Settlement denies relief to most employees, another example of decreased scrutiny on union bosses’ violations since Biden installed NLRB Acting GC Peter Ohr

Washington, DC (March 24, 2021) – Selbyville, DE-based Mountaire Farms employee Oscar Cruz Sosa has objected to a settlement proposed by National Labor Relations Board (NLRB) Region 5 officials in his case charging United Food and Commercial Workers (UFCW) Local 27 union bosses with imposing an illegal dues provision on him and his coworkers.

With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Cruz Sosa’s objections argue that the settlement proffered by NLRB Region 5 “provides inadequate remedies to the unit employees,” on all of whom UFCW officials enforced a contract clause which unlawfully requires all workers to pay dues immediately upon hiring or be fired.

Federal law stipulates that new hires be given 30 days before any mandatory dues requirements are imposed on them. Because Delaware lacks Right to Work protections for its private sector employees, Cruz Sosa and his colleagues can be required to pay some reduced union fees as a condition of keeping their jobs after the 30-day period.

NLRB Region 5 proposed the settlement while NLRB Acting General Counsel Peter Ohr has directly or indirectly sought to curtail several other Foundation cases for independent-minded workers seeking to free themselves from illegal forced dues or other coercive union boss practices. Many of Ohr’s actions attempt to reverse work that had been done by his predecessor, Senate-confirmed General Counsel Peter Robb, to defend workers’ individual rights.

Just last week, Foundation attorneys opposed Ohr’s move to return West Virginia Kroger employee Shelby Krocker’s case, which is fully briefed before the NLRB in D.C., to NLRB Region 6 in Pittsburgh, where an insufficient settlement would be foisted on her and her coworkers. Krocker is challenging dues checkoff cards distributed by UFCW bosses which falsely claim that they “MUST BE SIGNED,” violating federal law’s requirement that authorizations of direct dues deductions from workers’ paychecks must be strictly voluntary. Robb had sustained Krocker’s charges after NLRB Region 6 initially dismissed them.

In the Mountaire Farms situation, Ohr in February withdrew a Robb-filed brief defending Cruz Sosa and his coworkers’ right to vote UFCW Local 27 bosses out of their workplace. UFCW lawyers claim that a non-statutory NLRB policy called the “contract bar” should have blocked Cruz Sosa’s otherwise valid petition signed by his colleagues requesting a “decertification election.” The “contract bar” entrenches unions for up to three years after management and union officials broker a contract.

Although NLRB Region 5 ruled that the vote should proceed because of the contract’s invalid forced dues clause, UFCW lawyers demanded review by the full NLRB, and now seek to have the NLRB destroy the ballots workers have already cast in the election. The NLRB decided to review the case, but announced that the entire “contract bar” policy would be brought under scrutiny. This case is still pending before the full NLRB.

Cruz Sosa’s current filing contends that NLRB Region 5’s proposed settlement on the issue of the illegal dues clause “seeks to ferret out for relief what is likely to be a minuscule handful of employees” instead of giving all employees under UFCW Local 27’s control at Mountaire “the right to claim their dues money back to the start of” the contract and ensuring the clause is never enforced again. This is requested because, based on NLRB Region 5’s own ruling, the forced dues clause is “facially invalid” and “all employees have been adversely impacted” by it.

Cruz Sosa’s attorneys also argue that the settlement, which would be conditional on the NLRB’s finding in the pending decertification case that the UFCW’s forced dues clause is invalid, forecloses the possibility of the relief requested for all employees even if the Board affirms the Region’s ruling that the clause is invalid. “This one-way ratchet is patently unfair to the 800 employees in this unit and completely one-sided,” Foundation attorneys assert.

This dispute highlights the NLRB General Counsel’s Office and Regional Directors’ shift to reinforcing the coercive privileges of union bosses since President Biden installed Peter Ohr as NLRB Acting General Counsel. Ohr was put in after Biden took the unprecedented and legally dubious step of firing Robb, Ohr’s predecessor, nearly eleven months before the end of his Senate-confirmed term.

“This is an obvious attempt by so-called ‘Acting’ NLRB General Counsel Peter Ohr to ensure President Biden’s union boss cronies don’t have to face the music when they violate workers’ individual rights,” commented National Right to Work Foundation President Mark Mix. “Cruz Sosa and his coworkers were all harmed by this plainly unlawful dues clause, and a proper remedy must include relief for all of them.”

“NLRB Region 5’s hasty proposed settlement – deliberately crafted before the full NLRB has ruled on UFCW bosses’ illegal conduct in Cruz Sosa’s workplace, must be rejected,” Mix added.

Unpopular Teamsters union officials forced unnecessary hearing to delay decertification election before losing by 8-1 margin

Cinnaminson, NJ (March 23, 2021) – Workers at a branch of XPO Logistics in Cinnaminson, New Jersey who were subject to the monopoly union control of Teamsters Local 107 voted overwhelmingly to throw the union out of their workplace by a 16-2 vote.

Miguel Valle and his coworkers petitioned the National Labor relations Board on December 28^th, 2020 for a vote to decertify and remove the Teamsters union as the bargaining agent at XPO. The XPO employees received free legal aid from the National Right to Work Legal Defense Foundation, which helped to guide them through the roadblocks union officials tried to create to maintain their control over the workplace.

When decertification is looming, union lawyers often employ a variety of stalling tactics to delay elections. Recent NLRB rulemaking limited the use of “blocking charges,” which are often spurious unfair labor practice charges filed by union lawyers designed to hold up decertification elections while the charges are being resolved. The rule changes closely mirror suggestions made by the Foundation in comments during rulemaking.

Thanks to the “blocking charge” reforms, Teamsters bosses couldn’t create the kind of multi-year delay often seen under the old rules, but union lawyers still found ways to delay the vote Valle and his XPO coworkers had requested, by demanding that the vote would be held in person at the Teamsters union hall. Previously the NLRB’s Regional Office in Philadelphia had decided that because of Board voting parameters for COVID-19, the election should be conducted by mail.

Nevertheless, Teamsters lawyers demanded a hearing on the method of voting. Foundation attorneys argued that the union lawyers’ requests were merely an effort to delay the vote. As expected, the NLRB’s Regional Director reaffirmed that the election would be conducted by mail. On February 18^th, 2021, ballots were sent to the employees in Valle’s bargaining unit, nearly two months after he had filed his petition.

When the votes were finally tallied, the workers had voted 16-2 in favor of removing the union from their workplace. With no union challenges to the result, Valle’s coworkers are no longer subject to monopoly representation by Teamsters officials.

“Union bosses take every chance they get to maintain control over workers, even when they are overwhelmingly opposed by those they claim to represent,” said National Right to Work Legal Defense Foundation President Mark Mix. “Thanks to Big Labor’s government-granted monopoly bargaining powers, people like Miguel Valle and his coworkers have to turn to the Foundation for free legal assistance just to exercise their right to hold a vote to remove a union they overwhelmingly oppose.”

Teamsters representative falsely told warehouse worker he could be fired if he did not become a union member and pay full dues

Queens, NY (March 22, 2021) – Kamil Fraczek works in a New York City UPS warehouse whose employees are subject to monopoly representation by Teamsters Local 804. On March 15, 2021, Fraczek filed an unfair labor practice charge with the National Labor Relations Board (NLRB) after a Teamsters union official made repeated threats to his job and deceived him about his legal rights. The charge was filed with free legal aid from the National Right to Work Legal Defense Foundation.

When Fraczek began working at the warehouse full time, a Teamsters representative told him he must become a union member and sign documents authorizing dues deductions from his paycheck. Fraczek asked about his options, and the union representative told him that if he did not sign the forms, Teamsters officials would ask UPS to fire him.

Because New York is a forced-unionism state that doesn’t protect workers with a Right to Work law, Fraczek can be required to pay some union fees as a condition of his job. However, under the Supreme Court’s 1988 CWA v. Beck decision, won by attorneys at the National Right to Work Legal Defense Foundation, no private-sector worker can be compelled to financially support certain union activities unrelated to bargaining activities, like political lobbying. Further, under longstanding federal law, workers cannot be required to become formal union members.

Later, Fraczek learned of his rights, and returned to the Teamsters official asking to become a non-member and a Beck objector. He provided a letter to the representative stating his intention to pay only reduced fees and decline union membership.

As the unfair labor practice charge states, the Teamsters official doubled down on his prior misrepresentations, insisting that Fraczek pay full dues and sign membership documents. The Teamsters official again threatened to have Fraczek fired if he did not comply with these demands. The official falsely claimed that only supervisors can opt out of the union, and that the federal laws protecting workers from funding union political activities only apply in Right to Work states, not in forced-unionism states like New York.

In response, Fraczek filed his NLRB charge asserting his right to pay reduced fees under Beck and not to join the union. According to the charge, “Local 804’s agent has repeatedly tried to mislead Mr. Fraczek about his rights and has invoked the Union’s power to get him fired, all in an effort to coerce Mr. Fraczek into signing the membership and dues deduction authorization form…”

“Union officials are perfectly willing to tell outright lies to independent-minded workers who object to union membership,” said National Right to Work Legal Defense Foundation President Mark Mix. “Union bosses blatantly ignore the law just to protect their forced-dues revenue stream, and it is workers like Mr. Fraczek who pay the price.

No worker should be forced to pay dues to a union just to keep their job, and no worker should have to file federal charges just to get union officials to recognize their rights.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After an NLRB Administrative Law Judge (ALJ) declined to rule that UFCW Local 400 officials violated the law with their “MUST BE SIGNED” demands and other unlawful provisions, Krocker’s Foundation staff attorneys appealed the case to the NLRB. Her appeal was supported by NLRB General Counsel Robb and has been fully briefed before the Board since September.

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

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

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

“Almost every day, so-called ‘Acting’ NLRB General Counsel Peter Ohr demonstrates he has no problem with turning the NLRB into the Biden Administration’s tool for stifling the rights of independent-minded workers who dare to stand up to Biden’s union boss allies,” commented National Right to Work Foundation President Mark Mix. “Ms. Krocker’s case is one of a growing number in which Foundation-backed workers whose rights were violated by union bosses are challenging Ohr’s authority.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Zamora’s case has progressed to the full NLRB in Washington, DC, after an NLRB Administrative Law Judge (ALJ) dismissed a complaint that then-NLRB General Counsel Peter Robb had issued prosecuting the NNOC for hiding the agreement. Though Zamora and Robb had both filed exceptions urging the full Board to reverse the ALJ’s decision, NLRB Acting General Counsel Peter Ohr filed a motion on February 23, 2021, seeking unilaterally to send the complaint back to the NLRB Fort Worth regional office to be dismissed.

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

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

Robb’s firing was unprecedented. Since the office of NLRB General Counsel was established in 1947, no sitting General Counsel of the NLRB has ever been fired by a president before the end of their Senate-confirmed four-year term, even when the White House changed hands. For example, Obama’s pick for General Counsel, former union lawyer Richard Griffin, remained the General Counsel for most of the first year after Trump’s election (until his term expired on 10/31/17).

“Neutrality agreements” are deals between union officials and employers, usually without the knowledge of employees in a workplace. They frequently contain provisions that require employers to silence opposition to unionization, hand over workers’ personal information for coercive “card check” drives that bypass the protections of a secret ballot election, provide union organizers with preferential access to the workplace, and even ensure employers will oppose later efforts to decertify, or remove, the union.

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

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

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

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