Category Archives: unions

NLRB Makes It Easier To Oust a Union

Contributed by Beverly Alfon, July 9, 2019

group of people from different profession stick figure pictogram icons

Did you know that when a private sector employer has evidence that a union has lost support from a majority of its bargaining unit members, the employer can refuse to recognize the union as their bargaining representative?  In 2001, the National Labor Relations Board (NLRB) ruled that employers can unilaterally withdraw recognition from an incumbent union based upon “objective evidence” (typically, a petition signed by at least half of the bargaining unit members indicating that they no longer wished to be represented by a union) that the union has lost majority support (Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001)). This would allow the employer to withdraw recognition effective upon expiration of the collective bargaining agreement and allow the employer to end bargaining over a successor collective bargaining agreement (CBA). This is referred to as “anticipatory” withdrawal of recognition. This remains law – but in a 3-1 decision issued on July 3 (Johnson Controls, N.L.R.B., 10-CA-151843 (7/3/2019)) – the NLRB significantly changed the legal framework around withdrawal of recognition in favor of employers.

Until now, a significant hurdle for most employers who attempted to withdraw recognition from a union is that they would be at great risk for being subjected to an unfair labor practice charge from the union for failure to bargain in good faith. The crux of the problem was that the Board would look at whether or not the union lacked majority status at the time of actual withdrawal.  This allowed the union to covertly gather evidence of “reacquired” majority status (often consisting of signatures from the same members who signed the anti-union petition) between the time of the anticipatory withdrawal and the date of actual withdrawal on the date of contract expiration. The union was not required to show the employer its evidence prior to the effective date of withdrawal – often leaving the employer on the losing end of the charge, facing an order directing it to bargain with the union, and the union insulated from challenges to majority status from six months to a year (and an additional 3 years if an agreement is reached).

The Key Change for Employers

Now, if an employer receives objective evidence of an incumbent union’s loss of majority support (at least 50 percent of the bargaining unit no longer supports the union) no more than 90 calendar days prior to the expiration date of the relevant collective bargaining agreement (CBA), the employer is free to declare an anticipatory withdrawal of recognition from the union, without fear of being charged with an unfair labor practice. The Board “…will no longer consider, in an unfair labor practice case, whether a union has reacquired majority status as of the time recognition was actually withdrawn.” Instead, if the union wishes to re-establish its majority status, the burden falls on the union to file a petition for election within 45 days from the date that an employer gives notice of an anticipatory repudiation — regardless of whether the employer gives notice more than or fewer than 45 days before the contract expires.  The Board will process the petition without regard to whether the parties’ contract is still in force at the time the petition is filed. 

Some Things Stay the Same

It remains that a “good faith reasonable doubt” of majority status will not cut it as “objective evidence” to support an anticipatory withdrawal of recognition. The objective evidence that an employer relies upon to declare an anticipatory withdrawal of recognition must be free of improper influence or assistance from management. A majority of the bargaining unit (50% +1) would still have to vote “no union” during the election in order to oust the union.  Also, incumbent unions still enjoy insulated periods from challenge during which the union enjoys a presumption of majority status: (1) certification bar – up to one year after the NLRB certifies a union as the exclusive bargaining representative of a unit; and (2) contract bar – the first three years of a collective bargaining agreement. 

Bottom Line

In explaining the appropriateness of this new standard, the NLRB stated as follows: “It ends the unsatisfactory process of attempting to resolve conflicting evidence of employees’ sentiments concerning representation in unfair labor practice cases. Instead, such issues will be resolved as they should be: through an election, the preferred method for determining employees’ representational preferences.”  The NLRB further reasoned that the election process generally moves at a faster pace than the ULP process.  Whether or not this shift has a significant impact on the employer’s rate of success in ousting a union remains to be seen. While a significant legal hurdle has been removed, others remain, and navigating this process requires careful planning.   

Village of Lincolnshire’s Right-to-Work Zone Struck Down by 7th Circuit

Contributed by Carlos Arévalo, October 2, 2018

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Judge with gavel

Last week, the 7th Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) held that Section 14(b) of the National Labor Relations Act (NLRA) does not permit local governments to create local “right-to-work” zones that seek to ban union-only shops in the private sector. The court further concluded that bans on requiring union hiring halls and compulsory union dues checkoff agreements are also invalid under the NLRA.

In 2015, the Village of Lincolnshire adopted an ordinance that banned union-security agreements, within the Village, by forbidding any requirement that private sector workers join a union or compensate a union in order to keep their job working at a unionized worksite. Interestingly, the ordinance was overwhelmingly supported by the Village’s residents and taxpayers. The ordinance also barred any requirement that employees “be recommended, approved, referred, or cleared for employment by or through a labor organization” (aka a union hiring hall). Finally, the ordinance prohibited employers from making any payment to unions pursuant to signed authorizations revocable by employees at any time (aka dues check-off). A number of unions successfully sued the Village in district court and the Village appealed.

Chief Judge Diane Wood, writing for a unanimous three-judge panel, noted that the issue of whether a local law, rather than a state-wide law, falls within the scope of Section 14(b) is a subject that has divided courts. Specifically, Judge Wood pointed to a 2017 6th Circuit decision in United Automobile, Aerospace & Agricultural Implement Workers of America v. Hardin County, Kentucky that held that a right to work law adopted by Hardin County was not preempted by the NLRA and, therefore, valid.

Judge Wood acknowledged that the 7th and 6th Circuits are in agreement and the law is clear that local governments cannot regulate hiring halls and dues checkoff obligations as negotiated and made part of a private collective bargaining agreement. However, this left the issue of compulsory union membership in order to maintain employment with a private unionized employer as the central question for the court to decide and here is where the 7th Circuit split from the 6th Circuit (which covers Kentucky, Ohio, Michigan and Tennessee).

In the decision, the court rejected arguments that as a political subdivision of Illinois, the Village can exercise federal laws granted to the State. To do so would result in an administrative nightmare of having over 38,000 local governments (as opposed to 50 states and a few territories) adopt their own right to work laws. “Permitting local legislation under section 14(b) threatens ‘a crazy-quilt of regulations.’ The ‘consequence of such diversity for both employers and unions would be to subject a single collective bargaining relationship to numerous regulatory schemes thereby creating an administrative burden and an incentive to abandon union security agreements.’” This, the court explained, undermines the Supreme Court’s pronouncement that “Congress enacted the NLRA to create national uniformity in labor law.” Accordingly, according to the 7th Circuit, Section 14(b) simply does not extend to the political subdivisions of the states to enact local “right-to-work” zones whereas Illinois could if it wanted to. NOTE:  Indiana and Wisconsin have previously enacted Right-to-Work laws so this decision, for now, only impacts Illinois private employers and employees.

While the U.S. Supreme Court declined to review the 6th Circuit decision in Hardin County, this split sets up a potential United States Supreme Court review. Thus, the stakes are raised even higher on the imminent appointment of retired Justice Anthony Kennedy’s replacement. On that subject, one thing is certain – we’ll have a clearer picture in the next couple of months. Maybe…  stay tuned!

The NLRB’s Recent Decision Lowers the Trigger for Employee Weingarten Rights

Contributed by Beverly Alfon, August 2, 2018

Employers have had reason to exhale a bit in the Trump era of the National Labor Relations Board (NLRB). However, as demonstrated in a recent case involving employee Weingarten rights, long-standing federal labor principles and facts can nonetheless tilt a decision against the employer.

A Quick Refresher:  The term “Weingarten rights” refers to the rights of union-represented employees to demand union representation during an employer’s investigatory interview that may result in discipline (as opposed to a meeting where discipline is simply being issued to the employee). The U.S. Supreme Court upheld these employee rights in NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975), but made clear that the right to union representation is not automatic, but arises “only in a situation where the employee requests representation.” Consistently, for the past 40 years, the NLRB and federal courts have held that the right to representation at an investigatory interview only attaches once the employee has requested representation.

Union Block WordsIn June, the Board issued a decision addressing what constitutes a “request” for representation. In Circus Circus Casinos, Inc., 366 NLRB 110 (2018), a union-represented employee stated prior to an interview that he had “called the Union three times [and] nobody showed up, I’m here without representation.” The Board majority (2 of 3-member panel) found that this was enough to constitute a request for representation under Weingarten.

The majority pointed out that statements or inquiries such as – “I would like someone there that could explain to me what was happening” or “Should I have someone here with me, someone from the unions,” have been found sufficient to trigger Weingarten rights before. However, in Circus Circus Casinos, Inc., the employee did not ask the employer for union representation, tell the employer that he wanted a union representative, or ask the employer whether or not he needed a union representative present. The employee did not attempt to stop the interview. At most, he indicated that he did not have union representation. Nonetheless, the Board ordered the employer to reinstate the employee (who was discharged as a result of the interview) with full back pay from his termination in 2013, and reimburse him for job-search and interim-employment expenses.

Now, it is clear that Weingarten rights are triggered even if an employee does not directly address the request for representation to the employer. The inquiry has shifted from the question of whether the employee communicated a request for union representation to the employer – to whether or not the employer is somehow “on notice” of the employee’s preference for union representation.

Best Practice: Review and update your policy and procedure related to investigations involving union-represented employees. Review the Weingarten standards with your investigators. If the employee makes any comment or suggestion regarding union representation before or during an interview, ask the employee to clarify whether s/he is requesting union representation before proceeding with the interview, or if s/he would like to proceed without representation. If the employee confirms that s/he prefers union representation, either (a) immediately suspend the interview until a union representative is identified and present or (b) immediately end the interview altogether. Remember that a union-represented employee should not be disciplined for requesting union representation at an investigatory interview.

Being knowledgeable about the do’s and don’ts during an investigatory interview where a union representative is present is equally important. It is important to consult with experienced labor counsel in order to avoid drawing any unfair labor practice charges.

The Final Chapter: The Supreme Court Overrules Abood in Janus v. AFSCME and Changes the Face of Public Sector Labor Relations

Contributed by Carlos S. Arévalo and Julie Proscia, June 27, 2018

16306823 - 3d illustration of scales of justice and gavel on orange background

3d illustration of scales of justice and gavel on orange background

On June 27, 2018, the United States Supreme Court issued a groundbreaking decision in Janus v. AFSCME eliminating the public sector fair share requirement and thus changing the face of public sector labor. The Janus case, originating in the 7th Circuit, involved an appeal over the dismissal of a complaint that sought to invalidate agency fees and to reverse the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.

Over 40 years ago, the Abood Court established that public sector non union members could be charged or allocated agency fees or a “fair share”, by the representative union, for collective bargaining, contract administration, and grievance adjustment purposes. In today’s ruling, the Court reversed Abood and declared that “public-sector unions may no longer extract agency fees from nonconsenting employees.”  Regarding Illinois’ Public Labor Relations Act provisions allowing automatic fair share deductions, Justice Samuel Alito wrote:

This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmenber’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

Janus will undoubtedly have short and long term impacts for public sector employers and unions. Of immediate concern, and given the Court’s ruling that fair share deductions cannot continue, public sector employers need to promptly determine if there are any non-union employees who have been subject to “fair share” fees and cease collecting the fees pursuant to existing contracts now that fair share fees have been found unconstitutional. This decision also substantially impacts the bargaining of open and soon-to-expire contracts and the types of provisions that will be negotiated, including proposals that will pursue to have deduction authorizations be “irrevocable” as well as provisions that will deny representation of nonmembers in grievance proceedings unless unions are properly compensated. Janus has opened the door for a dual grievance administration system and essentially dual representation.

Given the broad and significant ramifications of this momentous decision, we invite and encourage all public sectors managers, administrators and department heads to participate in our webinar on July 9th, which will focus on Janus and its impact on public sector employers. We will discuss the following topics:

  • What changes public sector employers need to make immediately for fair share employees
  • The potential impact of Janus on exclusive representation
  • The potential for a bifurcated grievance and disciplinary system
  • How to handle open contract
  • How Janus impacts closed contracts

Register for our complimentary webinar – Calling All Public Sector Employers: SCOTUS Reverses Janus – What You Need to Know

 

In a Dramatic Turn, an Arbitrator Finds that the Substitutes Act Does Not Prohibit Municipality from Shutting Down Ambulance Services

Contributed by Julie Proscia and Carlos Arévalo, May 25, 2018

In an unprecedented fashion, an arbitrator recently issued an award limiting the scope of Public Act 095-0490, otherwise known as the Substitutes Act. In doing so, the City of Mattoon successfully fought, through SmithAmundsen attorneys Julie Proscia and Carlos Arévalo, and won the right to close their ambulance service. So why is this award important? This award now serves as a basis for municipalities to be able to have the autonomy to review their scope of services and determine which services are best for their community as opposed to the scope of services being dictated by the union.

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Ambulance driving on street with lights and sirens on

The case, involving the City of Mattoon and the IAFF, started in July 2017 when after a months’ long internal and comparative evaluation, the city determined that due to rising operational, personnel and pension related costs, its ambulance service was no longer sustainable.  Accordingly, the city adopted a resolution seeking the future elimination of its ambulance service effective May 1, 2018, the expiration of the current contract. Once implemented, ambulance services would be solely performed by area private ambulance companies. Not surprisingly, the union filed a grievance attacking the city’s resolution primarily basing its challenge on the Substitutes Act, which was specifically incorporated into the contract. The city denied the grievance and, to no avail, sought to bargain the impact of its decision with the union.

During arbitration, the union argued that the Substitutes Act specifically prohibited the city from replacing qualified firefighters or paramedics with unqualified persons, and that only those who have gone through the appointment process before the City of Mantoon’s Fire and Police Commissioners are properly qualified. As a result, the union claimed, the ambulance service could only be performed by full-time firefighters belonging to the union. The Substitutes Act has been used as both a veritable sword and a shield by unions attesting that no non-bargaining unit members can ever be given work that is currently or previously performed by the unit. If successful, the union would have made it virtually impossible to ever eliminate a service.

The arbitrator rejected the union’s arguments and found that the “Substitutes Act imposes no limitation on the elimination of ambulance services in any municipality… [but] only prevents municipal fire departments from hiring persons “not qualified” for regular appointment…to be used as a temporary or permanent substitute for a municipality’s fire department.” Further, the arbitrator continued, “the Employer is not planning to hire unqualified or uncertified firefighters to staff the ambulance service. The Employer seeks to completely eliminate the city-operated ambulance service…There is no language in the Substitutes Act preventing private ambulance companies from providing ambulance services to municipalities.”

In rejecting the union’s arguments, the arbitrator weakened unions’ typical stance that they need not engage in bargaining pursuant to the Substitutes Act. This award establishes that municipalities are not as hamstrung by the act as unions suggest, and may pursue discontinuing services if doing so presents a more viable alternative to facing a financial crisis. While impact bargaining and other procedural hurdles associated with discontinuing services will still have to be addressed, municipalities now have the latitude to determine the scope of services that are most appropriate for their community.

 

The Survival of Abood v. Board of Education, Part 4

Contributed by Carlos Arévalo, March 8, 2018

Just last week on February 26th, the United States Supreme Court heard arguments in Janus v. AFSCME, a case in the Court’s 2017 term with a potential of adversely impacting the viability and influence of public sector unions.  The case, originating in the seventh circuit with Judge Richard Posner, involves an appeal over the dismissal of a complaint that sought to invalidate agency fees and to reverse the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.

gavelJanus is the latest case to reach the Supreme Court challenging the 40 year precedent set in Abood which established that agency fees or “fair share” provisions in public sector union contracts could be imposed on non-union members for “collective bargaining, contract administration, and grievance adjustment purposes.”  Supporters maintain that agency fees are necessary to prevent “free riders” from benefitting from contracts negotiated by unions without bearing the expense of representation. Critics argue that such fees are tantamount to “compelled speech” that violate First Amendment rights.

Back in 2014, the Supreme Court reviewed agency fees in Harris v. Quinn  and held that home health care workers in Illinois could not be compelled to financially support a union they did not want to join. The Harris ruling, however, was narrow because the home health care workers were not deemed “full-fledged public employees.” In 2015, it was expected that the Court’s conservative majority would overrule Abood in Friedrichs v. California Teachers Association, a ninth circuit case that upheld agency fees so long as dues were not used for other ideological or political purposes. However, the passing of Justice Antonin Scalia shortly after arguments resulted in a “no-decision” and the judgment of the ninth circuit was “affirmed by an equally divided Court.”

The tenor of arguments in Janus last week leaves no doubt that the eight justices who heard Friedrichs remain “equally divided.” As was the case in Friedrichs, Justice Elena Kagan continued to voice concerns that overruling Abood would adversely impact 23 state statutes that permit agency fees and would invalidate thousands of contracts covering millions of workers. Justice Anthony Kennedy, on the other side, forced David Frederick, AFSCME’s attorney, to acknowledge that unions would have less political influence if Abood were to be overruled, and then quipped “isn’t that the end of this case?”  Justice Stephen Breyer, interested in maintaining the status quo, suggested a compromise, namely a statutory-duties test that would draw a line between chargeable (collective bargaining, contract administration) and non-chargeable (lobbying, politicking) expenses. Attorney William Messenger arguing for Janus, however, skeptically noted such a test would allow “the government to decide what is constitutionally chargeable [which would include] collective bargaining” and that such is “the core of political activity which individuals cannot be compelled to support” under the First Amendment.

It is clear that the decision in Janus hinges on Justice Neil Gorsuch, who many anticipate will cast a vote to finally reverse Abood.  Somewhat uncharacteristically yet purposefully, Justice Gorsuch remained silent during arguments.  A decision is expected in June.

Check out our previous articles on Abood and the challenges to public sector agency fees:

Part One: Will Abood v. Detroit Board of Education Survive?

Part Two: Abood v. Detroit Board of Education Survives…for now?

Part 3: The Survival of Abood v. Detroit Board of Education, Part 3

Seventh Circuit Upholds Wisconsin’s Right-to-Work Law

Contributed by Carlos Arévalo, July 21, 2017

On July 12, 2017, a three judge panel in the seventh circuit unanimously affirmed District Judge J.P. Stadtmueller’s ruling dismissing a lawsuit filed by two International Union of Operating Engineers (IUOE) locals that challenged the validity of Wisconsin’s right-to-work law. Judge Stadtmueller’s dismissal in September 2016 was based on the seventh circuit Sweeney v. Pence 2014 decision that upheld Indiana’s “nearly identical” law.

The Wisconsin law provides that “no person may require, as a condition of obtaining or continuing employment, an individual to…become or remain a member of a labor organization [or] pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.”

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Black and white gavel

In Sweeney, the seventh circuit determined that the National Labor Relations Act did not preempt Indiana’s right–to-work law, even if it prohibited the mandatory payment of any dues or fees to unions, and it did not result in a taking in violation of the Fifth Amendment. The court reasoned that unions are “justly compensated by federal law’s grant to [unions] the right to bargain exclusively with…employer[s].”

On this appeal, the IUOE conceded that Sweeney controlled, but argued that it was wrongly decided and should be overturned. The IUOE relied on a strong dissent in Sweeney and the close en banc vote to rehear it. Writing for the panel, however, Judge Joel Flaum rejected these arguments and noted that they were not “compelling reasons” to overturn a recent decision. Judge Flaum also added that the unions failed to direct the court to any intervening development in statutory, Supreme Court, or other intermediate appellate court decision undermining Sweeney’s validity.

The seventh circuit’s decision affirming the Wisconsin’s 2015 law suggests a continuing trend favoring the right-to-work movement at the judicial and legislative levels of government. In February of this year, Missouri enacted its right-to-work law becoming the 28th state with a right-to-work law on the books, closely following Kentucky’s adoption of its own law in January. Opponents in Missouri have sought a referendum seeking to repeal the law, but their efforts suffered a setback when union-led referendum summaries were ruled “unfair and insufficient.” In Kentucky, labor organizations have sued seeking to block the law.

At the federal level, Republican Congressmen Steve King of Iowa and Joe Wilson of South Carolina re-introduced the National Right to Work Act bill (an effort that went nowhere in 2015) in the hope that a Trump administration would approve such legislation. Within a month, Senator Paul Rand of Kentucky introduced similar legislation in the Senate. These bills would amend the National Labor Relations Act and Railway Labor Act to prohibit the use of union security clauses requiring union membership and payment of dues and fees.

Where all of this leads is unclear, but we can be certain of one thing for the near future – this battle will continue to be fought all across the country.