Unionization Rates Continue to Decline

On January 23, 2013, the BLS released its annual report on the rate of unionization. Overall, the rate of unionization feel from 11.8% to 11.3%. Public sector workers had a 35.8 percent membership rate while the rate on unionization in the private sector dropped to 6.6%.

Significantly, however, union members continue to earn more than there non-union counterparts. As the report states:

In 2012, among full-time wage and salary workers, union members had median usual weekly earnings of $943, while those who were not union members had median weekly earnings of $742.

In addition to coverage by a collective bargaining agreement, this earnings difference reflects a variety of influences, including variations in the distribution sof union members and nonunion employees by occupation, industry, firm size, or geographic region.

via Adjunct Law Prof Blog: Breaking News. Unionization Rates Continue to Decline.

NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Contract

Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12], is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult.

This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

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.” Toledo Blade Co., 343 NLRB 385, 387 2004 emphasized.

This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today.

Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed.

Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system.

Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment—may properly be deferred until after they are imposed.

(emphasis added).

via Adjunct Law Prof Blog: NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract.

NLRB holds dues check-off survives CBA expiration

Recently, the NLRB released its decision (3-1) in WKYC-TV, in which the NLRB reversed the long-standing rule Bethelem Steel that agreements for dues checkoffs will not continue after the contract expires.

The new rule will not apply to pending cases.   The essence of the majority decision is that because dues checkoffs are mandatory subjects of bargaining, the normal Katz rule for such topics–that they must continue while a new contract is being negotiated–should apply unless there is a reason for an exception; the majority found that there wasn’t.  In making this conclusion, the majority distinguished clauses that involved the waiver of rights, like no-strike clauses.  The majority also criticized Bethelem Steel for treating dues checkoff provisions the same as union security clauses (in part because of its reading of Sections 8(a)(3) and 302(c)).

Member Hayes dissented, arguing that there was no evidence that the old rule wasn’t working. Further, he disagreed with the majority’s statutory interpretation.  He also stressed that limiting dues checkoffs to an active collective-bargaining agreement was more consistent with the concept of voluntary unionism.

via Workplace Prof Blog: Dues Check-Off Now Survives Contract Expiration.

A Grievance Is Arbitrable Even After An Employee Dies

Sheet Metal Workers Local No. 2 v. Silgan Containers Mfg. Corp., ____F.3d___8th Cir. 8/28/12

Union may continue to enforce CBAs mandatory arbitration provision on behalf of worker who died after grievance arose but before arbitration began.

 

via Adjunct Law Prof Blog: A Grievance Is Arbitrable Even After An Employee Dies.

Public Defenders lose at arbitration

Minnesota Lawyer Blog reports on an arbitration award denying the grievance of public defenders.  In summary, public defenders filed a grievance alleging a collective bargaining agreement (CBA) violation when public defenders were assigned too many cases.

The grievants asked for the arbitrator to order the board of public defense to adopt a maximum caseload standard of 400. Evidence presented by the grievants shows that defenders in the Third District have an average of between 660 and 745 cases in the last five years. They say this excessive caseload violates their union contract because it brings rise to ethical concerns over whether the attorneys can provide adequate representation to their clients and creates a risk that the attorneys will violate the Rules of Professional Conduct.

Arbitrator Befort found that there was no violation since the CBA did not mention a caseload cap.  Further, Arbitrator Befort found that there had been no discipline of attorneys relating to having too many cases.

Befort concluded that the issue was best decided by the state legislature that allocates funding for public defense, and not a union contract dispute.

“[T]his is not a problem that has been caused by the failure of the State Board of Public Defense to fulfill its obligations under the parties’ collective bargaining agreement. Ultimately, the problem at hand is political in nature and requires resolution at a different forum,” he wrote.

A copy of the decision is here.

via PDs lose at arbitration – MinnLawyer Blog.

CBA and Dues checkoff

Newspaper Guild v. Hearst Corp., ___F.3d___ 2d Cir. May 17, 2011, is an important decision. As most readers will recognize, unions depend upon union dues to operate. But what happens when a CBA expires? Does a dues checkoff provision remain valid? According to the Second Circuit, it depends. Interestingly, the 2d Circuit rejected the notion that a dues checkoff provision was a type of accurred or vest benefit. Instead, the court focused on the language of the dues check off provision in the CBA. If it can be read as still applying during the contractual hiatus, then the matter is subject to arbitration. An arbitrator would ultimately have to determine if the CBA was in fact violated by the suspension of dues check off.

via Adjunct Law Prof Blog.