Rehearing in Continuation of Landmark Janus Case
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2020 edition. Foundation staff attorneys are currently asking the U.S. Supreme Court to review the continuation of Mark Janus’ case. To view other editions or to sign up for a free subscription, click here.
Union bosses refuse to return dues seized in violation of First Amendment
A favorable decision for Mark Janus at the Seventh Circuit could be the next step toward public employees getting back millions of dollars that were seized from them by union bosses in violation of their First Amendment rights.
WASHINGTON, D.C. – Mark Janus won a landmark victory for American workers in 2018 when the Supreme Court acknowledged in Janus v. American Federation of State, County, and Municipal Employees (AFSCME) Council 31 that requiring public sector workers to pay union fees as a condition of employment infringed their First Amendment rights.
However, the coffers of the AFSCME union bosses who once had monopoly bargaining power over Janus — and the coffers of countless other unions around the country — are still flush with dues money that was seized from employees without their “affirmative and knowing” consent as the decision requires.
National Right to Work Foundation staff attorneys who represent Janus, along with attorneys from the Illinois-based Liberty Justice Center, have filed a petition to the Seventh Circuit Court of Appeals for a rehearing en banc in the continuation of his case. Janus seeks a ruling that will make AFSCME union officials return thousands of dollars in dues that were taken from his paycheck in violation of Janus since March 23, 2013. If the rehearing is granted, Janus’ case will be heard before 12 judges of the Seventh Circuit.
A three-judge panel of the Seventh Circuit refused to remedy AFSCME bosses’ unconstitutional conduct last November despite the High Court’s noting in Janus that union officials have been “on notice” for years that mandatory fees likely would not comply with the heightened level of First Amendment scrutiny articulated in the 2012 Knox v. SEIU Supreme Court decision, also won by Foundation staff attorneys.
“Mark Janus is simply asking the Seventh Circuit to remedy the years of unconstitutional conduct AFSCME bosses have perpetrated at his and other public sector workers’ expense,” observed National Right to Work Foundation Vice President Patrick Semmens.
At stake for Mark Janus is over $3,000 of his money that was seized by union officials in violation of his First Amendment rights. But a ruling in his favor could have a nationwide impact, setting a federal precedent that would be cited in dozens of other cases seeking refunds of dues taken unlawfully by public sector union bosses. Foundation staff attorneys are currently litigating more than 30 Janus-related cases that collectively seek more than $120 million in refunds.
Foundation Victories Stop Illegal Forced Union Dues for Public Employees
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2020 edition. To view other editions or to sign up for a free subscription, click here.
Settlements end Big Labor restrictions on workers exercising Janus rights in New Mexico, Ohio
Shopping for a refund: Ohio school bus driver Donna Fizer won a refund of illegally seized dues after fighting schemes meant to block public employees from exercising their rights under the Foundation-won Janus decision.
CINCINNATI, OH – National Right to Work Legal Defense Foundation staff attorneys continue to win settlements for workers who have been trapped by arbitrary union-created “escape periods” or “window periods,” which violate workers’ rights by preventing them from stopping dues deductions.
In the 2018 Foundation-won Janus v. AFSCME decision, the U.S. Supreme Court held that requiring public sector employees to pay union bosses is unconstitutional. Yet, union bosses continue to tell workers they can only stop dues deductions during limited periods. After Foundation-backed lawsuits, however, they often choose to settle with workers rather than face Foundation staff attorneys in court.
In November, Ohio bus driver Donna Fizer won a settlement against Ohio Association of Public School Employees (OAPSE). With Foundation legal aid, Fizer sued OAPSE for continuing to take money from her paycheck after she resigned her union membership, which violates the Janus ruling’s protection of her First Amendment rights.
Workers Win Battles Coast to Coast Stopping Unconstitutional Dues
Fizer’s victory came when Foundation staff attorneys filed a federal lawsuit for her, contending the dues seizures OAPSE made from her paycheck after she resigned her union membership infringed her rights under Janus.
OAPSE bosses had told Fizer that she couldn’t leave the union except during a union-created “escape period” and continued to take a portion of her paycheck. As a result of the settlement, union bosses refunded her the money they seized under the illegal policy.
After the 2018 Janus ruling, Fizer notified school board officials she was “immediately withdrawing [her union] membership” and exercising her First Amendment Janus right to cut off union dues deductions.
The school district treasurer quickly complied and stopped the deductions from her paycheck, but OAPSE bosses responded by filing a grievance which alleged that Fizer could not revoke except within a tiny, union-created “escape period” that occurs only 10 days every few years. They demanded that the school district continue to illegally take money from Fizer.
Faced with a federal lawsuit union officials quickly settled the case, vindicating her rights. As part of the settlement, OAPSE bosses returned to Fizer all the dues they took from her paycheck since the date of her membership revocation, and further notified the district to cease any further deduction of union dues from her paycheck.
In October, Foundation attorneys won a settlement for New Mexico information technology worker David McCutcheon and 67 of his coworkers, who collectively received over $15,000 in refunds of dues seized by Communications Workers of America (CWA) bosses in violation of their Janus rights.
Foundation Wins Class Action Janus Lawsuit in New Mexico
McCutcheon works as an IT technician at New Mexico’s Department of Information Technology and was forced to pay union dues as a member before the 2018 Janus decision. After the Foundation-won victory, McCutcheon attempted to end the dues payments only to be told he could only do so during a brief two-week period in December, a violation of his rights under Janus.
Again, instead of fighting the lawsuit in court, CWA officials opted to settle the case. As part of the settlement agreement, CWA officials removed the union-created “escape period.” The union also paid back fully, plus interest, all dues taken from McCutcheon and others who had attempted to exercise their First Amendment rights under Janus but were blocked from doing so because of the “escape period” restrictions.
“Local 7076 and CWA will not enter into any [union contract] with the State of New Mexico that restricts to a yearly window period the time when a bargaining unit member may revoke a previously authorized dues deduction authorization,” the settlement reads.
“Union officials have no legal right to hold workers hostage in forced-dues ranks because of brief, arbitrary union-created window periods,” said National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse. “It’s telling that these union bosses are settling in court rather than continuing to litigate these cases. It shows that the law, because of the Janus ruling, favors workers, not the interests of union bosses who want to trap them.”
Since the Janus decision in 2018, Foundation attorneys have litigated more than 30 cases seeking to enforce and expand the Janus victory, with others being filed all the time.
Gompers Preparatory Academy Educators File Response to SDEA Union Bosses’ Continued Attempts to Block Vote to Remove Union
Disastrous AB5 sponsor sides with union officials against teachers who remain trapped under union monopoly
San Diego, CA (March 27, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, educators at San Diego’s Gompers Preparatory Academy (GPA) are urging California Public Employment Relations Board (PERB) officials to let a secret-ballot vote proceed that could remove San Diego Education Association (SDEA) union bosses from power at the school. GPA teachers filed a response to union “blocking charges” brought against the school which could stall, for another year, the teachers’ right to a decertification election.
SDEA officials installed the union at the school in January 2019 after conducting a controversial “card check” drive, bypassing the more reliable method of a secret-ballot election whether to choose a union as the monopoly representative of all educators in the school. GPA transitioned from being a regular public school to a charter preparatory academy in 2005 as the result of a campaign by parents, teachers, and administrators who believed that school district and union bureaucracies were not serving the students’ interests, especially by failing to combat gang violence and teacher attrition at the school.
GPA parents and educators have accused union agents of sowing division at the school, including by supporting anti-charter school legislation, making unnecessary and disparaging comments to school leadership during bargaining sessions, and plotting to prevent the California NAACP from giving the school’s director, Vincent Riveroll, an award for helping minority students succeed.
Dr. Kristie Chiscano, who teaches chemistry to 10th and 11th grade students at GPA, began circulating a petition for a vote to decertify the union in October 2019. She soon obtained the signatures of well over the number of her fellow educators necessary to trigger a PERB-supervised secret-ballot vote to remove the union.
But, in December of last year, union officials preemptively filed a charge against the school seeking “that the certification year be extended.” That would block the educators’ right to remove the union from their workplace for another year despite no evidence or even an allegation that any educator violated the law. Such meritless “blocking charges” are a regular tactic union lawyers use to block rank-and-file employees from holding secret-ballot elections that may result in the removal of union officials from power.
Dr. Chiscano sought free legal aid from Foundation staff attorneys to decertify the union, and is now fighting to counter union “blocking charges.” The response filed with the PERB argues that the allegations union officials are making against the school’s leadership have no connection to the decertification effort and should not serve as grounds to deny the teachers’ right to a secret-ballot decertification vote. “PERB should thus proceed with a secret-ballot election as soon as practicable so Petitioner Chiscano and her fellow Gompers employees can exercise their right” to vote the union out, the response argues.
Meanwhile, California State Assemblywoman Lorena Gonzalez has jumped into the controversy on the side of SDEA union bosses. In a letter to GPA leadership she attacked the Right to Work Foundation simply for providing legal aid to GPA educators as they seek to exercise their right to hold a decertification election. The Foundation has provided legal aid to thousands upon thousands of teachers, including many charter school teachers.
Gonzalez, who regularly sides with union bosses over rank-and-file workers, introduced California’s disastrous AB 5 measure, which was written by union lobbyists and designed to foist union monopoly representation and forced union dues on independent contractors across the state of California. The bill has already led to a significant drop in opportunities for many workers across the state.
“SDEA union bosses are continuing to manipulate legal procedures to keep the educators they claim to represent trapped in union ranks instead of just letting them exercise their right to hold a decertification election,” commented National Right to Work Foundation President Mark Mix. “Foundation staff attorneys will continue to fight for Dr. Chiscano and her fellow educators until they are able to decide, free of coercion, who will speak for them in the workplace.”
Mix continued: “All these educators seek is a secret ballot vote to see whether a majority of their colleagues want the disruptive union out of their school. It is disgraceful but not surprising that Assemblywoman Gonzalez, who is elected by secret ballot, is opposing these teachers’ attempt to exercise their legal rights.”
Minnesota Building Materials Employees Win $30,000 after Illegally Being Fired at Behest of Teamsters Union Bosses
Workers receive back pay from employer but charges against Teamsters for union officials’ role in illegal termination and rights violations are still pending
Minneapolis, MN (March 25, 2020) – Two Minnesota building materials employees won a settlement in their unfair labor practice cases charging their former employer, OMG Midwest, for illegally firing them after the workers refused to formally join the Teamsters Local 120 union. The two workers charged that company and union officials told them several times – falsely – that union membership was required as a condition of employment. The settlement was won with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
As a result of the settlement, OMG Midwest will now pay over $30,000 in back pay to the two men. They will also “remove all references to the termination” from the two employees’ personnel files, post notices at OMG’s Belle Plaine, Minnesota, facility, and distribute those notices to individual employees. The notices will explain that workers cannot be forced to join a union as a condition of employment. Charges against the union for violating the two workers’ rights are still pending.
James Connolly recounted in his charges that he asked Teamsters officials via email on April 9, 2019, whether or not he would be compelled into joining the union as part of the job. The same day a union official wrongly replied, “Sorry James but yes you do have to join.” Later, on May 1, a representative of OMG Midwest reiterated the same false information to Connolly. Connolly responded to the company in a May 9 email, in which he repeated his unwillingness to formally join the Teamsters. OMG Midwest fired Connolly the next day. Connolly then filed unfair labor practice charges against OMG Midwest and the Teamsters union at National Labor Relations Board (NLRB) Region 18 with Foundation aid.
Later, in June, Charles Winter filed similar charges against OMG Midwest and the Teamsters union. Winter reported in his charges that at a company-wide meeting a Teamsters representative had told him and other employees that union membership is required in order to get or keep a job. When Winter later received an email from a company representative reiterating the false information that union membership was compulsory, Winter replied on May 20 holding firm that he would not join. He was fired in an email from the same company representative that same day.
Winter’s charge also alleged that the union membership form that Teamsters officials gave him was missing a legally-required estimate of the reduced union fees that union nonmembers would be required to pay under the Foundation-won CWA v. Beck Supreme Court decision.
Both men’s charges argued that the misinformation about membership and their firings clearly violated Section 7 of the National Labor Relations Act (NLRA), which protects the “right to refrain from any or all” union activities. Winter also charged that the union violated his right under Beck to be a nonmember and pay only the part of union dues directly germane to bargaining. As part of the settlement, OMG Midwest is required to include “a Notice of Beck Rights” in the rights notices it will disseminate to all bargaining unit employees.
Because Minnesota has not enacted Right to Work protections for employees, union bosses can have private sector workers fired for not paying fees to a union. However, union officials can only require workers to pay the portion of dues allowed by Beck and must follow certain Beck procedures before seizing such forced fees from workers who are not union members.
“Although it’s good news that Mr. Connolly and Mr. Winter have won these settlements which require OMG Midwest to make reparations for violating longstanding worker protections, the fact is that Mr. Connolly’s and Mr. Winter’s charges against the Teamsters union are still pending,” observed National Right to Work Foundation President Mark Mix. “NLRB Region 18 must swiftly prosecute Teamsters Local 120 officials so these two men’s rights can be fully vindicated.”
Mix added: “Ultimately, Minnesota legislators need to pass Right to Work protections for their state’s private-sector employees which will ensure that union bosses must use persuasion – not illegal intimidation or threats of firing – to secure the support of workers.”
Paramedic Files Appeal after NLRB Disregards Illegal Union Retaliation
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2020 edition. To view other editions or to sign up for a free subscription, click here.
Appeal to NLRB General Counsel comes just months after Region 14 was reversed in similar case
Paramedic Jarod Aubuchon is appealing his case against Teamsters officials after they punished him for informing his coworkers of their rights to resign union membership and pay reduced dues.
St. LOUIS, MO – Jarod Aubuchon, a St. Louis-area paramedic who charged Teamsters Local 610 union officials with illegal retaliation after he tried to inform his coworkers of their right to pay reduced union dues, is filing an appeal in his case to the National Labor Relations Board (NLRB) General Counsel in Washington, D.C. He is represented free of charge by National Right to Work Legal Defense Foundation staff attorneys.
Aubuchon’s appeal comes after the October 2019 dismissal of his case by NLRB Region 14 officials in St. Louis. Region 14 was reversed by the NLRB General Counsel in a similar union retaliation case this summer, which was also brought by Foundation staff attorneys.
Union Officials Vow Punishments after Worker Posted Rights Notices
Aubuchon discovered the right of private sector workers under the Foundation-won CWA v. Beck Supreme Court decision to resign union membership and pay a reduced portion of union dues. Because Missouri is not a Right to Work state, private sector workers can still be compelled to pay part of union dues as a condition of employment.
Beck, won by Foundation staff attorneys in 1988, guarantees that employees who are not union members can only be required to pay fees to a union for expenses that are directly germane to bargaining, such as contract administration.
Armed with this new knowledge, Aubuchon posted flyers in common areas of his workplace informing his coworkers of their Beck rights. According to his charge, Teamsters agents responded by tearing down these notices and later demanding that his employer, Medic One, discipline him for the postings. Actions by union officials that cause an employer to discriminate against workers on such grounds are prohibited by the National Labor Relations Act (NLRA).
Aubuchon resigned his own union membership and asserted his Beck rights. Aubuchon’s charge states that neither his resignation nor his Beck rights have been acknowledged by Teamsters bosses, and full dues are still being seized from his paychecks.
Employee Appeals to NLRB General Counsel with Free Foundation Legal Aid
After NLRB Region 14 officials rejected his case, Aubuchon petitioned the NLRB General Counsel to overturn the decision and order remedies for the retaliation he experienced from Teamsters officials.
“They spend union money on political activism without consideration of its members,” Aubuchon said of Teamsters officials to the St. Louis Record after his appeal was filed. “We have a right to not have our money used in that manner and in the end I hope employees are better educated on their rights and how to exercise them.”
In July 2019, the General Counsel reversed Region 14 officials’ dismissal of a similar case brought by Foundation staff attorneys for Kansas City-area hospital worker Kacy Warner. Warner charged officials of the National Nurses Organizing Committee (NNOC) union with illegally interfering with a petition she was circulating for a vote to remove the union. That included tearing down flyers she had hung in bathrooms and other common areas in her workplace informing employees of the petition. In her case the NLRB General Counsel reversed Region 14’s dismissal and ordered region officials to prosecute the charge.
Region 14 officials were also overturned by the full Labor Board in October 2019 after the Region dismissed a petition for a vote to remove the union from St. Elmo, Illinois-based ConAgra Foods worker Robert Gentry’s workplace. United Food and Commercial Workers (UFCW) union bosses had attempted multiple times to stop workers at the plant from exercising the right to vote out the union.
“The NLRB is charged with enforcing workers’ rights under the National Labor Relations Act, yet there is a disturbing pattern of Region 14 failing to enforce the rights of rank-and-file workers when doing so advances the interests of union bosses,” commented National Right to Work Foundation Vice President Patrick Semmens. “It should not take an appeal to Washington, D.C., for workers to have their rights fully protected against union boss abuses.”
Right to Work Foundation Asks NLRB to Enforce Cannabis Industry Workers’ Rights against State Schemes to Force them into Union Ranks
Several states are attempting to use industry licensing as a pretense to impose forced union dues on workers in violation of federal labor law
Washington, DC (March 19, 2020) – Today the National Right to Work Legal Defense Foundation called on National Labor Relations Board (NLRB) General Counsel Peter Robb to take action to protect workers subjected to forced unionism schemes interfering with workers’ rights under the National Labor Relations Act (NLRA) through state licensing requirements showing up in states.
A letter from Foundation Vice President and Legal Director Raymond LaJeunesse, Jr. seeks to bring the General Counsel’s attention to a “disturbing trend in state licensing regulation that, if left unchecked, will cause permanent damage to employees’ fundamental Section 7 rights under the National Labor Relations Act.”
The letter highlights how several states have already enacted schemes that infringe on the rights of employees in the medicinal cannabis industry. In New Jersey, for example, the law requires “a private sector employer to enter into a union bargaining agreement within 200 days of commencing operations” or forfeit their license to do business. Such a requirement does not allow employees to decide whether or not they would like to be represented by a union, a clear violation of their rights under the NLRA.
Other states like California and New York require cannabis employers to enter into so-called “labor peace agreements” (LPAs) as a condition of maintaining their license. These agreements violate workers’ privacy and also threaten their right to freely choose whether or not to join a union. In other states, including Pennsylvania and Illinois, state officials will give more “points” to cannabis license applicants who have LPAs, which is effectively preferential treatment for those businesses which have already chosen a union for their employees to work under. The states enacting these schemes have acted at the behest of several national labor unions, with the United Food and Commercial Workers being on the forefront of these forced unionism efforts.
The letter calls on the NLRB to act against these state and local governments whose regulations infringe on the rights of employees to join or not join labor organizations, and lays out the clear legal arguments that support challenging laws that violate the limited employee rights under the NLRA. It points out that such schemes are “directly contrary to the NLRA’s core principle that ‘under Section 9(a), the rule is that the employees pick the union; the union does not pick the employees.’”
In 2019, New Jersey amended its medicinal cannabis laws, requiring license applicants to sign “labor peace agreements.” According to the amended law, applicants must maintain and comply with an LPA as a condition of keeping their license. In addition, these private sector employers are forced to sign monopoly bargaining agreements within 200 days of opening, and if they do not, they lose the right to do business in the state. Essentially, the letter points out, “the state pressures employees to sign up for unionization solely to keep their employers afloat.”
Furthermore, the Foundation points out how New Jersey indirectly imposes monopoly representation on workers by giving priority to license applicants that already have agreements with union officials or who promise to use their “best efforts to utilize union labor in the construction or retrofit of the facilities associated with the permitted entity.”
The letter also points out that the NLRB has the clear authority to take action against such state activity that threatens the rights guaranteed to workers by the NLRA.
“The NLRB is tasked with protecting the rights of workers across the nation, including their right not to be coerced into union ranks. Our letter to NLRB General Counsel Peter Robb shows the pressing need for the agency to step in and take action against states and local governments who have passed laws that infringe on the rights of workers by mandating these businesses hand over their workers to union forced dues ranks,” said National Right to Work Foundation President Mark Mix.
“Absent swift action from the NLRB to challenge these state laws that fly in the face of the National Labor Relations Act, you can be certain that Big Labor allied politicians across the country will soon seek to force workers in other states or industries into union forced dues ranks under the auspices of occupational licensing.”
Special Legal Notice for West Virginia Employees of AHF Products Issues by National Right to Work Foundation Staff Attorneys
Beverly, WV (March 16, 2020) – Amid reports of a strike called by Teamsters union officials, and due to requests for legal assistance that often accompany such union-instigated work stoppages, National Right to Work Legal Foundation staff attorneys have issued a special legal notice to workers at the AHF Products plant in Beverly, West Virginia.
The special legal notice outlines workers’ rights that union officials won’t share with them, and specifies what steps workers should take if they wish to exercise their right to work during the strike:
Teamster union officials have ordered AHF Products workers at the company’s Beverly, West Virginia plant to abandon their jobs and go on strike.
The situation raises serious concerns for workers who believe there is much to lose from engaging in a union-ordered strike.
Employees have the right under federal labor law to rebuff union officials’ strike demands, but it is important for you to be informed before you do so.
IF YOU WOULD LIKE TO CONTINUE WORKING OR RETURN TO WORK DURING A STRIKE READ ALL OF THIS SPECIAL NOTICE BEFORE CROSSING A PICKET LINE TO WORK – IT MIGHT SAVE YOU THOUSANDS OF DOLLARS!
Read the complete legal notice here.
UCSD Workers Hit Union with Federal Class-Action Lawsuit for Seizing Union Dues in Violation of First Amendment
UC president Napolitano and California Attorney General Becerra named as defendants for facilitating policy to block university employees from exercising their rights
San Diego, CA (March 13, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, two UC San Diego Health employees filed a federal class action lawsuit against the University Professional and Technical Employees (UPTE) union and the University of California for seizing dues from their paychecks in violation of their First Amendment rights. The lawsuit states the dues seizures are unconstitutional under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, the Court ruled that deducting union dues from any public sector worker’s paycheck without his or her “affirmative and knowing” consent infringes the First Amendment of the U.S. Constitution.
The class action lawsuit names University of California President Janet Napolitano as a defendant for the university system’s role in perpetrating this scheme. It also names California Attorney General Xavier Becerra as a defendant for the state’s enforcement of the illegal union dues policy.
The lawsuit brought by two Service Desk Analysts, Pablo Labarrere and Sam Doroudi, recounts that UC San Diego Health officials had made all new employees “believe that it was a condition of employment to either join the union as full members or pay forced fees as nonmembers” during a mandatory orientation session. New employees were given and told to sign “dues deduction authorization cards” which provided that union officials would continuously collect dues from each employee’s paycheck unless a revocation letter was sent in a 30-day window before the annual anniversary of signing the card.
According to the lawsuit, the authorization cards did not explain, as Janus requires, that public sector employees “have a First Amendment right not to subsidize the union and its speech” and that signing the card would waive those rights. Labarrere and Doroudi eventually discovered their First Amendment Janus rights independently and sent letters to UPTE officials in December 2019 demanding that dues deductions be cut off. UPTE agents rebuffed both letters and continued to seize dues from Labarrere’s and Doroudi’s paychecks, ostensibly because they did not submit their requests within the “escape period” created by the union bosses.
The lawsuit contends that UPTE bosses are violating Labarrere’s and Doroudi’s First Amendment Janus rights by continuing to take dues from their paychecks without ever having received their “affirmative authorization and knowing waiver” of those rights. It also argues that the 30-day “escape period” illegally restricts Labarrere and Doroudi in the exercise of their Janus rights.
The class action lawsuit also seeks to stop UPTE bosses and the University of California system from enforcing the scheme against any other workers, and require UPTE officials to return all dues and fees to any member of the workplace that had their First Amendment rights violated under the policy.
Just last year, Ventura County Community College District math professor Michael McCain won a settlement in a similar class action lawsuit, also with free legal representation from National Right to Work Foundation staff attorneys. American Federation of Teachers (AFT) union officials illegally attempted to restrict the time period in which McCain and his colleagues could exercise their Janus rights and cut off dues payments. Instead of facing Foundation staff attorneys in court, AFT officials settled the case and paid refunds to workers who had dues seized because of the illegal policy.
Foundation staff attorneys have litigated about forty Janus-related cases around the country for workers following the 2018 landmark Supreme Court case, which was argued and won by a National Right to Work Foundation staff attorney. Ten of those cases have settled favorably with relief for the plaintiff employees.
“The Supreme Court made it absolutely clear in Janus that union officials violate public workers’ First Amendment rights when they seize union dues without their consent,” observed National Right to Work Foundation President Mark Mix. “Yet over a year and a half after the decision, California union bosses – with the assistance of state officials – continue to subject the state’s public servants to schemes that violate these rights, all to fill union coffers with more illegal dues.”
Worker Advocate Files Brief for Flight Attendant Backing Rule Change for Voting Out Unwanted Airline & Railroad Unions
Brief opposes union lawsuit challenging rule eliminating overly complex procedure for workers seeking to decertify an unwanted union
Washington, D.C. (March 12, 2020) – The National Right to Work Legal Defense Foundation filed an amicus brief in United States District Court for a flight attendant opposing an effort led by the AFL-CIO to overturn a recent rule by the National Mediation Board (NMB) that simplifies the process for workers seeking to vote out a union they oppose.
Foundation staff attorneys filed the amicus brief for Allegiant Airlines flight attendant Steven Stoecker to defend the NMB’s rule removing decertification election barriers. The brief was also filed for the Foundation itself, which has provided free legal representation to numerous workers under the jurisdiction of the Railway Labor Act (RLA), which the NMB is charged with enforcing.
Previously, to remove an unwanted union the NMB required an unnecessarily complex process in which workers had to create and solicit support for a fake “straw man” just to vote out the incumbent union. Under the NMB’s new rules finalized in July, workers can simply petition for a direct vote to decertify a union they oppose by a majority of the workers in their bargaining unit.
Stoecker, whose employment is governed by the RLA, attempted from 2014 to 2016 to remove the Transport Workers Union (TWU) from its monopoly bargaining status in his workplace, but those attempts ultimately failed when he lost his “straw man” election. The TWU is currently still the monopoly bargaining representative over his workplace.
“The National Mediation Board’s Final Rule simplifies the union selection or rejection process under the Railway Labor Act and erases nonstatutory barriers that hinder employees’ efforts to freely choose or reject a representative,” the amicus brief reads. “In response, the Plaintiffs, a group of labor unions that benefit from the complexities of the straw man decertification process, challenge the Final Rule and the Board’s statutory authority to establish it.”
Before the NMB issued the final rule last year, workers like Stoecker had to sign authorization cards designating an employee to be the “strawman” even though that employee had no intention of representing the unit. In the election that followed, the ballot options included the name of the union workers wished to decertify, the name of the straw man applicant, e.g., “John Smith,” the option for a write-in candidate and, confusingly, the option for “no union.”
Under the old guidelines, workers who voted for either the straw man or “no union” in hopes to oust union officials would unknowingly be splitting the vote opposed to unionization, as votes counted for these options were not tallied together but separately. The NMB’s final rule allows workers to vote out union representatives directly, without the cumbersome prior rules.
“That union bosses are suing the National Mediation Board for adopting this common-sense reform shows they are far more concerned with maintaining their power than respecting the right of rank-and-file workers to decide whether or not they actually want to remain in union ranks,” commented National Right to Work Foundation President Mark Mix. “The Foundation has long advocated this type of change in the union decertification process. We are pleased the NMB has – as we called upon it to do in comments filed last year – finally made this commonsense reform.”
“Ultimately the Railway Labor Act has many fundamental problems that require legislative action, not the least of which is that it grants union bosses the power to have workers fired for nonpayment of union dues or fees even in states with Right to Work laws,” observed Mix. “That makes it all the more important that while we wait for more sweeping reforms, workers are not trapped in forced dues ranks simply because of the unnecessarily complex ‘straw man’ decertification process.”
St. Elmo ConAgra Worker Wins Settlement in Case Charging UFCW Union Officials with Illegal Intimidation and Forced Dues Demands
Settlement: Union bosses must cease telling workers that they could face imprisonment for exercising rights and that workers must provide social security numbers for dues deductions
St. Elmo, IL (March 12, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, a worker at the St. Elmo, Illinois, ConAgra Foods facility has won a settlement in his case against the United Food and Commercial Workers (UFCW) Local 881 union.
The employee, Tracy May, charged UFCW officials with falsely telling workers that union membership was required as a condition of employment at the plant, and with leaving employees in the dark about their rights to refrain from formal union membership and pay only the amount of union dues directly related to bargaining purposes. The settlement was approved by the National Labor Relations Board (NLRB) Region 14 in St. Louis.
The settlement requires UFCW union officials to fully inform employees of their rights to both abstain from union membership and pay reduced dues, and also to give employees “information setting forth the percentage of the reduction in dues and fees charged to” those who are not union members, including the basis for the calculation of that percentage. UFCW officials also must stop telling “employees that they are required to provide their social security number” to have dues deducted from their paychecks, and that “filing charges with the NLRB could result in imprisonment.”
May filed his unfair labor practice charge against UFCW officials in October 2019. His charge contended that union bosses had been “telling employees that joining the union and/or paying dues is a condition of employment” since they finalized a monopoly bargaining contract with ConAgra.
The charge also noted that he and his coworkers were never “given valid, written, and adequate notice” of their right to abstain from union membership as per the NLRB v. General Motors Supreme Court decision, and their right to pay only union fees directly related to bargaining as per the Foundation-won CWA v. Beck Supreme Court decision. UFCW officials had also never given them an independent audit of the union’s expenses, a disclosure required under Beck.
Because Illinois has not enacted Right to Work protections for employees, union bosses can have private sector workers fired for not paying fees to a union. However, union officials can only require workers to pay the portion of dues allowed by Beck and must follow Beck procedures before seizing such forced fees from workers who are not union members.
UFCW Local 881 bosses were the target of litigation by employees at the St. Elmo ConAgra plant just last year, when the bosses attempted to block a petition for a vote to remove the union that was submitted by employee Robert Gentry, also with free legal aid from Foundation staff attorneys.
In that case, union bosses initially claimed that a settlement they had earlier negotiated with ConAgra should have nullified the decertification effort, as per the NLRB’s non-statutory “settlement bar” which gives unions immunity from decertification efforts for a period of time after a settlement is reached between an employer and a union. They also filed “blocking charges” against ConAgra in another attempt to hold up the vote. The Regional Director initially let UFCW bosses stop the vote, but the full NLRB in Washington overturned that decision and ordered the Region to let the vote proceed.
“Although Mr. May’s victory is certainly good news, UFCW bosses continue to demonstrate a disturbing practice of disregarding the rights of the very workers they claim to represent,” commented National Right to Work Foundation President Mark Mix. “Because Illinois lacks a Right to Work law ensuring all worker payments to unions are strictly voluntary, union bosses have every incentive to demand union dues from workers beyond what the law permits.”
Mix added, “Under Right to Work laws like those in effect in 27 states, the decision to join or pay fees to a union is fully in the hands of individual employees, and union bosses must use persuasion – not coercion or deception – to secure the support of those they claim to represent.”
