Worker Advocate Seeks Unpublished NLRB Report and Additional Disclosures Over Labor Board’s Apparent Recusal Double Standard
FOIA request seeks to bring to light information regarding efforts to prevent a full five-member Labor Board from reviewing pro-forced unionism Obama-era precedents
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.
Air Traffic Controller Forces Settlement from FAA Concerning Religious Discrimination Committed at Behest of Union Bosses
Union retaliated against worker for resigning from membership, had worker transferred to force him to work on Saturday in violation of his religious beliefs
Warrenton, VA (March 8, 2018) – A Federal Aviation Administration (FAA) employee has won a federal settlement after the agency complied with union officials’ demands to punish him for resigning his union membership by transferring him to a position that caused a scheduling conflict with his religious obligations.
In 2013, Matthew Gray, a Seventh-day Adventist who works at the FAA’s Potomac facility, filed federal charges with the Equal Employment Opportunity Commission (EEOC) against the National Air Traffic Controllers Association (NATCA) union and FAA.
With free legal aid from National Right to Work Foundation staff attorneys, Gray filed the charges after he was informed by a union official that he was being removed from his detail and transferred to another in which he would be required to work on Saturdays as punishment for resigning from the union. Federal law ensures that independent-minded employees of the federal government, like Gray, cannot be required to pay any dues or “fees” to a union as a condition of employment.
Gray resigned union membership because he believes union membership is contrary to his faith. A central doctrine of Gray’s church is weekly worship, and not working, on Saturday. Gray’s original position allowed him to avoid any scheduling conflict between his work and religious obligations. By removing him from that detail, however, NATCA union officials effectively forced Gray to work on Saturday, unless he found a replacement or took leave every week, or lose his job.
Instead of standing up to the union’s ugly retaliation against a worker who chose to exercise his legal rights, Gray’s manager at the FAA told him that he was complying with the union’s transfer request because Gray “no longer represent[s] the best interests of NATCA.”
Before this settlement was reached, the EEOC had found cause to believe that the union violated Gray’s rights under Title VII of the Civil Rights Act, and Gray had won settlements resolving unfair labor practice charges he filed with the Federal Labor Relations Authority against the union and FAA.
“Make no mistake, union bosses punished Matthew Gray for simply acting on his deeply-held religious beliefs,” said Mark Mix, President of the National Right to Work Foundation. “Hardworking Americans should not face religious discrimination or any other retaliation for exercising their right to refrain from union membership.”
5 Times Obama NLRB Member Split with Fellow Democrats to Favor Union Officials over Independent-minded Workers
At the Federalist Society blog, National Right to Work Foundation Vice President and Legal Director Raymond J. LaJeunesse has a new commentary discussing the extreme anti-worker freedom record of Barack Obama appointee Mark Gaston Pearce, who still sits on the National Labor Relations Board:
The current term of Mark Gaston Pearce as a Member of the National Labor Relations Board expires on August 27, 2018. Traditionally, the Board has consisted of three Members from the President’s party and two from the other major party. It has been publicly reported that Member Pearce, a Democrat who represented labor organizations before coming to the Board, is lobbying for reappointment. However, Member Pearce has a record that shows that he is a particularly virulent opponent of the rights of private-sector workers who choose not to support unions and object to being forced to subsidize them, more so than other Democrat appointees to the Board. Specific cases that demonstrate this follow.
On Monday, February 26, National Right to Work Foundation staff attorney William Messenger argued at the U.S. Supreme Court in Janus v. AFSCME, arguing that forcing government workers to pay union dues or fees as a condition of employment violates the First Amendment.
After oral argument, Messenger appeared live from the Court steps on Fox Business Channel:
SCOTUSblog provided a summary of the oral argument:
The Supreme Court heard oral argument today in Janus v. American Federation of State, Municipal, and County Employees, a challenge by an Illinois child-support specialist to the fees that he is required to pay to the union that represents him, even though he does not belong to any union. Although this is the first trip to the Supreme Court for Mark Janus, the employee, it was the third time in four years that the justices have taken the bench to consider the issue presented by Janus’ case. After roughly an hour of sometimes testy debate in the courtroom, the outcome almost certainly hinges on the vote of the court’s newest justice, Neil Gorsuch – who did not tip his hand, opting instead to remain silent.
Mandatory fees require dissenting nonmembers to support beliefs they reject. But the right of free speech, as the court long has recognized, includes the freedom not to speak. To force someone to pay for the advancement of political positions without his or her consent is incompatible with the First Amendment.
For background on Janus, click here.
Commentary: Does the NLRB’s Inspector General Have a Double Standard for When Board Members Must Recuse?
In a new commentary for The Federalist Society, National Right to Work Foundation Vice President and Legal Director Raymond J. LaJeunesse discusses an inconsistent standard for recusals at the National Labor Relations Board (NLRB):
Traditionally under the National Labor Relations Act, a company was considered to be a joint employer of another company’s employees only if the putative joint employer had direct and immediate control over the other company’s employees’ material terms and conditions of employment. However, in 2015, a National Labor Relations Board majority appointed by President Obama overturned thirty years of precedent in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (3-2 decision), holding that a company is a joint employer even if it only exercises indirect control of essential terms and conditions of employment or only reserves the right to do so.
The issue was addressed again by the Board in late 2017 in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (3-2 decision). In Hy-Brand, a Board majority appointed by President Trump overruled Browning-Ferris and returned “to the principles governing joint-employer status that existed prior to that decision.”
One of the Board Members in the Hy-Brand majority was William Emanuel. Neither Emanuel nor his former law firm was involved in Hy-Brand at any point, nor has anyone claimed that either represented a Hy-Brand party at any time in any other matter. However, the NLRB’s Inspector General was asked by someone to investigate whether Emanuel should have been recused in Hy-Brand because his former law firm, but not Emanuel, represented one of the employers in Browning-Ferris before the Board.
Ninth Circuit Court of Appeals asked to rule that law seeking to impose Teamsters unionization and forced dues violates drivers’ rights
Seattle, WA (February 5, 2018) – Today, National Right to Work Legal Defense Foundation staff attorneys are arguing Clark v. Seattle at the United States Ninth Circuit Court of Appeals for individual drivers whose federal lawsuit challenges a controversial Seattle ordinance designed to unionize independent for-hire and ride-sharing drivers and force them to pay union dues. Dan Clark, lead plaintiff in the suit, is an independent driver who picks up riders through both Uber and Lyft.
The drivers originally filed suit against the City of Seattle in the U.S. District Court for the Western District of Washington with free legal representation by staff attorneys from the National Right to Work Legal Defense Foundation and the Washington State-based Freedom Foundation. The drivers argue that the Seattle ordinance is preempted by the National Labor Relations Act and that imposing forced union representation and forced dues on them violates their First Amendment rights of free speech and freedom of association.
A District Court judge ruled against the drivers last August, clearing the way for an appeal to the Ninth Circuit. Shortly after the District Court ruling, implementation of the ordinance was blocked by the Court of Appeals until that court could rule on the pending legal challenges to the first-in-the-nation ridesharing driver forced unionization scheme.
In addition to the drivers’ lawsuit, the Court of Appeals will also hear arguments in a separate legal challenge to the Seattle ordinance arguing that the forced unionization ordinance violates federal anti-trust law. A three-judge panel will hear arguments in both cases back-to-back in Seattle this morning.
“Big Labor’s one-size-fits-all, top-down forced unionism is the very antithesis of the ride-sharing model which attracts drivers by connecting them with consumers and providing them the freedom to decide when to work and through which mobile app to find customers,” National Right to Work Foundation president Mark Mix said.
“Not only is Seattle’s scheme to force independent ridesharing drivers under Teamsters monopoly representation through a coercive card check drive bad policy, but it violates federal labor law protections and the drivers’ constitutional rights,” continued Mix. “Hopefully the appeals court will rule to protect these independent drivers from this pernicious forced unionism scheme, but if it fails to we are prepared to take this case all the way to the Supreme Court to vindicate these drivers’ freedoms.”
National Workplace Advocacy Group to Charter School Teachers: ‘Know Your Rights to Protect Yourself from Compulsory Unionism’
National Right to Work Legal Defense Foundation president issues statement in recognition of National School Choice Week
Washington, DC (January 25, 2018) – Mark Mix, president of the National Right to Work Legal Defense Foundation, issued the following statement in recognition of National School Choice Week 2018:
“Teacher union officials, armed with billions of dollars in mandatory union dues, have orchestrated a sustained campaign to delegitimize and block efforts to promote school choice and especially charter schools. But despite that opposition, charter schools have enjoyed steady growth and popularity.
“In response, union officials have decided that if they cannot reverse the growth of charter schools, then they would attempt to control charter schools by forcing teachers and other school employees under union monopoly power. Of course, this could prove disastrous for charter school teachers and students nationwide, many of whom are attracted to charter schools precisely because they reject the one-size-fits-all approach promoted by national teacher union bosses.
“All charter school employees are entitled to certain constitutional and statutory rights but unfortunately union officials frequently attempt to keep employees in the dark about those rights. That is why National Right to Work Foundation staff attorneys have provided direct, free legal aid to over 10,000 teachers since its founding and why the Foundation continues its Charter School Initiative.
“Led by National Right to Work Foundation staff attorneys, the National Right to Work Foundation’s Charter School Initiative aims to enlighten charter school employees about their rights so that they can make decisions about union representation in an atmosphere free of union boss threats, harassment, coercion, or misrepresentation. To that end, Foundation attorneys have developed free educational materials for charter school teachers and employees. Furthermore, Foundation staff attorneys are prepared to continue defending charter school employees from the injustices of forced unionism.
“Charter school teachers and other employees: You have rights. For more information about your rights and the Foundation’s Charter School Initiative, check out our website at www.nrtw.org/charterschools.”
Worker Advocate Issues Statement on Judge’s Ruling Dismissing Union Lawsuit Against Kentucky’s Right to Work Law
Frankfort, KY – Today, at the Franklin County Circuit Court, three Kentucky workers with free legal aid from National Right to Work Legal Defense Foundation staff attorneys successfully defended the Blue Grass state’s Right to Work law against spurious legal arguments from union officials attempting to retain their forced dues powers.
National Right to Work Foundation President Mark Mix issued the following statement in response to today’s ruling:
“We welcome today’s ruling by the Franklin County Circuit Court upholding Kentucky’s Right to Work law, which simply ensures that union membership and financial support are strictly voluntary. Right to Work laws have long been upheld by appellate courts, including the U.S. Supreme Court, so it comes as no surprise that union bosses’ arguments against Kentucky’s Right to Work law were rejected in this case. Rather than wasting tax dollars and workers’ dues money continuing this frivolous legal attack on Right to Work, Kentucky union bosses ought to be working to ensure that the representation they claim to provide is actually a service Kentucky employees will voluntarily pay for.”
The ruling can be found here.
Dealership employee discovered insurance had been canceled by union after he exercised right to resign his union membership and filed an NLRB charge challenging union practices
Chicago, IL (January 12, 2018) – A Chicago-area auto mechanic has filed an unfair labor practice charge against International Association of Machinists and Aerospace Workers (IAM) Local 701 with free legal assistance from attorneys with the National Right to Work Legal Defense Foundation. The charge, filed with the National Labor Relations Board (NLRB), describes how union bosses wrongfully terminated the worker’s health insurance in retaliation for him exercising his right to resign union membership.
Mike Vallaro is employed at Gerald Subaru, Inc. in Naperville, IL. He exercised his right to resign from the union after IAM Local 701 union officials demanded that he and his co-workers abandon their jobs and join a union-initiated strike in August 2016. By resigning prior to the union-ordered work stoppage, Vallaro could continue working and not legally be subjected to IAM internal “union discipline.”
Despite this, union officials sent him a letter threatening a disciplinary trial for working during the strike. They claimed that, if he was found guilty by the union tribunal, Vallaro would be forced to pay a monetary fine. In similar situations around the country, union officials have levied fines in the tens of thousands of dollars against workers who defied strike demands.
Understanding his rights, Vallaro turned to Right to Work Foundation staff attorneys for free legal aid and filed the unfair labor practice charge. After National Right to Work Foundation’s involvement, IAM Local 701 notified Vallaro that its trial had been canceled. However, NLRB proceedings in the case continued.
The mechanic thought that was the last of IAM Local 701’s illegal intimidation, until he went into the doctor’s office for a medical procedure, only to find that his medical insurance had been canceled. Under the monopoly bargaining contract between the IAM and his employer, all employees are entitled to health insurance. The union controls and selects the insurance plan that covers the employees irrespective of whether they are a union member or not. Additionally, because Illinois is not a Right to Work state, Vallaro is still forced to pay fees to IAM Local 701 officials each month.
Vallaro never received prior notification that his health insurance had lapsed. After conferring with his co-workers he discovered that he was the only worker in the monopoly bargaining unit to have his insurance canceled, making it clear it was in retaliation for his previous resignation and unfair labor practice charge.
In response Vallaro again turned to Foundation staff attorneys, who assisted him in filing another unfair labor practice charge against IAM officials, this time for illegal retaliation and discrimination by violating their monopoly bargaining contract to cancel Vallaro’s insurance. Both charges are now being investigated by the NLRB Region 13 office in Chicago.
Meanwhile, Vallaro faces mounting medical bills as a result of his insurance being canceled. Fortunately, for now, his employer Gerald Subaru is assisting Vallaro with the bills that would have been covered had IAM union officials not wrongfully canceled the coverage.
“Mr. Vallaro simply wanted to continue working to support himself and his family instead of engaging in a union boss-ordered strike. Now, because he exercised his protected rights under federal law, he is facing a relentless campaign of illegal union intimidation,” said Mark Mix president of the National Right to Work Legal Defense Foundation. “Union bosses’ willingness to cancel the health insurance of a worker they still claim to ‘represent’ just when he needs to rely on that insurance, is another ugly example of union officials abusing their monopoly forced dues powers to attack workers who refuse to toe the union line.”