Tag Archives: Union

IDOL on the PROWL: Looking At Non-Union Contractors to Debar for Technical Violations of the Illinois Prevailing Wage Act

Contributed By Jeff Risch and Peter Hansen, May 7, 2021

hand signing contract on white paper

Contractors beware – the Illinois Department of Labor (IDOL) has ramped up audits of contractors as labor unions and related organizations flood the IDOL with “complaints. Remember, under the Illinois Prevailing Wage Act (IPWA), a prevailing wage “complaint” need not be verified or even submitted to the IDOL under penalty of perjury. The IDOL will investigate each and every “complaint” regardless of merit and, while historically the main focus of the IDOL was to ensure proper and full payment of the actual prevailing wage, it is now seeking to issue violations and debar contractors for technical violations (i.e. failure to post rates or provide written notice to contractors or lower tiered contracts).

Typically, debarment from contracting for public works (for up to 4 years) occurs only after the IDOL issues two distinct formal written notices of IPWA violations to a contractor within 5 years. Until recently, the IDOL considered the severity of the violation, the contractor’s history, and whether the contractor generally complied with other IPWA obligations before issuing a violation notice. The IDOL is now moving towards a philosophy of issuing a formal notice of violation for technical violations – especially when it comes to non-union contractors.

The IDOL’s increased activity is exceptionally troubling for all contractors given the IPWA’s broad definition of “violation” under its Administrative Rules. Pursuant to the IDOL’s prevailing wage rules, a violation occurs whenever the IDOL determines that the contractor:
• failed to pay the prevailing wage to one or more employees performing work covered under a public works contract;
• failed to keep, produce, or submit accurate records demonstrating compliance with the IPWA;
• refused to comply with the certified payroll filing obligations (this now requires the use of the IDOL’s own online electronic portal system);
• refused to allow the IDOL’s access to inspect the contractor’s records;
• failed to insert a written stipulation that prevailing wage rates be paid into each subcontract and into the project specifications;
• failed to obtain a bond guaranteeing performance of the prevailing wage clause (when required by the public body to do so); or
• failed to post or communicate to the workers the applicable prevailing wage rates on the public works project site.

There’s clearly a lot of room for the IDOL to issue violation notices for technical violations that have nothing to do with the actual payment of the prevailing wage to the worker. The IPWA arguably has the most complex and administratively burdensome laws in the country. That’s on purpose!

All contractors must be acutely aware of the IDOL’s increased audit activity – and unprecedented scrutiny. And, in light of Springfield’s allegiance to organized labor these days, non-union contractors are in particular need to be doing everything possible to make certain they are complying with the IPWA’s technical requirements, beyond the payment of the actual prevailing wage.

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.

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


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.


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.

Right-to-Work: Who’s Got Next?

Contributed by Beverly Alfon

Despite labor’s historical stronghold in the Midwest – Indiana, Michigan, Iowa, Tennessee and now, Wisconsin – have become Right-to-Work (RTW) states.  Is Illinois next?  What does this mean for employers?

RTW In a Nutshell: Money and Power

In the 25 states that have not passed RTW laws, including Illinois and Missouri, a union security clause in a collective bargaining agreement requires all employees in the bargaining unit to either be a dues/fee-paying union member – or a non-member who pays “fair share” fees.  The battle is over the non-member “fair share” fees which are used to supplement dues cash flow used for, among other things, local and international officer salaries, overhead costs and political lobbying.

In the 25 states that have passed RTW laws, a non-member at a unionized workplace is no longer required to pay any fees to the union – even if s/he is benefitting from union representation.  Financially, RTW is a major blow to unions.  From an organizing standpoint, it is equally damning.  An individual is far less likely to become or remain a union member if s/he can benefit from representation without having to pay.  After all, a union owes a legal duty of fair representation to all individuals in the bargaining unit – regardless of member status.

Proponents of RTW laws argue that they attract new business and promote expansion of existing businesses because of the likely decline of union strength and numbers.  Opponents of RTW laws argue that employee wages, benefits and protections will deteriorate as a result of lower union representation.

The Pulse 

Missouri: Even if the RTW bill before the Missouri legislature fails this year, GOP representatives are celebrating.  Last month, in a 91-64 vote, the House approved a RTW bill.  Despite the possibility of defeat in the Senate and expected veto of Gov. Jay Nixon, the RTW movement has clearly gained significant ground.  It would only take 109 votes in the House to override a veto.

Illinois:  Last month, Gov. Bruce Rauner issued an executive order allowing state employees to opt out of paying union dues.  AFSCME, Illinois AFL-CIO and 25 other unions filed suit last week challenging the executive order.  Meanwhile, Rauner has filed his own lawsuit asking the courts to confirm his position that fair share fees violate workers’ First Amendment rights.

Wisconsin:  Last week, a group of unions filed suit to challenge the recently enacted RTW law.  Notably, union challenges to the constitutionality of RTW laws in Michigan and Indiana have failed.

Kentucky:  Under home rule, in December 2014, Warren County, Ky., adopted a countywide RTW ordinance after it became clear the state legislature was not going to pass a RTW bill.  Since last year, 11 counties have passed local RTW laws, including several along the Tennessee border.

What to Expect Right Now 

Expect an uptick in union activity as unions ramp up “internal organizing” to prove that membership has its benefits.  Frontline management will also likely receive increasing questions from employees about what all of this means.  Now is the time to consider re-training your supervisors and managers about what they can say and do when these discussions arise.  Finally, stay tuned as these legal and legislative battles continue to develop.

NLRB Reissues Proposed “Quickie Election” Rule: Non-Union Employers Must Be Prepared

Contributed by Jeffrey Risch and Suzanne Newcomb

Earlier today the National Labor Relations Board announced proposed rule changes that will drastically speed the union election process, limit issues employers can raise in the pre-election process, and limit employers’ appeal rights. The proposed amendments are nothing new. Substantively identical changes – dubbed the “Quickie” or “Ambush” Election Rule — went into effect April 30, 2012 but was quickly invalidated when the D.C. Circuit ruled the Board did not have a quorum when it passed the rule changes. The amendments proposed today are open for public comment for 60 days with public hearing taking place the week of April 7, 2014. Now that all seats on the Board are properly filled, any Rule changes that ultimately emerge may just stick.

Don’t be caught off guard. The proposed rule will significantly reduce the time between when a union petition is filed and when the election takes place. Currently, employers have approximately 42 days to respond to a formal organizing petition (which in many instances is not enough time to effectively campaign against a union that may have been “seasoning” the workforce for many months).  Although details are still emerging, the essence of the proposed rule is to substantially reduce the time frame for employers to mount a counter campaign.  The counter campaign predominantly focuses on educating the workforce on the TRUTH about labor unions; often separating fact from fiction because the labor union can legally make wild promises without any guarantees.  The “ambush” election rule could reduce the employer’s messaging to as little as 10-14 days.

Any employer that waits until a union petition has been filed to launch its counter campaign is at the mercy of the union and the NLRB. It is imperative that the employer has its campaign ready to go before facing an organizing campaign and expedited election.   If an employer prefers to remain union free, now is the time to prepare and implement an effective and lawful union avoidance strategy, educate the workforce, and train supervisors on proper union prevention measures.  SmithAmundsen’s experienced labor law team stands ready to discuss the ABCs and 123s of legally maintaining a union-free workforce.

The Misnomer Lives On: The Supreme Court Dismisses Mulhall Without Deciding the Issue

Contributed by Steven Jados

Back in October, we discussed Unite Here Local 355 v. Mulhall, a case pending at that time in the U.S. Supreme Court.  The issue in Mulhall was whether a union neutrality agreement could be a “thing of value” paid, lent, or delivered to a union in violation of Section 302 of the Labor-Management Relations Act (“LMRA”).

The misnomer is that neutrality agreements have little to do with neutrality.  Instead, they are a way for a particular union to virtually guarantee that it will acquire control over employees who may have no interest at all in being unionized.

In December, the Supreme Court dismissed Mulhall from the Court’s docket, essentially stating that Mulhall should not have been one of the very few cases the Court chooses to hear each year.  Why the Court did so is unclear.  The Court did not give the exact reason for its decision, but three Justices opposed the dismissal, and those three hinted that there may have been procedural defects in the underlying appellate decision.  Because the Supreme Court dismissed Mulhall instead of issuing an opinion, the underlying appellate decision remains intact in spite of any potential procedural defects.  What that means for employers going forward is that the Eleventh Circuit’s decision in Mulhall continues to hold that, under certain circumstances, union neutrality agreements can be things of value prohibited by the LMRA.

Even though the Eleventh Circuit’s decision remains intact, unions nation-wide are breathing a sigh of relief because the Supreme Court did not directly restrict their ability to use neutrality agreements to further their organizing campaigns.  For that reason, employers across the country must be prepared to face increased pressure from unions to accept neutrality agreements.

These agreements are not to be entered into lightly—regardless of what a union agent may say to the contrary.  If a company signs a neutrality agreement, the company may be giving up its ability to remain non-union.  These agreements are extremely valuable to unions because the agreements often lead quickly to a unionized workforce.

Further, in almost all circumstances, the language of the neutrality agreement will control how the agreement is interpreted.  As such, any oral “promises” a union might make to convince a business to sign a neutrality agreement are likely meaningless.  Employers must focus on the actual text of any proposed neutrality agreement.

Since neutrality agreements have the potential to place significant and long-lasting burdens on companies, employers should not enter into these agreements without first consulting with experienced labor counsel who can advise the employer on the likely legal and practical consequences.  The Supreme Court’s decision to dismiss Mulhall allows unions to continue to make neutrality agreements a significant weapon in the union organizing arsenal.  Employers must be prepared to respond with creative strategies to defend themselves.

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.