Tag Archive for: unions

NLRB announces card-check light rule

Labor advocates have long sought a national card check rule that would require employers to review union-support cards and, if signed by a majority of workers, recognize the union without need for a secret ballot election supervised by the NLRB. This practice has been opposed by those who view it as undermine individuals’ right to express their vote in a secret ballot election without fear of coercion. Labor advocates tho contend the NLRB’s secret ballot election process has itself become unfair and unduly protracted.

In a decision today, entitled Cemex Construction Materials Pacific, LLC, the Board fell short of imposing a card check requirement, and instead held that employers decline to do card check-recognitions at their risk. The Board held that an employer who declines to card check-recognize will, if later — after forcing and winning an election — is found in violation of some other unfair labor practice that warrants a redo of the election, will face an order that shortcuts the need for a redo election and instead will be issued an order that mandates the company to proceed straight to bargaining. In other words employers who decline card check-recognitions will now face, in later ULP charges, the risk of an immediate bargaining order.

Employers are reminded that the Board has recently greatly enhanced the scope and extent of bargaining orders. Thus this new remedy, while short of a card check rule, is itself a substantial development.

One option employers facing this issue may have, when presented with cards, might be to, itself as the employer, immediately file its own petition with the NLRB for a secret ballot election. Issues related to this possible procedural step will need to be clarified in litigation, but may, unions will likely argue, include some consideration of the employer’s good faith evidentiary basis for doubting the cards.

NLRB returns to stricter pre-Trump era independent contractor test

In The Atlanta Opera, Inc., the NLRB reversed its Trump-era precedent SuperShuttle (2019) regarding independent contractors and returned to its Obama-era precedent FedEx II. No longer will the Board be guided by whether the putative independent contractor has a significant “entrepreneurial opportunity” in the relationship. Under this new (old) standard the Board, the Board found that makeup artists, wig artists, and hairstylists at the Opera were employees not independent contractors, permitting them to organize a union.

NLRB reimposes requirement to keep dues checkoff clause in effect following expiration of CBA

The Biden Board has reversed a ruling by President Trump’s NLRB, returning to the Obama-era ruling, which had in turn reversed longstanding precedent regarding whether dues need to continue to be paid to a union even after the CBA requiring dues payment (a “dues checkoff” clause) had expired. Historically, the ruling had been, since at least the NLRB’s 1962 ruling in Bethlehem Steel that dues checkoff clauses expired with the CBA and, therefore, a company could stop withholding and paying them to a union. President Obama’s majority-appointed NLRB reversed that; then President Trump’s reversed it back, and now the current Board has returned to the Obama-era ruling, holding that dues must continue to be paid, with the Democrat-appointee Board members saying: “Payments via a dues-checkoff arrangement are similar to these other voluntary checkoff arrangements, and dues-checkoff arrangements should survive contract expiration just as other voluntary checkoff arrangements do.” The current decision is Valley Hospital Medical Center.

GSA permits union access on Executive Branch’s federal property

The GSA issued a final rule that permits unions to enter onto the properties owned or leased by the federal Executive Branch, in order to contact non-union and already unionized workers employed by the federal government or even its contractors. The rule is intended to assist unions in organizing campaigns and in administering existing CBA’s. The rule does not apply to private property owned by such contractors, nor to state or city-owned properties, nor to federally owned/leased properties of the Judicial or Legislative branches.

Supreme Court strikes down California’s expansive union access law

The Supreme Court struck down California’s expansive union access law, which had required commercial agricultural property owners to allow unions to come onto their land for up to 3 hours per day 120 days per year in furtherance of organizing campaigns.  The statute went so far as to phrase this as a union’s “right to take access” to the private property. In a 6-3 decision, the Supreme Court held the California law was an unlawful taking of the property owner’s land rights, in violation of the Fifth Amendment. A concurrence by Justice Kavanaugh suggests the Court’s holding may not be limited to laws like California’s and may portend a new line of decisions that NLRB decisions requiring access to private property under the NLRA are similarly violations of the Fifth Amendment’s taking clause.

Source: Cedar Point Nursery v. Hassid, case no. 20-107, 2021 BL 234010 (6/23/2021).

First Circuit strikes union bargaining unit with no members

Although the Board can recognize protected activity by one worker under the “Army of One” theory, it may not certify a union to represent a bargaining unit with no members, held the First Circuit. In the case, the union petitioned to represent a group of workers, and eventually won the right to do so, but by the time the Board certified the bargaining unit, the unit’s work had ended, there were no more such workers and the evidence confirmed there would be no more such workers. While Board precedent allows a certification for a unit of none in unusual circumstances where such work might resume (for example, in some seasonal worker cases), the First Circuit held it does not permit certification when there is no such likelihood.

Source: NLRB v. Wang Theatre, Inc., case no. 20-1157 (1st Cir. 11/30/2020).

Hah-hah, just kidding. Not so much, says Board

The National Labor Relations Board held a company in violation for its CEO’s joke on the CEO’s personal Twitter stream. The CEO of the company posted, “FYI (company twitter handle) first one of you tries to unionize I swear I’ll send you back to the salt mine.” The employees who submitted evidence agreed the tweet was a joke. The Board disagreed and held the tweet was on its face a threat of anti-union retaliation, even if cloaked in a purported joke.

“In viewing the totality of the circumstances surrounding the tweet, this tweet had no other purpose except to threaten the (company’s) employees with unspecified reprisal, as the underlying meaning of ‘salt mine’ so signifies.”

The company argued that the CEO had a First Amendment right to speak on his personal Twitter account, and the Board agreed but noted, in footnote 9, that the First Amendment does “not extend to threats made by employers to workers” in violation of the NLRA.

Source: FDRLST Media, LLC, 370 NLRB No. 49 (11/24/2020).

CDLE finalizes crop of new rules

The Colorado Department of Labor and Employment (CDLE) has finalized a half dozen rules on a wide array of topics. Employers should take care to immediately familiarize themselves with these rules, as many take effect January 1, 2021. The rules can be found on the CDLE’s rulemaking page, where the CDLE summarizes its new rules with the following table that contains links to the actual rules themselves:

Adopted Rules Clean Version Redline Version Statement of Basis & Purpose

State Labor Relations Rules, 7 CCR 1103-12

PDF PDF PDF
Colorado Whistleblower, Anti-retaliation, Non-interference, and Notice-giving (Colorado WARNING) Rules, 7 CCR 1103-11 PDF PDF PDF
Direct Investigations Rules, 7 CCR 1103-8 PDF PDF PDF
Equal Pay Transparency Rules, 7 CCR 1103-13 PDF PDF PDF
Colorado Overtime and Minimum Pay Standards (COMPS) Order #37, 7 CCR 1103-1 PDF PDF PDF
Wage Protection Rules, 7 CCR 1103-7 PDF PDF PDF

Individuals interested in receiving updates from the CDLE directly when it engages in the rulemaking process, may subscribe with the CDLE here.

Look for follow-up posts on this blog highlighting some of the key developments in some of these rules.

Third Circuit rules at least part of an asset-purchase agreement must be disclosed to union if requested

The Third Circuit recently held in Crozer-Chester Medical Center v. NLRB that at least portions of an asset-purchase agreement must be disclosed to a union representing workers in the seller’s workforce upon request. The seller had announced its intent to be acquired through an asset purchase and, in doing so, advised that workers in the union’s bargaining unit would be offered employment by the buyer subject to the terms and conditions of a new collective bargaining agreement that the buyer intended to negotiate with their union. The union requested a complete unredacted copy of the asset-purchase agreement (APA). The seller objected that the request was overly broad. The NLRB ruled against the seller, finding that at least some parts were clearly relevant and that it was, therefore, incumbent on the seller to produce the entire agreement or negotiate with the union an agreement to produce only parts. The NLRB found that provisions involving “’employees,’ terms and conditions of employment, the name of the hospitals, the continuation or expansion of certain service lines, capital investments, standards of care, equipment and property,” because those terms, at least, were “relevant to the availability and location of unit work, the potential for layoffs and hiring, whether the pension plan would be fully funded, and whether non-unit employees were receiving pay or benefits the Union might want to negotiate.”

The company then argued that disclosure of the APA would violate its confidentiality provisions and the nondisclosure obligations it owed the buyer. The Third Circuit rejected this argument as well, holding that a seller cannot immunize itself against disclosure to a union by negotiating confidentiality with the buyer.

NLRB amends and republishes its final rule “to protect employee free choice”

As previously posted on this blog, the NLRB issued a final rule “to protect employee free choice” altering its approach to blocking charges, voluntary recognition and construction industry (section 9(a)) voluntary recognition. The Board has amended and republished its final rule. The Board explained its final rule, including the amendments, as follows:

  • Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
  • Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
  • Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to an employer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.

NLRB delays effective date for revised representation procedures

As previously posted on this blog, the NLRB has reversed course on its Obama-era expedited election procedures. Originally scheduled to take effect April 16, 2020, the NLRB announced its final rule will now take effect May 31, 2020.

NLRB published final rule revising employee representation procedures

The NLRB issued a final rule making “three amendments to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election and proof of majority support in construction-industry collective-bargaining relationships.” The Board has summarized the amendments to its regulations as follows:

  • Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
  • Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
  • Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to an employer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.

Midsized businesses applying for certain loan under the CARES Act should be aware that terms may include a union-neutrality obligation for the term of the loan

Companies employing 500-10,000 workers should be aware, when considering loans under the CARES Act that sec. 4003(c)(3)(D)(I)(X) will require, as a term of that loan, that they “remain neutral in any union organizing effort for the term of the loan.” That language (emphasis added) reads, as follows:

(D) Assistance for mid-sized businesses.–
(i) In general.–Without limiting the terms and
conditions of the programs and facilities that the
Secretary may otherwise provide financial assistance to
under subsection (b)(4), the Secretary shall endeavor to
seek the implementation of a program or facility described
in subsection (b)(4) that provides financing to banks and
other lenders that make direct loans to eligible businesses
including, to the extent practicable, nonprofit
organizations, with between 500 and 10,000 employees, with
such direct loans being subject to an annualized interest
rate that is not higher than 2 percent per annum. For the
first 6 months after any such direct loan is made, or for
such longer period as the Secretary may determine in his
discretion, no principal or interest shall be due and
payable. Any eligible borrower applying for a direct loan
under this program shall make a good-faith certification
that–

(I) the uncertainty of economic conditions as of
the date of the application makes necessary the loan
request to support the ongoing operations of the
recipient;
(II) the funds it receives will be used to retain
at least 90 percent of the recipient’s workforce, at
full compensation and benefits, until September 30,
2020;
(III) the recipient intends to restore not less
than 90 percent of the workforce of the recipient that
existed as of February 1, 2020, and to restore all
compensation and benefits to the workers of the
recipient no later than 4 months after the termination
date of the public health emergency declared by the
Secretary of Health and Human Services on January 31,
2020, under section 319 of the Public Health Services
Act (42 U.S.C. 247d) in response to COVID-19;
(IV) the recipient is an entity or business that is
domiciled in the United States with significant
operations and employees located in the United States;
(V) the recipient is not a debtor in a bankruptcy
proceeding;
(VI) the recipient is created or organized in the
United States or under the laws of the United States
and has significant operations in and a majority of its
employees based in the United States;
(VII) the recipient will not pay dividends with
respect to the common stock of the eligible business,
or repurchase an equity security that is listed on a
national securities exchange of the recipient or any
parent company of the recipient while the direct loan
is outstanding, except to the extent required under a
contractual obligation that is in effect as of the date
of enactment of this Act;
(VIII) the recipient will not outsource or offshore
jobs for the term of the loan and 2 years after
completing repayment of the loan;
(IX) the recipient will not abrogate existing
collective bargaining agreements for the term of the
loan and 2 years after completing repayment of the
loan; and
(X) that the recipient will remain neutral in any
                union organizing effort for the term of the loan.

NLRB returns to permitting employers to cease dues check-off collections during negotiations

Reversing its Obama-era decision, the Board has returned to its longstanding precedent of permitting employers to stop withholding dues, even as may have been required by a dues check-off clause in a collective bargaining agreement, once that agreement expires and the parties enter renewal negotiations.

In sum, we find that a dues-checkoff provision properly belongs to the limited category of mandatory bargaining subjects that are exclusively created by the contract and are enforceable through Section 8(a)(5) of the Act only for the duration of the contractual obligation created by the parties. There is no independent statutory obligation to check off and remit dues after expiration of a collective-bargaining agreement containing a checkoff provision, just as no such statutory obligation exists before parties enter into such an agreement. This holding and rationale apply even in the absence of a union-security provision in the same contract. Because we find that it would not be unjust to follow our normal approach when overruling precedent, we will apply our holding retroactively in this case and in other pending cases. We therefore find that the Respondent had no obligation under the Act to continue dues checkoff after the contract expired.

Source: Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139 (2019).

NLRB reverses course on its expedited election rules

Effective April 16, 2020, the Board will jettison its 2014 expedited election rules. The expedited election rules were highly controversial and nicknamed, depending on the speaker’s perspective, either “quickie” or “ambush” election rules. The highly accelerated election period was intended to limit (or, depending on the speaker’s perspective, curtail) the ability of employer’s to speak and otherwise lawfully campaign prior to the election.

In its fact sheet on the new election rules, the Board summarized “the most significant changes in the new rule(, as follows):  

  • Pre-Election Hearings:  Pre-election hearings will generally be scheduled 14 business days from notice of the hearing, and regional directors will have greater discretion to postpone hearings. In most cases, pre-election hearings currently must be scheduled 8 calendar days from the notice of hearing.  

  • Notice of Petition for Election:  Employers must post and distribute the Notice of Petition for Election within 5 business days after service of the notice of hearing. Existing rules require posting and distribution within 2 business days. Non-Petitioning Party’s Statement of Position:  Non-petitioning parties (most commonly employers) must file a Statement of Position within 8 business days after service of the notice of hearing, and regional directors will have greater discretion to grant extensions. Under the existing rules, non-petitioning parties’ Statement of Position usually must be filed 1 day before the opening of the pre-election hearing (typically 7 calendar days after service of the notice of hearing).  

  • Petitioning Party’s Statement of Position:  Petitioners (typically unions) must file a Statement of Position responding to the issues raised in any non-petitioning party’s Statement of Position. This responsive Statement of Position is due at noon 3 business days before the hearing. In most cases, the current rules do not provide for pre-hearing statements of position from petitioning parties.  

  • Unit Scope and Voter Eligibility Determinations:  All disputes concerning unit scope and voter eligibility – including issues of supervisory status – will generally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. The parties may, however, agree to permit disputed employees to vote subject to challenge. Under the current rules, disputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.

  • Post-Hearing Briefs:  Parties are permitted once again to file post-hearing briefs with the regional director following pre-election hearings. Post-hearing briefs will be permitted for postelection hearings as well. Such briefs are due within 5 business days, and hearing officers may grant an extension of up to 10 business days for good cause. Under existing rules, post-hearing briefs are permitted only upon special permission of the regional director.  

  • Notice of Election:  The regional director’s discretion to issue a Notice of Election subsequent to issuing a direction of election is emphasized. The current rules provide that regional directors “ordinarily will” specify election details in the direction of election.  

  • Scheduling of Election:  Regional directors must continue to schedule the election for the earliest date practicable, but—absent agreement by the parties—normally will not schedule an election before the 20th business day after the date of the direction of election.  

  • Voter Lists:  Employers must furnish the required voter list within 5 business days following the issuance of a direction of election. Under the current rules, employers have 2 business days to provide voter lists. 

  • Election Observers:  Parties are required to select election observers who are current members of the voting unit whenever possible. When no such individual is available, a current nonsupervisory employee should be selected. The current rules provide for election observers but place no restrictions on who may be selected to serve as an observer. 

  • Requests for Review: 

    • Filed within 10 Business Days after Direction of Election:  If the Board either does not rule on a request for review or grants the request before the election, ballots will be impounded and remain unopened pending a decision by the Board. 
    • Filed more than 10 Business Days after Direction of Election:  Parties may still file a request for review of a direction of election more than 10 business days after the direction, but the pendency of such a request for review will not require impoundment of the ballots or postponement of the vote results.
    • Post-Election:  Consistent with the current rules, parties may wait to file a request for review of a direction of election until after the election has been conducted and the ballots counted. 
  • Oppositions to Requests for Review:  Oppositions are explicitly permitted in response to all types of requests for review, and the practice of permitting replies to oppositions and briefs on review only upon special leave of the Board has been codified.

  • Certification of Election:  The regional director will no longer issue certifications following elections if a request for review is pending or before the time has passed during which a request for review could be filed. Under the current rules, regional directors are required to issue certifications following elections despite the pendency or possibility of a request for review.    

  • Business Day Calculation:  All time periods applicable to the election rule are calculated based on business days as opposed to calendar days. Under the existing rules, there is a lack of consistency on the calculation of days. The new rules also define how business days are calculated, including clarification that only federal holidays are implicated in time period calculations.”

Source: NLRB Fact Sheet: Revisions to the Board’s Representation Case Procedures. See also the final rule, 84 Fed.Reg. 69524 (12/18/19).

A union that isn’t a union? The New York Times on the growing presence of “solidarity unions”

Interesting lunchtime read today for HR and labor-employment law professionals, in the New York Times. The article discusses the growing presence of non-union unions called “solidarity unions,” especially in the tech industry. These groups are simply informal associations of two or more workers in a workplace.

The article is a good reminder for employers that, if workers don’t feel they have a voice in the workplace, they will find a way to express and protect themselves, whether it means through a formal union or simply acting together to secure their goals.

As the article notes, such workers enjoy legal protections, indeed the National Labor Relations Act protects workers who act to further their wages, hours or working conditions, whether or not they do so through a union. Also protected are worker actions, with no union involved, involving two or more workers actin in concert with each other, or sometimes even, as a previous blog post noted, when a single worker acts on behalf of his colleagues.

The New York Times reports that “solidarity unions” are already present at Google, Kickstarter, Uber and other companies. Their proponents believe they hold several advantages over traditional organized unions: They do not need to be recognized through NLRB-sanctioned elections. They do not need the support of a majority of the workers. They do not need to, and generally do not, enter into collective bargaining type agreements. Rather they prefer not to have such agreements, instead hoping to keep the company “on its toes” by engaging in labor actions if and when the workers choose, for the reasons chosen by the workers.

The article discusses these “solidarity unions” as outgrowths of a single book, Labor Law for the Rank and Filer.

Source: “The Radical Guidebook Embraced by Google Workers and Uber Drivers,” New York Times (10/10/19).

Unions unable to charge lobbying costs to dues protesters, rules NLRB

In another setback to unions, the NLRB held that unions cannot charge lobbying costs to dues protesters.

In the NLRB’s terminology, a dues protestor is called a “Beck objector,” after the Supreme Court’s 1988 decision in Communication Workers v. Beck. There, the Supreme Court held that workers in a unionized workplace have the right to refuse to pay full union dues; instead, a so-called Beck objector can insist on paying only the share of dues that funds negotiating, administering and fighting grievances under his/her own collective bargaining agreement. Unions, therefore, set a fee rate that is lower than full dues, and must provide Beck objectors the calculations that show they are charging only Beck fees.

In this case, the Board held, first, that unions must provide those calculations to Beck objectors in the form a verified audit letter from the union’s auditor.

Next the Board turned to the union’s lobbying expenses. In this case, the union spent money to lobby state legislatures in support of legislative activity that it felt behooved its bargaining unit members, not just at this contract, but for all its members. The Board held that none of the lobbying efforts could be charged to Beck objectors.

Consistent with these cases, we conclude that lobbying expenses are not chargeable to Beck objectors under the NLRA.  We accordingly find that the Union violated its duty of fair representation by charging nonmember objectors for expenses incurred as to any of the lobbying activities at issue.

The case deals a heavy blow to unions, which frequently undertake significant lobbying efforts on behalf of their bargaining unit members.

Source: United Nurses and Allied Professionals, 367 NLRB No. 94 (3/1/19).

NLRB requires unions to state explicitly that they will work not to harm neutral employers when threatening “area standards” picketing

When companies work at the same site or even just near each other, a union — unhappy with one of them — may come to feel that actions at that location — such as that particular employer’s wage or benefit levels — are depressing “area standards.” Unions (like everyone) have a right to protest actions that affect their community, even if for example none of their members work for that employer. That is often the case because that particular employer is often a non-union company that the union is trying to organize.

Before commencing their protest activities, the union may warn not only that employer but all the employers at that location. The Board calls those other employers “neutrals.”

The Board require unions who give such warnings to explicitly state that they will work to minimize the impact on neutrals.

A union’s broadly worded and unqualified notice, sent to a neutral employer, that the union intends to picket a worksite the neutral shares with the primary employer is inherently coercive. Without any details, such a notice is ambiguous about whether the threatened picketing will lawfully target only the primary employer or will unlaw- fully enmesh the neutral employer. The neutral would understandably question why the union is sending a strike notice to an employer with no role in the dispute, and this question would reasonably lead it to at least sus- pect, if not believe, that its business would be targeted by the picketing and that it would be prudent to cease doing business with the primary employer to avoid losses. It would be unrealistic to expect neutral employers, many with little experience in arcane common-situs picketing law, to assume the union would avoid enmeshing them in the picketing. Thus, an unqualified picketing threat communicated to a neutral at a common situs is an am- biguous threat, and such an ambiguous threat enables a union to achieve the proscribed objective of coercing the neutral employer to cease doing business with the prima- ry employer—the very object a union seeks to achieve when it makes a blatantly unlawful threat to picket or unlawfully pickets a neutral. Accordingly, as our dis- senting colleague refuses to acknowledge, it is reasona- ble to conclude that when a union sends to a neutral an unqualified and therefore ambiguous notice of its intent to picket a common situs, it does so with an object to coerce the neutral to cease doing business with the pri- mary employer. A union may still lawfully inform a neutral of its intent to picket as long as it qualifies the notice by clearly indicating that its picketing will comply with legal limitations on such picketing.

Source: Electrical Workers IBEW Local 357, N.L.R.B., Case 28-CC-115255, 12/27/18

NLRB signals willingness to revisit its Settlement Bar doctrine

In a footnote to a recent decision, two current NLRB members signaled a willingness to revisit its Settlement Bar doctrine.

Under its Settlement Bar doctrine, the Board has held that workers may not attempt to “decertify” a union for at least a “reasonable” period of time after their employer has entered into an agreement to bargain. Decertification is the process, at the NLRB, whereby workers can vote a union “out.” The purpose of the Settlement Bar doctrine is to allow the union a “reasonable” time to prove its value to the workers by negotiating a collective bargaining agreement. The Board explained this rule in its 2017 decision, CTS Construction, Inc.:

Under the Board’s settlement bar doctrine, as stated in Poole Foundry & Machine Co., 95 NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir. 1951), and its progeny, an employer that enters into a settlement agreement requiring it to bargain with a union must bargain for a reasonable period of time before the union’s majority status can be questioned. In deciding whether the parties have bargained for a reasonable period of time, the Board considers the following five factors: whether the parties were bargaining for an initial agreement; the complexity of the issues negotiated and the parties’ bargaining procedures; the total amount of time elapsed since the commencement of bargaining and the number of bargaining sessions; the amount of progress made in negotiations and how near the parties were to agreement; and the presence or absence of a bargaining impasse.

In this recent case, two of the Board members said in a footnote that they were applying the current Settlement Bar doctrine in this case but only for precedential reasons. They cautioned that they would be willing to jettison the Board’s approach in a future case.

Stay tuned to the Board’s decisions to see if it does indeed abandon its current Settlement Bar doctrine.

Source: Krise Transportation, Inc.

Union Leader Salaries Soar

Issued just before the Supreme Court’s Janus decision, a survey of union leader salaries is a stunning bookmark to the Court’s blockbuster decision holding that public employees cannot be required to pay “fair share” fees, much less dues, to unions. The survey is based on public filings by the unions. It lists total compensation packages for the 10 highest paid union presidents, ranging from $449,852 to $792,483, which the survey notes is several times higher than the average salary for CEOs, $196,050, as reported by the U.S. B.L.S. Statistics like this are likely to continue to fuel right-to-work legislation and Janus-related litigation across the country.

Will the Supreme Court’s recent blockbuster in Janus apply to private employers?

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Employers have begun arguing that the Supreme Court’s recent blockbuster decision in Janus should be extended to private employers. In Janus, the Supreme Court ruled government workers cannot be required to pay “fair share” fees, much less union dues. The decision will have a huge impact on labor in America. Effectively, Janus converted government workforces into right-to-work workplaces. The decision is anticipated to strip organized labor of billions of dollars in revenues, much that had previously, in no small part, been used towards political contributions. The Supreme Court reasoned that requiring workers to pay even “fair share” fees, much less dues, was ultimately requiring them to support the unions’ political activities; workers should be free, as part of the constitution speech rights, to decide whether or not to support the unions’ political activities.

Janus was decided under the First Amendment, which only applies to government action. Private workers do not have First Amendment rights in their workplaces, at least as against their employers.

However, one employer is arguing that Janus should be extended to cover private workers nonetheless because, the employer argues, when the NLRB and courts attempt to enforce union requirements for dues and service fee collection, then the NLRB and courts are themselves the government actors. In other words, while the First Amendment does not limit a private employer’s ability to curtail worker speech, it limits the NLRB and courts’ ability to curtail worker speech. The employer already has a pending appeal before the Ninth Circuit, where it has just asked the Ninth Circuit to consider this new argument based on the Supreme Court’s Janus ruling (Communication Workers of America, AFL-CIO v. NLRB v. Purple Communications, Inc., Case Nos. 17-70948, 17-71062, and 17-71276).

The issue is no doubt going to be heavily litigated, but it appears the employer has the better side of this particular argument. If — as we now know from Janus — the Constitution’s speech rights in the First Amendment protect workers against compelled union contributions, they arguably constrain not only governmental employers, but all other governmental actors, including the NLRB and courts, from stripping employees, even private employees, of those same rights.

Pre-Trump NLRB scores post-Trump win at D.C. Circuit

In 2011, the NLRB announced, in Specialty Healthcare, that a union can ask to represent only some of a company’s workers. This so-called “micro-unit” approach has been heavily criticized as permitting unions to cherry-pick a group of pro-union workers within a group of workers who otherwise would vote “No” on having a union. It has been seen as a way for a union to slide its nose into a group that would otherwise want nothing to do with that union. It has further been criticized as a bureaucratic change announced by the Board with no support in the language of the National Labor Relations Act and in direct contradiction of decades of precedent.

Despite that criticism, the D.C. Circuit recently held for the Board, ruling that the Board’s new “micro-unit” approach is within the existing language of the NLRA and was therefore a lawful approach available to the Board. Under this micro-unit approach, an employer can only defeat a union’s attempt — can only require that the vote be held among all the workers in a unit — by showing that the smaller group is “truly inappropriate” and specifically that the workers deserve a vote because they share “an overwhelming community of interest.”

The decision is most likely to face its next hurdle, which is likely to be an insurmountable hurdle, if and when a the next micro-unit case comes before the Board on review. Likely within the next few months, the Trump Administration will have seated its nominees to the Board. If a pre-Trump Board was able to reverse course and adopt micro-units, a post-Trump/Republican-majority Board is able and widely expected to reject micro-units and return Board law to pre-Specialty Healthcare.

Source: Rhino Northwest, LLC v. NLRB

Right-to-work legislation coming to you soon?

In a heavily watched and strenuously litigated case, the Seventh Circuit upheld Wisconsin’s right-to-work statute. The decision is likely to embolden efforts designed to bring right-to-work to every state. Currently, almost thirty states have some form of right-to-work legislation in place. Wisconsin‘s, which follows on the heels of Indiana‘s, were two of the strongest. Both prohibited not only any requirement that a worker become a union member, but also that they be required to pay any dues, or even fees. Both were upheld. Federal legislation is pending that would establish right-to-work in every state.

Source: INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 139 v. SCHIMEL, Court of Appeals, 7th Circuit 2017 – Google Scholar