Tag Archives: Collective bargaining

2017 Ending With A Bang: Obama Era NLRB “Micro Unit” Ruling Reversed

Contributed by Jeffrey Risch, December 22, 2017

2017 is coming to an end, and with somewhat of a Bang! for labor relations moving forward under Trump’s NLRB.  In a matter involving PCC Structurals, Inc. and the Intern’l Assoc. of Machinists & Aerospace Workers (19-RC-202188), the NLRB this month overruled its 2011 decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, and reinstated the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases.  The essence of the 2017 decision is that the National Labor Relations Act mandates that the NLRB must evaluate, in each and every case, whether the group of employees a union seeks to represent constitutes a unit that is “appropriate” for collective bargaining.

As a reminder… in Specialty Healthcare, the NLRB held that if a union petitioned for an election among a particular group of employees, those employees PRESUMABLY shared a community of interest among themselves.  And so, if the employer took the position that the smallest appropriate unit had to include employees excluded from the proposed unit, the NLRB could not find the petitioned unit inappropriate unless the employer proved that the excluded employees shared an “overwhelming” community of interest with the petitioned-for group.  The practical effect of this ruling made it “next to impossible” for an employer to successfully challenge the union’s petitioned for “micro-unit”.

The Trump NLRB (in a 3-2 party split decision) has now abandoned the “overwhelming” community-of-interest standard stating that “there are sound policy reasons for returning to the traditional community-of-interest standard that the Board has applied throughout most of its history…”

This PCC Structurals case involved a Regional Office’s finding that a petitioned for unit (a “micro-unit”) of approximately 100 welders was appropriate for collective bargaining.  A “micro-unit” is a small and discrete subset of employees at a particular worksite or worksites, which a union seeks to represent.  It is the opposite of a “wall-to-wall unit” that would encompass the majority of an employer’s non-supervisory employees.  Applying Specialty Healthcare’s “overwhelming community of interest” standard, the Regional Director rejected the employer’s contention that the smallest appropriate unit was a wall-to-wall unit of 2,565 employees.

Of course, the more limited that a union defines a petitioned for unit, the less number of employees belong to the unit and the easier it is for the union to “cherry pick” the necessary votes to win an election and get a “foot in the door” of an employer.  We saw this work to the union’s benefit in many cases since Specialty Healthcare (see here).

The Quick Take Away:  Despite this favorable ruling for employers who prefer to remain union-free, it may be temporary due to what political party occupies the White House; and it does not prevent unions from successfully petitioning for smaller units at a place of business that would otherwise meet the “community of interest” standard.  Indeed, smaller units have always been successfully petitioned for by labor unions under this standard.  But, for the time being, big labor may not be able to “cherry pick” a few employees at a time.

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

Contributed by Carlos Arévalo, March 29, 2017

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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?

NLRB Articulates Duty to Bargain with Newly Elected Unions before Imposing Discretionary Discipline

Contributed by Carly Zuba

In Alan Ritchey, Inc. and Warehouse Union Local 6 (Dec. 14, 2012) the National Labor Relations Board decided that an employer whose workforce is represented by a newly-elected labor union must bargain with the union before taking discretionary disciplinary action that would have an immediate impact on the tenure status or earnings of an individual bargaining unit employee, such as discharge or demotion. The Board held that this duty exists after the union has become the employees’ bargaining representative, but before the parties have agreed upon a collective bargaining agreement.

The Facts: A majority of the employer’s employees in an appropriate bargaining unit voted in favor of representation by Warehouse Union Local 6, International Longshore and Warehouse Union. After the union became the employees’ bargaining representative but before the parties agreed upon a collective bargaining agreement, the employer applied its progressive disciplinary system for four different causes of discipline.  In all four areas – absenteeism, insubordination, threatening behavior and failure to meet efficiency standards – the employer admitted that it exercised discretion in deciding whether to impose discipline and what form of discipline to impose.  Additionally, the Employee Handbook expressly reserved to the employer the right to exercise discretion in the enforcement of its policies.  In other words, when determining whether to discipline and the level of discipline to impose, the employer was guided by “fixed” policies, but ultimately decided each case based upon the circumstances. 

The Union filed unfair labor practice charges against the employer, stating that the employer had a duty to provide the Union with notice and an opportunity to bargain about the disciplinary actions at issue. The Board ultimately agreed.

Limit to Duty: In ruling that certain discipline requires employers to provide notice and bargain with the Union, the Board explained that not every unilateral change that affects terms and conditions of employment triggers the duty to bargain – rather, the Board asks whether the changes had a material, substantial, and significant impact on the employees’ terms and conditions of employment. So, discretionary actions such as suspension, demotion, and discharge – actions that have an inevitable and immediate impact on employees’ tenure, status, and/or earnings – must be bargained over before these sanctions are imposed.  On the other hand, disciplinary actions such as oral and written warnings have a lesser impact on employees; as such, the Board stated that there is no duty to bargain over these types actions.

Requirements of Duty: The duty to provide notice entails giving sufficient advance notice to the union to provide for meaningful discussion concerning the grounds for imposing discipline and the grounds for the form of discipline chosen, to the extent that these choices involved an exercise of discretion.  This duty also includes responding to a timely union request for relevant information, under the Board’s established approach to information requests.  However, the Board clarified that requiring the employer to bargain about its intention to discipline an employee will not require the employer to negotiate to an agreement or impasse with the union; instead, if no agreement is reached, the duty to bargain about disciplinary action will simply continue after the disciplinary action’s implementation.

Practical Recommendations for Employers in Light of Decision: Employers that wish to avoid uncertainty in complying with this decision should consider negotiating an interim grievance procedure with the union before a full CBA is reached. If the union can be convinced to enter into such a procedure, it should acknowledge the employer’s right to discipline consistent with its past policies and practices and clearly provide for the employer’s right to impose discipline before notifying or negotiating with the union.

In cases where an interim grievance procedure is not reached, employers should be sure to notify the union of its intent to discipline, before discipline is actually imposed.  Notification should occur only after the employer has conducted an investigation (if necessary) and decided upon a plan of action for the discipline.  This notification should identify the employee to be disciplined, the basis for the discipline, and the intended level of discipline.  The notification should give the union a reasonable but definite time-frame within which to bargain about the discipline.  The notification could possibly state that if the union does not express an intent to bargain about the discipline within that time frame, the employer will assume that the union does not wish to bargain and will proceed with imposing the discipline.

Finally, employers with expired contracts should consider agreeing to extend and apply the grievance and arbitration provisions of the expired contract during the gap of time between contracts.