by Union Bosses

Foundation attorneys’ brief defending Hunsberger and her coworkers’ right to vote the union out argues that the contract never took effect due to the lack of a discernible effective date as well as the lack of an employee vote in favor of ratification. The Foundation attorney’s brief argues that Steelworkers officials’ assertions that they entered into a binding contract are “nothing more than a smokescreen, concocted by a desperate and unpopular Union to entrench itself and bar employee free choice” by manipulating the “contract bar.”

“The ‘contract bar’ arbitrarily blocks, often for years, workers’ statutory right under federal law to vote out union officials they oppose. Worse, it encourages union officials to cynically impose a contract at all costs, especially when union bosses know rank-and-file workers would see such a contract as a reason to want to be free of so-called union ‘representation,’” commented National Right to Work Foundation President Mark Mix. “Immunizing union officials from being voted out by the workers they claim to ‘represent’ creates an incentive structure in which union boss power comes first and majority support among workers comes last.”

“This case presents an easy choice for the NLRB: defend the rights of rank-and-file workers or side with Steelworkers union officials who repeatedly misled those workers and twice disregarded their votes simply to protect union power and compulsory dues,” added Mix.

Employee request for vote to oust union was denied after Federal Labor Relations Authority merged two units without employee consent

Washington, DC (September 9, 2022) – National Park Service (NPS) employee Lauren Labrie has just filed a brief at the Federal Labor Relations Authority (FLRA), opposing an order blocking her and her coworkers’ right to vote American Federation of Government Employees (AFGE) union officials out of power.

Her brief, filed with free legal aid from National Right to Work Legal Defense Foundation staff attorneys, challenges the FLRA’s dismissal of a “union decertification petition” seeking an election to remove the union. Labrie and her colleagues signed the petition after FLRA officials administratively merged their work unit with another without any vote by her and her fellow employees on the new arrangement. Union officials and the FLRA then cited the merger as a reason to block the decertificiation vote the workers requested.

The brief challenges the FLRA’s suspect position that, under the Federal Service Labor-Management Relations Act, an employee-requested election to remove a union can be blocked after a union is installed by agency fiat through “unit consolidation.” The only “election bar” authorized by the statute is one for 12 months after employees have voted to install a union by secret ballot, the brief argues.

FLRA “Consolidated” Units at Union Behest, Then Stopped Workers from Voting on Union

Labrie’s brief explains that she and her fellow Blue Ridge Parkway NPS employees were under the control of two different AFGE union locals as of June 2021. AFGE union officials then petitioned to consolidate the two units, and a regional FLRA official approved the move in September 2021 – without giving employees any opportunity to vote on whether they wanted the merger.

In December 2021, the petition to decertify AFGE as the union with control over the workers was filed. The petition was signed by a number of her colleagues sufficient to trigger an FLRA-administered election whether to remove the union. A regional FLRA official dismissed the petition in March 2022, claiming it was blocked by a 12-month “election bar” stemming from the top-down, unilateral consolidation of the work units.

Park Employee’s Brief: Blocking Election Stifles Employees’ Free Choice Rights

Foundation attorneys argue in Labrie’s brief that applying “election bars” after agency-imposed unit consolidations violates federal employees’ free choice rights, which the Federal Service Labor-Management Relations Act was meant to protect.

“In passing the Statute, Congress’ intent was to promote secret ballot elections and employees’ freedom to choose their representative under the Statute,” the brief says. “Not allowing employees to exercise their free choice because the Authority administratively combined two bargaining units undermines Congress’ goal of promoting the right of employees to select their own agent.”

The brief asks that the FLRA reverse its decision blocking Labrie and her coworkers’ vote and immediately hold an election.

Labrie’s defense of her and her coworkers’ request to decertify the AFGE union comes as Foundation attorneys are aiding private sector workers across the country in defending their right to vote out union officials of whom they disapprove. Unfortunately, the National Labor Relations Board (NLRB), the federal agency responsible for overseeing labor relations in the private sector, has just announced rulemaking to undo Foundation-backed 2020 reforms that make it harder for union officials to stop workers from exercising this right.

“Union officials in both the public and private sectors want to maintain their coercive grip on workplaces across the country, regardless of how many workers oppose their monopoly so-called ‘representation,’” commented National Right to Work Foundation President Mark Mix. “Thanks to the Foundation-won Janus Supreme Court precedent, Ms. Labrie and her fellow park employees at least have a First Amendment right to cut off any dues payments to AFGE union bosses they oppose.”

“But the fact that FLRA officials are letting union officials dodge employee-requested decertification votes simply by consolidating units shows the degree to which union power is not a function of rank-and-file support, but a result of the way government policy entrenches union bosses to the detriment of individual workers’ rights,” Mix added.

Scheme prevents lifeguards from ending union membership for four years; Supreme Court petition also filed for CA in-home caregivers suffering similar restriction

Washington, DC (September 7, 2022) – Orange County, CA, lifeguard Jonathan Savas and 20 of his Southern California colleagues have just submitted a petition for writ of certiorari to the United States Supreme Court, asking the Justices to hear their case challenging California Statewide Law Enforcement Agency (CSLEA) union officials’ so-called “maintenance of membership” restriction. The lifeguards are also suing State of California officials for their role in enforcing the restriction.

Savas and his colleagues argue the union-created scheme violates their rights under the 2018 Janus v. AFSCME U.S. Supreme Court decision. In Janus, the Court declared that public sector workers cannot be forced to bankroll a union without voluntarily waiving their First Amendment right to abstain from union payments. Janus was won by National Right to Work Legal Defense Foundation staff attorneys, who also represent Savas and his fellow lifeguards for free in the present case, along with the Freedom Foundation and Mariah Gondeiro of Tyler Bursh, LLP.

Under the “maintenance of membership” requirement, CSLEA union bosses and the State of California force the lifeguards to both remain formal union members and supply full union dues payments to the CSLEA union against their will. Savas and the other plaintiffs sent messages resigning their union memberships and ending dues authorizations back in September 2019, but union officials denied their requests, alleging they must remain full members until 2023 or be fired. Despite Janus, a three-judge panel of the Ninth Circuit Court of Appeals ruled that this requirement does not violate the First Amendment.

Foundation staff attorneys have also just filed a petition for writ of certiorari for Dolores Polk and several other California in-home caregivers, who are challenging a union “escape period” scheme limiting their Janus right to cut off union dues to just a handful of days per year. Although Polk and her fellow in-home caregivers are not public employees, they are still forced by California law to work under the so-called “representation” of Service Employees International Union (SEIU) officials.

Lifeguards’ Attorneys: ‘Maintenance of Membership’ Requirements Have Been Unconstitutional for Decades

Savas and his fellow lifeguards’ Foundation-provided attorneys argue that the Ninth Circuit’s refusal to strike down “maintenance of membership” requirements does not only contradict Janus’ ban on all forced dues in the public sector, but even goes against the Supreme Court’s now-overturned 1977 decision in Abood. Abood let union officials force dissenting public sector employees to pay a portion of union dues as a condition of employment.

“If anything, maintenance of membership requirements are more injurious to First Amendment rights because they also compel employees to remain union members over their objection—which infringes on associational rights—and [forces workers] to subsidize union speech” with full dues payments, reads the petition. That exceeds the boundaries set in Abood and includes subsidization of union political activity.

Savas’ petition also slams the Ninth Circuit’s failure to apply the Supreme Court’s “waiver” test to CSLEA’s “maintenance of membership” restriction. Janus dictated that union dues can only be deducted from a public employee’s paycheck if that employee gives a “clear and compelling” waiver of Janus rights. Foundation attorneys point out that the CSLEA union’s dues deductions forms contained only a “vague reference” to the “maintenance of membership” restriction. The Ninth Circuit erroneously believed that was enough to satisfy Janus requirements.

“A vague reference to unspecified limitations in ‘the Unit 7 contract and State law’ does not establish the Lifeguards contractually consented” to become and remain union members for four years, the petition says.

Supreme Court Must Intervene to Stop Spread of Unconstitutional Restrictions

The petition for Savas and his fellow lifeguards emphasizes how crucial it is for the Supreme Court to overturn cumbersome “maintenance of membership” restrictions, pointing out that California unions and legislators will continue to force public employees to remain formal union members and pay full dues as a condition of employment. “Other states likely will follow suit, such as Pennsylvania, whose laws also authorize maintenance of membership requirements,” the brief states.

In Polk’s petition, Foundation attorneys also emphasize the importance of striking down similarly anti-Janus “escape periods.” If the Court does not act, reads the petition, “There are few impediments to states and unions including oppressive restrictions in [dues deduction] forms, such as a requirement that individuals cannot stop state dues deductions except during annual ten-day periods,” allowing union officials an effective workaround of the First Amendment rights of the workers they claim to represent.

“The Ninth Circuit’s giving a pass to so-called ‘maintenance of membership’ restrictions effectively gives union officials complete control over when public employees can exercise their rights to end union membership and cut off union dues deductions,” observed National Right to Work Foundation President Mark Mix. “That erases not only the protections against all forced dues payments provided by Janus, but even older rulings that forbade union officials from forcing full union membership and payment for union political activities on public workers.”

“The Supreme Court must intervene in Mr. Savas’ case and Ms. Polk’s case to protect public sector workers’ First Amendment rights and prevent union bosses and their political allies from replicating across the country these patently unconstitutional restrictions,” Mix added.

“Public sector employees have been leaving their government employee unions in droves when they learn they have the right to do so,” explained Freedom Foundation attorney Rebekah Millard. “These California unions are employing tactics to entrap people in the union, forcing them to keep paying dues against their will. It is time for the Supreme Court to step in and affirm the First Amendment rights laid out in Janus.”

Mark Mix, president of the National Right to Work Legal Defense Foundation and the National Right to Work Committee, issued the following statement on the occasion of Labor Day 2022:

Today, we should remember that Labor Day is about celebrating the determination and ingenuity of America’s workers and the importance of protecting workers’ individual rights. Vital among these is every American worker’s Right to Work: the freedom to decide to join or financially support a union, or refrain from doing so.

Unfortunately, union officials will attempt to steal the spotlight on Labor Day to drum up support for their coercive political ideas, almost all of which involve blatant infringements of the Right to Work. Big Labor and its political allies like Joe Biden claim that workers favor unions and that union officials should be granted nearly unlimited power to sweep workers under union control.

This fiction is false and incredibly damaging to workers’ freedom. The truth is, the average unionized worker is more likely to be involved in an effort to vote out an unpopular union than a non-union worker is to be involved in a campaign to install one. Even so, union officials are making a full-court press both in Congress and at executive agencies to eliminate state Right to Work protections and force millions more workers across the country to pay union bosses just to stay employed, and to make it even harder for workers to vote out a union they don’t want.

Defending worker freedom is a better way for American workers, and the evidence for this is abundant. The last decade saw the number of states that protect Right to Work grow to a majority, and employees have been flocking to Right to Work states to take advantage of the economic opportunity and prosperity supported by Right to Work laws. As of last year, a majority of American workers live in states where the Right to Work is safeguarded.

Right to Work finds support with the vast majority of Americans year after year because it is a common-sense moral principle with clear benefits to workers and their families. In the midst of continued economic uncertainty and unprecedented union power grabs, we have a duty to make sure that workers’ fundamental rights are protected. Let’s remember that this Labor Day and continue to fight for worker freedom.