Foundation President: “A Rigged System Is Keeping a California Charter School Under Union Rule”
Recently, Reason Magazine published an article by National Right to Work Legal Defense Foundation President Mark Mix describing the ongoing legal battle between teachers at San Diego’s Gompers preparatory academy and San Diego Education Association union officials.
Gompers teachers have been fighting to hold a decertification vote that would remove union officials from the school for over a year, but have been met with resistance from union lawyers and the state bureaucracy. The teachers are defending their rights with free legal representation from National Right to Work Foundation staff attorneys:
“Kristie Chiscano, a teacher who left a career as a surgeon to serve Gompers students, sought a school that wasn’t unionized: “I chose to work at a school that didn’t have a union and now they’ve come in and they’re running everything about my contract and my work.”
Chiscano and many of her fellow teachers wanted a secret-ballot vote to remove the union. Under California law, enforced by the Public Employment Relations Board (PERB), public employees must wait one year to request a decertification vote after a union is certified. Chiscano and others collected enough signatures from teachers (over the 30 percent needed) and planned to file the petition with the PERB soon after the one-year waiting period expired.
But when the union got wind of the teachers’ push for that vote, SDEA lawyers preemptively filed “blocking charges” against the school, leading to the PERB’s regional attorney blocking the decertification petition from moving forward. Now, a year after the petition, the election is still blocked because the board’s rules favor union officials over independent-minded employees.
Under PERB policy, public employees’ right to decertify can be blocked even if the employees who signed and filed the petition are not alleged to have done anything wrong. In deciding whether to block a vote, proof of the union officials’ allegations is irrelevant because the PERB must treat them as true. So when Chiscano appealed the regional attorney’s ruling blocking the decertification election, the PERB in Sacramento upheld the block because the regional official was right to assume the veracity of the union’s allegations with no independent investigation.
With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Chiscano and her fellow teachers continue to fight for a vote, now two years after the union was installed without a vote and over a year after the teachers requested the decertification election.”
You can read the full article here.
Dr. Chiscano spoke to the Foundation last year about the effect union monopoly control has had on Gompers, its teachers and its students:
First Circuit Court of Appeals Rejects Union Attempt to Overturn Ruling that Nonmember Workers Cannot Be Forced to Fund Union Lobbying
Denial of union boss request for rehearing en banc leaves in place unanimous Appeals Court panel decision in favor of Rhode Island nurse
Boston, MA (February 4, 2021) – In another victory for longtime Rhode Island nurse Jeanette Geary, the First Circuit Court of Appeals has rejected a request by United Nurses and Allied Professionals (UNAP) union lawyers to rehear UNAP v. NLRB, a case in which they sought to overturn a National Labor Relations Board (NLRB) ruling in favor of Geary and her fellow nurses who objected to being forced to pay for union lobbying expenses. Geary was not a member of the UNAP union in her workplace and filed federal charges with free legal aid from National Right to Work Legal Defense Foundation staff attorneys in 2009 after union officials infringed on her and other nonmember nurses’ rights under the Foundation-won CWA v. Beck Supreme Court decision.
Geary, who worked as a nurse at Kent Hospital in Warwick, Rhode Island, filed unfair labor practice charges after UNAP officials failed to provide her evidence of a legally required independent audit of its breakdown of expenditures. She also challenged the union’s forcing her and other employees to pay for union lobbying activities in state legislatures.
The Foundation-won Beck decision mandates that private sector workers in states without Right to Work protections can only be forced to pay union dues for union activities “directly germane” to the union’s bargaining functions, which excludes political activity like lobbying. In another Foundation-won case, Hudson, the Court held that union officials must provide an audited financial breakdown of how forced union dues are being spent.
The NLRB ruled against Geary in a decision issued in 2012, but that decision was invalidated by the Supreme Court’s holding in NLRB v. Noel Canning that the Board lacked a valid quorum because of unconstitutional “recess appointments” then-President Obama had made. Seven years later, Geary’s case was one of the only remaining decisions invalidated by Noel Canning still pending without a decision by the NLRB.
In January 2019, Foundation staff attorneys filed a mandamus petition at the U.S. Court of Appeals for the District of Columbia Circuit, seeking a court order that the NLRB promptly decide Geary’s case. The Appeals Court then ordered the NLRB to respond to that petition by March 4, 2019, which caused the NLRB to issue its decision on March 1, 2019, just ahead of the deadline.
The NLRB ruled 3-1 that union officials violate workers’ rights by forcing nonmembers to fund any union lobbying activities. It also ruled that union officials must provide independent verification that the union expenses they charge to nonmembers have been audited. Unwilling to stop forcing workers to fund lobbying activities, UNAP union bosses then asked the First Circuit Court of Appeals to overturn this ruling.
Oral arguments were held before the First Circuit in March 2020, with veteran Foundation staff attorney Glenn Taubman arguing for Geary. One of the judges on the First Circuit panel was retired Supreme Court Justice David Souter. In September, the First Circuit decided unanimously in favor of Geary, ruling that “we see no convincing argument that legislative lobbying is not a ‘political’ activity,” while also finding that the NLRB was correct that Supreme Court precedent dictated that nonmembers could never be required to fund union lobbying.
Rather than accept this limitation on their power to force workers to fund union activities as a condition of employment, union lawyers requested that the case be reheard by every judge on the Court of Appeals. Finally today (February 4, 2021) the First Circuit denied the union lawyers’ request for a rehearing with no judge dissenting.
The decision to deny rehearing en banc and leave in place the panel’s unanimous decision that unions violate workers’ rights when they attempt to force them to pay for any lobbying comes just three days after ersatz NLRB acting General Counsel Peter Ohr rescinded a Guidance Memo to NLRB Regional Directors seeking the enforcement of workers’ rights under the Geary/Kent Hospital precedent. Ohr was installed as Acting General Counsel following President Biden’s unprecedented and likely unlawful firing of General Counsel Peter Robb, who authored the memo on enforcing employees’ rights under Kent Hospital.
“The First Circuit’s unanimous ruling for Ms. Geary, followed by denial of rehearing, demonstrates the clarity of the Supreme Court’s standard in Beck, and shows how flagrantly UNAP officials disregarded her and her coworkers’ Beck rights well over a decade ago,” commented National Right to Work Foundation President Mark Mix. “While it is just plain wrong to force workers to shell out cash for union political expenses as a condition of keeping their jobs, federal labor law as a whole needs reform so no worker is forced to accept or pay for the ‘representation’ of union hierarchies they don’t want and never requested.”
Shamrock Foods Employees in Idaho Decisively Vote Teamsters Union Out of Workplace Following Union Boss Attempts to Block Election
Union officials had blocked vote for over 6 months using non-statutory “successor bar” despite widespread opposition to union
Boise, ID (February 4, 2021) – Truck drivers at the Boise and Twin Falls Shamrock Foods facilities have successfully removed unpopular Teamsters Local 483 union officials from their workplace, following a blowout decertification election in which workers voted 26-4 to oust the union. The workers obtained free legal aid from staff attorneys at the National Right to Work Legal Defense Foundation in defending their right to vote out the Teamsters, after union bosses blocked a previous petition for a vote using a non-statutory National Labor Relations Board (NLRB) policy known as the “successor bar.”
The NLRB is the federal agency charged with enforcing federal labor law and investigating unfair labor practices. The “successor bar,” which appears nowhere in the federal statute governing most private sector labor relations, blocks employees from voting out union bosses for up to a year after a new employer takes over in a workplace. Prior NLRB majorities created this bar out of whole cloth.
In October 2019 Shamrock Foods acquired two warehouses where Teamsters officials held monopoly bargaining power, but bargaining talks between the Teamsters and Shamrock didn’t begin until December 2019. Shamrock employee Curtis Thomason submitted to the NLRB a petition containing well over the number of employee signatures necessary to trigger an NLRB-supervised vote to remove the union in May 2020.
However, in July 2020, the NLRB Regional Office in Denver dismissed Thomason’s petition, claiming it should be blocked by the “successor bar” because it was submitted “within six months of the first bargaining date” between Shamrock Foods and Teamsters officials. Thomason then obtained free legal aid from Foundation staff attorneys and appealed his case to the full NLRB in Washington, challenging the “successor bar” as a violation of his and his colleagues’ right under federal law to remove union officials they no longer want.
While his appeal was pending, but after the “successor bar” waiting period had expired, Thomason submitted a second decertification petition in December 2020. This petition was processed, and the decertification election was administered by the NLRB late last month. The NLRB tallied the votes this week and announced that the workers had voted overwhelmingly to ditch the Teamsters.
Thomason and his coworkers’ successful decertification comes as the NLRB considers several important Foundation cases that take aim at other non-statutory barriers preventing workers’ decertification elections. Most notable are three challenges to the NLRB’s “contract bar” doctrine, which prevents rank-and-file workers from voting out an unpopular union for up to three years following the signing of a contract between management and union bosses.
“Although we are happy Mr. Thomason and his co-workers were finally able to remove unpopular Teamsters bosses from their workplace, this case is a sobering example of how the so-called ‘successor bar’ and other NLRB-created ‘bars’ let union bosses game the system and foist the union on workers who overwhelmingly reject its so-called ‘representation,’” commented National Right to Work Foundation President Mark Mix. “While Mr. Thomason’s case to overturn this pernicious doctrine was rendered moot when the election finally took place, Foundation staff attorneys will unwaveringly stand with workers who face the injustice of having their statutory right to remove unwanted union ‘representation’ blocked, until all these Board-concocted policies to entrench union bosses are finally removed.”
Foundation Battles Union Restrictions on First Amendment Rights at Ninth Circuit
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Cases challenge coercive, anti-Janus “escape periods” concocted by union bosses
Christopher Woods (right), seen here with Mark Janus, is taking up the latter’s fight by challenging an ASEA union boss scheme that traps workers in union payments even after they have dissociated from the union.
SAN FRANSCISO, CA – The 2014 National Right to Work Foundation victory for Pam Harris in the Harris v. Quinn Supreme Court case established that union bosses violate the First Amendment when they skim dues from homecare providers’ state subsidies without their consent. Now, seven California homecare providers have just appealed to the Ninth Circuit Court of Appeals their federal lawsuit against Service Employee International Union (SEIU) Local 2015 officials for continuing to skim dues in violation of their rights.
According to their suit, SEIU honchos enforced a phony “escape period” on the homecare providers, illegally limiting the time in which they could stop the deductions. The providers’ suit says this contravenes the U.S. Supreme Court’s ruling in Janus v. AFSCME. The Court not only held that the government cannot force individuals to subsidize union activities as a condition of employment, but also that government agencies can only deduct union payments after receiving a clear and knowing waiver of their First Amendment right not to make such payments.
Dues-Skim Scam: SEIU Took Dues Without Informing Providers of Rights
Although the plaintiffs, Delores Polk, Heather Herrick, Lien Loi, Peter Loi, Susan McKay, Jolene Montoya and Scott Ungar, are not public employees, they were designated as such solely for the purpose of monopoly unionization. Then that was used as justification for the State of California to skim union dues from their payments at the behest of SEIU officials. The seven participate in the In-Home Support Services (IHSS) program, which allots Medicaid funds to those who provide home-based aid to people with disabilities.
Polk and the other plaintiffs recount in the lawsuit that SEIU union bosses began taking cuts of their Medicaid subsidies after confusing phone calls or mandatory orientation sessions. After the plaintiffs contacted the SEIU attempting to exercise their right to stop the flow of dues, SEIU operatives informed them that they could only opt out of union dues during short union-created “escape periods” of 10-30 days once per year.
The lawsuit also points out that the federal law governing IHSS forbids diverting any part of Medicaid payments to “any other party” besides the providers. In fact, in rulemaking urged by National Right to Work Foundation comments, the federal agency that administers Medicaid confirmed that skimming such payments for unions violates the Medicaid statute passed by Congress.
The seven plaintiffs now seek a ruling that both the taking of union dues without their knowing consent and the policy restricting the providers from ending the dues deductions are unconstitutional. The providers also seek refunds of all money that they and any other IHSS program participants had taken from their payments through the illegal scheme.
Alaska Union Bosses Confine Prison Employee in Unconstitutional Deductions
Also at the Ninth Circuit Court of Appeals, Alaska vocational instructor Christopher Woods recently filed an appeal in his case challenging an “escape period” scheme to block him and other Alaska state employees from exercising their First Amendment rights recognized in Janus.
In a November 2019 email, Woods, who has worked as a vocational instructor at Goose Creek Correctional Center since 2013, informed Alaska State Employees’ Association (ASEA) officials he was exercising his Janus right to stop all union dues deductions. Rather than respect his rights, union officials rejected his request and told Woods that he could only “opt out” and not be a union member with written notice to this office during a 10-day period each year.
Woods persisted on December 2, 2019, submitting to both ASEA officials and the payroll office of the Corrections Department another email asking to cut off dues. Although the payroll office confirmed to both Woods and the ASEA that it had received the request, an ASEA official responded by merely telling the payroll office that she was “still communicating with [Woods] on the matter,” the complaint says. Woods reports in his lawsuit that he has “not received any further communications” from either the ASEA or the payroll office, and that full dues are still being seized from his paychecks.
Foundation String of Triumphs Against Janus Restrictions Unlikely to End
“‘Escape periods’ are shameless union boss-concocted schemes that only exist to keep dues money rolling into their coffers after employees have clearly communicated that they do not wish to support the union,” observed National Right to Work Vice President and Legal Director Raymond LaJeunesse. “Although these arrangements are egregious in any context, trapping homecare providers in dues-skim schemes which deprive them of money they receive for taking care of the disabled is particularly unconscionable, and additionally breaches federal law which prohibits those funds from going anywhere other than to the people giving care.
“Whether it’s the landmark victories in Harris and Janus or the eight recent lawsuits in which Foundation staff attorneys have knocked down ‘escape period’ policies and secured refunds of illegal dues for workers, the Foundation has a track record of success in these cases. Union bosses shouldn’t hold their breath in the hopes of keeping seized dues,” LaJeunesse added.
More Workers Ask Supreme Court to Refund Unconstitutional Forced Dues
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Four Foundation-backed cert petitions now filed at High Court with millions at stake
Foundation staff attorneys asked the Supreme Court to hear Nathaniel Ogle’s case, which seeks refunds for him and his coworkers of forced union dues that were seized from their paychecks in violation of the First Amendment.
WASHINGTON, DC – Across the nation, public employees continue to seek free legal aid from National Right to Work Foundation staff attorneys, to fight for their First Amendment rights recognized in the landmark Janus v. AFSCME Supreme Court ruling. Janus was argued and won by Foundation staff attorneys.
Janus affirmed that public employees cannot be required to subsidize union activities as a condition of employment and that union payments can only be deducted with an employee’s freely given consent.
Despite this clear ruling, union bosses have almost without exception refused to return money seized from workers in violation of the First Amendment. In response, Foundation staff attorneys are now assisting workers in more than a dozen cases seeking to force union officials to return illegal forced fees to tens of thousands of employees, with four such cases now pending at the U.S. Supreme Court.
Union Officials Refuse to Refund Illegally Seized Dues Post-Janus
In November, attorneys for Connecticut Department of Energy and Environmental Protection employees Kiernan Wholean and James Grillo filed a petition for writ of certiorari with the Supreme Court. It is asking the Justices to hear their case, seeking back years of union dues that they and their coworkers were forced to pay to Service Employees International Union (SEIU) union bosses in violation of the First Amendment. Their petition follows one filed in October for Ohio Department of Taxation employee Nathaniel Ogle, whose case seeks to require AFSCME union bosses to similarly return forced fees seized in violation of the Janus standard from potentially thousands of Ohio government employees.
With these two new cert petitions, there are now seven pending before the Supreme Court on this issue, four of which were filed for workers by Foundation staff attorneys. That includes the continuation of the original Janus case brought by Mark Janus.
If the Supreme Court decides to hear any one of these cases, a favorable ruling would create another groundbreaking precedent, potentially prompting the return in Foundation cases alone of over $130 million to employees fighting to get back money taken in contravention of their Janus rights.
Wholean and Grillo, who are not members of SEIU,
originally filed their case in 2018 in the U.S. District Court for the District of Connecticut shortly before the High Court decided Janus. The State ceased deducting dues from their paychecks for SEIU following a letter to the State Comptroller from a National Right to Work Foundation attorney, which threatened legal action for any dues deductions from non-members that continued after Janus.
However, SEIU union officials continue to refuse to refund dues that they took from Wholean, Grillo and other non-members in violation of the Janus First Amendment standard before the decision, even though they knew the employees never consented to pay.
Ogle filed his case at the District Court for the Southern District of Ohio just after Janus was decided. Like Wholean and Grillo, he was never a member of the union but had mandatory union fees deducted from his paychecks. The Ohio affiliate of the national AFSCME union has around 30,000 public employees across the Buckeye State under its bargaining monopoly. If a class is eventually certified in Ogle’s case, it could potentially include thousands of workers.
Foundation Attorneys: High Court Must Reject Union Attempts to Dodge Janus
Lower courts in these and other lawsuits have accepted union lawyers’ so-called “good faith” contentions for letting union bosses keep the dues collected in violation of the non-members’ constitutional rights. This is at odds with the Supreme Court’s Janus ruling, which did not proscribe retroactive relief. Indeed, it observed that union officials have been “on notice” for years that mandatory fees likely would not comply with the High Court’s heightened level of First Amendment scrutiny, articulated in the 2012 Supreme Court decision in the Foundation’s Knox v. SEIU case.
Foundation staff attorneys point out in the petitions before the Supreme Court that a “good faith” defense has never existed under Section 1983 of the Civil Rights Act of 1871, the statute under which these lawsuits are brought. Section 1983 specifically imposes liability on those who violate the constitutional rights of others while acting “under color of ” existing law.
Not all judges, however, have been convinced by union officials’ dubious “good faith” argument for keeping the unconstitutionally seized payments. In Wenzig, another Foundation-backed case, a majority of a Third Circuit panel denied the existence of such a defense. In a supplemental brief, Foundation attorneys cited the confusion among lower courts as a significant reason the court should hear the continuation of Janus.
“With seven petitions on this issue now pending with the High Court and more to be filed soon, it is time the Supreme Court hears this issue and ends the denial of justice for tens of thousands of non-member government employees whose First Amendment rights were violated,” commented National Right to Work Foundation President Mark Mix. “Section 1983 of the Civil Rights Act, the federal statute under which all these cases were filed, was specifically intended to allow individuals to remedy the deprivation of their rights when it occurs under color of law. It’s outrageous that union bosses have thus far been allowed to keep money seized in violation of the First Amendment because it was authorized by then-existing but unconstitutional law.
“That result is especially specious because, as the Supreme Court recognized in Janus, union bosses have been ‘on notice’ since 2012 that forcing government employees to pay union fees was likely unconstitutional,” Mix added.
NLRB to Prosecute Boston Hotel, UNITE HERE Union for Coercive “Card Check” Deal
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2021 edition. To view other editions or to sign up for a free subscription, click here.
Housekeepers say employer illegally assisted union organizers during unionization push
Yotel housekeepers (from left) Lady Laura Javier, Cindy J. Alarcon Vasquez and Yesica Perez Barrios got the NLRB to prosecute union and hotel officials for using a coercive “Card Check” drive to force them under union control.
BOSTON, MA – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, in December 2019 four housekeepers at the Yotel hotel in Boston filed charges against their employer and UNITE HERE Local 26, after the hotel illegally assisted union officials with foisting their “representation” on workers during a “Card Check” organizing drive.
Now, in response to the charges filed for Cindy J. Alarcon Vasquez, Lady Laura Javier, Yesica Perez Barrios and Danela Guzman, the National Labor Relations Board (NLRB) Regional Director has issued a complaint to prosecute the hotel and UNITE HERE for violating the housekeepers’ rights under federal law.
Agreeing with the workers’ Foundation staff attorneys, the complaint charges the hotel with illegally assisting union organizers by providing the kind of assistance the Board has long held to be illegal when it benefits workers’ decertification efforts, and charges the union with illegally accepting the unlawful assistance.
NLRB: Employer Illegally Aided Union Campaign
The NLRB has long held that an employer taints employees’ efforts to remove a union if it gives those workers support that amounts to more than “ministerial aid.” Under that standard, the Board has held that an employer can’t provide a list of bargaining unit employees or allow use of company resources when employees are trying to remove a union, because this assistance would tarnish the results of the election.
Foundation attorneys in this case argue that, under the same standard, Yotel Boston similarly tainted the union’s organizing campaign by providing assistance to UNITE HERE union organizers.
The charges, which resulted in the NLRB complaint, say the hotel illegally assisted the union’s coercive “Card Check” drive, during which employees were pressured by union operatives into signing union cards. These cards were later counted as “votes,” and were used to bypass a secret-ballot election that would have determined whether the workers actually support union representation.
Foundation Cases Challenge Unequal Standard
The case is not the first in which the NLRB has addressed this double standard. In July, NLRB Region 19 issued a similar complaint in another case involving a hotel worker whose employer illegally assisted UNITE HERE Local 8 union officials in its “Card Check” drive at Embassy Suites in Seattle. There the NLRB also agreed that the employer had provided more than “ministerial aid,” and therefore UNITE HERE officials “did not represent an uncoerced majority of the unit.”
“The NLRB is finally addressing the double standard that for too long has favored union bosses in their coercive “Card Check” unionization drives,” said National Right to Work Foundation President Mark Mix. “Union bosses pressure workers and get illegal assistance from employers to impose their so-called representation on workers, but they cry foul when that same assistance is given to workers attempting to remove unwanted forced representation.
“With these two complaints against UNITE HERE union bosses, the Board is correctly finding that what qualifies as more than ‘ministerial assistance and support,’ and violates the National Labor Relations Act, cannot depend on whether the employer is helping outside union organizers impose unionization on workers or is assisting workers in exercising their right to remove an unwanted union,” Mix added
Worker Advocate Slams Biden NLRB Appointee’s Decision to Nix Complaint against Union and Hotel for Colluding to Unionize Employees
Withdrawal comes after Biden’s unprecedented dismissal of NLRB General Counsel Peter Robb, who backed appeal of housekeeper who filed case
Washington, DC (January 29, 2021) – Following President Biden’s unprecedented firing of Senate-confirmed National Labor Relations Board (NLRB) General Counsel Peter Robb, President Biden’s new ersatz Acting General Counsel ordered the withdrawal of an unfair labor practice complaint against a Seattle-area UNITE HERE union local and the Pioneer Square Embassy Suites in Downtown Seattle.
With free legal aid from the National Right to Work Legal Defense Foundation, Gladys Bryant, a housekeeper at the hotel, charged both union officials and hotel management with covertly using a “neutrality agreement” to impose union representation on her and her coworkers without an employee vote. In November 2019, Robb sustained an appeal Bryant’s attorneys filed after NLRB Region 19 originally dismissed her charges against Embassy Suites and UNITE HERE, ordering Region 19 to reverse course and issue the complaint.
Today, on the instructions of the Biden-selected “Acting General Counsel,” the Seattle Regional Director rescinded the complaint against the union and employer rather than let it proceed to a trial conducted by an Administrative Law Judge that was set to begin on February 16.
National Right to Work Foundation President Mark Mix issued the following statement blasting the Biden NLRB’s decision to end prosecution of the case:
“The withdrawal of this complaint shows exactly why President Biden carried out his unprecedented, legally dubious firing of NLRB General Counsel Peter Robb: so Biden’s handpicked NLRB replacements could protect the privileges of Biden’s union boss political allies at the expense of individual workers’ rights. In this case, like many others, Robb enforced the statutory rights of independent-minded workers against union boss attempts to coerce workers into union ranks and dues payment.
“The complaint in this case, issued following this hotel housekeeper’s successful appeal to Robb, was against both union officials and her employer and merely sought to ensure that the Board’s ‘ministerial aid’ standard is applied neutrally, no matter whether workers are seeking to remove or impose union monopoly bargaining powers. Today’s action shows that Big Labor and its allies in the Biden Administration are unwilling to even apply the NLRA in a fair, unbiased manner when doing so empowers workers who refuse to toe the union line. The National Right to Work Foundation is proud to stand with workers challenging all types of union coercion. Ms. Bryant’s Foundation staff attorneys are currently exploring her legal options for challenging this attack on workers’ rights and the independence of the NLRB General Counsel.”
Bryant filed unfair labor practice charges after the UNITE HERE Local 8 union was installed at the Embassy Suites hotel in May 2018 through an oft-abused “card check” drive which bypassed the NLRB’s regular secret-ballot election process. As part of the so-called “neutrality agreement,” Embassy Suites gave union organizers space in the hotel to meet and solicit employees. It also provided union officials with a list of all employees’ names, jobs, and contact information to assist the union in collecting authorization cards from workers. Moreover, hotel management sent employees a letter telling them that it “had a productive relationship” with the union.
After NLRB Region 19 officials declined to prosecute the union or employer for violations of the National Labor Relations Act (NLRA), Bryant appealed the case to NLRB General Counsel Peter Robb in January 2019. In response to the appeal, Robb found that the union’s “card check” recognition was tainted because Embassy Suites through the “neutrality agreement” provided significant aid to the union officials’ organizing efforts in violation of the NLRA.
Bryant’s Foundation attorneys argued that Embassy Suites provided UNITE HERE’s organizing campaign with more than so-called “ministerial aid” and thus violated the NLRA. The NLRB has long held that an employer taints employees’ efforts to remove a union if it gives the employees support such as providing a list of bargaining unit employees or use of company resources. Robb agreed with Foundation staff attorneys that the “ministerial aid” standard must apply consistently regardless of whether an employer’s assistance is in favor of or opposed to unionization.
President Biden Fires NLRB GC Robb in Unprecedented Move
On January 20 at 12:23 PM, a mere 23 minutes after the President formally took office, President Biden’s Office of Presidential Personnel demanded that Robb resign or be fired. After Robb refused to resign, citing the unprecedented nature of the demand, he was fired that same day. Robb’s deputy, Alice Stock, received a similar unprecedented threat only to be fired as well the next day when she refused to resign.
Since the office of NLRB General Counsel was established in 1947, no sitting General Counsel of the NLRB has ever been terminated by a president before the end of their Senate-confirmed four-year term, even when the White House changes 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).
Aside from supporting Bryant’s and other employees’ cases challenging unfair “neutrality agreements,” Robb has ordered complaints to be issued for independent workers in Foundation-backed cases challenging other illegal union practices. Robb has been particularly protective of workers’ rights in cases where workers seek to challenge union officials’ attempts to coerce them into subsidizing union political activities (which could include efforts to elect Biden). Robb has also backed rule changes that make it easier for employees to exercise their rights to vote out unions that are unpopular or established themselves as monopoly bargaining agents through underhanded means.
“Robb’s unprecedented removal is nothing more than a payback to one of Biden’s biggest political backers – union bosses – whom Robb frequently prosecuted for violating federal labor law, including by illegally forcing workers to support Big Labor’s electoral efforts,” added Mix.
National Workplace Advocacy Group to Charter School Teachers: ‘Don’t Be Afraid to Exercise Your Rights to Resist Union Boss Power’
National Right to Work Legal Defense Foundation President issues statement in recognition of National School Choice Week
Washington, DC (January 29, 2021) – Mark Mix, president of the National Right to Work Legal Defense Foundation, issued the following statement in recognition of National School Choice Week 2021:
In this year’s School Choice Week, more and more Americans are seeing firsthand the benefits of letting parents choose which type of education will best serve their children’s needs. In the wake of the COVID-19 pandemic, teacher union officials have held parents, children, and independent-minded teachers hostage to unreasonable and evidence-free demands designed to perpetuate and expand union officials’ one-size-fits-all monopoly over government education.
Prime targets of teacher union officials in recent years have been ever more popular and successful charter schools. Union bosses have even used Coronavirus as a pretense for demanding a moratorium on the opening of new charter schools, a cynical attempt to block teachers and parents from escaping union-dominated government school systems.
When they can’t block the existence of charter schools, teacher union bosses have employed coercive tactics to foist their so-called ‘representation’ onto charter school educators. This puts charter school students and teachers at risk: Many parents and teachers prefer charter schools precisely because they reject the one-size-fits-all approach national and state teacher union bosses promote.
Take, for example, Gompers Preparatory Academy in San Diego, California. The school made an impressive transition in 2005 from a traditional public school to a charter school after a campaign by parents, teachers, and administrators who believed that public school district and union bureaucracies were not serving the students’ interests.
In 2019, after being unionized through a contentious ‘card check’ drive that bypassed a secret-ballot election, Gompers teachers began circulating a petition for a vote to remove the union. Union officials have now for more than a year blocked the teachers from exercising their right to vote the union out. On top of that, union officials face legal charges filed by Gompers educators for attacking teachers and their coworkers on social media just for wanting to exercise their right to a vote to remove the union.
Charter school employees are entitled to certain constitutional and statutory rights, but unfortunately union officials frequently attempt to keep employees in the dark about those rights. That is why National Right to Work Foundation staff attorneys have provided direct, free legal aid to over 10,000 teachers since its founding, including the teachers at Gompers, and why the Foundation has its Charter School Initiative. Foundation-won legal precedents have also expanded the workplace rights of millions of teachers across the country.
Led by National Right to Work Foundation staff attorneys, the National Right to Work Foundation’s Charter School Initiative aims to enlighten charter school employees about their rights so that they can make decisions about union representation in an atmosphere free of union boss threats, harassment, coercion, or misrepresentation. To that end, Foundation attorneys have developed free educational materials for charter school teachers and other charter school employees. Furthermore, Foundation staff attorneys are prepared to defend charter school employees from the injustices of forced unionism, as they are now doing for Gompers teachers.
Charter school teachers and other employees: You have rights. For more information about your rights and the Foundation’s Charter School Initiative, check out our website at https://www.nrtw.org/charterschools.
Sacramento-Yolo Employees Win Ruling in California Labor Board Case Charging IUOE Union Bosses with Illegal Surveillance
Union boss demanded personal emails of Sacramento-Yolo District workers seeking information about holding a vote to remove the union from their workplace
Sacramento, CA (January 27, 2021) – With free legal aid from the National Right to Work Legal Defense Foundation, three Sacramento-Yolo Mosquito & Vector Control District employees just received a favorable decision from a California Public Employment Relations Board (PERB) Administrative Law Judge (ALJ). The employees’ case charged that International Union of Operating Engineers (IUOE) Local 3 officials interfered with their rights under California law to remove the union from their workplace by targeting their protected communications through a California Records Act request.
The ALJ decision confirms the workers’ charges that IUOE union officials had “unlawfully surveilled [their] protected conduct” and also finds that the workers were “harmed by the unlawful surveillance when they learned of it.” As a result, the decision orders union officials to immediately stop monitoring the workers’ email activity about the union. The decision also requires IUOE Local 3 to post copies of the decision in all Sacramento-Yolo Mosquito & Vector Control District workplaces where the union maintains monopoly bargaining power and to send the decision to all bargaining unit employees through electronic means, including email.
The employees, Brett Day, Ryan Wagner, and Mark Pipkin, were targeted by union officials after they discussed with other District employees how to exercise their rights as public workers under California’s Meyers-Milias-Brown Act (MMBA). That statute guarantees public workers “the right to refuse to join or participate in the activities of employee organizations” and “the right to represent themselves individually in their employment relations with the public agency.” Union agents requested from their employer all emails the three and other named employees had sent containing the words or phrases “decertification,” “PERB,” “union,” “decertify,” “how to get rid of union,” “Public Employee Relations Board,” and “Meyers Milias Brown Act.”
That request was made as IOUE officials sought to block a push for a decertification election, in which workers would vote in secret to determine whether a majority want to end the union’s monopoly representation. Under the 2018 Foundation-won U.S. Supreme Court decision in Janus v. AFSCME, the dissenting workers finally have the legal right to stop financial support of the union, yet California law still forces the union on them as their monopoly bargaining agent.
Day, Wagner, and Pipkin defended themselves by obtaining free legal aid from Foundation staff attorneys and filing charges with PERB. The workers’ charges argued that the union’s demand for employee emails interfered with their right to communicate with their coworkers about voting out the union, as protected by the MMBA. In May 2019, PERB found merit in Day, Wagner, and Pipkin’s charges and issued a complaint on which to prosecute the union.
The decision notes that employees’ knowledge of being spied on by union officials “has a deleterious effect on [their] future exercise of rights” and thus ruled that Day, Wagner, and Pipkin “suffered harm to their protected right to communicate with coworkers about unionization, decertification, and the Union in general.” The ALJ’s decision will become the PERB’s official decision in 20 days, unless one of the parties files exceptions to it.
“IUOE union bosses’ conduct in this case clearly demonstrates that they were far more interested in maintaining their one-size-fits-all bargaining power over Day, Wagner, and Pipkin’s workplace than in respecting the rights and privacy of the very workers they claim to represent,” commented National Right to Work Foundation President Mark Mix. “This favorable decision underscores why government sector union bosses should not have the privilege of forcing their so-called ‘representation’ on all employees in a public workplace, especially not over the objections of employees who oppose the union.”
“Even though the Foundation-won Janus decision eliminated the scourge of forced union dues for public employees, there is ultimately no place for compulsory unionism of any kind in state or federal labor law,” Mix added.
Foundation Offers Free Legal Aid to Workers Impacted by Biden Executive Order Cancelling Keystone XL Pipeline Project
Workers have legal options to hold union officials accountable for backing a President who moved to destroy their jobs on day one
Washington, DC (January 25, 2021) – Today, the National Right to Work Legal Defense Foundation announced an offer of free legal aid to workers whose economic opportunities have been harmed by the cancellation of the Keystone XL pipeline. The offer comes after President Biden, elected with the backing of union bosses using workers’ dues money, immediately moved to cancel the project and the jobs it would have provided.
Federal law gives short shrift to workers who labor under union compulsion, but there are ways to hold union officials accountable when they push positions detrimental to the interests of the rank-and-file. The limited legal options available to workers do include cutting off union financial support and holding a decertification election to vote union officials out of their workplace.
The now cancelled Keystone XL Pipeline project reportedly would have meant the hiring of over 8,000 workers subject to union monopoly representation, who would have been paid an estimated $900 million in wages in 2021 alone. James T. Callahan, the top official at the International Union of Operating Engineers (IOUE) even admitted the project would have been good for the unionized workers, calling it “welcome news and irreplaceable as the U.S. continues our economic recovery.”
Despite the benefits the pipeline would provide for rank-and-file workers, IOUE officials endorsed Joe Biden for president and spent workers’ dues money backing his election despite his promise to eliminate the pipeline project as part of his pledge during his campaign “to end fossil fuel.” Following through on his threat, President Biden revoked the pipeline’s permits on his first day in office, thereby eliminating the jobs and wages that would have been created had the project moved forward.
The National Right to Work Foundation website (www.nrtw.org) contains detailed information on how workers can exercise their rights to cut off financial support for union officials’ activities that directly resulted in the elimination of their jobs and economic opportunities.
In the 27 states across the country with Right to Work protections that make union membership and financial support strictly voluntary, union bosses cannot force workers to pay any dues to keep their job. Workers in Right to Work states, including South Dakota and Nebraska, which would have directly benefitted from the project, can find information on how to resign their union membership and stop all union payments here.
In states that have yet to pass a Right to Work law, like Montana, another state that would have benefitted from investments in the Keystone XL Pipeline, although workers can be required to pay some union fees, they cannot be forced to fund union political activities. Workers in states without Right to Work protections can learn how to exercise their right to cut off the portion of dues used for union political activities here.
Workers in every state also have the legal right to remove a union from their workplace and strip union officials of their monopoly bargaining power. Workers can learn more about their right to hold a decertification election to vote out a union here.
Additionally workers should know that if they would like assistance in exercising any of these rights, they can contact the Foundation for free legal aid through the Free Legal Aid Request Form or by calling the Foundation toll free at 1-800-336-3600.
“Workers should not be forced to financially support union bosses who use workers’ money to back candidates willing to destroy their jobs with the stroke of a pen,” commented National Right to Work Foundation president Mark Mix. “Although union officials want to keep workers in the dark about these rights, workers deserve to know the legal options they have to hold union bosses accountable for pushing an agenda that actively undermines the employment opportunities of rank-and-file workers.”
