Category Archives: unions

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.

 

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.”

gavelbw

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.

NLRB Decision Reminds Employers to Tread Cautiously Amidst Union Push

Contributed by Suzanne Newcomb, April 20, 2017

On April 13, 2017 the National Labor Relations Board (NLRB) set aside a vote defeating a union organizing campaign and ordered a new election because the workforce could have perceived management’s statements as impermissible promises to provide benefits if they voted down the union (see full decision here).

44905665 - hand put voting paper in ballot box. voting flat conceptDuring a unionizing campaign, management held a meeting in which it advised employees that another facility’s employees received a 12% pay raise the pay period after they rejected union representation. Management explained that the raises were the result of a survey of wages in that geographical area and stated that the company was in the early stages of conducting a similar survey in their area. All of these statements were true.

Management then opined that if the union won the election, any pay raise could take “a whole lot longer” – perhaps 6 months, a year, 18 months, and that there was a “really big chance” that they might not get the raise at all or could end up losing money. Finally, management added that although they were not promising anything, they planned to follow the same process and therefore, a “reasonable man” could expect a 12% increase.

A PowerPoint presentation shown during the meeting stated that the company was not making promises, the wage survey would continue regardless of the election outcome, the collective-bargaining process could result in wages going up or down or remaining the same, and included a hypothetical in which the union won the election and employees received a 12% raise.

The NLRB concluded that despite repeatedly stating that they were not making any promises, management implied that employees would receive a benefit if they defeated the union. Quoting a 1978 decision, the NLRB stated: “it is immaterial that an employer professes that he cannot make any promises, if in fact he expressly or impliedly indicates that specific benefits will be granted.

All employers are prohibited from interfering with, restraining, or coercing employees regarding their right to join a union. Prohibited conduct includes:

  • Providing or promising (expressly or implicitly) to provide benefits in an effort to thwart the unionization effort;
  • Withholding benefits that would have been provided absent the unionization campaign;
  • Taking or threatening adverse action for union involvement or sympathies;
  • Questioning employees about their union loyalties or that of their co-workers; and
  • Spying on union activities.

This list is not exhaustive. If you suspect an organizing campaign, exercise extreme caution and seek expert advice immediately.

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?