Union officials enforced illegal “escape period” scheme to limit First Amendment right to cut off dues

Las Vegas, NV (August 13, 2020) – An officer of the Las Vegas Metropolitan Police Department (LVMPD) is suing both the Las Vegas Police Protective Association (PPA) union and the police department for illegally seizing union dues from her paycheck. The complaint, filed in the US District Court for the District of Nevada, states that officials of the PPA union and LVMPD illegally curtailed the officer’s First Amendment rights under the landmark 2018 Janus v. AFSCME Supreme Court decision by making the unlawful deductions. The officer is represented by National Right to Work Legal Defense Foundation staff attorneys.

In Janus, which was argued and won by Foundation staff attorneys, the High Court ruled that forcing public sector workers to subsidize a union hierarchy as a condition of employment violates the First Amendment. The justices also declared that union dues can only be deducted from a public sector employee’s pay with an affirmative and knowing waiver of his or her First Amendment right not to pay union dues.

According to officer Melodie DePierro’s complaint, she began working for LVMPD in 2006 and voluntarily joined the PPA union at that time. In January 2020 she first tried to exercise her Janus rights, sending letters to both union officials and LVMPD that she was resigning her membership. The letters demanded a stop to all union dues being taken from her paycheck. Her complaint reports that union and police department agents rejected that request, and did so again after she renewed her demands in February 2020. As of the filing of her lawsuit, full union dues are still being seized from her paycheck.

Union officials asserted that the monopoly bargaining contract between PPA and LVMPD only permitted employees to cut off union dues deductions within an “impermissibly narrow escape period between October 1 and October 20 each year,” DePierro’s complaint says. Her lawsuit points out that she “never signed any dues deduction authorization form agreeing to the restrictive escape period of 20 days contained” in the monopoly bargaining contract.

The complaint argues that the 20-day “escape period” imposed by union officials and the police department “caused and continues to cause deduction of and collection of dues from DePierro, who does not consent to paying union dues” and explains that this is “impermissible under Janus.” DePierro is demanding that the US District Court declare the “escape period” scheme unconstitutional, forbid PPA and LVMPD from further enforcing it, and order PPA and LVMPD to refund all dues that were unlawfully withheld from her pay since she tried to stop the deductions, plus interest.

With free legal aid from Foundation staff attorneys, public servants across the country have successfully challenged and overturned similar “escape period” policies. Just last month, a Foundation-backed lawsuit for four State of Ohio employees resulted in the elimination of such a scheme for almost 30,000 state workers. In nearby California, Ventura County Community College District math professor Michael McCain filed a class-action lawsuit which last year freed both him and his colleagues from another union-created “escape period.”

“Officer DePierro is working hard to keep Las Vegas safe during its reopening. 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,” commented National Right to Work Foundation President Mark Mix. “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.”

NLRB Region 7 in Detroit blocked vote for months at union bosses’ behest, but recent “blocking charge” reforms require the vote to move forward

Detroit, MI (August 11, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, Michigan-based employees of the Rieth-Riley Construction Company are again petitioning the National Labor Relations Board (NLRB) Region 7 in Detroit for a vote to remove International Union of Operating Engineers (IUOE) Local 324 bosses from their workplace. The petition comes after Region 7 officials held the employees’ first petition in abeyance based on unproven allegations IUOE bosses made against Rieth-Riley.

Employee Rayalan Kent submitted the new petition with signatures from well over the number of his coworkers required by law to trigger such a vote. Kent and his coworkers hope that new protections from the NLRB in Washington, DC, which became effective at the end of July, will better safeguard from union legal maneuvering their right to vote out the union. Kent’s Foundation-provided attorneys also invoked the reforms in a Request for Review submitted this April in defense of his first decertification petition, which the Board declined to grant.

After Kent submitted his original petition in March 2020, he was told by NLRB Region 7 officials via email that the election would be delayed “pending the investigation” of “blocking charges” filed by IUOE officials against the employer. However, the Region provided Kent no information regarding the charges or why they rose to the requisite level to block the employees’ petition. “Blocking charges” are filed by union bosses against employers to stop decertification votes requested by employees, and generally contain unrelated claims of employer wrongdoing.

However, one of the reforms the NLRB enacted through the rulemaking process (which became effective at the end of July) largely eliminates “blocking charges” as a means for delaying a vote. The NLRB’s new rules acknowledge the inherent unfairness of the previous system, and generally permit employees to immediately vote on whether a union should stay before the Board deals with any charges filed around the election. In the past, union officials could stay in power by blocking workers’ votes for months or even years while often unrelated allegations against employers were litigated.

When it issued the final rule in April, the NLRB dozens of times cited comments the Foundation submitted to it earlier this year. Those comments pointed out that the NLRB’s old “blocking charge” rules served only to keep union bosses in power while forbidding employees from exercising their right to vote to eliminate unwanted unions. They also pointed out the old rules are not required by the National Labor Relations Act (NLRA), the federal law that the NLRB is charged with enforcing.

“Mr. Kent and his coworkers have now been fighting to free themselves from IUOE union boss stonewalling for far too long as the workers seek to exercise their right to vote out an unwanted union hierarchy,” commented National Right to Work Foundation President Mark Mix. “NLRB Region 7 officials should apply the new NLRB rules, and immediately schedule and hold a decertification vote for Mr. Kent and his fellow Rieth-Riley employees.”

Kent and his coworkers are not the only Michigan workers dealing with election delays from NLRB Region 7. Lansing, MI transportation worker Sandy Harris is asking the NLRB in Washington, DC, in an appeal to apply the new rules regarding “blocking charges” to allow a vote to remove Amalgamated Transit Union (ATU) bosses to occur at her workplace. As with Kent’s case, the vote was postponed without even a hearing as to whether the union’s charges have merit or if they have a causal connection to the employees’ petition for an election.

Tygart Center employee’s NLRB charges challenged scheme which gave union stewards more pay than other employees in clear violation of federal law

Fairmont, WV (August 5, 2020) – In a case brought for Donna Harper by National Right to Work Legal Defense Foundation staff attorneys, National Labor Relations Board (NLRB) Region 6 has issued an amended complaint against Teamsters Local 175 for imposing a discriminatory pay scheme on Harper and her coworkers at Tygart Center at Fairmont Campus. Tygart Center agreed to this discriminatory pay arrangement in the union bargaining agreement.

In 2019 Harper obtained free legal aid from Foundation staff attorneys in filing charges against the union for imposing the unlawful provision, under which Teamsters union stewards were paid more per hour than other employees. NLRB Region 6 issued a complaint on this issue in June, and now has amended its complaint to ask for a more complete remedy. The complaint now “seeks an Order requiring payment to the unit employees of the amount equal to the additional monetary benefit paid to” shop stewards under the policy.

NLRB Region 6’s amended complaint now incorporates a remedy requested by Foundation staff attorneys in a separate case against the Tygart Center for the role it played in the scheme. In the NLRB-imposed settlement in that case, Tygart Center officials agreed to only stop paying Teamsters union stewards more per hour than other employees going forward. Foundation attorneys had argued that employees should have gotten compensation for the difference in pay in the past created by the illegal scheme because it “denied a benefit to every employee who was not a Union steward.”

The case against the Teamsters will now be tried before an NLRB Administrative Law Judge.

Foundation staff attorneys also filed an amicus brief for Harper in the years-long legal battle waged by AFL-CIO union lawyers to overturn West Virginia’s Right to Work law. Under a Right to Work law, no private or public sector employee can be forced to fund union activities as a condition of getting or keeping a job. This protection was unanimously upheld by the West Virginia Supreme Court in April 2020.

“Ms. Harper stood up against a blatantly discriminatory policy enforced by her employer at the behest of Teamsters union bosses, and this amended complaint puts her one step closer to ensuring her and other Tygart Center employees’ rights are vindicated,” commented National Right to Work Foundation President Mark Mix. “That Teamsters bosses were willing to impose a scheme so clearly illegal demonstrates how out of touch they are with the rank-and-file workers they claim to represent, and how accustomed they had become to an environment where workers had to financially support them or be fired.”

Mix added: “Fortunately, because Mountain State workers now have the protection of Right to Work, West Virginia union bosses have to secure the voluntary support of workers instead of being allowed to threaten workers to pay up or be fired.”

Appeal: Workers should not be trapped in union ranks and denied decertification votes when employer changes

Boise, ID (July 30, 2020) – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Idaho-based Shamrock Foods delivery driver Curtis Thomason is appealing a decision by National Labor Relations Board (NLRB) Region 27 which dismissed a petition signed by him and a majority of his coworkers for a vote to remove Teamsters Local 483 union bosses from power at his workplace. Thomason’s appeal asks the full NLRB in Washington, D.C., to overturn the so-called “successor bar” doctrine, which blocks employees’ right to hold a vote to decertify a union for up to a year if a successor employer has recently taken over operations in a workplace.

According to the decision by Region 27, Shamrock Foods acquired operations in October 2019 at the two warehouses where Teamsters Local 483 union bosses held bargaining power. Shamrock began bargaining talks with Teamsters officials in December 2019. Thomason submitted a petition for a decertification vote signed by well over the threshold of employees necessary to initiate such an election on May 26, 2020. At that point, Shamrock Foods and Teamsters officials still hadn’t finalized a monopoly bargaining contract, and hadn’t even discussed economic terms of a contract.

Region 27’s decision ruled that Thomason and his coworkers’ petition, because it was submitted “within six months of the first bargaining date” between Shamrock Foods and Teamsters officials, should be blocked by the “successor bar.” This policy does not appear in the text of the National Labor Relations Act (NLRA), the federal law that the NLRB is charged with enforcing, but is instead the product of decisions by prior NLRB majorities favoring union bosses.

Thomason’s Foundation-backed appeal argues that the “successor bar” arbitrarily curbs employee free choice just to protect union officials from being ousted, saying “the successor bar is designed to protect incumbent unions and exalt their interests over Mr. Thomason’s and his co-workers’ free choice rights.” It also points out that “the successor bar’s paternalistic notion that employees suffer ‘anxiety’ in all corporate reorganizations, and are therefore incapable of deciding for themselves whether the incumbent union is worth keeping, is fatuous.”

In April, following several rounds of comments from the Foundation, the NLRB issued final rules substantially eliminating three other non-statutory policies that union bosses often manipulate to bar workers from exercising their right to vote out unpopular unions. Among the policies nixed was one that allowed union bosses to file “blocking charges” containing unrelated allegations of employer misconduct to block secret-ballot employee votes on whether to oust a union. NLRB regional offices often block employee votes following a “blocking charge” without even a hearing into whether the supposed employer conduct and employees’ disaffection with the union are linked.

“It is ridiculous that the NLRB has let union bosses block employees’ right to a secret-ballot vote on whether or not a union deserves to stay in power at their workplace based merely on a change in employers,” observed National Right to Work Foundation President Mark Mix. “If anything, changes in ownership of a company should be automatic grounds for a decertification vote, because to the extent there was ever support for the union it was to deal with the previous employer, not the new ownership.”

“We urge the NLRB in Washington to immediately overturn this anti-worker ‘bar’ policy and ultimately do away with all non-statutory policies which stifle the right of rank-and-file workers to freely decide who their voice will be in the workplace,” Mix added.

Rule imposed by Obama NLRB forced employers to hand over employee private email and phone numbers to union organizers

Washington, DC (July 28, 2020) – The National Labor Relations Board (NLRB) announced today proposed rulemaking regarding its election procedures. This proposal would eliminate a requirement imposed by the Obama NLRB in 2014 that employers must hand over workers’ private information to union organizers, including phone numbers and email addresses, even over the objection of individual workers.

National Right to Work Foundation President Mark Mix commented that the NLRB’s proposal is a needed safeguard for the privacy of employees, protecting them from union boss coercion:

“Today the NLRB takes a necessary step towards ending a gross invasion of workers’ privacy inherent in the Obama Board’s deeply flawed 2014 Ambush Election Rule. The National Right to Work Legal Defense Foundation, which has provided free legal aid to numerous workers victimized by union boss retaliation utilizing workers’ private information, cited the privacy issues with handing over employees’ personal private contact information both in opposition to the 2014 rule and again in 2018 comments to the new NLRB.

“The Board should resist any calls to delay or extend its rulemaking deadlines announced today so it can implement these common sense worker privacy protections as swiftly as possible.”

The ambush election rules were rushed out on December 15, 2014, the last day of former union lawyer Nancy Schiffer’s term on the NLRB. The NLRB had previously rushed the regulations out before former Service Employees International Union (SEIU) lawyer Craig Becker’s term expired in December 2011, but they were later invalidated by a federal district court in 2012 on procedural grounds.

In addition to submitting comments to the Obama NLRB opposing the rule when it was first announced in 2014, Foundation staff attorneys helped three construction workers whose privacy had been violated under the policy to join a lawsuit in April 2015 challenging it. Veteran Foundation staff attorney Glenn Taubman also testified before the US House of Representatives on the dangers of the policy in 2015.

Because union officials chose not to face employees’ will in secret-ballot vote, majority-backed employee petition asking Sysco to remove union stands

Oklahoma City, OK (July 27, 2020) – With free legal aid from National Right to Work Foundation staff attorneys, Sysco Oklahoma warehouse employee Henry Weilmeunster and his coworkers have successfully removed an unwanted Teamsters union from their workplace. The win comes after Teamsters union bosses backed down from their attempts to challenge the validity of a petition Weilmeunster and a majority of his coworkers signed asking Sysco to withdraw recognition of the union.

Weilmeunster and his coworkers achieved their victory by taking advantage of the rights won by Foundation staff attorneys in the National Labor Relations Board’s (NLRB) 2019 Johnson Controls decision. In Johnson Controls, the NLRB ruled that an employer can withdraw recognition from a union if it receives a majority-backed employee petition opposing the union within 90 days of a monopoly bargaining contract expiring. Union officials then have a 45-day window to contest such a withdrawal of recognition, but only by filing for a secret-ballot vote among the employees in the workplace on whether the union should stay.

In December 2019, Weilmeunster submitted to the NLRB a petition requesting a secret-ballot vote to remove the union. Anticipating that union officials might file “blocking charges” against Sysco to derail his efforts to oust the union, Weilmeunster also gave a petition to Sysco asking that it withdraw recognition of the Teamsters union at the first available opportunity. Both requests were supported by a majority of his coworkers.

As Weilmeunster expected, Teamsters union officials filed “blocking charges” with the NLRB to challenge his decertification petition and stop any vote. Union bosses often use “blocking charges” to stop employees from exercising their right to remove them from workplaces. These abusive charges usually contain allegations of unrelated wrongdoing by the employer.

Though NLRB Region 14 officials in January at Teamsters officials’ behest blocked Weilmeunster and his coworkers’ request for a decertification vote, Sysco ultimately withdrew recognition from the Teamsters union based on the showing of majority employee support for withdrawal in Weilmeunster’s petition. Under Johnson Controls, Teamsters honchos had a 45-day window to file for a secret-ballot election to reinstall the union, but did not do so – apparently because they feared an election loss. With union officials’ blocking charges now settled or dropped, Sysco’s withdrawal of recognition stands unopposed and the workers’ request to be free of the Teamsters has been fully and finally honored.

“Although it’s certainly good news that Mr. Weilmeunster and his coworkers finally succeeded in removing an unwanted Teamsters union, it’s telling that union officials sought to use lawyers to trap workers in union ranks, instead of just requesting a secret ballot election to determine the employees’ wishes,” commented National Right to Work Foundation President Mark Mix. “This case demonstrates why Johnson Controls is important: Union bosses should not be allowed to maintain monopoly power over workers through legal maneuvering when there is clear evidence that a majority of workers want the union out of their workplace.”

Settlement eliminates MEA officials’ unlawful demands for $3,000+ in dues, becoming latest teacher from school freed from union collection threats

Ann Arbor, MI (July 17, 2020) – Michigan teacher Deborah Wolter has just won a settlement in a case brought by Michigan Education Association (MEA) union lawyers against her. Union officials sued her earlier this year for allegedly not paying thousands of dollars in back dues, even though they had demanded these dues from her after she had resigned her union membership. Michigan’s Right to Work law ensures that any employee who refrains from formal union membership cannot be required to pay dues or fees to a union as a condition of getting or keeping a job.

Staff attorneys from the National Right to Work Legal Defense Foundation provided free legal aid to Wolter as she defended herself from the union boss suit. As a result of the settlement, MEA bosses are required to end their demands for dues payments, to update their records to reflect that Wolter is not a member of the union, and to not contact her further.

MEA bosses sued Wolter in January 2020, filing a complaint in a Michigan District Court claiming that Wolter owed more than $3,000 in dues that they had charged her since September 2014, and that she “did not resign membership with [MEA] prior to the accrual of the debt.” Wolter’s Foundation-provided attorneys countered that Wolter did not owe the MEA anything because she had a letter in her records which indicated she resigned her membership in August 2014. This made the union suit a blatant violation of Michigan’s Right to Work law.

With this settlement, Wolter is the latest teacher at her school to successfully stop illegal union demands for back dues with Foundation legal aid. Last year, Foundation staff attorneys won a victory for two other teachers at Wolter’s school who faced similar demands by officials of the Ann Arbor Education Association (AAEA), an MEA affiliate. In that case, the Michigan Court of Appeals ruled AAEA violated the rights of teachers Jeffrey Finnan and Cory Merante under Michigan’s Right to Work Law by demanding that they continue to pay union fees even though they had resigned their union membership.

These victories were preceded by a successful 2019 Foundation-won settlement for two other Michigan educators, Linda Gervais and Tammy Williams. Gervais and Williams, both from Flint, MI, sued the MEA in federal court for trying to seize dues from them even after they had resigned their union memberships. Union officials claimed they had missed a narrow “escape period” which limited when they could exercise that right, even though a 2014 decision of the Michigan Employment Relations Commission (MERC) in another case brought by Foundation staff attorneys declared the union officials’ “escape period” scheme illegal under Michigan’s Right to Work law. As a result of the settlement in Gervais and Williams’ case, well over a dozen Wolverine State teachers have been freed from illegal MEA dues demands.

“Once again, a Michigan educator has successfully thwarted an attempt by MEA union bosses to continue to collect dues in blatant violation of Michigan’s Right to Work law,” commented National Right to Work Foundation President Mark Mix. “Foundation staff attorneys have already brought more than 120 cases for Michigan workers since the state’s Right to Work law went into effect in 2013, and will file as many more as necessary to ensure that Wolverine State employees are fully protected from illegal union boss cash grabs.”

Settlement eliminates illegal restrictions, allows almost 30,000 Ohio government employees under AFSCME Council 11’s power to exercise Janus right to end dues deductions

Columbus, OH (July 14, 2020) – Ohio public employees have just won a settlement in their federal class-action lawsuit charging the American Federation of State, County, and Municipal Employees (AFSCME) Council 11 union and the State of Ohio with enforcing illegal restrictions on their First Amendment right to cut off union dues deductions. The lawsuit was filed with free legal aid from staff attorneys at the National Right to Work Legal Defense Foundation.

The lawsuit, brought by four state employees, challenged a union-created “escape period” dues deduction scheme as being unconstitutional under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, the Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights, and ruled that the government can only deduct union dues or fees with an individual’s affirmative and knowing consent.

The State of Ohio and AFSCME’s “maintenance of membership” policy blocked workers from exercising their right to end union dues deductions except for a brief escape period that opened roughly once every three years at the expiration of the union monopoly bargaining contract. The AFSCME boss-created scheme was imposed by the State of Ohio on an estimated 28,000 Buckeye State public servants.

Now, as a result of the settlement, AFSCME officials and the State of Ohio have rescinded their “maintenance of membership” restriction on when state workers can exercise their First Amendment right to cut off union dues deductions. They also are required to honor requests to stop dues deductions from any employees who signed the AFSCME dues authorization form at issue in the lawsuit. Finally, the settlement requires AFSCME bosses to pay back dues seized illegally under the scheme to the plaintiffs and more than 150 other employees who tried to cut off union dues deductions after Janus was decided.

Seven other Ohio public employees won the first-in-the-nation victory against unconstitutional “escape periods” with Foundation aid in January 2019. These workers filed a class-action federal lawsuit challenging a similar policy created by AFSCME Council 8 bosses and won a settlement ending the restrictions for themselves and their coworkers. That win was followed by two other Ohio public workers, Connie Pennington and Donna Fizer, successfully ending “escape period” restrictions with Foundation assistance in 2019.

“Although this string of victories for Buckeye State public employees and their First Amendment rights is certainly encouraging, the widespread nature of these schemes shows there remains much work to do to force union bosses to end their unconstitutional restrictions on public employees’ First Amendment Janus rights,” observed National Right to Work Foundation President Mark Mix. “Governor DeWine and Attorney General Yost need to move quickly to stop violations of the First Amendment rights of all Ohio public sector workers and should cease collecting union dues from any worker who has not affirmatively consented to pay them.”

Union officials “hid the ball” by failing to tell worker he had no obligation to pay union fees in absence of monopoly bargaining contract

Seattle, WA (July 7, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, Swedish Medical Center employee Roger White is appealing his case against the Service Employees International Union (SEIU) 1199NW to the National Labor Relations Board (NLRB) General Counsel in Washington, D.C.

White filed federal charges against the union in April, asserting that union officials had continued to seize dues from his paycheck illegally even after twice attempting to exercise his rights to end union membership and as a nonmember pay only the portion of dues directly related to bargaining. He also argued that his second request to end membership and pay reduced dues should have actually stopped dues deductions completely, because at the time there was a strike going on and no contract in effect between Swedish Medical Center and SEIU 1199NW.

The appeal is from a decision by the NLRB Regional Director in Seattle, who claimed that SEIU officials were not obliged to inform White that he was not required to pay union fees during a contract hiatus. Foundation attorneys argue that the SEIU owed White a “duty of truth and honesty,” and decry the fact that the SEIU was able to “‘hide the ball’ and continue collecting dues” during the contract hiatus despite White’s clear “notice that he want[ed] to disassociate” from the union as much as possible.

Because Washington State has not enacted Right to Work protections for its employees, White and his coworkers can be forced to pay a fee to the union as a condition of employment when a contract so requiring is in effect. However, the fee is limited by the Foundation-won 1988 CWA v. Beck Supreme Court decision to only the portion of union dues that is directly germane to the union’s bargaining functions. Union officials must also follow certain Beck procedures before collecting such fees, such as providing workers an independent audit of the union’s expenses.

White’s appeal also points out that the Regional Director’s decision completely ignores a memo on this topic from the NLRB General Counsel. The memo states that private sector employees who can be legally forced to pay union fees as a condition of employment “have rights to…object to paying for activities not germane to unions’ representational duties, to revoke dues checkoff authorizations at certain times; and to receive the information necessary to make these choices.”

The appeal notes that SEIU 1199NW is “a repeat [National Labor Relations Act] violator.” Daniel Dalison, another Swedish Medical Center employee, also has federal charges against the union. Dalison filed charges against SEIU 1199NW in January 2020 asserting that union officials had never given employees “adequate notice of their rights under Beck” and had refused to stop all dues deductions when he revoked his dues checkoff authorization during the strike. Dalison and White both also filed charges in April asserting that SEIU 1199NW officials were maintaining a requirement that any worker who wants to obtain a copy of his or her dues paperwork must present a photo ID.

Yet another employee of Swedish Medical Center, NancyEllen Elster, won a settlement with Foundation aid against SEIU 1199NW bosses in October 2019. NLRB Region 19 had found merit in Elster’s charges that SEIU bosses had never given a proper Beck rights notice to employees, and had denied her request to pay the reduced dues amount under Beck.

“It is outrageous that NLRB Region 19 is allowing SEIU union bosses to get away with playing deceptive games with the employees they claim to represent, just to keep their hard earned money rolling into the union’s coffers illegally,” commented National Right to Work Foundation President Mark Mix. “The NLRB General Counsel should direct Region 19 to prosecute the SEIU for keeping Mr. White and his coworkers in the dark about their rights. These cases demonstrate the abuses that inevitably occur when union officials are granted the power to force employees to subsidize their activities or be terminated from employment.”