Litigation Update: United Nurses and Allied Professionals v. NLRB

The U.S. Court of Appeals for the First Circuit (Judges Kayatta, Selya and retired Justice Souter) ruled on September 15 that the National Labor Relations Board was correct as a matter of law in holding that private sector unions may never charge dissenting nonmembers for their lobbying activity. The private sector union in this case, United Nurses & Allied Professionals, lobbied the Vermont and Rhode Island legislatures on a variety of bills, and argued that no Supreme Court case squarely held lobbying to be nonchargeable to nonmembers in the private sector, and that the NLRB erred in its analysis of the Supreme Court’s line of compulsory dues cases when it held lobbying per se nonchargeable. To reach its decision, the First Circuit analyzed the line of Supreme Court cases that stretches from IAM v. Street (1961) to CWA v. Beck (1988) to Lehnert v. Ferris Faculty Association (1991) to Harris v. Quinn (2014) and ultimately to the decision in Janus v. AFSCME (2018). The First Circuit agreed with the NLRB and the dissenting employee, nurse Jeanette Geary, that Supreme Court law taken as a whole compelled a finding that private sector unions are banned from ever charging nonmembers for lobbying activities. Jeannette Geary’s lawyer, Glenn Taubman of the National Right to Work Legal Defense Foundation, argued the case and will present an overview of the case and discuss its ramifications for unions and employees in the private sector.Mr. Taubman will also discuss the significant procedural twists and turns this case took before reaching the First Circuit, as it was the subject of two mandamus petitions in the D.C. Circuit, one challenging the power of President Obama’s NLRB recess appointees to act in the years before Noel Canning was decided, and a second one challenging the NLRB’s inordinate delay in deciding the case once a valid complement of Board members was confirmed by the Senate. Featuring: Glenn Taubman, Staff Attorney, The National Right to Work Legal Defense and Education Foundation Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.