Category Archives: unions

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

Contributed by Carlos Arévalo, March 29, 2017

43832518 - law.

Gavel and scales of justice

Exactly a year ago today in what now appears to be a temporary reprieve, the United States Supreme Court issued its decision in Friedrichs v. California Teachers Association.  An “equally divided court” affirmed the judgment of the 9th Circuit that “fair share” or “agency” fee provisions in public sector contracts were valid.  Up to that time, observers had anticipated that the Supreme Court would use Friedrichs to overturn its 1977 opinion in Abood v. Detroit Board of Education, which held agency fees were deemed proper if exacted for “collective bargaining, contract administration and grievance adjustment” but not for “ideological or political purposes.”  However, with the passing of Justice Antonin Scalia, the Supreme Court could not muster a majority and the status quo remained.

Fast forward to March 2017, and following Donald Trump’s victory in the race for the White House, we find ourselves in the middle of confirmation hearings to fill the Supreme Court vacancy with President Trump’s choice, Judge Neil Gorsuch, a conservative appellate judge from the 10th Circuit who, most would agree, will likely tip the scales in favor of overturning Abood.

Indeed, new cases are making their way through the system in an effort to put the fair share question back on the Supreme Court’s docket.  Just last week, the 7th Circuit affirmed a dismissal of a complaint in Janus v. AFSCME where Judge Posner noted that neither the 7th Circuit nor the district court can overrule the Abood decision.  Janus, which began as Rauner v. AFSCME, was first filed by Republican Illinois Governor Bruce Rauner shortly after his election. Northern Illinois District Judge Robert Gettleman dismissed Governor Rauner’s complaint noting that Rauner had “no personal interest at stake” as he was “not subject to the fair share fees requirement.”  To keep the lawsuit moving forward, and with the backing of the National Right to Work Legal Defense Foundation and the Liberty Justice Center, Mark Janus and fellow state employee Brian Trygg intervened in the case.

In February 2017, Ryan Yohn and a number of his fellow teachers filed a case in the Central District of California against the California Teachers Association following the Friedrichs blueprint and seeking to enjoin Defendants from requiring nonunion employees to pay agency fees.  And, in the Western District of Kentucky, a class action filed by teachers working for Jefferson County Public School Board of Education where plaintiffs allege that requiring union nonmembers to pay a “fair share” fee is unconstitutional is currently pending and moving forward.

As noted by Justice Elena Kagan during the Friedrichs oral arguments in early 2016, overruling Abood will impact “tens of thousands of contracts with [agency fee] provisions…affect[ing] millions of employees” across the country.  Clearly, we have not heard the last word on this issue and it will most certainly make its way up to the Supreme Court.  Stay tuned!

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?

Missouri Has Become the 28th Right-to-Work State

Contributed by Beverly Alfon, February 10, 2017

On February 6, 2017, the newly elected GOP Governor Eric Greitens, signed into law a right-to-work (RTW) bill that passed the state’s Republican-controlled state legislature.

Nuts and Bolts of the Missouri RTW law

  • Effective date:  August 28, 2017
  • Who it applies to:  Both private and public sector employers (except those in the airline and railroad industries, as well as certain federal employers).
  • What it prohibits:
    • No employee can be required to become or remain a union member as a condition of employment.
    • No employee can be required to pay dues, fees or assessments of any kind to a union (or any equivalent of a dues payment to any charitable organization).
  • Penalties for violations:  Criminal sanctions – a violation is a class C misdemeanor, punishable by a fine of $750 and up to 15 days in jail. Civil sanctions – private parties may obtain injunctive relief, damages and an award of attorneys’ fees.
  • Effect on collective bargaining agreements:  For collective bargaining agreements (CBA’s) entered into before August 28, 2017, the law has no effect. However, the law will apply to any CBA renewal, extension, amendment or modification after August 28, 2017. This will likely jolt Missouri unions to seek contract extensions of existing CBA’s in order to delay the impact of the law.

Unions Continue to Battle

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Flag of Missouri

The Missouri AFL-CIO has submitted different versions of a proposed initiative petition to the secretary of state’s office that is aimed at reversing the RTW law. Basically, with enough signatures, it would present the opportunity for Missouri voters to decide in 2018 whether to adopt a constitutional amendment that would protect contracts that require employees to pay union representation fees.

Perspective

Seven of eight states that surround Missouri have existing right-to-work laws, including Kentucky, which passed a right-to-work law last month. The current tally of RTW states includes: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina,  North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming. Just last week, the New Hampshire senate passed a RTW bill, which is awaiting passage by the state House.

On a federal level, two Republican Congressmen re-introduced the National Right to Work Act last week. The bill would amend the National Labor Relations Act and the Railway Labor Act to prohibit the use of union security clauses which require union membership and payment of dues and fees.

If there was any doubt, this flurry of activity confirms that the right-to-work movement is recharged.

Blunted by the Board: NLRB Weakens Employer’s Right to Permanently Replace Strikers

Contributed by Beverly Alfon, June 30, 2016

11058927 - protesters crowd landscape background illustrationFor more than 75 years, employers have had broad access to a powerful weapon to counterbalance a union’s ability to engage in an economic strike: the right to permanently replace those economic strikers. On May 31, however, the National Labor Relations Board (NLRB) replaced that powerful weapon with a water gun. In a 2-1 decision, the NLRB held that despite the economic nature of a strike, an employer violated the National Labor Relations Act (NLRA) by permanently replacing strikers because the employer was motivated by “a purpose prohibited by the Act.” American Baptist Homes of the West, 364 NLRB No. 13 (May 31, 2016). This ruling effectively overruled long-standing NLRB case law which stood for the principle that employer motive to permanently replace strikers is irrelevant in the context of an economic strike.

In this case, the union and employer were engaged in contract negotiations for 4 months before the union issued a notice of intermittent strike (5 days). Picket signs confirmed that the union was striking over economics:  health care and pension. After day one of the strike, the employer exercised its right to permanently replace a majority of the economic strikers. In finding that the employer violated the Act, the NLRB focused on the following facts:

  • The individual who made the decision to hire the permanent replacements admitted that she was motivated by her desire to avoid another strike at the facility. She “assumed that because these people [temporary workers who the Company extended the permanent job offers to] were willing to work during this strike, they’d be willing to work during the next strike.”
  • When the union’s attorney asked the employer’s attorney for an explanation for the permanent replacements, he replied that the employer “wanted to teach the strikers and the Union a lesson.”

If this Board decision is upheld by the Courts, it will likely result in a marked shift of power at the bargaining table that will empower unions to use the leverage of a strike (including intermittent strikes) with less risk to its members, while weakening the employer’s ability to use the leverage of permanent replacements. As described by the dissenting NLRB member, this decision is “a substantial rearrangement of the competing interests balanced by Congress when it chose to protect various economic weapons, including the hiring of permanent replacements.”

Bottom line:  Since March 2016, NLRB charges involving allegations of unlawful motive in the permanent replacement of economic strikers have been subject to heightened scrutiny. NLRB regional offices are required to send these cases up to the NLRB’s Division of Advice in Washington, D.C. for “centralized consideration.” Accordingly, any employer who may consider permanent replacement of economic strikers should consult with counsel to ensure there are legitimate business reasons to defend the decision to permanently replace strikers.

Prevent Lawsuits: Implement Good Employment Policies and Gather Evidence Supporting Terminations

Contributed by Noah A. Frank, May 11, 2016

A recent federal appellate court decision underscores the importance of strong employment policies to establish the company’s expectations and potentially save the company from protracted and expensive litigation.

In Tsegay v. Amalgamated Transit Union, 1235, the court found that a union refusing to arbitrate a grievance did not breach its duty of fair representation to a union member terminated for using a mobile device while operating a passenger vehicle. No. 15-6102 (6th Cir. Apr. 27, 2016).

texting while drivingAfter passenger complaints of texting-while-driving, employer Metropolitan Nashville-Davidson County Transit (“MTA”) investigated driver Tsegay’s conduct, including video footage. MTA concluded that Tsegay looked at an electronic device in his lap several times in violation of company policy, and committed other moving violations which could be separate bases for termination. MTA suspended Tsegay without pay, and then terminated him following a meeting with his union representative for misconduct as well as dishonesty.

The union proceeded through the first two stages of the grievance process: filing a written grievance, and an in-person meeting with MTA, the union president, and Tsegay. The union presented the evidence (video, passenger’s letter, and MTA policy regarding cell phones) to its members, who voted not to proceed to arbitration. Instead of appealing this decision, Tsegay sued his union for breach of the duty of fair representation.

Tsegay claimed that the union acted arbitrarily by not going to arbitration. He argued that his cell phone records demonstrated that he was not using his phone while he was driving. However, the appellate court noted that there are many uses of a mobile device that may not appear in cell phone records, such as reading old messages, browsing the internet, and playing games. The appellate court found that the union’s decision to not arbitrate was reasonable because it was based on the union members having viewed the evidence.

This case demonstrates how employment policies and gathering the right evidence help avoid lawsuits.  In this case MTA demonstrated:

  • A written policy prohibiting mobile device use while working and driving;
  • Complaints leading to an investigation, and
  • A proper investigation showing the likelihood of a violation.

Employment policies should be written to convey several messages including, outlining appropriate conduct, company expectations, and safety considerations. The policies should:

  • Communicate clearly to multiple audiences (employees,  managers, others working on behalf of the company, and any reviewing administrative agency or jury) of varying education and language fluency; and
  • Provide a clear understanding of what constitutes appropriate and acceptable conduct.

Enforcing reasonable and effective policies will provide a legitimate, nondiscriminatory basis for discipline, avoid discrimination/retaliation lawsuits, and help employers successfully protest unemployment benefits. Policies should be reviewed by attorneys to ensure legal compliance.

Abood v. Detroit Board Of Education Survives…for now?

Contributed by Carlos Arévalo

Back in November of last year, I wrote about Friedrichs v. California Teachers Association, “one of five cases to watch” during the Supreme Court’s 2015 term according to Washington’s The Hill newspaper.

At the beginning of the term, many observers had anticipated that the Court’s conservative majority would use Friedrichs to overturn its 1977 opinion in Abood v. Detroit Board of Education, a case which upheld “fair share” provisions in public sector union contracts as dues properly exacted for “collective bargaining, contract administration, and grievance adjustment purposes” so long as their dues were not used for other ideological or political purposes. However, the passing of Justice Antonin Scalia caused Friedrichs to limp to the finish line without a winner even being declared. On Tuesday March 29th, the Court issued a one sentence decision that the judgment of the 9th Circuit was “affirmed by an equally divided Court.”

Gavel2During oral arguments on January 11th, Justice Samuel Alito questioned whether Abood was even workable, and challenged California Solicitor General Edward Dumont to draw a line between legitimate contract administration fees and lobbying fees, specifically pointing to Section 3546(b) of the California Government Code which provides that agency fees may be used for “the cost of lobbying activities designed to secure advantages in wages, hours, and other conditions of employment, in addition to those secured through meeting and negotiating with the employer.” On the other side of the argument, Justice Elena Kagan focused on the issue of overruling long-standing precedent that would impact “tens of thousands of contracts with [agency fee] provisions…affect[ing] millions of employees.” The path seemed cleared for a 5-4 decision in favor of striking down the fair share fees and overturning Abood until February 13th when news broke out that Justice Scalia had died while on a hunting trip in Texas.

Had the Supreme Court overturned Abood, it would have had a profound impact across the country’s twenty five states that permit compulsory “fair share” for teachers, firefighters, police and other public workers. Certainly, the decision is a reprieve for unions. The parties can petition for a rehearing. Pursuant to the Court’s rules, such a petition would have to be approved by 5 Justices, which is highly unlikely in light of the 4-4 vote in the decision. As a result, a new case may have to be filed and processed through the lower courts. Assuming the Republicans stay firm on their position to block Judge Merrick Garland’s nomination, this constitutional question will not be resolved until after the 2016 Presidential election and will rest squarely on the shoulders of the new Justice that is ultimately appointed and confirmed.

 

 

Will Abood v. Detroit Board Of Education Survive?

Contributed by Carlos Arévalo

In June 2014, the Supreme Court issued a decision impacting “fair share” provisions in public sector collective bargaining agreements. By a 5-4 vote, the justices ruled in Harris v. Quinn that home health care workers in Illinois could not be compelled to financially support a union they did not want to join. Writing for the majority, Justice Samuel Alito noted that the “primary purpose of permitting unions to collect fees is to ‘prevent nonmembers from free-riding on the unions’ efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.” The Harris ruling, however, was narrow insofar as the home health care workers at issue were not deemed “full-fledged public employees.”

Now comes Friedrichs v. California Teachers Association¸ one of five cases to watch in the Court’s 2015 term according to Washington’s The Hill newspaper. In Friedrichs, the issue is whether public employees may be compelled to pay union dues as a condition of their employment. The case stems from a California law that allows school districts to require public school teachers, as a condition of employment, to either join the union or opt out. The teachers are nevertheless required to still pay a portion of the union dues.

HandshakeBWMany observers anticipate that the court’s conservative majority will overturn its 1977 opinion in Abood v. Detroit Board of Education. In Abood, the Supreme Court upheld “fair share” provisions in union contracts where a group of public school teachers in Detroit had sought to overturn the requirement that they pay fees equivalent to union dues on the grounds that they opposed public sector collective bargaining and objected to the union’s ideological activities of the union. The court, nevertheless, found that non-union members could be charged dues for “collective bargaining, contract administration, and grievance adjustment purposes” so long as their dues were not used for other ideological or political purposes. In Harris, Justice Samuel Alito questioned the Abood court and its understanding of precedent. He was also critical of the court’s failure to appreciate the conceptual difficulty of distinguishing what are chargeable versus non-chargeable union expenditures in the public sector. Finally, Justice Alito criticized the Abood court’s analysis as resting on “an unsupported [unwarranted] empirical assumption, namely, that the principle of exclusive representation in the public sector is dependent on a union or agency shop.”

Writing for the dissent, Justice Elena Kagan noted that the “Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this court to reverse that decision.”

If the Supreme Court does overturn Abood, such a decision will have a profound impact, across the Country’s twenty five states that permit compulsory “fair share” for teachers, firefighters, police and other public workers as unions will not flourish if they cannot compel non-members to contribute toward their efforts. Friedrichs truly is a case to watch.

 

“No, You Can’t Wear That”—D.C. Circuit Sets Important Limitation On Union Apparel in the Workplace

Contributed by Steven Jados

In the opening sentence of its recent decision, Southern New England Telephone Co. v. NLRB, the federal D.C. Circuit Court of Appeals stated: “Common sense sometimes matters in resolving legal disputes.” If only that were always true in labor disputes.

The legal dispute in this matter centered on the fact that the company prohibited publicly visible employees—those who had direct contact with customers or the public—from wearing union t-shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. These shirts were part of a campaign by the union representing certain company employees to apply bargaining pressure in the midst of contentious contract negotiations. Notably, the company did allow the shirts to be worn by employees who were not publicly visible.

Common sense says it is less-than-ideal to have your customers and prospects think that you imprison your employees—metaphorically or otherwise.

43200054_sGenerally speaking, however, the National Labor Relations Act protects union members’ rights to wear clothing with union logos and slogans in the workplace. In light of the NLRB’s efforts to expand its reach into non-union workplaces, that same protection conceivably extends to articles of clothing linked to concerted activities relating to wages and working conditions, regardless of whether the clothing is worn by union or non-union employees.

Relying on that generalized protection, prior to this matter reaching the D.C. Circuit, the NLRB ruled that the company acted unlawfully by prohibiting employees from wearing the “prisoner” shirts, and suspending employees who refused to comply with the prohibition.

The D.C. Circuit, however, cited the “special circumstances” exception to the generalized protection favoring union apparel, and stated that this exception allows employers to stop employees “from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.” In applying that exception to the union’s “prisoner” shirts, the court reinforced the strength and significance of an employer’s concerns of potential damage to customer relationships. Such concerns may outweigh employees’ rights on the subject of union apparel.

All of that said, the bottom line here is that companies do have some rights when it comes to limiting union apparel in the workplace. However, companies must tread carefully when attempting to impose apparel rules because the “special circumstances” exemption will not apply in every case. Common sense eventually prevailed in this matter, but that happened only after a lengthy legal battle that lasted more than five years.