Tag Archives: bargaining

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.

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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.

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NHL sues NHL player’s union

The National Hockey League, as well as all of its teams, sued the NHL players’ union.  The NHL’s federal complaint alleges that the union is engaging in an impermissible bargaining tactic by allegedly threatening to file an antitrust lawsuit.

The NHL’s complaint further states,

In recent days, many union members have publicly asserted that they intend to decertify the union, or vote in favor of the union’s renouncing or ‘disclaiming interest’ in its role as the exclusive bargaining representative of NHL players, an impermissible bargaining tactic defendants mistakenly believe would enable them to commence an antitrust lawsuit challenging the legality of the NHL’s ongoing lockout of NHL players and thereby to pressure the NHL to accede to the union’s preferred outcome in collective bargaining.

Last night [Thursday, Dec. 13], the NHLPA Executive Committee authorized that a vote be taken over the next four days on whether to authorize the union’s leadership to disclaim interest in its role as the exclusive bargaining representative of NHL players so that the NHL players could commence antitrust litigation against the NHL in order to secure a more favorable collective bargaining agreement.

The union’s improper threats of antitrust litigation are having a direct, immediate and harmful effect upon the ability of the parties to negotiate a new collective bargaining agreement.

The NHL therefore seeks a declaration that the NHL’s ongoing lockout, which is lawful as a matter of federal labor law, does not violate the antitrust laws, and as such, can neither be enjoined nor result in any legally cognizable or compensable damages to defendants.

NHL’s complaint further alleges “that the Norris-LaGuardia Act deprives the federal courts of jurisdiction to enjoin or restrain the ongoing lockout without regard to any purported disclaimer by the NHLPA;” that the lockout is legal under the Clayton Antitrust Act, “and thus does not result in any legally cognizable or compensable damages to NHL players;” and five other claims, all similar to the second one.

via Courthouse News Service.

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Union bargaining was not in bad faith

PPG Industries, Inc. v. NLRB, Board Case No. 33-CB-004317 (reported at 356 NLRB No. 127) (D.C. Circuit decided March 30, 2012).

In an unpublished judgment, the Court held that substantial evidence supported the Board’s dismissal of a complaint alleging that the steelworkers union bargained in bad faith.

The Board found that, despite the union’s claim that it was bargaining “provisionally” to preserve a legal challenge to the timeliness of the employer’s mid-term bargaining proposals, the union “never refused to meet and confer with [the employer,]” and actively participated in “19 negotiating sessions, advancing proposals, and making concessions.”  On review, the Court held that those findings “are supported by substantial evidence and are otherwise reasonable.”  As the Court observed:  “No evidence compels the conclusion that the Union bargained in bad faith, and the Board did not otherwise act unreasonably in reaching its decision.”  It therefore denied the employer’s petition for review.

via Summary of NLRB Decisions for Week of March 26-30, 2012 | NLRB.

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NLRB and unit determination

On Aug. 30, 2011, the NLRB issued three major decisions, Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011).

Download Board Decision The Board, divided along party lines, overruled Park Manor Care, 305 NLRB 872 (1991) and held that in non-acute care settings the traditional community of interest test applies. The case extensively reviews the community of interest test in acute care institutions and elsewhere, reaffirms that the Act only requires that “an” appropriate unit be found sufficient, that a union can consist of just 2 employees and where the unit consists of a clearly indentifiable group who share a community of interest that unit will not be defeated simply because a smaller unit may also be appropriate.

 

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