National Right to Work Foundation attorneys file brief for Illinois homecare providers who had $32 million seized by SEIU without their consent

Washington, DC (May 21, 2018) – Today staff attorneys from the National Right to Work Legal Defense Foundation filed the final brief in Riffey v. Rauner asking the United States Supreme Court to grant certiorari and hear the case. The home care providers for whom the case was brought had over $32 million in fees seized by union officials in a scheme the Supreme Court has already ruled violated the First Amendment. The case is now fully briefed and the Supreme Court could announce in June whether it will take the case.

The reply brief filed today counters the claims made in briefs by union officials and the Illinois Attorney General. Those briefs were filed only after the Supreme Court required the union and the attorney general to file briefs responding to Foundation attorneys’ initial petition for a writ of certiorari.

Riffey v. Rauner is a continuation of the Foundation-won Supreme Court Harris v. Quinn case. If the Court decides to hear Riffey, the Justices will consider whether a class of nonmember homecare providers should receive a refund of over $32 million that SEIU union officials seized from them without their consent.

Beginning with a 2003 executive order by former Illinois governor Rod Blagojevich, tens of thousands of individual homecare providers were classified as “public employees” solely so they could be unionized by the SEIU and thus required to pay union fees. Many of these in-home care givers were parents caring for their own children in their own homes.

Staff attorneys with the National Right to Work Foundation assisted eight of these providers in filing a federal class-action lawsuit, Harris v. Quinn, challenging the forced dues. In 2014, the Supreme Court ruled that SEIU’s forced dues scheme violated the First Amendment rights of the in-home care providers.

To settle remaining issues, the case was remanded to the District Court and re-designated as Riffey v. Rauner. The District Court ruled in 2016 that, even though the workers never consented to their money being taken for union fees, the SEIU did not have to refund the over $32 million in unconstitutional fees confiscated from union nonmembers.

Foundation attorneys are now asking the Court to take the case and determine whether the “government inflicts a First Amendment injury when it compels individuals to subsidize speech without their prior consent.” If the Court so rules, it would overturn the lower court’s reasoning denying the providers refunds of the seized fees.

Riffey is not the only case being litigated by Foundation staff attorneys related to whether individuals must take steps to “opt out” of dues the Supreme Court has already ruled they cannot be required to pay. In Hamidi v. SEIU, currently fully briefed at the U.S. Ninth Circuit Court of Appeals, a group of California state employee nonmembers are challenging a union requirement that they must take an additional step to “opt out” of union dues the union admits are used for lawfully non-chargeable political activity.

“Union bosses assume that they’re entitled to a significant cut of workers’ hard-earned money when they force nonmembers to leap through bureaucratic hoops just to stop funding activities they didn’t sign up to fund in the first place,” said National Right to Work Foundation President Mark Mix. “The Foundation will continue to fight for these homecare providers to get their illegally-seized money back.”

“If the Supreme Court agrees with the National Right to Work Foundation staff attorney who argued the Janus case heard earlier this term, challenges like Riffey and Hamidi will likely be the next big issue when it comes to fully protecting the constitutional rights of government employees from forced unionism,” added Mix. “Ultimately, the Supreme Court should make it clear that individuals who have never joined a union cannot be required to take affirmative steps just to protect their First Amendment rights.”

Trump Labor Board urged to reconsider Lamons Gasket precedent that prevents workers from decertifying a union installed through a card check drive

Washington, D.C. (May 18, 2018) – Today, National Right to Work Legal Defense Foundation staff attorneys filed an appeal to the National Labor Relations Board (NLRB) in Washington seeking to overturn an Obama Labor Board decision that blocks workers from holding a decertification vote for up to one year after a union is installed through an abuse-prone card check unionization drive.

Foundation staff attorneys represent a group of Milwaukee, Wisconsin-based clerical workers for shipping company USF Holland. The workers oppose Teamsters Union Local 200’s monopoly representation and filed the signatures necessary to hold a decertification election to remove the union. However, the election petition was dismissed when the NLRB Regional Director applied the controversial 2011 Lamons Gasket ruling that bars workers from holding a secret ballot decertification vote for one year after they have been unionized through the card check process.

In Lamons Gasket, an Obama-selected NLRB overturned the 2007 National Right to Work Foundation-won Dana decision that gave workers the opportunity to challenge card check unionization with a secret ballot vote. Under the Dana precedent, workers can collect signatures to request a secret ballot election during a 45-day window following notice that they have been forced into union representation by a card check organizing drive.

The Dana ruling provided an important, although limited, protection for workers against the coercive practices frequently associated with card check, which allow organizers to bully or mislead employees into signing cards that are then counted as “votes” toward unionization. When the Big Labor-friendly Obama NLRB overruled Dana with Lamons Gasket, it meant no matter how many workers signed a petition seeking to oust a union, they would have to wait at least a year before they could file for a secret ballot vote.

The workers in the appeal filed today are six women employed in USF Holland’s clerical office in Milwaukee who object to being placed under the Teamster union’s monopoly “representation” without a secret ballot vote. In January, Teamsters organizers had actually filed to hold an NLRB-supervised vote but had the election cancelled just a week before it was set to occur. Company officials then gave in to the Teamsters’ demands and recognized the union on the basis of the card check.

In response the workers filed for a secret ballot election to remove the Teamsters, but were told they could not hold one because of the Lamons Gasket precedent. Their appeal asks the new Trump NLRB to not only overturn that Obama-NLRB precedent, but to remove all limitations on workers filing to decertify a union following unionization through card check.

“The disastrous Lamons Gasket decision was one of many by the Obama Labor Board that elevated the powers of union bosses over the rights of individual employees, and it should be swiftly overturned,” said Mark Mix, President of the National Right to Work Foundation. “Nothing in the National Labor Relations Act says that workers should be denied a secret ballot decertification vote on the basis of a card check recognition, which the Act and U.S. Supreme Court view as inherently inferior to an NLRB-run vote.”

“The Teamsters have a long and well-deserved reputation for corruption and violence, so it’s no surprise that the women in this case who filed for a decertification vote would prefer the privacy of a secret ballot to the coercion and pressure tactics inherent in a union card check organizing drive,” added Mix.

Amicus brief argues California law deprives farmworkers of their Constitutional rights by imposing union contract against their will

Washington, D.C. (May 16, 2018) – Today the National Right to Work Legal Defense Foundation is filing an amicus curiae brief with the United States Supreme Court for the Foundation and several employees of Gerawan Farming, urging the court to grant certiorari in Gerawan Farming, Inc. v. Agricultural Labor Relations Board (ALRB). The brief asks the Court to hear the challenge to California’s law that authorizes the state labor board to impose a union contract on a company and its workers against their will.

Although many states have separate labor laws that specifically cover agricultural workers, California’s law is unique in that it authorizes the state to impose union monopoly bargaining contracts, including so-called “union security” requirements that obligate farm workers to make payments to union officials or else be fired. In the Gerawan case pending before the Supreme Court, a state-appointed mediator imposed a forced dues requirement—that workers overwhelmingly opposed—for the benefit of union officials who hadn’t been heard from in nearly two decades.

As the brief explains, United Farm Workers (UFW) union officials abandoned any attempt to negotiate a union contract in 1995, after which workers successfully worked to determine the terms of their employment without the union for 17 years. Then, in 2012, UFW union officials returned and immediately invoked an amendment to California law authorizing an ALRB-appointed mediator to impose a contract if the union and company cannot reach an agreement.

After UFW officials announced their return, Gerawan workers moved to decertify the union. However, that effort was stifled when the Agricultural Labor Relations Board (ALRB) refused to count the ballots cast in the decertification vote, leaving the union in power despite what workers believe was overwhelming opposition to union “representation.”

The Foundation’s brief argues that California’s agricultural labor law violates the workers’ constitutional rights by forcing upon them union monopoly representation of a union they oppose – something central to many labor statutes – and by imposing the union monopoly contract that includes forced union dues.

In a related case, National Right to Work Foundation staff attorneys are also providing free legal representation to Uber and Lyft drivers challenging a Seattle ordinance designed to unionize the independent drivers. Like the California law at issue in Gerawan, the Seattle scheme authorizes a government official to impose a forced dues contract over the objections of the company and individual for-hire drivers who are compelled to accept union monopoly representation.

“The injustices Gerawan workers face every day – as a government-imposed contract forces them to pay dues to a union they overwhelmingly oppose– is evidence that the more power government grants to union bosses, the greater the infringement on the rights of individual employees,” stated National Right to Work Foundation President Mark Mix. “We hope the Supreme Court will take this case to establish legal limits to the coercive power that government can grant union officials over private employers and employees.”

Danville, CA (May 7, 2018) – With free legal aid from National Right to Work Foundation staff attorneys, a teenage, part-time Safeway employee has filed federal charges against a local union for demanding he pay union fees without providing the legally required information on union dues and spending.

Sixteen-year-old Christopher Ratana-Kelley filed unfair labor practice charges with the National Labor Relations Board (NLRB) against United Food and Commercial Workers (UFCW) Local 5. The charge states that by failing to disclose their local expenditures or to verify how union fees were calculated, UFCW officials violated his protected legal rights.

When Ratana-Kelley became a courtesy clerk at Safeway, UFCW officials demanded he pay union dues or fees despite choosing not to become a union member. California lacks a Right to Work law, which means workers can be required to pay some fees to union officials as a condition of employment. However, workers cannot be required to fund any activities unrelated to union bargaining, such as political action, and unions must follow certain procedures to justify the amount of the compulsory fee.

When the teenager objected to paying any fees to the UFCW beyond what he could legally be required to pay and asked for a breakdown of how his fees were calculated, union officials failed to provide the information. Concerned by being kept in in the dark about how his fees would be spent, Ratana-Kelley turned to the National Right to Work Foundation for free legal assistance in filing charges. The NLRB will now investigate the charges.

Because California does not have a Right to Work law, employees can be required to pay dues or fees to unions to keep their jobs, even if they are not union members. However, in the Foundation-won United States Supreme Court Beck decision, the Court provided some protection to workers by stating that employees can only be forced to pay union dues for certain union activity. Employees also have the right to have an independent third party audit the union expenditures and certify that the percentage of dues that nonmembers are forced to pay does not include political spending and other non-collective bargaining expenses.

“Christopher is a teenager just entering the workforce,” said Mark Mix, president of the National Right to Work Foundation. “It takes a lot of courage to stand up to a Goliath, and Christopher has chosen to hold the union giants accountable for their flagrant neglect of workers’ rights. This case underscores the need for California to pass a Right to Work law making union affiliation and dues payments completely voluntary.”

Long Island, NY (May 1, 2018) – A physical therapy assistant’s legal settlement has reversed the corrupt deal between Northwell Health and 1199 SEIU United Healthcare Workers East (SEIU 1199) officials that forced her and her colleagues into union ranks without a vote.

The settlement stems from unfair labor practice charges Kathleen Flanagan filed at the National Labor Relations Board (NLRB) with free legal aid from National Right to Work Foundation staff attorneys. Flanagan was pushed into early retirement as a result of the backroom agreement between company and union officials to impose unionization on her department. If she had remained an employee, she would have been required to accept union representation, pay union fees, and accept a reduction in benefits.

SEIU 1199 union officials represented some workers at Northwell Health’s facilities, but workers in other classifications, including Flanagan’s physical therapy and occupational therapy department at Long Island Jewish Medical Center, had rebuffed union organizers. In November 2017, a Northwell Health representative informed Flanagan’s department that SEIU 1199 had “acquired them legally.” The department, as well as other departments at Long Island Jewish Medical Center and Cohen Children’s Medical Center, was “accreted” into SEIU 1199’s monopoly bargaining unit and forced to accept the union’s unwanted “representation.” At a mandatory union orientation, a SEIU 1199 union official unlawfully told the workers they were required to join the union, and therefore pay full union dues, by January 1, 2018.

Flanagan challenged this so-called “accretion” as unlawful by filing charges with the NLRB. Northwell and SEIU 1199 have now settled the charges. Pursuant to the settlement, Northwell must cease recognition of SEIU 1199 as the monopoly bargaining representative of the illegally accreted hospital workers, and SEIU 1199 must relinquish monopoly bargaining privileges over those employees. The employees are now free from the unwanted union representation and will be reimbursed for union fees paid to SEIU 1199. Notices will be posted at Long Island Jewish Medical Facility and Cohen Children’s Medical Center and emailed out to affected employees to inform them of their rights.

“The so-called accretion doctrine, which is not mandated by the National Labor Relations Act, empowers union bureaucrats to coerce workers into unions without a vote, frequently after the targeted workers specifically reject union organizing attempts,” commented National Right to Work Foundation President Mark Mix. “However, the collusion between the company and union brass in this case was so egregious and flagrantly illegal that the NLRB had no choice but to take action.

“Thanks to Kathleen Flanagan, a power-grab by union officials was successfully halted and reversed,” continued Mix. “To protect workers across the country from being forced into unwanted unions, the Trump NLRB should overturn this outrageous accretion doctrine.”

Eugene, OR (April 26, 2018) – National Right to Work Legal Defense Foundation staff attorneys have just filed a lawsuit at the United States District Court for the District of Oregon on behalf of Debora Nearman, a public employee. Nearman’s complaint argues that the compulsory union fees she is forced to pay violate her First and Fourteenth Amendment rights. Nearman objects to being required to financially support and associate with an organization that opposes her personal views, including her religious beliefs and her husband’s public service.

Nearman, an employee at the Oregon Department of Fish and Wildlife, is not a union member but is still forced to pay compulsory fees to Service Employees International Union (SEIU) Local 503 as a condition of her employment. Her case challenges the constitutionality of mandatory union fees as a condition of government employment. Nearman argues that her money is being spent by SEIU on public policy positions that violate her political and religious stances.

In the 2016 general election, Nearman’s husband, Mike Nearman, successfully ran for State Representative in the Oregon Legislature. During the campaign, the SEIU local union that she is forced to fund spent over $53,000 to run an aggressive campaign against him, including distributing disparaging fliers. Additionally, the complaint notes that the SEIU hierarchy takes positions on political issues that conflict with Nearman’s sincerely held religious beliefs.

The complaint is one of many suits across the country in which Foundation attorneys are challenging the wrongly decided 1977 decision in Abood v. Detroit Board of Education. Although the U.S. Supreme Court ruled in Abood that public-sector workers could be compelled as a condition of employment to pay union fees for bargaining-related purposes, the Court suggested it was ready to revisit the issue in two recent Foundation-won Supreme Court decisions (Knox v. SEIU in 2012 and Harris v. Quinn in 2014).

In the pending Janus v. AFSCME case, argued by a Foundation attorney in February, the Supreme Court is reconsidering the constitutionality of the Abood precedent. A decision in Janus is expected by the end of June.

“It is wrong that Nearman has been forced by her state government to subsidize an organization that dragged her husband’s name through the mud,” commented National Right to Work Foundation President Mark Mix. “Union bosses seize workers’ hard-earned money to support issues that violate the workers’ consciences, which is contrary to the heart of the First Amendment.”

National Right to Work Foundation comments call for NLRB election reforms to ensure workers are not trapped in unions opposed by most employees

Washington, DC (April 16, 2018) – Today the National Right to Work Legal Defense Foundation filed comments with the National Labor Relations Board (NLRB) in response to the Labor Board’s Request for Information regarding the 2014 “Ambush Election” Rule pushed through by the Obama NLRB. The Foundation’s comments not only call for the 2014 changes to be rescinded, but ask the Board to institute new protections for workers who are forced under union monopoly representation they oppose.

The comments call on the newly constituted five member NLRB to require unions to regularly recertify that they have the support of at least a majority of workers or else lose their powerful status under the National Labor Relations Act (NLRA) as the monopoly “representative” of all workers in a workplace, including those who prefer a different union or no union at all. In its comments, the Foundation cites a recent study of NLRB data that found that 94 percent of workers currently under union monopoly representation have never even voted on that union in an NLRB secret ballot election.

“Just as no elected public official enjoys life tenure on the basis of winning one election, no union should maintain [their] extraordinary powers… on the basis of just one election…” the Foundation told the NLRB in its comments “Today, many workplaces unionized decades ago consist primarily, if not entirely, of workers hired long after any ‘choice’ was made to organize.”

The comments also call on the NLRB to remove numerous bureaucratically-enacted barriers not mandated by the NLRA that prevent workers from holding a decertification vote to remove an unwanted union from their workplace. The Foundation calls for the elimination of various “election bars,” for ending union officials’ ability to abuse the NLRB system by filing blocking charges to stop workers from holding decertification votes, and for other reforms that would streamline and simplify the decertification process.

National Right to Work Foundation staff attorneys currently represent employees in over 80 cases at the NLRB, including many where workers have been blocked from even holding a vote to remove a union that they believe lacks the support of a majority of employees.

The Foundation opposed the one-sided 2014 rule changes which were designed to expand forced unionization by dramatically shortening the time frame individual workers have to gather, evaluate, and share information with their coworkers about the negative effects of unionization. Moreover, the rules require job providers to disclose workers’ personal information (including their phone numbers, email addresses, and shift information), thus opening up dissenting or undecided workers to intimidation and harassment.

“The Obama NLRB’s election rules made union organizing campaigns more one-sided and stifled the rights of employees opposed to unionization. It is long past time they be rescinded” said Mark Mix, President of the National Right to Work Foundation. “However, simply reverting to the pre-Obama NLRB rules would still leave many workers – whose rights the NLRB is supposed to protect – trapped in unions they oppose and that a majority of their coworkers have never voted for.”

“That’s why, if union officials are going to be granted monopoly powers over every employee in a workplace, they should be required to regularly recertify that at least a majority actually want them there,” continued Mix. “Further the Labor Board should reform the one-sided NLRB election system that lets union organizers call for a unionization vote of nonunion employees at any time, but forces workers to wait months or even years to file to force a secret ballot vote on an incumbent union.”

Washington, DC (March 29, 2018) – The National Right to Work Legal Defense Foundation is formally requesting the Council of Inspectors General on Integrity and Efficiency (CIGIE) review apparent wrongdoing by the Inspector General of the National Labor Relations Board (NLRB) regarding an investigation that led to an abrupt move by the NLRB to undo a recent decision.

The National Right to Work Foundation is a nonprofit, charitable organization that provides free legal aid to employees nationwide. With more than eighty ongoing NLRB cases in which Foundation staff attorneys represent workers, the Foundation seeks to ensure that the Board’s recusal standards are being properly and consistently enforced and that privileged communications from NLRB deliberations are not selectively leaked.

On February 9, NLRB Inspector General David Berry issued a report concerning whether NLRB Member William Emanuel should have been recused in Hy-Brand Industrial Contractors. Citing this report, the other three siting NLRB Members voted on February 27 to vacate the December decision in Hy-Brand, which had overruled a controversial, precedent-shattering decision by Barack Obama’s NLRB.

Inspector General Berry’s February 9 report, and a follow-up report dated March 20, were both made public without redactions of the NLRB’s internal deliberative communications. In 2012, then-NLRB Member Terence Flynn resigned after Inspector General Berry issued a report that said that Flynn had improperly shared information regarding the Board’s deliberative process.

The Foundation is asking the CIGIE to investigate whether Inspector General Berry himself disseminated confidential NLRB deliberations and improperly disclosed to people outside the NLRB that he was investigating Member Emanuel.

“Victims of compulsory unionism abuses should not be victimized yet again by rogue bureaucrats at the NLRB,” said National Right to Work Foundation President Mark Mix. “Whether regarding recusals or the disclosure of internal Board deliberations, Inspector General Berry appears to apply different standards to different people.”

“Despite his tenuous findings regarding recusals for Member Emanuel, just a few years ago Berry gave the green light to Obama appointee and former Service Employees International Union lawyer Craig Becker to participate in cases involving the SEIU and its affiliates,” continued Mix. “Now both Berry and NLRB Member Pearce appear to have publicly disclosed information regarding the Board’s internal deliberative process, even though Berry’s own report in 2012 condemned former Member Flynn for doing the same thing.”

St. Louis, MO (March 21, 2018) – With free legal aid from National Right to Work Foundation staff attorneys, a Missouri power plant worker has filed federal unfair labor practice charges against the International Brotherhood of Electrical Workers (IBEW) Local 53 union for failing to provide an adequate breakdown of how the union spends workers’ forced union dues.

In November 2017, IBEW Local 53 union officials informed James Feagins that, beginning in 2018, he would be required to pay union fees of approximately 95 percent of formal membership dues, a substantial increase over the average of approximately 50 percent of union dues he was previously required to pay.

Because a union-backed ballot petition has blocked Missouri’s Right to Work law from going into effect, workers like Feagins currently can be fired for refusing to hand over part of their paycheck to a union they choose not to join. In the 27 states with Right to Work laws in effect, union membership and financial support is strictly voluntary.

Feagins had previously attempted to exercise his rights under the Foundation-won U.S. Supreme Court precedent Communications Workers of America v. Beck to opt out of union membership. Under Beck, workers in states without Right to Work protections cannot be compelled to pay the part of union dues used for a union’s political and member-only activities.

Beck also requires union bosses to provide workers with an independently-verified audit breaking down chargeable and non-chargeable expenses, but IBEW Local 53 union officials only provided Feagins with an unaudited statement. Moreover, IBEW Local 53’s statement of expenses included so-called “per capita taxes” sent to affiliate unions without disclosure regarding how the affiliates spend that money.

The charges allege that Local 53 union officials further violated Feagins’ Beck rights by illegally charging him for certain advertising, overhead, and organizing expenses. Further, Feagins asked union officials to provide him with a copy of the monopoly bargaining agreement, but they refused to do so in violation of federal labor law.

The National Labor Relations Board (NLRB) Regional Director in St. Louis will now investigate the charges.

“Union bosses add insult to injury by threatening workers to pay fees or else be fired, and then keeping them in the dark about where the money is going,” said Mark Mix, President of the National Right to Work Foundation. “This case underscores the need for Right to Work protections in Missouri to make union membership and dues payments completely voluntary.”

Washington, DC (March 19, 2018) – The National Right to Work Foundation, a charitable organization that provides free legal assistance to employees nationwide, today submitted a Freedom of Information Act (FOIA) request to the National Labor Relations Board (NLRB), asking for information regarding the NLRB’s standards for recusal and the Board’s determination to reconsider and vacate a recent decision.

“National Right to Work Foundation staff attorneys are currently providing free legal aid to workers in more than eighty NLRB cases,” stated Foundation Vice President and Legal Director Raymond LaJeunesse, who submitted the FOIA request. “These victims of compulsory unionism abuses deserve fair and impartial hearings from properly constituted NLRB panels.”

Barack Obama’s NLRB, which was dogged by accusations of its partiality throughout Obama’s two terms in office, overturned thirty years of precedent in Browning-Ferris Industries in 2015. This past December, in Hy-Brand Industrial Contractors, the NLRB overruled Browning-Ferris and restored “the principles governing joint-employer status that existed prior to that decision.”

Since the decision in Hy-Brand, one Board Member’s term expired. Then, the NLRB’s Inspector General concluded that another should have been recused in Hy-Brand because his former law firm represented an employer that was a party in Browning-Ferris. Citing the Inspector General’s report, the other three Members of the Board in late February vacated the Hy-Brand decision.

The FOIA request seeks information, documents, and communications regarding the Inspector General’s recusal determination in this case, any other recusal determinations since January 1, 2009, and the three-member panel’s reconsideration of Hy-Brand. In addition to communications between or among Board Members and the Inspector General, the Foundation seeks their communications regarding these matters with members and staff of the U.S. Senate and House of Representatives, the press, or union officials.

“The NLRB’s Inspector General appears to be setting a troubling double standard regarding recusals, especially considering the same office looked the other way when former Service Employees International Union lawyer and Obama appointee Craig Becker refused to recuse himself from cases involving the SEIU and its affiliates,” explained National Right to Work Foundation President Mark Mix.

“The public deserves to know the truth surrounding this double standard, especially given that it advances the concerted effort by Big Labor and its allies to block a full NLRB from reviewing controversial Obama-era rulings that limit the rights of workers who don’t want to associate with a labor union,” continued Mix.