Tag: collective bargaining

July 17, 2018

NLRB Charges: What’s an Unfair Labor Practice?

The National Labor Relations Board’s General Counsel (through Regional Offices) investigates violations of the National Labor Relations Act. An Unfair Labor Practice (ULP) occurs when an employer or union violates Section 8 of the Act. Those affected by these violations, including nonunion employees, can bring NLRB charges against the offending party. The NLRB receives 20,000 to 30,000 charges a year from employers, employees, and unions. Employers should be aware of the most common board charges to help them reduce the chance of receiving one.

Common NLRB Charges Against Employers

Employers incur NLRB charges by interfering with employee rights to engage in concerted or union activity and engaging in “bad faith” collective bargaining. Common allegations against employers include threatening or disciplining employees for union activity and promises of certain benefits in exchange for employees not to engage in union activity. In collective bargaining, common allegations against employers include refusals to provide requested information, bargaining in “bad faith,” and attempting to negotiate directly with employees.

To lessen the chance of receiving charges, employers should train managers in complying with the Act. Furthermore, charges of “bad faith” bargaining do not mean employers cannot take a hard stance in negotiations or leave the bargaining table. However, an employer cannot bargain with no intention of actually reaching a deal.

It is also important for employers to be aware that the balance between employer and employee rights under the NLRB tends to fluctuate based on the political climate in Washington.

Common NLRB Charges Against Unions

Charges against unions are less common than allegations against employers. Common charges against unions include failure to represent an employee in a grievance and failure to bargain in “good faith”. It is also common for charges against unions to allege illegal coercion of employees, illegal picketing, secondary boycotts, and discrimination against employees. Both employers and employees can bring charges against unions.

Investigation Process

Once a charge is filed, the General Counsel investigates the allegation to determine whether there is reasonable cause to issue a complaint or dismiss the charge. The investigation is delegated to the Regional Director of the area where the alleged violation occurred, assuming the parties involved fall under NLRB jurisdiction. If the Regional Director decides to issue a complaint, an Administrative Law Judge will hear the case. As shown in the chart below, most charges result in withdrawal or settlement.

The NLRB encourages voluntary resolution throughout the investigation process. This includes an alternative dispute resolution (ADR) program which aids in settlement through mediation and arbitration. The NLRB recently announced an initiative to be more proactive in encouraging parties to participate in ADR.

Potential Consequences of NLRB Charges

In some cases, the NLRB’s General Counsel can seek a temporary injunction under Section 10(j) of the Act. Temporary injunctions are intended to stop ULPs and irreparable harm to employees during the litigation process. The Act defines 15 categories of labor disputes where temporary injunctions are appropriate, including secondary boycotts and hot cargo agreements. Temporary injunctions cease once the NLRB decides the case.

If the NLRB ultimately finds a violation, it can order reinstatement of employees, pay back pay, or other make-whole remedies. It can also issue informational remedies, such as requiring an employer to post notices in the workplace. The NLRB cannot assess pure penalties under the Act. It has no statutory power to enforce its decisions directly, but can seek enforcement through the federal court system.

The consequences of a charge also include the time and money spent during the investigation, adjudication, and litigation processes.

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June 28, 2018

Supreme Court Rules Against Public Unions

On June 27, 2018, the U.S. Supreme Court issued a long-awaited decision affecting public sector unions. In Janus v. American Federation of State, County and Municipal Employees (AFSCME) Council 31, the Court ruled that government employees cannot be required to support financially unions that represent them. This decision reverses precedent from a case the Supreme Court decided 41 years ago. Public unions will now face new challenges.

Public Unions as Exclusive Bargaining Representatives

Unionizing usually means employees select by majority support a single union to represent them in dealings with their employer regarding terms and conditions of employment. The union must represent every employee fairly. Even employees who do not support the union are subject to what the union negotiates on their behalf. Employees in represented units typically cannot deal directly with their employer on topics like wages and benefits.

Agency Fees

Not all states permit unions to represent government employees in negotiations and other dealings with their public employers. But those that do often allow unions and governmental employers to agree to deduct money from represented employees’ pay to fund the union.

In a 1977 case (Abood v. Detroit Board of Education), the Supreme Court addressed Constitutional challenges to such requirements. The Court acknowledged that forcing public employees to fund every nature of union activity would violate employees’ First Amendment rights. Specifically, public employers could not compel their employees, even through collective bargaining, to contribute to unions’ political activities and lobbying efforts. However, the Court allowed at that time that public unions and employers could agree to require all employees within a bargaining unit to contribute toward the costs of collective bargaining and grievance administration. Consequently, a public employee could refrain from joining the union and paying full union dues, but would still have to pay a portion of the dues known as an agency fee.

Twenty-eight states have “right-to-work” laws that give employees the choice of whether to support a union. The Supreme Court’s ruling essentially converts all states to right-to-work states for public employees.

Janus Decision

The Supreme Court has reversed its 1977 holding on agency fees. Five Justices agreed that requiring public employees to pay anything to a union violates the employees’ First Amendment free speech rights. Four Justices joined in a vigorous dissent.

The majority justified its reversal, in part, by observing that public sector unionism was a new phenomenon in 1977: “The first State to permit collective bargaining by government employees was Wisconsin in 1959, and public-sector union membership remained relatively low until a ‘spurt’ in the late 1960’s and early 1970’s. . . .”

It also bluntly concluded that the 1977 case “was not well reasoned.”

The dissenters obviously disagreed. They contended that there are still sufficient government interests to justify this limitation on public employees’ free speech rights:

“First, exclusive representation arrangements benefit some government entities because they can facilitate stable labor relations.”
“Second, the government may be unable to avail itself of those benefits unless the single union has a secure source of funding.”
“And third, agency fees are often needed to ensure such stable funding. That is because without those fees, employees have every incentive to free ride on the union dues paid by others.”

The Justices in the majority rejected those points as inconsistent with current realities of the public-sector labor market. They noted, for example, that federal government employees do not have to pay agency fees to unions representing them; nonetheless, approximately 27% of the federal workforce are voluntary union members.

Impact on Public Unions

While allowing that public unions may retain their numbers despite this decision, the Janus majority acknowledges a potential adverse impact. But this risk, they find, does not trump the First Amendment:

“We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.”

The dissenters emphasize that 22 states have freely chosen to permit agency fees based on compelling public interests. These states, they assert, recognize stability in bargaining with a solvent employee representative. The dissenting opinion unabashedly slights the majority of states and the federal government that evidently disagree:

“Of course, not all public employers will share that view. Some would rather not bargain with an exclusive representative. Others would prefer that representative to be poorly funded—to serve more as a front than an effectual bargaining partner.”

There is no doubt that public unions have feared this day. Eliminating agency fees will not benefit them. Surely, some employees will opt not to support the unions that represent them. These employees may risk some loss of union benefits. The Supreme Court majority specifically suggests that employees who do not join the union “could be required to pay for [union representation in disciplinary matters] or could be denied union representation altogether.”

Impact on Public Employers

Most notably, public employers may no longer transfer any money from employees’ pay to a union without the employee’s authorization. Most employers will not need to change anything for union members who have signed dues authorization cards. But employers presumably must immediately stop deducting agency fees from any employees for whom they do not have such authorization.

Employees could perhaps still authorize only a portion of the full union dues consistent with the agency fee calculation, subject to union amenability. Employers faced with this situation should first review any potentially relevant collective bargaining agreement provisions. In some cases, negotiation or clarification with the union may be appropriate.

Many states that have historically permitted the mandatory agency fee deduction are considering or have passed new laws to protect public unions. Public employers should consult these and preexisting state laws to evaluate the full extent of their obligations under Janus.

Given the complexity and Constitutional complexion of this issue, government employers should strongly consider discussing their obligations with an experienced labor lawyer.

You can read review the Supreme Court’s full majority and dissenting opinions here.

April 19, 2018

New York Protects Public Sector Unions

Through the State Budget bill signed by Governor Andrew Cuomo on April 12, 2018, New York has new legal protections for unions that represent government employees. These measures seek to protect public sector unions from the potential implications of the Supreme Court’s upcoming decision in the case of Janus v. AFSCME. Many expect that decision to allow public employees to refuse to financially support the unions that represent them in collective bargaining.

What’s at Stake in Janus?

I have recently described what Janus may mean for New York’s public sector unions here.

The U.S. Supreme Court heard arguments in the case on February 27, 2018. Its decision will likely come out this spring.

Existing Supreme Court precedent holds that public employees cannot be required to pay for unions’ political activities. However, they can be required to contribute to the union’s actual costs of contract negotiation and administration.

Illinois state employee Mark Janus is asking the Court to change that standard. He wants the Court to rule that, under the First Amendment, public employees cannot be required to fund unions against their will. This outcome could threaten public sector unions’ ability to raise sufficient funds to perform their day-to-day operations.

New York Legislative Measures

Without waiting for the decision in Janus, the New York State Legislature has enacted protections seeking to give public sector unions greater leverage over employees who might consider opting out of union membership.

Modification of Dues Deduction Requirements

Before these amendments, New York’s Civil Service Law required public employers to deduct union dues from employees’ paychecks “upon presentation of dues deduction authorization cards signed by individual employees.”

The Legislature has added considerable additional language to that requirement addressing time limitations, forms and means of authorizations, and employee revocation.

The law now requires employers to begin union dues deductions within 30 days of receiving proof of a signed authorization. The employer must then continue to make the deduction until either the employee revokes membership in the union “in writing in accordance with the terms of the signed authorization” or ends employment. Previously, the law permitted an employee to end the dues deductions by submitting written notice of withdrawal of the dues authorization.

Notably, the law now also provides that if an employee leaves and returns to employment within a year, then their prior authorization will remain in effect.

Notification of New Employees

A new provision of the Civil Service Law requires public employers to notify the applicable union within 30 days of hiring, rehiring, promoting, or transferring an employee into a bargaining unit.

The notice to the union must include the employee’s:

name;
address;
job title;
employing agency;
department or other operating unit; and
work location.

This information will enable the union to contact the employee for purposes of encouraging union membership and signing of a dues deduction authorization card.

Meeting with New Employees

In case providing the employee’s information to the union isn’t enough, the law now actually compels public employers to make their employees available, on work time, to meet with union representatives. Employers must allow this within 30 days of providing the information above.

The union representing the employee’s bargaining unit may meet with the employee “for a reasonable amount of time … without charge to leave credits.” The union must arrange the meeting time with the employer.

Duty of Fair Representation

Before this legislation, public sector unions owed a general “duty of fair representation” to all employees in the bargaining unit they represent, including employees who chose not to join the union. Now the law allows a union to “limit[] its services to and representation of non-members.” This limits the duty of fair representation to “the negotiation or enforcement of the terms of an agreement with the public employer.”

In more detail, the law explains this to mean that public sector unions do not have to represent non-members:

during questioning by the employer;
in statutory or administrative proceedings or to enforce statutory or regulatory rights; or
in any stage of a grievance, arbitration, or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to proceed without the employee organization and be represented by his or her own advocate.

The law also expressly permits public sector unions to limit legal, economic, or job-related services or benefits beyond those provided in the collective bargaining agreement only to union members.

Impact on Public Sector Unions

It is hard to guess how these preemptive measures will hold up following the Supreme Court’s ruling in Janus. In addition to the above substantive amendments, the Legislature included two sections in the law recognizing the potential that some of these requirements could be found unconstitutional. If so, the law provides, the remainder of the legal requirements would remain in effect.

But the intent of the legislation is clear. It seeks to protect New York’s public sector unions against federal limitations. To that end, Governor Cuomo announced, upon signing the legislation:

“Too often, and at the hands of this federal administration, we are seeing the labor movement going backwards. In New York it is a different story, and our efforts to protect working men and women are moving labor forward, making the workplace fairer and more just than ever before. This action sends a clear message to the rest of the nation: we will not let this federal administration silence New York’s working class, we will support every voice in every community and in every industry, and we will do everything in our power to protect the right to achieve the American Dream.”

Impact on Public Employers

Without even knowing what further impact the Janus decision will have, it is too early to anticipate the ultimate impact on employers. In many cases, these changes probably will not have an immediate effect on existing bargaining units. Many employees will likely continue to support their unions, who will continue to represent them and others in their bargaining unit.

Some employers would probably be happy if unions faded out of their workplaces. And this may happen over time. But other employers would regret seeing one union leave to be replaced by an unfamiliar one.

If nothing else, the release from the duty of fair representation, if legally upheld, may benefit employers as well as unions. It could result in fewer grievances and less litigation where unions decline to fight on behalf of non-member employees. On the other hand, these employees may still be able to arbitrate or litigate on their own, with or without legal representation.