NLRB Moves to Prosecute Yotel Boston and UNITE HERE for Violating Workers’ Rights in Coercive ‘Card Check’ Unionization
Labor Board complaint says hotel officials illegally assisted union boss organizing drive used to impose union monopoly ‘representation’ on housekeepers
Boston, MA (December 1, 2020) – Yesterday the Acting Boston Regional Director of the National Labor Relations Board (NLRB) issued a complaint against the Yotel Hotel and the UNITE HERE Local 26 union after the hotel illegally assisted union officials with foisting the union on workers. Housekeepers Cindy J. Alarcon Vasquez, Lady Laura Javier, Yesica Perez Barrios, and Danela Guzman filed unfair labor practice charges with the Board in December of 2019 with free legal assistance from National Right to Work Legal Defense Foundation staff attorneys.
The charges, which resulted in today’s complaint, say the hotel illegally assisted the union’s coercive “card check” drive, during which employees were pressured by union operatives into signing union cards. These cards were later counted as “votes,” and were used to bypass a secret ballot election that would have determined whether the workers actually support union representation.
The NLRB has long held that an employer taints employees’ efforts to remove a union if it gives those employees support such as a list of bargaining unit employees or use of company resources. The worker’s attorneys here argue that Yotel Boston similarly tainted the union’s organizing campaign by providing assistance to UNITE HERE union organizers that amounted to more than permitted “ministerial aid.”
Such assistance, while it is presumed to taint the results of decertification votes, has often been overlooked by the Board when the assistance benefits union officials in their efforts to gain monopoly representation powers over rank-and-file workers.
By issuing the complaint, the NLRB is finally applying the standard equally no matter whether the assistance is used to impose or remove union monopoly representation. Further, the complaint finds that Yotel violated the law when they recognized UNITE HERE as the workers’ monopoly representative as a result of the illegal assistance.
The case is not the first in which the NLRB has addressed this double standard. In July NLRB Region 19 issued a similar complaint in another case involving a hotel worker whose employer illegally assisted UNITE HERE Local 8 union officials in its card check drive at Embassy Suites in Seattle. There the NLRB also agreed that the employer had provided more than “ministerial aid,” and therefore UNITE HERE officials “did not represent an uncoerced majority of the unit.”
“The NLRB is finally addressing the double standard that for too long has favored union bosses in their coercive card check unionization drives,” said National Right to Work Foundation President Mark Mix. “Union bosses pressure workers and get illegal assistance from employers to impose their so-called representation on workers, but they cry foul when that same assistance is given to workers attempting to remove unwanted forced representation.”
“With these complaints against UNITE-HERE union bosses the Board is correctly finding that what qualifies as more than ‘ministerial assistance and support,’ and thus violates the National Labor Relations Act, cannot depend on whether the employer is helping outside union organizers impose unionization on workers or is assisting workers in exercising their right to remove an unwanted union.”
Swedish Medical Center Worker’s Appeal Challenges SEIU Policies that Trap Workers in Full Union Dues
Worker’s brief to NLRB top lawyer: SEIU officials suspected of using forged signature to justify illegal deduction of full union dues
Seattle, WA (November 17, 2020) – National Right to Work Legal Defense Foundation staff attorneys just filed an appeal with the National Labor Relations Board (NLRB) General Counsel for Swedish Medical Center employee Daniel Dalison.
The appeal challenges the Seattle NLRB Regional Director’s conditional dismissal of unfair labor practice charges brought by Dalison against the Service Employees International Union (SEIU) Healthcare 1199NW. The Swedish Medical Center worker’s charges argue SEIU officials illegally created a needlessly restrictive set of procedures designed to trap workers into paying union dues in violation of their legal rights.
Dalison sent multiple letters to union officials resigning his membership and exercising his right under the Foundation-won Beck Supreme Court decision to only pay fees directly related to union bargaining. He also requested copies of his past membership cards and dues checkoff authorizations, which were the supposed basis for the SEIU continuing to deduct dues.
Dalison requested all membership and dues authorization documents he signed because he became concerned that one or more of them may have been forged, a suspicion shared by other workers. SEIU affiliates in the Pacific Northwest already face several federal lawsuits filed by workers alleging forgery of signatures on dues authorization cards in the aftermath of the Foundation-won Janus decision.
Though union officials did not provide Dalison with a copy of his earlier membership card, they eventually provided a card he allegedly signed in February 2019. This card was preprinted with Dalison’s information filled in. Some of this information is erroneous, including his phone number. Dalison does not recall signing the document or filling it out, and is concerned that it is a forgery.
To obtain his own membership documents, Dalison was told he had to complete SEIU’s three step procedure. He had to submit a request in writing, make an appointment with a union official, and appear in person and/or present an approved photo ID. Employees at Swedish Medical Center already must act quickly to revoke their dues authorizations during a narrow “escape period” that differs for each employee. The period is determined by the date the employee signed a membership and dues authorization application, the very document that can only be obtained by completing the union’s three step process.
Dalison’s charges argue the SEIU’s “write us a letter, make an appointment, and show up in person with a photo ID” restrictions are an illegal barrier to receiving time-sensitive information that allows employees to exercise their legal right to revoke their dues checkoffs and not fund union political speech. His charges say that SEIU’s restrictions violate his rights under federal law, and demands the union provide all his older membership cards, without delay or burdensome procedures, to ensure their authenticity.
Another Swedish Medical Center employee, Roger White, recently won an appeal in a separate but related case against SEIU 1199NW. With free legal aid from the National Right to Work Foundation, the NLRB General Counsel in Washington, DC, found the Seattle Regional Director was wrong not to prosecute SEIU officials for keeping White in the dark about his right not to pay any union fees during a contract hiatus, and for the union’s “confusing and ambiguous” union dues and membership authorization card.
“As this and so many other workers’ cases demonstrate, SEIU bosses won’t hesitate to violate the rights of those they claim to ‘represent’ just to stuff their pockets will illegal forced union dues,” said National Right to Work President Mark Mix. “These cases show why workers in Washington State desperately need the protection of a Right to Work law that makes all union payments strictly voluntary.”
Michigan Rieth-Riley Workers Petition NLRB to Overturn Regional Decision After All Votes Were Cast to Cancel Election to Remove Union
NLRB Region 7 in Detroit abruptly issued order dismissing workers’ petition for the vote just hours before the ballots were scheduled to be counted
Detroit, MI (November 16, 2020) – Employees of the Rieth-Riley Construction Company have just filed an emergency appeal with the National Labor Relations Board (NLRB) in Washington, DC, asking the Board to overturn an NLRB Regional Director’s last minute decision cancelling the workers’ vote whether to remove International Union of Operating Engineers (IUOE) Local 324 from their workplace. The Region issued this order just hours before the ballots were to be counted and after the workers’ votes had all been cast.
Staff attorneys from the National Right to Work Legal Defense Foundation represent the construction workers in the case without charge. This is the latest development in a months-long effort by Rieth-Riley workers to eject unpopular IUOE officials, in which employee Rayalan Kent and his coworkers have submitted two successive petitions to obtain a decertification election.
Although an election by mail finally began last month, on November 9, mere hours before the NLRB Detroit Region was to count the votes, the Regional Director issued a decision dismissing Kent and his coworkers’ petitions. Absent action by the NLRB in Washington, DC, the workers’ votes in their long-sought decertification election will be destroyed and never counted.
Kent submitted his latest petition for a vote to remove the union in August, with signatures from well over the number of his coworkers required by law to trigger such a vote. This petition was submitted in the hopes that new protections from the NLRB in Washington, DC, which became effective at the end of July, would better safeguard from union legal maneuvering their right to vote out the union. Kent’s Foundation-provided attorneys also invoked those reforms in a Request for Review submitted this April in defense of his first decertification petition, which the Board denied.
The NLRB Regional Director in Detroit dismissed Kent and his coworkers’ two petitions by citing unproven allegations IUOE officials have made against Rieth-Riley management in so-called “blocking charges.”
The Region’s decision flies in the face of reforms the NLRB enacted through the rulemaking process that largely eliminate “blocking charges” as a means for delaying a vote. The reforms instead mandate a system in which employees usually can exercise immediately their right to vote on whether a union should stay before the NLRB deals with any unfair labor practice charges filed against their employer.
The purpose of the reforms, which heavily cited comments Foundation attorneys submitted to the NLRB, is to stop union officials from imposing themselves on dissatisfied workers for months or even years while often-unrelated union allegations against employers are litigated. The NLRB’s final rule, in response to arguments made in the Foundation’s comments, specifically requires that votes be tallied and results announced unless the charges allege that the employer has improperly aided the decertification petition, and even then the votes will be counted unless a complaint against the employer has been issued within sixty days.
Nevertheless, the NLRB Regional Director declined to even hold an evidentiary hearing to determine whether there is a causal link between IUOE union bosses’ claims and Kent and his coworkers’ effort to remove the union, claiming that the Region’s “investigation” was sufficient and takes priority over the NLRB’s new rules regarding “blocking charges.”
The workers’ appeal points out that, “even under the old rules, the Region is misapplying the law by dismissing the petitions.” It explains that the “unfair labor practice allegations do not relate to the election itself. Further, the Region did not conduct a hearing before it found a causal connection between the Employer’s alleged conduct and the decertification petitions.”
Commented National Right to Work Foundation President Mark Mix: “Rieth-Riley employees have already had to endure many months of union boss stonewalling just to exercise their right to vote out an unpopular union. NLRB Region 7’s current decision to stifle further the employees’ will makes the whole situation even more outrageous and rigged in favor of union power. The NLRB in Washington should immediately overturn this decision and order the Region to count the ballots as NLRB rules dictate.”
Mix added, “NLRB Region 7’s decision completely ignores the amended rule the NLRB in Washington issued in July, which clearly delineates why employees’ right to vote should not be delayed or hindered by unproven or unrelated union accusations against an employer. We will continue to fight for Mr. Kent and his coworkers until their long-overdue right to free themselves from the unwanted Operating Engineers union is vindicated.”
NLRB top prosecutor says SEIU officials illegally kept employees in the dark about their legal right not to pay union fees during contract hiatus
Washington, DC (November 11, 2020) – With free legal aid from the National Right to Work Legal Defense Foundation, Roger White won an appeal to the General Counsel of the National Labor Relations Board (NLRB) in his case against the Service Employees International Union (SEIU) Healthcare 1199NW.
In mid-January 2020, White sent union officials a letter resigning his membership and invoking his U.S Supreme Court-won Beck right to pay reduced union fees. The union admitted that more than one of every three dollars it collects were spent on political and nonrepresentational activities, but failed to inform him and others that, due to a contract hiatus then in effect, nonmember employees actually owed no dues or fees at all because no forced union fee contract was in effect.
White filed charges in April, asserting SEIU officials violated the National Labor Relations act by not informing him he was not required to pay any union fees during a contract hiatus.
After the Seattle NLRB Regional Director brushed aside SEIU officials’ obligation to inform White that he could not legally be required to pay any union fees, Foundation attorneys filed an appeal to the Board’s General Counsel, arguing the union owed White a “duty of truth and honesty” and should have made it clear he had no obligation to pay.
In response to the appeal, the General Counsel agreed with the Foundation staff attorneys’ arguments, saying union officials violated the National Labor Relations Act by keeping White in the dark about his rights during the contract hiatus.
The General Counsel further found that the union had maintained a “confusing and ambiguous Membership Application, Voluntary Check-Off Authorization and Payroll Deduction document.” These documents, which employees are pushed to sign to allow dues deductions, did not provide enough information to make an informed decision about union membership.
Finally, the General Counsel found that the SEIU’s dues check-off authorization form “may be interpreted to preclude employees from revoking their authorization upon expiration of the contract.” Authorizing dues payments is not a permanent decision, but SEIU’s contract does not make that clear.
SEIU Healthcare 1199NW has faced repeated legal challenges to its membership practices. Two other Swedish Medical Center employees, Daniel Dalison and NancyEllen Elster, filed charges against the SEIU local for failing to respect the rights guaranteed to them by Beck. Elster won a unit-wide settlement in October 2019 after NLRB Region 19 found merit to her charges that union officials had failed to give a proper Beck notice to employees, and had denied her request to pay the reduced dues amount under Beck.
Following the General Council’s ruling, the case is back with the Regional Director for further action. If a settlement is not reached between the SEIU and White, the Regional Director will issue a complaint against the SEIU for violating the law in preparation for a trial before an NLRB administrative law judge.
“Once again, Seattle SEIU bosses’ have used unfair and deceptive tactics to violate workers’ rights,” said National Right to Work Foundation President Mark Mix. “Despite repeated legal challenges, SEIU officials have demonstrated their determination to keep workers in the dark about their legal rights, rather than give workers all the facts before making a decision regarding union membership and financial support.”
Allegiant Air Flight Attendant Sues Transport Workers Union for Religious Discrimination, Forced Union Fee Demands
Despite objecting to union membership and dues on religious grounds, flight attendant was forced to pay union fees or lose input into work schedule
Knoxville, Tennessee (November 6, 2020) – Allegiant Air Flight attendant Annlee Post has filed a federal lawsuit against Transport Workers Union of America Local 577 (TWU) for violating her rights under the First Amendment, Railway Labor Act, and Title VII of the Civil Rights Act of 1964. The complaint was filed with free legal aid from staff attorneys at the National Right to Work Legal Defense Foundation.
As the lawsuit explains, Post sent two letters informing TWU officials of her religious objections and offering to redirect her dues payments to a charity. Under Title VII of the Civil Rights Act of 1964, employers and union officials are required to accommodate sincere religious beliefs. Courts have consistently ruled that employers and unions must allow religious objectors to redirect their compulsory union payments to charity.
In the 2015 EEOC v. Abercrombie & Fitch decision, the Supreme Court unanimously held that employees do not need to satisfy any requirements to merit accommodation. Thus, it did not matter in Abercrombie that the prospective employee never informed her prospective employer that she wore a headscarf for religious reasons. An employer or union’s belief that an employee might need accommodation is enough to trigger its duty to accommodate.
Post exceeded her legal requirements. She informed union officials in writing that her religious beliefs prevent her from associating with or supporting the union. Therefore, she requested accommodation. She sent two letters explaining her religious objections. TWU officials, however, refused to accommodate her.
With free legal aid from the Foundation, Post filed a charge in May 2019 with the Equal Employment Opportunity Commission (EEOC) against the union. The EEOC was ultimately unable to successfully resolve her charge, and in August 2020 issued a “Right to Sue” letter, at her request, allowing her to file a federal lawsuit to protect her rights.
Post initiated her lawsuit by filing a complaint last week in federal court. The complaint alleges TWU officials illegally discriminated against her by refusing to accommodate her and threatening to revoke her bidding privileges. Bidding privileges control a flight attendant’s ability to schedule trips, work, vacations, and nonworking days. Post asks the court to prevent TWU officials from discriminating against her, and other employees with religious objections, by requiring her to pay union fees that violate her sincere religious beliefs.
Post’s lawsuit also states that union officials violated the United States Constitution and the Railway Labor Act (RLA). The First and Fourteenth Amendments require unions to follow specific procedures to demand forced dues payments. The union did not follow those procedures here. Union officials did not provide notice of how the forced fee amount was calculated, an audit of the union’s financial records, nor did they provide notice of the procedure to challenge the fee amount.
The complaint also cites the Foundation’s Supreme Court victory in Janus v. AFSCME which held that unions and public employers cannot require employees to pay union dues or fees to get or keep a job. The complaint states that Ms. Post does not have to pay any fees to the union because of Janus. The Janus case is a monumental decision that protects employees’ free choice.
State Right to Work laws also protect employees and allow them to decide for themselves if they want to support a union with their money. Although Post lives and works in a Right to Work state – Tennessee – the RLA overrides state Right to Work laws and allows union officials to force union fees as a job condition.
The RLA allows employers and unions to require forced dues payments, but only “as a condition of continued employment.” The RLA does not permit forced dues payments based on any other condition – such as bidding privileges. Post’s Foundation staff attorneys argue that TWU’s monopoly bargaining agreement with Allegiant is invalid because it requires dues payments to maintain bidding privileges, whereas payment “as a condition of continued employment” is the only legal forced unionism agreement under the RLA.
“Annlee Post and others like her should not have to choose between privileges at work and their religious beliefs,” said National Right to Work President Mark Mix. “TWU bosses knew about Ms. Post’s objections, but refused to accommodate them under longstanding EEOC law, instead threatening to take away her bidding privileges, simply because she would not fund their organization in violation of her religious faith.”
“This case is a reminder why no worker should be forced to fund a union with which they disagree, no matter whether their objection is religious or for any other reason.”
Las Vegas Union Officials Back Down, Settle Case Brought by Security Guards Challenging Illegal Dues Seizures
SPFPA union will pay thousands of dollars in refunds of dues illegally taken from guards to end federal Labor Board case against the union
Las Vegas, NV (November 5, 2020) – With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Las Vegas security guard Justin Stephens and his coworkers have won a settlement against the Security, Police & Fire Professionals of America (SPFPA) union, which they charged in April with seizing dues from their paychecks in violation of their legal rights. As part of the settlement, union bosses are required to refund more than $4,200 to two dozen security guards, including Stephens, whose timely resignations from union membership and attempts to cut off dues deductions were rejected by union officials who hastily extended their monopoly bargaining agreement with the guards’ employer.
According to Stephens’ charge filed at Region 28 of the National Labor Relations Board (NLRB) in Phoenix, SPFPA officials extended the bargaining contract with Stephens’ employer, North American Security, on January 31, 2020. The extension occurred one day after Stephens and the vast majority of his fellow employees at the federal courthouse in Las Vegas sent letters to the union stating that they no longer wanted it as the monopoly bargaining agent in their workplace.
The charge explained that Stephens later submitted a batch of letters to SPFPA officials in which he and his fellow employees tried to exercise their rights to resign union membership and stop dues deductions from their paychecks. These letters were sent just before the previous contract between North American Security and the SPFPA was supposed to expire, on March 31, within the period when the employees could lawfully end dues deductions. Because Nevada has enacted Right to Work protections for its employees, union bosses are forbidden from requiring any employee to join or pay dues or fees to a union as a condition of employment.
The charge asserted that the union “did not acknowledge the timely revocation the employees made on the anniversary” of the contract, ostensibly because the union officials’ hurried contract extension eliminated any opportunity the employees had to cut off union dues before the existing contract’s March 31 expiration.
SPFPA bosses kept collecting full union dues “from all non-member bargaining unit employees” in violation of their right under the National Labor Relations Act to refrain from union activities and support, according to the charge. Stephens’ charge also asserted that the unions’ sudden extension of the monopoly bargaining contract after the workers notified the union about their opposition amounted to “an apparent attempt to avoid a decertification” vote to remove the union.
The settlement requires SPFPA officials to process any timely resignations by security guards and notify North American Security to cease dues deductions from those whose resignations they have already processed. SPFPA bosses must also return all dues seized from Stephens’ and his coworkers’ paychecks in violation of their rights. In the future, the settlement stipulates, union officials must always “accept and timely process” resignations and requests to cut off dues.
“It’s good news that Mr. Stephens and his hardworking colleagues have gotten back dues that were illegally taken from them by SPFPA union bosses who have demonstrated they are more interested in stuffing their coffers with union dues than respecting the wishes of the rank-and-file workers they claim to ‘represent,’” commented National Right to Work Foundation President Mark Mix. “This type of legal trickery used by union bosses to stay in power even over the objections of most workers shows why the NLRB should eliminate the numerous policies that block workers from voting out or otherwise removing an unwanted union.”
“Ultimately, the root of this problem is the federal labor law which grants union bosses monopoly bargaining powers, allowing them to force their so-called ‘representation’ on individual workers who don’t want it and believe they would be better off without it,” added Mix.
Alaska Vocational Instructor Files Appeal in Federal Class Action Lawsuit Challenging Unconstitutional Union Dues Seizures
ASEA union bosses continue to block workers from exercising First Amendment right to cut off union dues payments spent on union politics and lobbying
Anchorage, AK (November 5, 2020) – Staff Attorneys for the National Right to Work Legal Defense Foundation have filed an appeal to the US Court of Appeals for the 9th Circuit on behalf of Alaska Vocational Instructor Christopher Woods in his case against the Alaska State Employees’ Association (ASEA).
Woods, who works in the Alaska State prison system, is challenging restrictions on his and his coworkers’ First Amendment right to refrain from subsidizing a union under the 2018 Foundation-won Janus v. AFSCME US Supreme Court decision.
The union scheme forbids employees from exercising their right to cut off union dues except during an annual 10-day “escape period.” However, in Janus, the high court ruled that no public sector employee can be forced to pay union dues or fees as a condition of employment, and that the First Amendment is violated when union officials deduct dues from the paychecks of public sector employees without their affirmative and knowing consent.
Woods began working as a Vocational Instructor at Goose Creek Correctional Center in 2013 and joined the union “because he was told by a union representative that he had no choice,” according to the lawsuit. His complaint reports that, on November 26, 2019, he sent an email to ASEA officials exercising his Janus right to stop union dues deductions. A union official replied to him the same day and rebuffed his request, telling Woods that “he could only ‘opt out and not be a union member with written notice to this office’” within a 10-day period each year before the date he signed his original dues deduction authorization card.
Woods persisted on December 2, 2019, submitting to both ASEA officials and the payroll office of the Corrections Department another email asking to cut off dues. Although the payroll office confirmed to both Woods and the ASEA that it had received the request, an ASEA official responded by merely telling the payroll office that she was “still communicating with [Woods] on the matter,” the complaint says. Woods reports in his lawsuit that he has “not received any further communications” from either the ASEA or the payroll office, and that full dues are still being seized from his paychecks.
Woods’ lawsuit seeks a court ruling that the ASEA union’s “escape period” enforced by the state and the deduction of union dues from his and other state employees’ paychecks without their clear, knowing consent violates his and his coworkers’ First Amendment rights. It also requests refunds of illegally seized dues for himself and his coworkers. Alaska Department of Administration Commissioner Kelly Tshibaka is named as a party in her official capacity only, due to the State of Alaska’s role in the unconstitutional dues deductions.
The federal lawsuit comes after an Anchorage Superior Court Judge put a hold on Alaska Gov. Mike Dunleavy’s order last year that all public sector unions in the state must obtain clear consent from workers before deducting any union dues or fees, as Janus requires. That judge opined that Janus applies only to workers who are not formal union members, despite the fact that unions use their dues deduction policies to block workers from stopping dues even after they have resigned from formal union membership.
“Alaska union bosses have continued to violate the First Amendment rights of the rank-and-file workers they claim to represent and illegally seized union dues to be spent on union boss political causes,” commented National Right to Work Foundation President Mark Mix. “Ironically, Alaska has taken the lead in attempting to proactively protect its employees’ First Amendment rights, but because union bosses have successfully resisted the Governor’s Executive Order so far, this lawsuit is necessary.”
Wood’s legal team includes two Foundation staff attorneys who have successfully challenged forced union dues schemes in the U.S Supreme Court, not only in the landmark 2018 Janus case, but also in two earlier cases – Knox v. SEIU (2012) and Harris v. Quinn (2014). Foundation staff attorneys are currently litigating more than 30 cases for workers seeking to vindicate their First Amendment rights under the Janus precedent.
UNITE HERE Bosses Back Down, Offer Workers Ability to Claim Refunds in Oregon Foodservice Workers’ Case Against Union
Final settlement requires notice informing workers of legal rights and opportunity to obtain refunds of dues taken because of omissions
Portland, OR (November 4, 2020) – Two Bon Appetit foodservice workers at Lewis & Clark College in Portland, Oregon, have just won a settlement in their case charging UNITE HERE Local 8 union bosses with hindering the informed exercise of their right to choose whether or not to be union members by failing to provide employees the percentage reduction in union dues they would be required to pay as nonmembers. The workers received free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
Bon Appetit employees Terry Denton and Alejandro Martinez Cuevas originally filed charges at the National Labor Relations Board (NLRB) against UNITE HERE Local 8 in August 2018, arguing the lack of information infringed their rights under the National Labor Relations Act and the Foundation-won CWA v. Beck U.S. Supreme Court decision.
Because Oregon lacks a Right to Work law, private sector employees who refrain from formal union membership can be required to pay some fees to a union as a condition of employment. However, union officials must follow the requirements of the Beck decision and cannot require workers to pay dues or fees for activities unrelated to the union’s bargaining functions, such as union political activities.
The Regional Director for NLRB Region 19 issued a formal complaint against UNITE HERE officials in August 2019. This complaint came after a memo from the NLRB General Counsel’s office which advised the Regions that the NLRB requires union officials to keep all workers apprised of Beck fee reductions.
Union bosses and the Regional Director attempted to settle this case without offering a remedy for all bargaining unit members. This initial settlement merely required union agents to post notices announcing that they would inform employees of the reduction in union fees that would result if they asserted their rights under Beck, but did not require the union to offer employees who had received the deficient notice the ability to resign their union memberships retroactively and recover the dues that had been taken unlawfully from their wages.
Denton and Martinez Cuevas objected to the terms of the settlement agreement. They had filed charges for themselves and their fellow employees, who also deserved an opportunity to exercise their rights.
Despite the two employees’ objections, the Regional Director approved the settlement. Foundation staff attorneys then filed an appeal to the NLRB General Counsel, which was sustained in November 2019. The General Counsel’s decision noted that the original settlement agreement did “not provide an appropriate remedy” and ordered Region 19 to move forward with the charges.
Faced with the threat of a renewed prosecution by the NLRB, UNITE HERE officials backed down and settled the case with a more complete remedy. Union officials now must provide notices informing all employees, current and future, of the reduction that will be made to their union dues if they choose to be nonmembers. UNITE HERE officials will also reimburse current employees who resign their union memberships retroactively for dues money that they have paid in excess of the nonmember rate.
“Although it’s good news that after over two years Ms. Denton and Mr. Martinez Cuevas have finally vindicated their and their coworkers’ right under Beck to refrain from funding union political activities as a condition of employment, no worker in America should be forced to accept or pay for one-size-fits-all union boss ‘representation’ that they do not want,” observed National Right to Work Foundation President Mark Mix. “All American workers need Right to Work protections, which put the decision to join and financially support union activities exactly where it should be – in the hands of individual workers.”
Connecticut State Employees Ask U.S. Supreme Court to Hear Case Seeking Refunds of Union Dues Seized in Violation of First Amendment
CSEA officials forced nonmember employees to pay fees in violation of the Constitution as recognized in Janus v. AFSCME Supreme Court decision
Washington, DC (November 2, 2020) – National Right to Work Legal Defense Foundation staff attorneys just filed a petition for writ of certiorari at the U.S. Supreme Court for two Connecticut Department of Energy and Environmental Protection employees, in their class action lawsuit to require Connecticut State Employees Association (CSEA SEIU Local 2001) union officials to return forced dues money seized from them and their coworkers in violation of their First Amendment rights.
The employees, Kiernan Wholean and James Grillo, maintain that CSEA union bosses and State of Connecticut officials infringed on the First Amendment rights recognized in the landmark Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, which was decided in June 2018, the Court held that no public sector employee can be required to pay dues as a condition of employment, and further ruled that dues deductions from any public employee’s paycheck can only be made with the employee’s affirmative and knowing waiver of the right not to pay.
Wholean and Grillo, who are not members of CSEA, originally filed their case in 2018 in the U.S. District Court for the District of Connecticut shortly before the High Court decided Janus. The State ceased deducting dues from their paychecks at CSEA’s behest following a letter to the State Comptroller from a National Right to Work Foundation attorney which threatened legal action for any dues deductions from non-members that continued after Janus. However, CSEA union officials continue to refuse to refund dues that they took from Wholean, Grillo, and other nonmembers in violation of the Janus First Amendment standard before the decision, even though they knew the employees never consented to pay.
The District Court, and later the Second Circuit Court of Appeals, both accepted CSEA lawyers’ so-called “good faith” argument for letting union bosses keep the dues collected in violation of the nonmembers’ constitutional rights. Wholean and Grillo’s Foundation staff attorneys argue in their petition to the Supreme Court that such a defense has never existed under Section 1983 of the Civil Rights Act of 1871, the statute under which the lawsuit is brought. Section 1983 specifically imposes liability on those who violate the constitutional rights of others while acting “under color of” existing law.
The Supreme Court has never addressed whether there is a “good faith” defense under Section 1983. In a similar Foundation-backed case, two federal judges at the Third Circuit recently opined that such a defense does not exist, disagreeing with the decisions of other Circuits. Wholean and Grillo’s petition cites this confusion as a vital reason why the High Court should hear their case. If successful, their lawsuit could result in CSEA repaying potentially millions in forced union fees seized from June 13, 2015, until Connecticut stopped the deductions, in accordance with Connecticut’s statute of limitations.
Wholean and Grillo’s petition is now the sixth under consideration by the Supreme Court in which public employees seek refunds for dues taken in contravention of the First Amendment before the Janus ruling. Four of these petitions have been filed by Foundation staff attorneys.
Among those petitions is the continuation of the original Janus plaintiff Mark Janus’ case, who suffered from unconstitutional deductions while employed as a child support specialist for the State of Illinois. If the Supreme Court decides in the petitioners’ favor in any of these cases, it could set a precedent triggering the return of hundreds of millions in illegal dues dollars in cases across the country.
“The lower courts have allowed CSEA union bosses to profit from their past unconstitutional deductions, trampling the Janus rights of Mr. Wholean, Mr. Grillo and their coworkers,” commented National Right to Work Foundation President Mark Mix. “With six petitions on this issue now pending with the High Court and more to be filed soon, it is time the Supreme Court hears this issue and ends the denial of justice for tens of thousands of nonmember government employees whose First Amendment rights were violated.”
“Section 1983 of the Civil Rights Act, the federal statute under which all these cases were filed, was specifically intended to allow individuals to remedy the deprivation of their rights when it occurs under color of law,” added Mix. “Given Section 1983’s intent, it is outrageous that union bosses have thus far been allowed to keep money seized in violation of the First Amendment because it was authorized by then-existing but unconstitutional law. That result is especially specious because, as the Supreme Court recognized in Janus, union bosses have been ‘on notice’ from the Court since 2012 that forcing government employees to pay union fees was likely unconstitutional.”
National Right to Work Foundation Issues Special Legal Notice for Tenet Healthcare Employees Impacted by Planned SEIU Boss Strike
Healthcare providers have right to rebuff Union officials’ demands that workers abandon their patients amidst pandemic
California (November 2, 2020) – Staff attorneys at the National Right to Work Legal Defense Foundation have issued a special legal notice to the over 4,000 Tenet Healthcare employees across California who will be affected by a strike planned by officials of Service Employees’ International Union (SEIU)-United Healthcare Workers West.
The legal notice informs rank-and-file Tenet Healthcare workers of the rights SEIU bosses won’t tell them about, including that they have the right to refuse to abandon their patients and to keep working to support their families despite the union-ordered strike. The notice discusses why workers across the country frequently turn to the National Right to Work Foundation for free legal aid in such situations.
“This strike raises serious concerns for employees who believe there is much to lose from a union-ordered strike,” the notice reads. “Employees have the legal right to rebuff union officials’ strike demands, but it is important for them to be fully informed before they do so.”
The full notice is available at www.nrtw.org/tenet-notice.
The notice outlines the process that Tenet nurses and other employees should follow if they want to exercise their right to return to work during the strike and avoid punishment by union bosses, complete with sample union membership resignation letters.
Further, the notice reminds employees of their rights to cut off all union dues payments in the absence of a monopoly bargaining contract with the hospital. The notice encourages employees to seek free legal aid from the Foundation if they experience union resistance as they attempt to exercise any of these rights.
The Foundation has defended hospital workers in a number of recent cases. It provided free legal aid to Daniel Dalison, who filed charges against SEIU 1199NW for illegally deducting union dues from his paycheck even though he was not a union member. Foundation staff attorneys also assisted Michigan nurse Madrina Wells in her lawsuit against officials of Teamsters Local 332 for collecting dues from her despite repeated requests to stop, and despite Michigan’s Right to Work law.
“Tenet Healthcare employees who wish to continue serving their communities amidst this pandemic may question whether the upcoming union-ordered strike is really best for themselves, their families, and their patients,” commented National Right to Work Foundation President Mark Mix. “Tenet employees should know they unequivocally have the right to reject union strike orders and continue to care for those in need.”
“We encourage rank-and-file Tenet Healthcare workers to immediately contact the Foundation for free legal aid should SEIU bosses violate their legal rights,” added Mix.