Trump Labor Counsel Hopes Legal Trap Can Kill Scabby the Rat


The Trump administration has found yet another way to pick on the little guy — who in this case, is actually a critter that towers over many labor protests. On Tuesday, Bloomberg Law reported that the Republican-controlled National Labor Relations Board may try to ban the display of Scabby the Rat on union picket lines. The large rodent-shaped balloon with yellow incisors and a mangy belly has become a well-known symbol mocking bosses and all who cross picket lines. Scabbies vary in size and in specific design. Sometimes his mouth is open in a snarl. Sometimes he holds cheese. At all times, however, his leering face promises a protest nearby. Peter Robb, the NLRB’s general counsel and a former management-side attorney, is not a fan:

“GC hates the rat,” a senior NLRB official who asked not to be named due to the sensitivity of the issue, told Bloomberg Law. Robb “wants to find it unlawful to picket, strike or handbill with the rat present.”

Robb would have to reverse case law to ban Scabby, and First Amendment experts told Bloomberg that they didn’t believe a ban would survive a legal challenge. Courts have customarily found that Scabby is a noncoercive protest tactic. Robb might hate him, in other words, but balloons inflict no material harm. The rat is a symbol, an imaginative product of organized labor’s rank-and-file membership. A ban on Scabby would strike a significant psychological blow to labor.

As Sarah Jaffe and Molly Crabapple reported for Vice News in 2013, Scabby is a relatively recent phenomenon. He originated in 1990, when Illinois-based members of the International Union of Bricklayers and Allied Craftworkers devised him to direct public attention to picket lines. Peggy and Mike O’Connor of Big Sky Balloons and Searchlights, Inc. produced the first Scabby. “Mike and the organizers were going back and forth, saying, ‘We need it more snarly.’ They wanted a mean, ghastly looking kind of rat,” Peggy told Jaffe and Crabapple.

Scabby is indeed a gnarly sight, an apt visual depiction of the rat metaphor striking workers have historically applied to bad bosses. And he can be controversial, even within the labor movement. As Jaffe and Crabapple noted at the time, trade unions themselves once considered abandoning him. “Meeting with our Presidents and state councils. Issued a call to retire the inflatable rat. It does not reflect our new value proposition,” Sean McGarvey, president of the AFL-CIO’s Building and Construction Trades Department, once tweeted. Whatever that new value proposition happened to be, it failed. Though he is a new addition to the cultural history of organized labor, he quickly became popular with workers. So he lived on, in tweets and on picket lines and in the hearts of leftists everywhere. In an era marked by right-to-work laws and declining union membership, Scabby sparks joy.

The rat owes his endurance partly to his efficacy as a nonviolent troll. “It’s one of those meddlesome things that all management lawyers really hate,” a management-side attorney for Seyfarth Shaw told Bloomberg Law. Which is entirely the point. If organized labor has one cool trick for making your boss squirm, it might just be Scabby. But unions don’t limit his use to formal strikes, nor is he meant solely as a means to shame union-busting bosses and scabs. He has broader significance. His ostentatious presence tells passers-by that there’s a fight nearby — that some injustice has occurred, or is occurring, and the workers standing next to him want to tell you about it, if you’ll listen. No wonder Robb hates him.


New York Magazine



Article Photo: Scabby in action. Photo: The Washington Post/Washington Post/Getty Images

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Dem-Leaning States Push Pro-Union Bills in Aftermath of Public Union SCOTUS Decision


Prior to the landmark Supreme Court decision in Janus v. AFSCME, government unions were already devising ways to keep members and dues flowing. In a previous post, I discussed some of the ideas that the National Education Association put forth to lessen the impact of a potential Supreme Court decision that ruled forced union dues unconstitutional.

Ultimately, forced union dues were struck down and blue states started introducing bills to minimize the impact of Janus by limiting workplace choice and granting labor unions more privileges. Some publicemployers even refused to comply with the Janus ruling.

California was quick out of the gate. Even before Janus, in the summer of 2017, the California legislature passed Assembly Bill 119, which provides union access to new public employees. As I previously wrote:

“This enables unions to make their pitch to a ‘captive audience,’ a practice unions condemn employers for conducting, while prohibiting opposing views at the meeting. Many times these orientations are mandatory to attend. In Washington State, the Service Employee International Union misled home care providers at an orientation meeting that joining the union was mandatory.”

In addition, AB 119 also forces public employers to hand over public employees’ personal information to the union. This policy does not permit unwilling employees to opt-out of sharing their private contact information. A similar rule was put into practice at the federal level. Yet, even the pro-union National Labor Relations Board under President Obama admitted that workers’ private data could be used to “harass, coerce, or rob employees.” Further, unions have been known to coerce and threaten workers to join the union. The states of MarylandNew Jersey, New York, and Washington have all passed similar legislation that either requires employee captive audience meetings or forces public employers to hand over workers private information.

To protect unions from having to reimburse non-members for forced union dues, California passed Senate Bill 846. This law offers government unions “complete defense” against lawsuits that seek back dues paid before the Janus ruling. However, this only protects unions in state court. Already, there is one case that is working its way through federal court that is seeking to win back around $100 million in forced union dues for California public employees.

California is not alone in passing legislative Janus workarounds. In Delaware (House Bill 314) and Hawaii (HB1725 HD2), legislation was passed that changed how public employees may opt out of union membership. In Delaware, it created a default setting on how and when an employee may opt out of the union. If not set by a collective bargaining agreement, an employee may only opt out during a “period 15 to 30 days before the employee’s anniversary date of employment, effective on the employee’s anniversary date.” Similarly, Hawaii’s law limits opt outs to a 30-day window.

Despite the passage of these laws, which limit when an employee may opt out of union membership, they will likely be found illegal. Union members in states that, prior to the Janus decision, required non-members to pay agency fees, or forced union dues, should now have the right to immediately stop paying dues to the union. This is because these employees were faced with a now-unconstitutional choice—join the union and pay full membership dues or pay agency fees. In essence, employees could not have waived rights that they did not know they had. This makes signed dues-authorization forms dated before the Janus decision invalid. In these states, which includes Hawaii and Delaware, the union must collect new signed forms that authorize dues payments, which are dated after the Janus decision on June 27, 2018.

Later this week, I’ll take a look at bills that have been recently introduced with the goal of diminishing the Janus decision and to prop-up government unions.

Trey Kovacs is a policy analyst with the Competitive Enterprise Institute, a public policy non-profit group in Washington, D.C.

Editor’s Note: This piece was originally published by the Competitive Enterprise Institute.

By Trey Kovacs | January 24, 2019 | 2:22 PM EST
Article Photo: WASHINGTON, DC – FEBRUARY 26: Governor of Illinois Bruce Rauner speaks to members of the media in front of the U.S. Supreme Court after a hearing on February 26, 2018 in Washington, DC. The court is hearing the case, Janus v. AFSCME, to determine whether states violate their employees’ First Amendment rights to require them to join public sector unions which they may not want to associate with. (Photo by Alex Wong/Getty Images)

Public employee sues union, state over union fees

In another lawsuit filed by a state worker aided by a national anti-union organization, an employee of the New Mexico Department of Information Technology is suing a public employees union and the state, saying it’s unconstitutional to require public employees who are not union members to pay part of the union’s collective bargaining costs through fees deducted from their wages.

The new complaint and one filed in early December by a Human Services Department employee both cite a U.S. Supreme Court ruling in June in a landmark labor case called Janus v. AFSCME, in which justices decided it’s a violation of the First Amendment to force public-sector workers to pay union dues or fees as a condition of employment.

According to the suit filed last week in federal District Court, David McCutcheon, an information systems professional who worked for several years in Gov. Susana Martinez’s office, returned in 2017 to the Department of Information Technology, where money was automatically deducted from his paycheck for Communications Workers of America.

“On July 7, 2018, McCutcheon notified the union, in writing, that he did not consent to any deduction of union dues or fees from his wages,” the suit says. “A union official responded in writing by stating that the request had been ‘submitted for processing.’ Notwithstanding McCutcheon’s notification, in September, the state of New Mexico started deducting full union dues from McCutcheon’s wages without his consent.

Union officials told McCutcheon that under its contract, he could only stop these deductions by revoking authorization during a two-week December “window period,” according to the complaint, which claims the requirement violates McCutcheon’s First Amendment rights.

The union’s membership paperwork does not inform employees that “they have a First Amendment right not to subsidize the union and its speech; or that, by signing the cards, they are waiving their First Amendment right to not subsidize the union and its speech,” the lawsuit says.

Donald Alire, president of the local CWA chapter, said Thursday he had not yet been served with the suit.

McCutcheon is being represented by the Springfield, Va.-based National Right to Work Foundation, a 50-year-old nonprofit. According to its website, the foundation’s mission “is to eliminate coercive union power and compulsory unionism abuses.

In early December, Brett Hendrickson of the New Mexico Human Services Department filed a similar suit with the aid of another conservative nonprofit, the Chicago-based Liberty Justice Center, which represented Mark Janus of Illinois in the Janus v. AFSME case. Hendrickson’s suit is pending in federal court. Relatively few workers in New Mexico are represented by unions or belong to them. As of 2017, about 63,000 workers — slightly more than 8 percent of the state’s workforce — had union representation. Only 6.7 percent, or 52,000, belonged to unions. That compares with 10.7 percent of workers nationwide who were union members in 2017 — a record low, according to the U.S. Department of Labor.


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State employee sues over deduction of union fees

A state employee has filed a class-action lawsuit alleging New Mexico and a labor union violated his constitutional rights by deducting union fees from his paycheck over his objection, even after a landmark Supreme Court decision.

David McCutcheon, an information technology technician, is asking a federal court to strike down what he describes as an illegal scheme to collect union fees or dues from employees as a condition of employment.

He and his lawyers say hundreds of employees could be covered by the lawsuit and entitled to refunds.

The suit names two union groups – both affiliated with Communications Workers of America – and State Personnel Director Justin Najaka as defendants.

A spokeswoman for CWA said the union hadn’t been served with the lawsuit and couldn’t comment. The Journal wasn’t able to reach a state official for comment.

McCutcheon is asking the U.S. District Court in New Mexico to declare that the defendants’ “practices of forcing (employees) to pay fees to fund union activity of any kind violate the First Amendment” and are “an illegal conversion of their property.”

Furthermore, the lawsuit alleges, the union’s contract with the state government severely limits the opportunity for employees to revoke their permission for fee deductions. Employees have only two weeks each year in which to withdraw, a system that should be struck down, the suit says.

The National Right to Work Legal Defense Foundation, a nonprofit advocacy group, is providing free legal help to McCutcheon.

“Contrary to the wishes of New Mexico union bosses and their allies in state government, First Amendment rights cannot be limited to just a couple of weeks per year,” the group’s president, Mark Mix, said in a written statement. “All civil servants should be able to exercise their rights to free speech and free association by cutting off union payments whenever they choose without interference by union officials.”

A decision by the U.S. Supreme Court in late June shook up the legal landscape for union fees.

Union membership cannot be required under federal law. But union fees – up until the Supreme Court’s decision – could be required as a condition of employment in unionized workplaces.

The required fees are sometimes called “fair share” payments. Unions must represent everyone in a collective bargaining unit, so everyone should pay their “fair share” for basic costs, even if they choose not to be members, supporters say.

But the Supreme Court ruled that government workers who choose not to join unions cannot be required to finance union activity.

Union leaders described the ruling as an attack on the funding mechanism that helps government workers band together for improved pay and working conditions.

In McCutcheon’s case, the lawsuit says he didn’t have to pay union fees when he was assigned to work for the Governor’s Office. But upon returning to the Department of Information Technology, he was informed that he would have to either pay full union dues or pay “nonmember forced fees” as a condition of employment.

McCutcheon’s lawsuit contends he notified the union that he didn’t want fees deducted from his paycheck but that the deductions continued over his objection – in violation of his First Amendment right to refrain from subsidizing unions.

Thursday, December 27th, 2018 at 11:05pm

Albuquerque Journal

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Laborers Local One will be having our monthly meeting on Tuesday, January 8, 2019 at the Moose Lodge.

Laborers Local One Monthly Membership Meetings

The Moose Lodge

8601 Fullerton Ave.

River Grove, Illinois 60171

All meetings start at 7:00pm

Officers of Local One

Leo Esparza – Business Manager

Frank Damato – President

Marty Flanagan – Vice President

Peter Fosco – Secretary Treasurer

Paul Gehrmann – Recording Secretary


Executive Board                                                                    Auditors

          James Hall                                                                        Benito Rivera

        John Conrad                                                                       Jesus Ortiz

                                                                                                    Michael Pagano


Sgt-At-Arms                                                                  Business Agents  

Mike O’Hearn                                                                         John Conrad

                                                                                                    Michael Pagano