Worker Advocate Challenges Constitutionality of Obama's Controversial Labor Board Recess Appointments

Case over controversial NLRB posting becomes first legal challenge to Presidential attempt to make "recess appointments" without actual recess of the Senate

Washington, DC (January 13, 2012) – Today, National Right to Work Foundation attorneys filed a motion in federal court challenging the legality of President Barack Obama's recent purported recess appointments to the National Labor Relations Board (NLRB).

The legal challenge is part of a larger case attacking controversial new NLRB rules that require every employer to post incomplete information about employee rights online and in the workplace, even if they've never violated or been accused of breaking federal law. The NLRB's posting rules do not require union officials to issue information about workers' rights to refrain from union membership or opt out of union dues. Currently employers can only be required to post notices if the Board has ruled that a violation of labor law occurred.

The Foundation's case has been consolidated with other legal challenges to the biased NLRB notice posting rules brought by the National Federation of Independent Business (NFIB), Coalition for a Democratic Workplace (CDW), and two small businesses. Those parties filed the joint motion today raising the issue of the NLRB's lack of authority to implement the rule given the unprecedented recess appointments.

The new filings in the U.S. District Court for the District of Columbia case comes after NLRB lawyers notified the court that President Obama's recent recess appointees were now parties in the ongoing legal battle. Under the U.S. Supreme Court's New Process Steel decision, the NLRB needs three members to act. However three of the five current NLRB members were installed by unilateral Presidential appointment earlier this year, despite the fact that the Senate was not in a self-declared recess.

In the motion papers, Foundation attorneys argue that the controversial appointees to the Board are not legitimate because the U.S. Senate is still in session per the body's rules, so there was no "recess" for the President to make appointments without Senate confirmation. Therefore the NLRB lacks the necessary quorum to implement the new posting rules. Foundation attorneys are asking the judge to rule on the constitutionality of the three recess appointees.

Read the entire release here.

On Tuesday, National Right to Work staff attorneys argued before the Supreme Court on behalf of tens of thousands of California civil servants who were forced to contribute to an SEIU "Political Fight Back Fund" in 2005. The video below gives a overview of what's at stake in the case, including an interview with Foundation staff attorney Jim Young:

You can also read Right to Work President Mark Mix's op-ed on the case in The Washington Times. Here's the key quote:

Forcing civil servants to subsidize the political agenda of an organization to which they don’t belong should offend every American, regardless of political sympathies. Voluntary SEIU members may wish to financially support their organization’s political goals, but nonunion employees - many of whom disagree with the union’s agenda - are under no similar obligation. Freedom of association is a bedrock principle of American democracy, and no one should be compelled to support a group to which they don’t belong.

For more info, check out the Foundation's Knox webpage, which includes links to relevant legal documents, press releases, and media coverage. 

The Supreme Court is scheduled to release its ruling in the case by June.

Citizen Activist Wins Battle to Inform Keystone State Teachers of Their Constitutional Rights

Teacher union bosses aimed to keep Pennsylvania’s teachers in the dark

Harrisburg, PA (September 30, 2010) – With free legal assistance from the National Right to Work Foundation, citizen activist Simon Campbell has bested teacher union bosses in state court over his right to inform Pennsylvania’s nonmember teachers of their constitutional rights regarding union membership and dues payment.

Several years ago, Simon Campbell of Bucks County founded a group dedicated to the goal of making sure all public school children in the state have the legal right to a strike-free education after his own children were forced out of school in the wake of a debilitating union boss-instigated strike.

More recently, Campbell has requested that public school districts disclose the mailing addresses of teachers who have refrained from formal union membership with the Pennsylvania State Education Association (PSEA) union, but are still forced to pay union dues or fees as a condition of employment because Pennsylvania does not have Right to Work protections for its workers.

Campbell wanted to advise the teachers about their rights under National Right to Work Foundation-won U.S. Supreme Court precedent, such as their right not to subsidize union boss activities other than collective bargaining and contract administration and their right to challenge the union hierarchy’s calculations regarding the amount of forced dues charged to nonmember teachers.

Read the full press release here.

Right to Work President Mark Mix sat down with nationally-syndicated radio host Lars Larson to discuss Obama Supreme Court Nominee Elena Kagan's support for forcing workers to contribute to union political activism. Click here to listen or use the embedded player below:

As always, you can also listen to the Foundation's podcast via iTunes or manually subscribe to the feed.  

Labor Board Announces Prosecution of SEIU Union Bosses for Illegal Union Membership Opt-Out Policy

Illegal union procedure forces nursing home workers to pay full union dues

Princeton, WV (April 6, 2010) – The National Labor Relations Board (NLRB) regional office in Winston-Salem, North Carolina has issued a federal complaint against a local union for maintaining an “annual objection” policy designed to force nursing home workers into full union dues payments against their will.

The complaint stems from multiple charges filed by six employees from the Princeton area of West Virginia against the Service Employees International Union (SEIU) District 1199. The employees – Sherry French, Walter Coeburn, Tammy Tyree, Bruce Hoyle, Debra Fitzko, and Deborah Dunn – filed the series of charges with free legal assistance from staff attorneys at the National Right to Work Legal Defense Foundation.

The six employees challenged the SEIU District 1199 hierarchy’s policy which violates Foundation-won precedent in the U.S. Supreme Court decision in Communication Workers of America v. Beck (1988), in which the Court held that union officials can not lawfully compel nonmembers to pay the part of union dues spent for non-bargaining activities like political activism, lobbying, and member-only events. Foundation attorneys are currently challenging many union boss schemes similar to the SEIU District 1199 union bosses’ annual objection policy, often concocted by union brass to burden or thwart employees from exercising their rights under Beck. Five NLRB administrative law judges have held such schemes unlawful.

The full press release is available here.

Today, the Supreme Court announced its decision not to hear Jeffrey Reed v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, a case brought by Foundation attorneys that challenged a discriminatory United Auto Workers (UAW) forced unionism policy.

In response to the Court's failure to take up the case, National Right to Work Legal Defense Foundation President Mark Mix issued the following statement:

"It's deeply disappointing that the Supreme Court will not address a discriminatory UAW policy that forces employees who object to union activities on religious grounds to pay more union dues than secular objectors or union members. The Right to Work Foundation will continue to work towards safeguarding the rights of all employees of faith to get or keep a job without compromising their deeply-held religious convictions.

"While we will continue to press this issue in the courts, the only sure way to end this type of injustice once and for all is by ending forced unionism and stripping union officials of their special powers to impose monopoly bargaining and forced dues on any employee."

Regular Freedom@Work readers may remember the case of Jeffrey Reed, a Michigan employee fighting to end religious discrimination in his workplace. With free legal assistance from Right to Work attorneys, Reed is asking the United States Supreme Court to review a United Auto Workers (UAW) union policy that forces religious objectors to pay more union dues than workers who object to union activities on secular grounds.

Foundation litigators recently responded to the UAW's final arguments opposing the Supreme Court granting certiorari and hearing Reed's case. The Foundation's brief notes that UAW officials forced Reed to pay an additional $100 premium and 22 percent more dues than workers who object to union activities on secular grounds. UAW members and secular objectors are allowed to pay an amount less than full dues if they wish to withdraw their financial support from the UAW’s political activities. As a religious objector, however, Reed is forced to redirect the dollar equivalent of full union membership dues to a third party charity as a condition of his continued employment.

Foundation attorneys also argue that Reed should not have to be disciplined or fired for failing to pay additional dues for the UAW's policy to constitute religious discrimination. Because this has serious implications for religious objectors in workplaces across America, several organizations have filed amicus curiae briefs in support of the Foundation's petition, including a joint brief from the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the General Conference of the Seventh-day Adventists and the Center for Constitutional Jurisprudence. The Foundation's original petition for a writ of certiorari can be found here, the UAW's response here, and the Foundation's final reply brief here. 

Although the Supreme Court grants cert to only a few cases each year, Right to Work attorneys are hopeful that the Justices will take up this case to clarify a previously muddled body of law. We anticipate receiving final word on the Court's decision as soon as early April.

Recently, Right to Work Vice President Stefan Gleason appeared on the Frank Beckmann Show to discuss the Foundation's efforts to fight union discrimination against religious employees. Click here to listen or use the embedded player below:

You can also listen to the Foundation's podcast via iTunes or manually subscribe to the feed. 

U.S. Solicitor General Paul Clement, the Bush administration's top lawyer, has just inflicted more damage on America's working men and women laboring under compulsory unionism. Does President Bush even know what his administration's lawyer is doing?

This week, the too-clever-by-half lawyer filed a brief in the National Right to Work Foundation's latest pending U.S. Supreme Court case, Locke v. Karass, and has taken a position that surely must please the union bosses. The High Court in Locke will examine the criteria for determining how much non-union members must pay to a union where they do not enjoy the fundamental protection of a Right to Work law.

Foundation attorneys argue that the U.S. Constitution does not permit the forced extraction of dues or fees for any expenses not directly tied to representational activity in the employees' actual bargaining unit.

But Mr. Clement apparently has no issue with forcing Maine state workers to pay for union activism anywhere in the world, so long as the union satisfies a vague and weak two-part test. In practical terms, Clement's standard would further empower union bosses to charge workers for almost anything under the sun, unless a worker gets a lawyer and forces them to prove that the forced fees are being used for narrowly prescribed purposes.

This is not the first time that U.S. Solicitor General Clement has taken positions supportive of compulsory unionism. He adopted the AFL-CIO's position and seriously undermined employee freedom during oral argument in the Foundation's Davenport v. WEA case at the U.S. Supreme Court.

With "friends" like Bush's Solicitor General, who needs enemies?

Today's decision by the U.S. Supreme to take up the National Right to Work Foundation's Locke case on behalf of employees marks the Foundation's 14th trip to the High Court. Foundation Vice President Stefan Gleason summed up the case this way:

“No one should be compelled to pay union dues just to get or keep a job. But where union officials have obtained this special
privilege from the legislature, they still have no legal authority to
make non-union public servants in Maine pay for union activity across America.”

The National Right to Work Foundation's most recent victory at the High Court came in 2007, under Davenport v. WEA, a crucial defensive victory. In that case, the Court ruled that union officials do not have a "constitutional right" to spend employees' forced union dues on political causes that they oppose.