NLRB Overrules Anheuser-Busch, Favors Balancing Test on Witness Statements

The National Labor Relations Board (NLRB) on Piedmont Gardens, 359 NLRB No. 46, overruled a 36-year-old “bright-line rule” that denied labor organization representatives access to witness statements obtained by unionized employers, finding NLRB should balance the interests of unions and employers in assessing union requests for the names or statements of witnesses interviewed during a company investigation.

By overruling Anheuser-Busch, 237 NLRB 982 (1978), and applying instead the Detroit Edison balancing test, the NLRB found that respondents violated the NLRA by failing to provide the witness statements.  In the Detroit Edison balancing test, the board will balance the union’s need for relevant information against the legitimate and substantial employer’s interest in keeping information confidential.

via Adjunct Law Prof Blog: NLRB Overrules Anheuser-Busch Precedent, Favors Balancing Test on Witness Statements.

Campaign donation issue reopened

On Tuesday, the Supreme Court agreed to hear McCutcheon v. Federal Election Commission, 12-536.   The gist of this case deals with the constitutionality of the two-year ceilings that federal law sets on what an individual can give during a campaign for the presidency or Congress, in donations to candidates, to political parties, or to other political committees.

The Supreme Court did not explicitly promise whether it would reconsider its decision in Buckley v. Valeo (1976).  Since Buckley, the government had more leeway to control contributions to candidates or political organizations than over spending by candidates or by independent political activists.

In 2010, the Supreme Court decided a hotly controversial decision in Citizens United v. FEC.  In Citizens United, the Supreme Court declared unconstitutional any limit on spending during federal campaigns by corporations or labor unions, so long as they spent the money independently of a candidate or candidate organization.

In McCutcheon, McCutcheon wants to be able to give more contributions than the two-year overall limits.  McCutcheon’s contributions, if he could go over the limit, would have exceeded the two-year ceiling by $26,200.

Under federal law, the ceiling for the 2011-2012 campaign season was $2,500 per election to any candidate or a candidate’s campaign organization, no more than $30,800 per year to a national political party, no more than $10,000 per year to a state political party, and no more than $5,000 to any other political committee.

The two year ceiling for that same period, which is the issue in this case, is set at $177,000 overall.  That is broken down into $46,200 to a candidate for federal office and $70,800 to non-candidate entities.  The second amount was restricted in that no more than $46,200 could be given to a state party or a non-candidate committee.

via Campaign donation issue reopened : SCOTUSblog.

NLRB charge alleging illegal picketing at Wal-Mart held in abeyance

The NLRB Office of General Counsel today announced that, based on specific commitments made by the United Food and Commercial Workers union, it is not necessary to decide the merits of an unfair labor practice charge filed by Wal-Mart against the UFCW.

In that charge, filed November 20, Wal-Mart alleged that the union violated the National Labor Relations Act by picketing at its stores for more than 30 days with the intent of seeking recognition for the union, without filing a petition for an election. The union, however, contended that the actions at the stores were not intended to gain union recognition, but to help employees in their efforts to have the employer commit to certain labor rights and standards.

The charge will be held in abeyance and dismissed in six months as long as the union complies with the commitments it has made. Under those commitments, described in an Advice Memorandum, the union disavowed any recognitional or organizational object and promised to maintain a disclaimer to that effect on Making Change for Wal-Mart and OUR Walmart websites. The union also promised, among other things, not to engage in any picketing or confrontational conduct which is the functional equivalent of picketing for 60 days.

via NLRB charge alleging illegal picketing at Wal-Mart held in abeyance | NLRB.

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.

Wisconsin Act 10 (Budget bill) Upheld

Do you remember the Governor Walker’s Wisconsin anti-union bill?  Well, the 7th Circuit Court of Appeals just upheld it.

As background, Governor Walker signed Act 10 which made its strongest impact on collective bargaining, compensation, retiring, health insurance, and sick leave of public sector employees.

The most-talked about change was to collective bargaining rights.  The bill limited collective bargaining to wages.  As you may know, unions often bargain on a plethora of topics – such as sick leave, vacation, pension, health insurance, funeral leave, discipline, training, retirement, lay offs, and so on.  Further, the bill out-right prohibited employers from collecting union dues and bargaining units would not be required to pay union dues.  However, some units were exempted: local law enforcement, state troopers, and inspectors.

In Wisconsin Educational Council v. Walker, ____F.3d___ (7th Cir. Jan. 18, 2013), the main challenge was based on equal protection.  The bill basically created 2 classifications of public employees: (1) public safety employees, and (2) general employees.  According to the bill, as stated previously, the limitations of collective bargaining rights were applied only to the general employees.

In the 74-page decision, the 7th Circuit Court held that the bill was constitutional.  The court held that the bill did not create view-point discrimination. The court explained that the different treatment was justified on the greater consequences of public safety worker strikes.

 

via Adjunct Law Prof Blog: Breaking News! 7th Upholds The Constitutionality of Wisconsin Budget Repair Bill.

Wisconsin labor fight heats up

Public school teachers filed a class action against a public school district that claims it can cut their pay at will and fine them up to $2,500 if they don’t sign their contracts on time.

The class action, which has a putative class size of 230 teachers, alleges that the school district’s contracts have illegal and unenforceable provisions.  For example, the contract allows

1. The district to fire or reduced the pay and benefits of tenured teachers for vague and undefined reasons;
2. The district can fine tenured teachers $1,000 to $2,500 if they don’t sign the contract by the time the school district wants it, or seek release from the contract.

The class action further claims:

• The 2012-13 contracts illegally allow the district to “make salary adjustments ‘due to disciplinary action and/or changes in full-time equivalency warranted by the district,’” in violation of Wis. Stat. § 118.21;
• The contracts illegally allow the district to cut salary and benefits “if in the sole discretion of the district, the educator fails to meet the expectations referenced in the contract, acts in a manner that is not in the best interests of the district’s students, fails to abide by the terms of the Employee Handbook, fails to carry out the duties and responsibilities of the job description, or if the district decides to reduce the professional staff for financial or other lawful reasons,” in violation of Wis. Stat. § 118.21, § 118.21, and state contract law; and
• The contracts illegally set up “a liquidated damages schedule that begins assessing damages on June 1,” with fines beginning at $1,000, escalating to 2,500, for failing to sign contracts by June 15, or seeking release from contract; this “unlawfully assesses damages to teachers seeking release from their contracts prior to the statutory date for acceptance.”

The contracts state “that failure to return a signed contract … would result in non-renewal of the teacher’s contract,” the teachers say: “A stigma is attached to being non-renewed by a school district, as it suggests that a teacher’s employment was not continued for performance reasons or misconduct.”

The class cites violation of Wisconsin Statute 118.21, under which the school district must fix teachers’ wages, violation of Wisconsin Statute 118.22, under which the school district must set the contract acceptance date at June 15, and violation of Wisconsin Statute 118.23, under which it can terminate permanent only employees for good cause.

via Courthouse News Service.

Arbitration Must-Have Book

Elkouri & Elkouri is the must-have books for attorneys that handle arbitrations in the labor field.

The 7th edition is edited by Kenneth May and is available for $325.  BNAs web site describes this book as follows:

The new Seventh Edition provides additional analysis that enhances the usefulness of the volume and incorporates major points of interest to labor relations practitioners. In-depth coverage of critical topics includes:

• Arbitrators consideration of external law in labor arbitration
• Legislation and litigation developing standards for evidentiary privilege as it relates to union shop stewardsArbitrators views on threats and violence
• Reconsideration of the continued viability of the plain meaning rule
• New case law on the unauthorized practice of law as it relates to labor arbitration
• Revision of the discussion of state and local government arbitration and interest arbitration in light of recent changes in state law

via Adjunct Law Prof Blog: Book Review Highlight Elkouri and Elkouri How Arbitration Works 2012.

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.

NLRB recent decisions

This is the list of the most recent and significant decisions decided by the NLRB:

Hispanics United of Buffalo – The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express – In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co. – Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.