10 Jun 2019

Foundation Fights to Enforce Janus Victory and Halt Big Labor’s Coercive Tactics

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.

Foundation attorneys litigating more than 25 cases for public employees over Janus rights violations

Sen. Bernie Sanders (Right) and Chris Shelton (Left)

CWA union officials, led by top boss Chris Shelton (pictured right with self declared socialist Senator Bernie Sanders), began seizing full union membership dues from David McCutcheon’s paychecks in violation of his Janus rights.

SANTA FE, N.M. – Although the U.S. Supreme Court has ruled that forced union fees for public sector workers are unconstitutional, much work remains before civil servants are free from union bosses’ coercion.

In the landmark victory in Janus v. AFSCME in June 2018, briefed and argued by Foundation staff attorneys, the Supreme Court ruled that charging any government employee union fees as a condition of employment violates the First Amendment. The Court also affirmed that unions may only collect fees when an employee gives clear and affirmative consent.

Already, Foundation staff attorneys are litigating more than 25 lawsuits from California to New Jersey to enforce the Janus decision, and new requests from public employees for assistance in enforcing their Janus rights continue to stream in.

Civil Servants Fight Union Bosses’ ‘Window Period’ Schemes

Despite the Supreme Court’s ruling, union officials seek to maintain their forced-fees coffers by stifling the rights of the workers they claim to represent. Foundation attorneys have filed several class action lawsuits challenging union officials’ “window period” schemes, arbitrary windows of time limiting when employees can exercise their First Amendment right to refrain
from subsidizing a union.

Two such cases (see page 1) have already settled in favor of the workers challenging union attempts to trap them in forced dues, but in the others union bosses still refuse to back down from their coercive schemes.

In New Mexico, David McCutcheon, an IT technician at New Mexico’s Department of Information Technology, was forced to pay union fees as a nonmember before Janus. After the Foundation’s victory, McCutcheon informed Communication Workers of America (CWA) union officials that under the First Amendment they could no longer force him to financially support the union.

Instead, union officials began charging him full union membership dues without his permission. To add insult to injury, union officials told McCutcheon that he could only stop the unauthorized deductions during a two-week “window period” in December.

McCutcheon sought free legal aid from Foundation staff attorneys, who filed a class action lawsuit in federal court. The class action complaint asks that the court strike down the unconstitutional “window period” scheme, and order the union to refund the membership dues and fees seized from McCutcheon and the likely hundreds of other public employees in New Mexico who have been similarly victimized during the past three years.

In two other cases, California teachers are fighting similar “window period” schemes with free aid from Foundation attorneys. Ventura County math professor Michael McCain is challenging the American Federation of Teachers union-created fifteen day “window period” policy in a class action lawsuit.

Union officials never informed McCain of his First Amendment right to refrain from supporting a union, making it impossible for him to have waived his rights as Janus requires. After Janus, McCain resigned union membership and made it clear in a letter that he does not consent to dues deductions. His lawsuit asks that the court strike down the “window period” scheme and stop forcing dues from him and potentially hundreds of other public employees.

Los Angeles kindergarten teacher Irene Seager filed another class action lawsuit, this one against United Teachers Los Angeles to challenge a 30-day “window period” scheme. Her lawsuit also challenges a California state law which allows the union to enforce the restrictive policy.

“Union officials have a long history of manipulating ‘window period’ schemes and other obstacles designed to block individuals from exercising their constitutional rights,” said Patrick Semmens, vice president of the National Right to Work Foundation. “Despite what union bosses say, First Amendment rights cannot be limited to mere days out of the year.”

Foundation attorneys are also litigating other class action lawsuits to reclaim years’ worth of union fees seized without consent before Janus. Together, the lawsuits seek refunds
totaling more than $170 million.

8 Jun 2019

SCOTUS Asked to Hear Homecare Providers’ Case Seeking Return of Seized Union Fees

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.

Providers fight to reclaim $32 million in union fees seized in violation of First Amendment

Susie and Libby Watts

Susie Watts, a plaintiff in the U.S. Supreme Court Harris decision, is a home care provider for her daughter Libby. The case continues in Riffey, as providers fight for the return of unconstitutionally seized union fees.

WASHINGTON, D.C. – In 2014, the U.S. Supreme Court ruled in the Foundation-won Harris v. Quinn case that a scheme imposed by the state of Illinois, in which over 80,000 individual home care providers were unionized by the Service Employees International Union (SEIU) and forced to pay union fees out of the state funding they receive, violated the providers’ First Amendment rights.

The ruling should have meant that SEIU union bosses were forced to return the unconstitutionally seized union fees. Instead, five years later the providers are once again at the steps of the Supreme Court.

SEIU Union Bosses Keep Illegally Seized Union Fees

After the 2014 ruling, Harris continued as Riffey v. Rauner. The case was remanded to the District Court to settle remaining issues, including whether or not the 80,000 providers would receive refunds of the money SEIU officials seized without consent.

In June 2016, the District Court denied a motion for class certification. The ruling allowed the SEIU to keep the over $32 million in unconstitutional fees confiscated from homecare providers compelled into union ranks, who had not consented to their money being taken for union fees. The Appeals Court upheld the ruling.

In 2018, Foundation staff attorneys successfully petitioned the U.S. Supreme Court to review and reverse the Appeals Court’s ruling. The High Court did so the day after it issued the landmark Janus v. AFSCME decision, ordering the Appeals Court to reconsider the case in light of the Janus ruling, which struck down public sector forced union fees as violating the First Amendment.

In Janus, which was argued by the same National Right to Work Foundation staff attorney who is lead counsel in the Riffey case, the Supreme Court clarified that any union fees taken without an individual’s informed consent violate the First Amendment. That standard supports the Riffey plaintiffs’ claim that all providers who had money seized without their consent are entitled to refunds.

SCOTUS Asked to Allow Providers to Reclaim Funds Seized in Violation of First Amendment

On December 6, a three-judge panel of the Appeals Court affirmed its previous ruling that no class can be certified from the over 80,000 providers whose money was seized in violation of their First Amendment rights. The panel based its decision on the ground that each individual homecare provider would have to prove that he or she objected to the taking of the fees when the seizures occurred.

After the Appeals Court denied Foundation staff attorneys’ request to rehear the case with all judges, Foundation staff attorneys filed a petition for certiorari with the Supreme Court, asking it to take the case.

Foundation staff attorneys point out that the Janus precedent does not require a worker to prove his or her subjective opposition to forced union fees. Rather, Janus held that the First Amendment is violated if union dues or fees are seized without the worker’s clear affirmative consent.

“The U.S. Supreme Court ruled that SEIU had illegally confiscated union dues from thousands of Illinois homecare providers, but the ruling challenged by this petition denies those same caregivers the opportunity to reclaim the money that never should have been taken from them by SEIU in the first place,” said Ray LaJeunesse, vice president and legal director of the National
Right to Work Foundation. “If SEIU’s bosses are not required to return the money they seized in violation of homecare providers’ constitutional rights, it will only encourage similar behavior from union officials eager to trample the First Amendment to enrich themselves with the money intended for the care of individuals who need it.”

1 Jun 2019

Foundation Victory: Workers Cannot Be Forced to Fund Union Lobbying

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2019 edition. To view other editions or to sign up for a free subscription, click here.

NLRB also rules that union bosses must provide independent verification of forced fees audit

Former Rhode Island Nurse Jeanette Geary

Nurse Jeanette Geary challenged Big Labor’s coercive tactics after discovering that union bosses were forcing her to pay for union lobbying activities.

WASHINGTON, D.C. – Nine years after filing her case over forced union fees, former Rhode Island nurse Jeanette Geary finally claimed victory over union bosses’ illegal scheme.

The National Labor Relations Board (NLRB) issued a sweeping decision in Geary’s case, providing new protections for workers and accountability over forced fees calculations.

Nine-Year-Old Case Ends in Victory at Labor Board

Geary, then a nurse at Kent Hospital in Warwick, Rhode Island, filed an unfair labor practice charge against the United Nurses and Allied Professionals (UNAP) union in 2009 with free legal aid from Foundation staff attorneys.

She filed the charges after UNAP officials failed to provide an independent auditor’s verification that its breakdown of expenditures had been audited. She also challenged the union’s forcing her and other employees to pay for union lobbying activities in violation of the Foundation-won U.S. Supreme Court Beck decision.

“For someone to tell me that they’re going to take my money that I have earned working very hard, and they’re going to use it for their political purposes, you know — that makes me very, very angry,” Geary said.

When Geary discovered what was happening with the union fees she was forced to pay, it was about more than money. “I don’t like to be manipulated because I am a nurse. Just because I nurse and you turn your light on and I’ll be there and I’ll do anything that you need to promote your well-being, that doesn’t mean you can step on me. It was a deep-down, personal, gut reaction to [the union officials] who decided not only would they label me as ignorant and stupid and laugh about me in their office, but they would also take my money.”

The Obama NLRB had issued a bad decision in Geary’s case in 2012, but the ruling was invalidated by the Supreme Court’s 2014 holding in NLRB v. Noel Canning. The Supreme Court agreed with the Foundation’s amicus brief that the Board lacked a valid quorum because of three unconstitutional “recess appointments” then President Obama made.

Five years later, Geary’s case was the only remaining case invalidated by Noel Canning that was still pending without a decision by the NLRB.

Workers Can No Longer Be Forced to Pay for Union Lobbying

In January 2019, Foundation staff attorneys filed a 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 the mandamus petition by March 4, which caused the NLRB to issue its decision on March 1, just ahead of the deadline.

The NLRB’s 3-1 decision held that union officials violate workers’ rights by forcing non-members to fund union lobbying activities. It also ruled that union officials must provide independent verification that the union expenses they charge to non-members have been audited.

“Jeanette Geary bravely fought against Big Labor’s workplace coercion for years, resisting a blatant refusal to respect her rights and those of the workers union officials claim to represent,” said National Right to Work Foundation Vice President Patrick Semmens. “Although this is an overdue victory for Jeanette Geary, ultimately these types of forced union abuses will never be eliminated until Big Labor’s power to force workers to pay union dues or fees as a condition of employment is completely eliminated.”

17 May 2019

MA Supreme Court Hears Educators’ Challenge to Teacher Union’s Coercive Power

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2019 edition. To view other editions or to sign up for a free subscription, click here.

Union scheme violates teachers’ rights by blocking non-members’ voice and vote in workplace conditions

Bruce N. Cameron

Veteran Foundation attorney Bruce N. Cameron argued at the Massachusetts Supreme Court on behalf of four educators challenging coercion from union bosses to join and support a union.

BOSTON, MA – Union officials offered four Massachusetts educators a “choice”: support union partisan politics or lose any voice and vote in their workplace conditions.

Instead of waiving their First Amendment right to refrain from supporting the union, the educators sought free legal aid from the National Right to Work Foundation to challenge union bosses’ coercion in court.

Earlier this year, veteran Foundation staff attorney Bruce N. Cameron delivered arguments at the Massachusetts Supreme Judicial Court, challenging as unconstitutional the state law that grants union officials the power of monopoly bargaining privileges which the union uses to compel support for partisan politics.

Forced Unionism: ‘Not What America Is About’

The four plaintiffs have exercised their right to refrain from union membership. Plaintiff Dr. Ben Branch is a finance professor. His colleague and fellow plaintiff, Dr. Curtiss Conner, is a chemistry professor, both at the University of Massachusetts Amherst.

Plaintiff Dr. Andre Melcuk is Director of Departmental Information Technology at the Silvio O. Conte National Center for Polymer Research at the University. Melcuk was born in the Soviet Union and opposes the union based on his dislike of collectivist organizations.

Melcuk compared his experience with the union with growing up in the Soviet Union, and noted that the expectation to “pick up the sign and march in step” with the union’s representation and political ideology was eerily similar.

“That’s creepy,” he said. “That is not what America is about.”

Plaintiff Deborah Curran is a long-term teacher in the Hanover Public Schools. The union officials who claim to “represent” her attempted to invalidate her promotion to a position mentoring new teachers and pushed to have her investigated and suspended. She ultimately spent nearly $35,000 of her own money battling union officials just to protect her job.

The educators argue that Massachusetts state law violates their First Amendment rights by granting union officials monopoly bargaining privileges, which are then used to gag non-members from having a voice and a vote in their working conditions.

Educators Ask Court to Declare Union’s Coercive Power Unconstitutional

In the June 2018 Janus victory, the U.S. Supreme Court declared that forcing any public sector employee to pay union dues or fees violates the First Amendment. The educators’ case points out that denying workers a voice in their workplace, unless they are union members, is another form of compulsion to support a union, and should be ruled a violation of the First Amendment.

“I would like everybody’s First Amendment rights to be protected against what I view as this intrusion on their right to free speech,” said Branch. “They’re trying to speak for me and they’re not speaking for me.”

“These are dedicated educators who are being forced to choose between losing their voice in the workplace or paying tribute to union bosses who clearly do not have their best interests in mind,” said Mark Mix, president of the National Right to Work Foundation. “Although the Foundation-won Janus decision upheld public sector workers’ First Amendment right to choose whether or not to pay union fees, union officials still seek to twist workers’ arms into funding Big Labor’s coffers. A clear ruling is needed to uphold these educators’ right to refrain from union membership without fear of retaliation or coercion.”

8 May 2019

Janus Victory Opens Door for Lawsuits Seeking Millions in Forced-Dues Refunds

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2018 edition.

Foundation staff attorneys assist public-sector employees in halting ‘opt-out’ schemes across the country

Mark Mix Interview with Fox News after Janus

The Foundation’s Supreme Court victory in Janus v. AFSCME opened the door for several Foundation-litigated lawsuits seeking the return of union fees unconstitutionally seized from public sector workers.

WASHINGTON, DC – For years, union officials have been denying employee’s rights by using “opt-out” schemes, in which employees must take steps simply to refrain from paying for union activity they cannot legally be required to fund.

However, in the Foundation-won Janus v. AFSCME decision that freed public sector workers from compulsory dues, the U.S. Supreme Court affirmed that charging union fees is a violation of the First Amendment “unless employees clearly and affirmatively consent before any money is taken from them.”

That affirmation of workers’ rights has opened the door for thousands of employees to hold union officials’ accountable for coercive “opt-out” schemes, in which officials had required employees to take steps simply to protect their First Amendment rights.

SCOTUS Overturns Lower Court Decision Denying Providers Refunds

The Foundation is providing free legal representation to government employees across the country in numerous cases seeking the return of fees seized without consent by union officials.

A group of Illinois home care providers is seeking the return of $32 million in union fees seized in a coercive scheme by SEIU officials. With free legal aid from Foundation staff attorneys, the providers took their case, Riffey v. Rauner, all the way to the U.S. Supreme Court.

Riffey v. Rauner is a continuation of the 2014 Foundation-won Supreme Court Harris v. Quinn case. In Harris, the Court ruled that a forced-dues scheme imposed by the state of Illinois, in which over 80,000 individual home care providers in Illinois were unionized and required to pay union fees, violated the First Amendment.

After the Supreme Court decision, the case was re-designated as Riffey v. Rauner and remanded to the District Court to settle remaining issues, including whether or not tens of thousands of providers who had never joined the union would receive refunds of the money SEIU officials seized without consent.

However, in June 2016, the District Court ruled that the SEIU did not have to repay the funds, despite the Supreme Court ruling declaring the scheme unconstitutional. Foundation staff attorneys appealed the case to the U.S. Seventh Circuit Court of Appeals, which affirmed the District Court’s ruling that, even though the workers never consented to their money being taken, they did not suffer First Amendment injury.

Earlier this year, Foundation staff attorneys asked the Supreme Court to grant certiorari and hear the case to clarify that taking fees from nonmembers without consent violates the First Amendment.

The day after Janus, the Court granted certiorari in Riffey, vacated the lower court’s ruling, and remanded the case to be reconsidered in light of the new protections against “opt-out” schemes.

“With the Supreme Court remanding Riffey, we are one step closer toward indicating the rights of the tens of thousands of victims, many of whom are family members
caring for disabled children in their own homes,” said Foundation President Mark Mix.

“Now, with the new protections for workers afforded by our landmark Janus v. AFSCME victory, it is critical to confirm that unions cannot require individuals to ‘opt out’ of union dues that they cannot be required to pay in the first place,” continued Mix. “Union officials are still using such ‘opt-out’ schemes nationwide to limit workers’ constitutional protections despite Janus’ clear ruling that those schemes are impermissible. Ultimately, the clear ruling by the Supreme Court on this issue must be enforced in the lower courts to ensure that individuals who never joined a union cannot be required to take affirmative steps simply to protect their First Amendment rights.”

California Class Action Lawsuit Could Return Over $100 Million in Seized Dues

Foundation attorneys are also seeking to halt an “opt-out” scheme in which SEIU officials seized millions of dollars in forced dues from thousands of California state employees.

The workers are challenging SEIU Local 1000 officials’ “opt-out” policy that required workers to affirmatively opt out of the portion of union fees that workers cannot be legally required to fund.

In 2015, a federal judge certified Foundation staff attorney W. James Young as the attorney for the entire class of more than 30,000 nonmembers who had been coerced since June 2013 into funding SEIU union officials through the scheme.

The case is pending in the U.S. Ninth Circuit Court of Appeals on appeal from the District Court’s dismissal of the claim. Hours after the Janus ruling declared that workers must provide affirmative consent to be charged union fees, Young notified the Court of Appeals of the decision’s relevance to Hamidi.

Unions have been on notice of the dubious legal grounds of its “opt-out” policy since the Foundation-won Knox v. SEIU Supreme Court decision in 2012, when the Court ruled in favor of a similar class of workers forced to pay union dues.

Because SEIU Local 1000 did not adjust its policy of forcing workers to opt-out of non-chargeable fees after Knox, the Janus decision means the union could be required to refund all fees seized since June 2013 from the more than 30,000 class members, an amount estimated to be well over $100 million.

“For years union bosses have violated the rights of public employees and seized billions of dollars in unconstitutional forced fees,” said Mix, “Now, armed with the Janus precedent, Foundation staff attorneys are seeking to force union officials to return those ill-gotten gains to the workers whose rights they violated.”

7 May 2019

Michigan Supreme Court Upholds Ruling to Strike Down Teacher Union “Window Periods”

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2018 edition.

Decision affirms the right of Michigan teachers and other civil servants to leave a union at any time

UAW union chief Bob King

Union bosses still flout Michigan’s Right to Work Law, which passed in 2012 after voters rejected United Autoworkers (UAW) union chief Bob King’s ballot measure to make forced union dues mandatory under the Michigan State Constitution.

LANSING, MI – In March, the Michigan Supreme Court denied an appeal by Michigan Education Association (MEA) union lawyers of a lower court ruling that affirmed Michigan employees’ right to leave a union at the time of their choosing. National Right to Work Legal Defense Foundation staff attorneys provided free legal assistance to several public school employees in the case.

Since Michigan’s Right to Work Law took effect in 2013, Foundation staff attorneys have actively challenged union officials’ schemes to stonewall independent-minded workers attempting to exercise their lawful rights. To date, over 40 cases have been brought by Foundation attorneys to enforce Michigan employees’ Right to Work protections.

“As our enforcement activities in Michigan demonstrate, without vigorous enforcement, state Right to Work laws will be hollowed out by scofflaw union bosses,” said Ray LaJeunesse, Vice President and Legal Director of the Foundation.

School Employees Fight Back

Battle Creek Public Schools employee Alphia Snyder resigned her union membership in April 2013, after the pre-existing monopoly bargaining agreement expired and she became fully covered by Michigan’s public sector Right to Work law. However, MEA union officials insisted that she could only leave the union during an annual 30 day “window period” in August. Throughout the fall of 2013, Snyder received several demands for forced dues from MEA bosses.

Mark Norgan, a Standish-Sterling Community Schools employee, resigned his union membership in October 2013. Because he was still under a monopoly bargaining contract until June 30, 2015, he asked to pay only the part of dues he was forced to pay as a condition of employment as was his right under the Foundation-won Supreme Court case Chicago Teachers Union v. Hudson. MEA union officials told him that he could only leave the union during the annual 30 day window period.

In November 2013, Grand Blanc Community Schools employee Mary Carr resigned her union membership as soon as she became fully covered by Michigan’s Right to Work Law. However, MEA officials informed Carr that her resignation could not be effective until the following August. Union officials then sent multiple demands for forced dues, and eventually threatened Carr that if she did not pay the forced dues, they would dispatch debt collectors.

With free legal aid from Foundation staff attorneys, the three public school employees filed unfair labor practice charges with the Michigan Employment Relations Commission (MERC) against the MEA in the spring of 2014. In September 2014, an administrative law judge struck down the “window period” scheme, and the full commission agreed in February 2016. The commission also held that a union’s threats to use a debt collector to collect dues after resignation would be illegal in the future.

MEA appealed MERC’s ruling to the Michigan Court of Appeals, which in May 2017 affirmed the right of Michigan teachers and public employees to leave a union and stop paying union dues at any time. Finally, this March, the Michigan Supreme Court rejected MEA’s appeal of that ruling.

“Right to Work laws simply protect an employee’s right to decide for him or herself whether to join and financially support a union, and now Michigan’s courts have made it clear that freedom of choice cannot be limited to one month a year,” said LaJeunesse. “Hopefully Michigan unions now will focus on gaining the voluntary support of workers instead of attempting to trap them in unions with schemes like arbritrary window periods.”

7 May 2019

After More Than Twenty-Eight Years of Litigation, Independent-Minded Workers Prevail

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2018 edition.

Foundation-assisted couple forces union to settle case over illegally seized dues

Berlin Wall

Photo By: University of Minnesota Institute of Advanced Studies

Sherry and David Pirlott filed charges against union officials on November 8, 1989 — the day before the Berlin Wall began to be demolished — but enforcing their rights would take longer than tearing down one of the most visible symbols of the Cold War.

GREEN BAY, WI – The day before the Berlin Wall fell in November 1989, Sherry and David Pirlott filed federal unfair labor practice charges against the Teamsters Local 75 union hierarchy for keeping them in the dark about their rights and how union officials were spending their forced union dues

Following nearly three decades of litigation between National Right to Work Foundation staff attorneys and union lawyers at both the National Labor Relations Board (NLRB) and Court of Appeals for the D.C. Circuit, the Pirlotts’ rights were finally vindicated.

Former Steward Stood up to Corruption, Intimidation

Before the legal battle began, Sherry Pirlott was a Teamsters local 75 union steward at the Schreiber Foods cheese company

“It was very clear from the beginning that the other union stewards did things for the betterment of the union, not for the betterment of the workers,” she later recounted. “I just did what I thought was right, and the other stewards didn’t like that one bit.”

After union goons threatened her with bodily harm for refusing to toe the line, Sherry decided to stop financially supporting the union hierarchy. Teamsters Local 75 union officials then sued her in small-claims court to force her to pay for union activities. Unable to find a local attorney in Green Bay willing to take on union lawyers, she was forced to defend herself. The judge refused to hear her arguments and quickly awarded judgment to the Teamsters.

That’s when Sherry discovered the National Right to Work Foundation’s free legal aid program — and learned about her rights under a United States Supreme Court decision Foundation staff attorneys had just won.

Foundation-won Beck Precedent Requires Disclosure

In the Foundation-won Communications Workers v. Beck ruling, the U.S. Supreme Court held in 1988 that workers have the right to refrain from joining a union and subsidizing union activities unrelated to monopoly bargaining and contract administration, such as politics and member-only events.

Teamsters Local 75 union officials never informed the Pirlotts or their coworkers of their rights under Beck. Once they learned of these rights, Sherry and David Pirlott, also an employee at Schreiber Foods, resigned from formal union membership and objected to paying for nonchargeable union expenses. Providing only sketchy financial disclosure of the union’s expenses, Teamster union officials told the Pirlotts that only 1.1 percent of the union’s expenditures were for non-bargaining activities.

On November 8, 1989, with free legal aid from Foundation staff attorneys, the Pirlotts filed unfair labor practice charges with the NLRB. Nearly two years later, the NLRB General Counsel found merit to the charges and issued a complaint against the union for failing to inform workers of their Beck rights, providing inadequate financial disclosure, and charging objecting workers for expenditures incurred beyond their own bargaining unit.

Labor Board Bureaucrats Drag Feet For Years

In 1992, an administrative law judge issued a mixed ruling, and both the Pirlotts and the union appealed to the full NLRB. That’s when the outrageous delays began.

After more than six years of inaction by Bill Clinton’s NLRB, Foundation staff attorneys filed a rare mandamus petition in the U.S. Court of Appeals for the D.C. Circuit to order the Board to issue a decision. Under mounting pressure form this legal action, the Clinton Labor Board finally acted on the case in September 1999. However, they simply sent the case back to an administrative law judge to determine whether the union could force the Pirlotts to pay for union organizing at other workplaces.

In the Foundation-won Supreme Court precedent Ellis v. Railway Clerks, the U.S. Supreme Court ruled that such expenses are not chargeable to non-members under the Railway Labor Act. Unfortunately, even though in Beck the Court ruled that the Railway Labor Act and the National Labor Relations Act are “statutory equivalents,” the judge in December 2001 ruled that Teamster union bosses could charge the Pirlotts to subsidize union organizing campaigns anywhere in the private sector.

The Pirlotts again appealed to the full NLRB. With no decision for four and a half years, Foundation staff attorneys filed a second mandamus petition and successfully convinced the D.C. Circuit to order the NLRB to respond in 2006. Unable to meet the November 30 deadline, the NLRB asked the D.C. Circuit for more time. When the NLRB finally issued a decision two months later, it failed to hold all union organizing expenditures nonchargeable under Ellis and Beck. Moreover, the Board overlooked the inadequacy of the union’s financial disclosure, so the Pirlotts appealed the decision to the D.C. Circuit.

On April 18, 2008, the D.C. Circuit issued its ruling. It declined to address the argument that objecting non-members can never be charged for organizing activities and remanded the case back to the NLRB to consider the adequacy of the union’s financial disclosure. The NLRB then sat on the case for the next seven years with little action.

The NLRB in March 2017 finally held that the Teamsters Local 75 union officials provided insufficient financial disclosure. Following this victory for the Pirlotts, settlement negotiations dragged on for nearly another year. Eventually, after Wisconsin’s Right to Work Law became operative at Schreiber Foods in January 2018, the union agreed to reimburse the Pirlotts with interest and post notices informing workers of their rights under Beck. Further, because of Wisconsin’s Right to Work Law, David Pirlott, who still works at Schreiber Foods, is finally free from any payments to the union bosses that fought to violate his rights for decades.

“With the help of NLRB bureaucrats, Teamster union bosses fought tooth and nail for nearly three decades to try to keep every last cent of the Pirlotts’ forced fees,” said National Right to Work Foundation President Mark Mix. “The Pirlotts’ lengthy legal battle to enforce their rights despite the NLRB’s repeated delays demonstrates that Right to Work laws are the only way to truly protect independent-minded workers.”

7 May 2019

Original Janus Plaintiff Moves to Stop Union Lawsuit to Discriminate Against Non-Members

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2018 edition.

Union officials are attempting to counter Janus by expanding monopoly bargaining powers

Brian Trygg

Illinois state employee Brian Trygg seeks to intervene in a union official’s case to expand union boss power to discriminate against workers who exercise their Janus rights.

CHICAGO, IL – An Illinois civil servant has filed a motion to intervene in a union official’s
lawsuit seeking to circumvent the Janus ruling.

Brian Trygg is no stranger to union officials’ legal tactics. Trygg, an engineer at the Illinois Department of Transportation, spent seven long years in court fighting for his right to honor his religious conviction to remain unassociated with a union.

Trygg was an original plaintiff with Mark Janus in Janus v. AFSCME, but was removed from the case because he had secured religious accommodation as relief from forced union fees. Now, Trygg again seeks to hold union officials accountable in court for their misdeeds against non-members.

Union Lawsuit Seeks to Stifle Non-Members’ Voices

In anticipation of Janus, International Union of Operating Engineers (IUOE) lawyers filed a lawsuit seeking to expand union officials’ ability to use their government-granted monopoly bargaining powers to discriminate against workers who exercise their right to refrain from union membership and not pay union dues or fees.

Trygg came to Foundation staff attorneys for free legal assistance in filing his motion to intervene to protect his rights and the rights of all public employees under the Janus ruling.

The IUOE official’s lawsuit attempts to take advantage of IUOE’s legislative privilege to force its “representation” on all employees, even union non-members, in their bargaining unit while claiming it should also be free of longstanding legal doctrine prohibiting union officials from using their monopoly representation to discriminate against non-members and not represent non-members in union-controlled grievances.

Trygg seeks to intervene to urge dismissal of the IUOE case, or alternatively, to file an amicus curiae brief to support the state defendants’ motion to dismiss.

Acting on his beliefs, Trygg has exercised his right to refrain from union membership. If IUOE’s suit is successful, Trygg would continue to be unable to negotiate with his employer due to the union’s monopoly bargaining status, yet union officials would have the power to discriminate against him and ignore the legal doctrine known as “duty of fair representation.”

IL AG’s Legal Representation Inadequate and Bordering on Malpractice

Trygg argues that Defendant Attorney General Lisa Madigan has failed to protect his interests, with legal representation “inadequate and bordering on malpractice.” Madigan also has opposed and criticized the Janus ruling and has taken action to limit its application to Illinois public employees.

IUOE officials appear to be calling for the overturn of the U.S. Supreme Court’s Steele precedent, a 1944 case that challenged union officials’ attempt to use their monopoly bargaining privileges to discriminate against black workers. The decision suggested that monopoly bargaining would be unconstitutional absent a legal limitation on union officials using their power to discriminate against the workers they choose to “represent.”

Trygg’s filings argue that, even if the union’s claims were valid, the solution would be eliminating union monopoly bargaining powers over non-members, not giving union officials wider berth to discriminate against those who exercise their First Amendment rights protected by the Janus decision.

“The root of Big Labor’s coercion has always been its government-granted power to impose its so-called ‘representation’ on workers who don’t want it and never asked for it,” said National Right to Work Foundation President Mark Mix. “Ultimately, if union bosses find their obligation not to discriminate against non-members under their ‘representation’ so burdensome, they can simply relinquish their government-granted monopoly bargaining powers over nonmembers like Brian Trygg.”

7 May 2019

Hospital Employee Successfully Halts SEIU Coercive Unionization Scheme

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, July/August 2018 edition.

Union bosses’ backroom deal sought to “acquire” employees who had previously rejected union organizing attempts

Kathleen Flanagan

Kathleen Flanagan’s settlement rescued her coworkers from a collusive scheme between her employers and union officials, in which employees were illegally told they must become union members and pay union membership dues.

LONG ISLAND, NY – After her employer made a deal with union officials behind closed doors, Kathleen Flanagan came to the National Right to Work Foundation to halt the scheme and free her coworkers.

The backroom deal between Northwell Health and 1199 SEIU United Healthcare Workers East (SEIU 1199) officials forced Flanagan, a physical therapist assistant, and her colleagues into union ranks without a vote. Unwilling to accept being coerced into unionization, she filed unfair labor practice charges at the National Labor Relations Board (NLRB) with free Foundation legal assistance.

In May, Northwell Health and 1199 SEIU officials were forced to give up their under-the-
table agreement, a triumph for Flanagan and her coworkers who had previously rejected SEIU unionization attempts.

Workers Compelled to Join Union Ranks

SEIU 1199 union officials already had monopoly bargaining power over some workers at Northwell Health’s facilities. However, 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 Northwell’s two facilities, was “accreted” into the union’s monopoly bargaining unit and forced to accept the union’s unwanted “representation.”

At a mandatory union meeting, a union official unlawfully told the workers they were required to join the union, and therefore pay full union dues, by January 1, 2018. If Flanagan had remained an employee, she would have been required to accept union representation, pay union fees, and accept a reduction in benefits.

Faced with a reduction in benefits due to a union she and her coworkers never wanted, Flanagan chose to retire instead.

Union Officials’ Scheme with Hospital Exposed

Flanagan’s former coworkers were still being forced by union bosses to accept
representation” they didn’t want. To challenge the so-called “accretion” as unlawful, Flanagan went to Foundation staff attorneys, who helped her file charges with the NLRB.

Northwell and SEIU 1199 eventually settled the charges, rather than face further litigation for violating workers’ legal rights. Under the settlements, Northwell ceased
recognition of SEIU 1199 as the monopoly bargaining representative of the illegally
accreted hospital workers, and SEIU 1199 was forced to relinquish monopoly bargaining
privileges over those employees.

“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 reject union organizing attempts,” commented National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse. “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.”

The illegally accreted workers are now freed from unwanted union representation and will be reimbursed for union fees they were forced to pay. Furthermore, notices will be posted at both of Northwell Health’s facilities and emailed out to affected employees to inform them of their rights.

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

6 May 2019

California Restaurant Employees Successfully Remove Union after Years of Obstruction

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2018 edition.

Landslide vote against union bosses came after years of delay by Obama NLRB

Georgina Canche

Georgina Canche and her fellow workers at Scoma’s, a CA restaurant, finally ousted unwanted union officials from their workplace after years of legal delays.

SAUSALITO, CA – Workers at Scoma’s of Sausalito, a California restaurant, held a decertification election on July 10 to remove the UNITE HERE union from their workplace, resulting in a 37-12 landslide vote against the union. The successful election was a culmination of over four years of employee efforts to remove the union’s presence at the restaurant. The restaurant employees received free legal aid from National Right to Work Legal Defense Foundation staff attorneys in their efforts to exercise their rights to oust the unwanted union.

In 2013, restaurant employee Georgina Canche and a majority of her fellow coworkers successfully petitioned their employer to withdraw recognition of UNITE HERE as their monopoly bargaining representative. Although a majority of the employees signed the petition and the employer followed procedure established by longstanding labor law, the union filed a federal charge against the employer with the National Labor Relations Board to reinstate its monopoly bargaining powers, regardless of the workers’ petition.

Obama Labor Board Trapped Workers in Unwanted Union for Four Years

The notoriously pro-forced unionism Obama Labor Board sided with union lawyers, and even issued a “bargaining order” to block attempts by the workers to hold a secret ballot vote to decertify and remove the union as the employee’s monopoly bargaining representative.” With the backing of the workers, Scoma’s appealed the case to the D.C. Circuit Court of Appeals, which unanimously overturned the “bargaining order” and remanded the case to the Labor Board so that a decertification vote could proceed.

One judge wrote separately and excoriated the Board for its blocking charge policy that delays elections.

After additional delay, the NLRB Regional Director finally conducted a secret ballot decertification election, in which the workers voted overwhelmingly to remove UNITE HERE from their workplace. Thus, five years after a majority signed their petition to kick the union out of their workplace, the workers were finally free of the union.

“After years of dilatory legal challenges by union lawyers with the help of Obama-installed bureaucrats, the workers of Scoma’s restaurant are finally able to have a say in their own workplace representation,” said Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation. “This case shows the legal trickery used by union bosses to hold onto their forced-dues powers, even when a clear majority of the workers the bosses claim to represent oppose their presence. This is why the Foundation’s legal aid program is so vital in clearing the legal hurdles so workers can exercise their right to vote out a union they oppose.”