Category Archives: unions

NLRB Gives Gift To Employers: Modifies Obama Board’s “Quickie Election” Rule

Contributed by Jeffrey A. Risch, December 16, 2019

the word “union” in black and white

On December 13, 2019, the National Labor Relations Board (NLRB) issued notice of new regulations designed to materially change what is commonly referred to as the “Quickie Election” Rule. The new regulations, set to take effect on April 16, 2020, will materially help employers combat labor unions in the private sector by primarily providing more time to react to and educate the workforce on the “Good, Bad & Ugly” of what union representation actually means to workers.  

As a brief reminder… the “Quickie Election” Rule is a set of unprecedented regulations that the Obama NLRB published in 2014, and went into effect in 2015. The primary effect of the “Quickie Election” Rule limited the amount of time an employer had to respond to a petition filed by a labor union seeking to represent its workers, and oppose the union’s attempt to unionize the workforce. There were other significant pieces to the “Quickie Election” Rule, including, but not limited to: requiring employers (not unions) to submit a position statement on all issues the employer wanted or needed to raise as a result of the union’s proposed bargaining unit and the election in general – within 7 calendar days after receipt of the petition – and, any issues not timely raised are deemed waived; setting material limitations on issues to be considered in any pre-election hearing and pushing any review of objections related to the election to a post-election hearing (after votes are opened and counted); and eliminating any stay of certifying an election’s results in order to allow time for the NLRB to consider a request for review filed from a Regional Director’s Order directing an election to proceed in the first place.

In essence, the official vote to “go union” or not, went from approximately 42 days to around 21 days from the filing of the union’s petition, under the “Quickie Election” Rule, while tying the hands of employers to mount a comprehensive defense strategy along the way. With the changes found in the new regulations set to go into effect on April 16, 2020, the process will return to the days when employers had greater rights and abilities to fight against labor unions aiming to organize and represent their workers. In short, the new regulations include the following material changes from the current rules:

·       The pre-election hearing must be held within 14 business days from the filing of a petition (up from the current within 8 calendar days requirement);

·       Legal statements of position that identify issues and problems with any petition must be filed within 8 business days after service of the notice of hearing (up from the current within 7 calendar days requirement), and the union must file a formal response to a statement of position filed by an employer at least 3 business days before a scheduled pre-election hearing;

·       The pre-election hearing can include, once again, the litigation of disputes involving voter eligibility as well as the size/scope of the bargaining unit (not just the issue of whether valid and lawful representation exists);

·       The employer and the union can, once again, file post-hearing briefs  to any pre-election or post-election hearing within 5 business days from the close of the hearing;

·      Employers will be allowed more time to educate their workforce on union representation and mount a more robust counter-organizing campaign of their own in light of a new rule that provides that absent the parties’ agreement, a Regional Director “normally” will not schedule an election less than 20 business days after the Regional Director directs an election;

·       Employers will be permitted, once again, to file a Request for Review by the NLRB of any Regional Director’s adverse Order directing an election, within 10 business days of such Order, and if the request is pending at the time of the election then the ballots cast would not be opened while the NLRB resolves the controversies raised in the Request for Review;

·       Regional Directors will be prohibited from certifying results of any election while a Request for Review is still pending or at any time prior to the time a post-election request for review can be filed; and

·       Employers will generally be provided more time to provide voter eligibility lists and information to the NLRB after the Regional Director issues a direction of election.

In issuing notice of the new regulations, NLRB Chairman John F. Ring (R) stated, “These are common sense changes to ensure expeditious elections that are fair and efficient. The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.” Sole Democratic Board Member Lauren McFerran (D) vehemently opposed the changes. There is no doubt these Trump-era NLRB election rules will be opposed greatly by any future Democratic controlled NLRB. However, for now (starting in April 2020) employers will be in a much stronger position to successfully dispose of or counter union petitions seeking to represent workers in the private sector. 

NLRB Makes ‘Unilateral’ Less of a Dirty Word

Contributed by Beverly Alfon, October 8, 2019

union workers

The National Labor Relations Act (NLRA) requires employers with a unionized workforce to bargain in good faith with the union over mandatory subjects of bargaining (e.g., wages, hours, and other terms and conditions of employment). The duty to bargain continues during the term of a collective bargaining agreement (CBA) with respect to mandatory subjects of bargaining that are not covered by the agreement.  An employer who makes unilateral changes to these terms without satisfying its bargaining obligations violates the Act, unless it can establish a valid defense.  Until now, the only available defense that was available to an employer who made such unilateral change was a union’s “clear and unmistakable” waiver of the right to bargain over the precise matter at issue – a standard which the D.C. Circuit has characterized as an “impossible to meet” burden for an employer.  

Overturning 37 years of precedent, however, the NLRB, in a recent 3-1 decision, changed the standard that the Board applies to determine whether a CBA grants the employer the right to take unilateral actions without violating the Act. In M.V. Transportation, Inc. (28-CA-173726; 368 NLRB No. 66), a local of the Amalgamated Transit Union (ATU) alleged that the employer, MV Transportation Inc., violated the Act by unilaterally adopting several policies, including ones related to safety and attendance, without bargaining with the union. The Board accepted the employer’s argument that the CBA contained language, including a broad management rights clause referring to adoption and enforcement of work rules, that allowed it to unilaterally adopt the policies. 

Under this new “contract coverage” standard, the Board will examine the plain language of the parties’ collective-bargaining agreement to determine whether or not the change made by the employer was within the scope of CBA language granting the employer discretion to act unilaterally. For example, if the CBA gives the employer the ability to implement and revise work rules, then it may now lawfully implement new safety rules or revise an existing attendance policy, without further bargaining. 

Key Takeaways:  Although this new standard relaxes an employer’s burden in defending against charges of a failure to bargain, it does not give an employer full license to take such unilateral actions.  The extent to which an employer can take unilateral action will depend on the scope and clarity of the language of the CBA.  If there is no CBA language that grants the employer the right to take unilateral action, the Board will consider whether or not the union “clearly and unmistakably” waived its right to bargain over the change.  Also, keep in mind that unions will still have the option of filing a grievance and proceed to arbitration on the matter. 

Now more than ever, given the Board’s approach in these matters to honor the parties’ agreement, CBA language must be carefully crafted.  Employers should review their rights in current CBAs and seek to strengthen rights in negotiations for the next contract.  At negotiations, employers should expect much scrutiny and pushback on management rights clauses and other CBA language that can be interpreted as granting the employer any level of discretion.  

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

36419114 - hand about to bang gavel on sounding block in the court room

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.

ambulance

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.