Over 75 percent of workers asked Bertolino management to withdraw recognition of union officials as monopoly bargaining ‘representative’

Boston, MA (October 12, 2021) – Bertolino Foods employee Jenifer Sedano and her coworkers have successfully booted unwanted United Food and Commercial Workers (UFCW) Local 1445 union officials from monopoly bargaining power at their workplace. With free legal assistance from National Right to Work Legal Defense Foundation staff attorneys, Sedano and her coworkers submitted to Bertolino management a petition demonstrating nearly 80 percent support for removing the union. Bertolino’s attorney announced last week that based on the workers’ petition it was withdrawing recognition from UFCW Local 1445.

Sedano and her coworkers thus successfully exercised rights protected under National Labor Relations Board (NLRB) precedent, which permits employers to withdraw recognition from unions that a majority of their employees have expressed a desire to remove.

UFCW bosses attained monopoly bargaining status at the Bertolino Foods facility in September 2020. After contract talks between Bertolino management and union officials had dragged on for almost a year, Sedano and her coworkers sought out help from Foundation staff attorneys in exercising their right to remove UFCW officials. Sedano ended up gathering signatures in favor of removal from 31 of 42 bargaining unit members, and submitted this petition to Bertolino management toward the end of August.

The letter from Bertolino’s attorney to Local 1445 dated September 30 reads, “Since the Union no longer represents a majority of the bargaining unit employees, it would be unlawful for the Company to continue to recognize and/or bargain with the Union. Accordingly, effective immediately on September 30, 2021, the Company withdraws recognition of UFCW, Local 1445 as the collective bargaining representative for its employees.”

Sedano and her coworkers join several other Foundation-assisted employees who have dispatched unwanted union representation across the country. Workers at Airgas in Ventura, CA, Rush University in Chicago, IL, and Desert Springs Hospital Center in Las Vegas, NV, have all successfully voted out or forced out by other legal means unpopular union officials just in the past few months.

“Ms. Sedano and an overwhelming majority of her coworkers clearly expressed that they no longer wanted to be under the power of UFCW officials, and their decision must be respected,” commented National Right to Work Foundation President Mark Mix. “Foundation attorneys are prepared to fight to protect Sedano and her coworkers’ right to free themselves from the unwanted union, even if union bosses and the NLRB attempt to re-impose union control despite the workers’ overwhelming opposition to the union’s so-called ‘representation.’”

AFSCME officials ignored worker’s two requests to stop sending her money to PAC but finally backed down & issued refunds after attorneys’ cease-and-desist letter

Harford County, MD (October 7, 2021) – A Harford County school custodian has forced AFSCME union bosses at her workplace to stop seizing money illegally from her paycheck, including cash taken for the “AFSCME PEOPLE” fund, a Political Action Committee (PAC) that under federal law can only be legally funded through voluntary contributions. The victory comes after she obtained free legal aid from National Right to Work Foundation staff attorneys, who sent a cease-and-desist letter for her to the AFSCME PAC.

Linda Puto’s efforts have also made AFSCME officials cease all union dues deductions from her wages, as the 2018 Foundation-won Janus v. AFSCME Supreme Court decision requires. In Janus, the Court held that forcing public sector workers to pay union dues or fees as a condition of keeping their jobs violates their First Amendment rights. The Court also ruled that no union monies can be taken from a public employee’s paycheck without a knowing and affirmative waiver of that worker’s First Amendment right not to pay.

Prior to Janus, in states like Maryland that lack Right to Work laws, union bosses could legally extract a portion of union dues even from public workers who choose to refrain from union membership. However, the High Court ruled in Janus that state arrangements permitting union officials to do so force public employees to subsidize the union’s political speech and thus violate the First Amendment.

Federal election law enforced by the Federal Election Commission (FEC) also forbids forced contributions to political committees that support or oppose candidates for federal office. Those who run PACs like AFSCME PEOPLE cannot coerce payments into the fund.

Prior to the cease-and-desist letter, Puto sent two letters to the local AFSCME affiliate to exercise her rights to resign union membership and end all union deductions from her paycheck, one in November 2020 and a second in March 2021. AFSCME union officials ignored both letters and kept illegally seizing both dues money and contributions for the AFSCME PAC.

Finally, National Right to Work Foundation staff attorneys mailed a cease-and-desist letter to the AFSCME PEOPLE treasurer in Washington, DC, for Puto in June. It noted that the letter responded to “AFSCME’s and AFSCME PEOPLE’s refusal to honor her First Amendment, federal law, and contractual rights to revoke her PEOPLE contribution deduction at any time.”

The letter demanded, “[t]o avoid litigation over this issue,” that AFSCME officials cease deducting money from Puto’s paycheck for the PEOPLE fund. Additionally, the letter demanded that any money seized for that fund after her original November 2020 letter be immediately paid back to her.

AFSCME and AFSCME PEOPLE officials have now backed down and stopped taking both dues and PAC contributions from Puto, and have also refunded all amounts of both that have been taken from her paycheck since her November demand.

“AFSCME officials brazenly violated Ms. Puto’s legal rights for months on end, ignoring not only her First Amendment rights under Janus, but longstanding law that all PAC contributions – which are used to fund political candidates’ campaigns – be completely voluntary,” commented National Right to Work Foundation President Mark Mix. “Although we are happy that she has secured the return of her money, workers should not have to obtain legal representation just to stop funding Big Labor political activities and contributions to union-label candidates.”

Legal precedent affirmed by First Circuit U.S. Court of Appeals protects workers in forced dues states from being required to fund union boss lobbying efforts

Warwick, RI (October 5, 2021) – Nurse Jeanette Geary finally achieved a total victory in her 11-year legal battle against union bosses that established important National Labor Relations Board (NLRB) and federal court precedents. She and 99 other current and former nurses at Kent Hospital in Rhode Island received refunds of forced union dues that were illegally used to support union political lobbying in state legislatures. Geary received free legal representation throughout her fight from the National Right to Work Legal Defense Foundation.

Geary lost faith in the United Nurses and Allied Professionals (UNAP) union bosses in her workplace after a series of broken promises. “Over time,” Geary said, “I realized what the union was doing. The union leadership had no interest in nurses or our professional work. Their only interest was collection of dues and fees.”

Geary resigned her union membership, but still had union dues extracted from her paycheck because Rhode Island is a forced unionism state that lacks Right to Work protections. However, thanks to the Foundation-won CWA v. Beck Supreme Court decision, nonmember workers can only be forced to pay fees for union activities directly “germane” to union monopoly bargaining. They cannot be forced to pay the portion of regular dues that funds activities like union political lobbying.

Geary demanded a breakdown of the union’s expenditures, but union bosses refused to provide her with a legally-required independent audit verifying how it calculated nonmembers’ reduced forced fees. Like many who speak up against union bosses, Geary became a target for union harassment. “They laughed at me. They had their workplace reps ridicule me on the job and tell me I could file grievances that would be thrown away and said so with a big smile,” Geary said.

In 2009, Geary filed federal charges against union officials. The trial revealed UNAP officials were charging nonmember nurses for lobbying in state legislatures. Despite the Supreme Court’s clear mandate in Beck that nonmembers’ money could not be used to fund political causes, union lawyers argued the lobbying was “germane” to the union’s monopoly bargaining.

In 2012, the NLRB, stacked with President Obama’s appointees, sided with union officials under a rationale that would have made almost any union lobbying chargeable to nonmembers if it could somehow be explained as related to union bargaining. That decision was later vacated because Obama’s recess appointments to the Board were declared unconstitutional by the Supreme Court, so the NLRB lacked a valid quorum.

After the Supreme Court’s decision in NLRB v. Noel Canning rendered invalid the Obama Board’s decision in Geary’s case, the case lingered at the NLRB for years. After seven more years of delay, Foundation attorneys filed a mandamus petition in the U.S. Court of Appeals for the District of Columbia Circuit demanding an NLRB decision, prompting the Board to finally issue a valid decision in Geary’s case.

In March of 2019, President Trump’s NLRB ruled 3-1 that union officials cannot charge nonmembers for lobbying of any kind. It also ruled that union officials must provide independent verification that the union expenses they charge to nonmembers have been audited.

However, union officials refused to abandon their argument that nonmembers could be forced to pay for union lobbying as a condition of employment. Union lawyers appealed the NLRB’s decision to the U.S. Court of Appeals for the First Circuit. Foundation attorneys successfully defended Geary’s case before a three-judge panel that included retired Supreme Court Justice David Souter. The panel ruled unanimously in Geary’s favor, saying “we see no convincing argument that legislative lobbying is not a ‘political’ activity,” affirming that under the Foundation-won Supreme Court precedent of Communications Workers v. Beck, nonmember workers could never be charged for such union activities.

Union officials made a last ditch attempt to overturn the decision, requesting an en banc hearing by the entire Court of Appeals, but that request was denied. Last week, union bosses finally paid back, with interest, nearly $8,000 taken from Geary and 99 other current and former Kent Hospital nurses who were not union members but were charged for the union’s lobbying, bringing the decade-long case to a close.

“Jeanette Geary shows the difference one brave employee can make standing up to Big Labor coercion. The National Right to Work Foundation is proud to have assisted her through her 11 year fight to defend her legal rights and those of her colleagues,” said National Right to Work Legal Defense Foundation President Mark Mix. “After years of enduring workplace harassment and neglect from union partisans, Ms. Geary moved to North Carolina, a Right to Work state that doesn’t force her to give any portion of her paycheck to union bosses. Thanks to her bravery, workers in the 23 non-Right to Work states have additional legal protections against being forced to fund union boss political activities.”

Biden Appointees Prouty and Wilcox both served as top SEIU lawyers and opposed legal standards they are now charged with defending and applying

Washington, DC (October 5, 2021) – The National Right to Work Legal Defense Foundation today submitted a letter to the National Labor Relations Board (NLRB) Inspector General (IG) and chief ethics officer, urging them to remove NLRB members David Prouty and Gwynne Wilcox from involvement in a federal case. In the case, the Service Employees’ International Union (SEIU) is suing the Board, including Prouty and Wilcox, seeking to overrule NLRB precedent regarding the “joint employer” standard.

The NLRB is a five-member federal board that enforces federal private-sector labor law and adjudicates disputes among workers, unions, and employers. The NLRB is currently being sued by the SEIU in the U.S. District Court for the District of Columbia over a rule which clarified that a company that does not exercise direct control over employee wages and working conditions cannot be charged with unfair labor practices committed by its related entities, such as franchisees.

The letter from Foundation President Mark Mix points out that the issue of Prouty and Wilcox’s recusal in this case is of interest to the Foundation because “Foundation Staff Attorneys frequently provide free legal representation to employees involved in litigation before the National Labor Relations Board against SEIU or its affiliates,” and that the same considerations “should mandate the recusal of Member Wilcox and Member Prouty in those cases as well.”

Each year Foundation staff attorneys handle more than 100 cases brought for workers at the NLRB challenging union attempts to violate workers’ rights. SEIU affiliates are among the most often cited in those cases for violating federal law. Just since 2018 Foundation attorneys have assisted workers in 67 cases against SEIU affiliates, over half of which have taken place at the NLRB. For example, a formal complaint was just issued for Foundation-represented employee Roger White against SEIU Healthcare 1199NW at Swedish Medical Center in Seattle (Case 19-CB-258889).

The letter also asks that the NLRB IG “apply the same level of vigor in examining their conflicts as he did in matters involving former Board Member William J. Emanuel.” Although the NLRB finalized its “joint employer” standard through the rulemaking process, an earlier 2017 case decision that would have adopted the same standard was vacated because the IG ruled that Member Emanuel should have recused himself. Emanuel had worked for a law firm that the IG perceived as hostile toward the old Obama-era “joint employer” standard, which the NLRB nixed in rulemaking.

Given Wilcox and Prouty’s “recent roles as lawyers advising large locals affiliated with the Service Employees International Union (‘SEIU’),” the Foundation’s letter states, “both Member Prouty and Member Wilcox have significant conflicts of interest with respect to the Litigation and with regard to the Joint-Employer rule that SEIU challenges in the Litigation.”

The letter details Member Prouty’s history as General Counsel of SEIU Local 32BJ, a powerful SEIU affiliate. It further points out that Member Prouty “played a key role in opposing the Board’s final rule on joint employment,” personally signing comments against the rule, which is further evidence of the specific conflict of interest in the pending case. The letter points out that the fact that Prouty was General Counsel for an SEIU local and not the international union does not absolve him of a conflict of interest, as the “SEIU International and its local and affiliated unions are inextricably intertwined.”

Member Wilcox’s conflicts go even deeper, according to the Foundation’s letter. It notes that Member Wilcox was at the forefront of a union campaign that openly opposed the NLRB’s “joint employer rule,” a campaign that is “specifically named as interested in, and a core part of, the Litigation.” Additionally, the letter says, Member Wilcox “played a key role in opposing the Board’s final rule in joint employment” when she worked for SEIU-affiliated law firm Levy Ratner, which filed “lengthy comments opposing that rule” while she was a partner there.

The Biden Administration has gone above and beyond in its efforts to entrench union boss influence at the NLRB. Just minutes after being inaugurated, President Biden took the unprecedented step of firing former NLRB General Counsel Peter Robb, who still had 11 months left on his Senate-confirmed term and had aggressively supported cases in which workers sought to free themselves from coercive union boss-created schemes. Robb’s replacement, Biden-appointed Jennifer Abruzzo, is a former Communications Workers of America (CWA) union lawyer who Freedom of Information Act (FOIA) records requests from the Foundation revealed was half of a two-person Biden NLRB transition team that engineered Robb’s first-of-its-kind ouster.

“The Biden Administration has already displayed some of the most biased and politically-motivated behavior within the NLRB since the agency’s inception, all in an attempt to unfairly rig the system to favor Biden’s union boss political allies over protecting workers’ individual rights,” commented Mix. “If Prouty and Wilcox’s obvious conflicts of interest are unaddressed in this case, the message from the Board will be loud and clear that ethics policies and recusal rules no longer apply now that pro-union boss Biden appointees are in power.”

Comments: Federal law specifically prohibits diverting financial assistance for homecare providers to third parties such as unions

Washington, DC (September 28, 2021) – The National Right to Work Legal Defense Foundation, a nonprofit organization dedicated to protecting America’s working men and women from the abuses of compulsory unionism, filed comments today urging the Centers for Medicaid Services (CMS) not to rescind a 2018 Trump Administration rule that made clear that federal law prohibits union officials from skimming union dues payments from Medicaid funds intended for those who provide home-based assistance to disabled people.

Foundation attorneys argue in the comments that the Medicaid statute’s blanket prohibition on assigning payments to third parties has no exemption for assignments to unions and their PACs, and that the Trump-era rule simply ensured that Medicaid regulations conformed to longstanding law. Prior to the rule, union officials had siphoned upwards of $1 billion from Medicaid payments, an effort which had been aided by the Obama Administration’s 2014 creation of a special exemption for union officials from Medicaid regulations.

Union officials, especially at the Service Employees International Union (SEIU), have long used deceptive and even unconstitutional tactics to divert taxpayer-funded Medicaid payments into union coffers. Before the Supreme Court’s ruling in the Foundation-won 2014 Harris v. Quinn decision, which found that mandatory union payments violate the First Amendment rights of homecare workers who do not wish to support union activities, homecare providers in over a dozen states were required to fund union activities. States automatically deducted fees from Medicaid payments even though such union dues diversions violated federal law regarding Medicaid funds.

Even after the Harris decision was issued, union officials continued seizing money from hundreds of thousands of providers across the country under cover of the Obama-era rule creating an exception to the prohibition against skimming Medicaid funds. Many providers attempted to stop the union dues seizures, while others were unaware they could not be required to make the payments. Some, while attempting to stop the payments, even found that union agents had forged their signatures to authorize the deductions.

“[Home and Community Based Service] Medicaid payments are supposed to pay for care for the severely disabled. Diverting these payments to third-party special interests to subsidize their political agendas, lobbying, and recruitment campaigns is as unconscionable as it is unlawful under Subsection (a)(32)’s unambiguous direct payment requirement,” the comments state. “CMS’s opposite intent in its 2021 [Notice of Proposed Rulemaking] to condone this corrupt practice by inventing a new regulatory exception to the statute is inconsistent with Subsection (a)(32) and is arbitrary and capricious.”

Under the Trump-era rule, union officials may collect payments from caregivers who voluntarily support union activities, but cannot use taxpayer-funded government payment systems to deduct the dues from Medicaid payouts. Voluntary union supporters could still make payments just as millions of Americans make regular payments to private businesses or other organizations.

“The Biden Administration’s plan to reauthorize the Medicaid union dues skim is a bald attempt to allow their political allies to divert funds that federal law makes clear should be going to help those who are homebound or have significant disabilities,” observed National Right to Work Foundation President Mark Mix. “Homecare providers’ own free choice should determine whether union bosses receive their support, not politically-motivated, federally-imposed special exemptions.”

Four lawsuits seek refunds of millions in dues seized from public sector workers without their consent

Washington, DC (September 27, 2021) – A petition for certiorari was filed at the United States Supreme Court late last week for workers in four separate lawsuits brought against unions whose officials refuse to return forced union fees seized from the government workers’ paychecks in violation of the First Amendment.

The cases were all filed with free legal representation from National Right to Work Legal Defense Foundation staff attorneys, with two filed in partnership with attorneys at the Freedom Foundation.

The lawsuits together could enable thousands of public sector employees to obtain refunds of millions of dollars in union dues seized before the Supreme Court’s 2018 Janus v. AFSCME decision. In Janus, the High Court ruled it a First Amendment violation to collect union dues or fees from public sector workers’ paychecks without their affirmative consent.

The Janus ruling made it clear that public employees must affirmatively consent to union payments. The Court stated in its opinion that union officials had been “on notice” since the National Right to Work Foundation-won Knox v. SEIU case in 2012 that forced union dues in the public sector likely violated the First Amendment.

The petition was filed for public sector workers in California and Oregon. It combines suits filed by William Hough, a worker at the Santa Clara Valley Transportation Authority, William D. Brice, a professor at California State University Dominguez Hills, and two suits filed by groups of Oregon state employees. The petitions argue that longstanding precedent allows victims of First Amendment violations to sue for damages or restitution. They argue public sector workers across the country who were forced to pay union dues in violation of the First Amendment deserve to be refunded.

Appellate courts ruled against the workers in each of the four lawsuits. The workers’ attorneys argue in the Supreme Court petition that the lower courts improperly imposed their own views by creating an exception for union bosses in the name of “equality and fairness” that absolved them of their obligation to repay the victims of their First Amendment violations. The petition asks the Court to reject that reasoning:

Lower courts should not be permitted to manipulate constitutional claims to predetermine the outcome of cases based on what they think is good policy or fair to the violators of constitutional rights. The Court should thus reject the proposition that courts can engage in judicial gerrymandering by granting a good faith defense based on “equality and fairness” to the violators of the First Amendment that leave the victims with no remedy.

Another class action National Right to Work Foundation lawsuit filed for government workers in Illinois who seek refunds of union dues seized in violation of Janus is fully briefed and is scheduled for consideration at the Justices’ conference next week.

“For decades, union bosses dipped into the paychecks of many workers who were not union members and used their money to finance activities those workers fiercely opposed,” said National Right to Work Legal Defense Foundation President Mark Mix. “They continued seizing dues despite workers’ pleas and warnings from the Supreme Court that their actions were likely unconstitutional. Because of the statute of limitations, a ruling in these workers’ favor would only force union bosses to return a small portion of the billions of dollars nationwide they unlawfully stole from public employees’ paychecks.”

“The Supreme Court must not allow the lower courts to shield union bosses from accountability for years of violations. The Court should promptly take up these cases, and provide relief to the millions of public sector workers whose rights union bosses callously violated for years,” Mix added.

“The Supreme Court did not create a government employee’s First Amendment right not to be forced to fund a union as a condition of employment,” said Eric Stahlfeld, Freedom Foundation’s Chief Litigation Counsel. “Rather, the Court affirmed in Janus v. AFSCME what it had been signaling to unions in three previous cases starting with Knox, that the right had always existed and simply needed to be recognized. The Ninth Circuit claims it has sided with the unions in ‘good faith’, but if ignoring multiple Supreme Court rulings is operating in good faith, we’d hate to see what the Ninth Circuit considers bad faith.”