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Labor & Collective Bargaining

Americans Divided On Decline in Union Membership, According to Opinion Poll

A new poll finds that Americans have mixed views on unions and the impact the decline in union membership has had on workers.

On April 27, 2015, the Pew Research Center, described as “a nonpartisan fact tank that informs the public about the issues, attitudes and trends shaping America and the world,” released results of its recent survey of 1,500 adults nationwide from varying demographic backgrounds between March 25th and 29th of numerous questions regarding attitudes about unions and workers’ rights to unionize.

Although the number of unionized workers in the United States has decreased during the past 30 years, a greater number of those polled hold a favorable view of unions (48%) than unfavorable (39%).  Asked about the long-term decrease in union membership, 45% deemed it “mostly bad,” while 43% believed it was “mostly good.”  However, in what appears to be a conflicting result, 52% of those polled thought the long-term decrease in union membership had a “mostly bad” effect for workers, while 40% believed it had a “mostly good” effect.

Support for the right of workers to unionize varies considerably depending on the industry:

  • factory and manufacturing workers – 82%
  • public transportation workers – 74%
  • police and firefighters – 72%
  • public school teachers – 71%
  • private sector supermarket and retail sales workers – 68%
  • fast-food workers – 62%

Not surprisingly, the survey disclosed a stark difference in how Democrats and Republicans view unions.  While 59% of Democrats believed the decline in union representation was “mostly bad” for America, 62% of Republicans were of the opinion the decline was “mostly good.”

Similar variations in opinion were revealed across various demographics.  As between men and women, the numbers were close, with 48% of men and 47% of women having favorable views of labor organizations.  However, 60% of blacks polled, “who are more likely than other racial and ethnic groups to be union members” (according to the survey), had favorable views of unions, while only 49% of Hispanics and 45% of whites did.  The poll also showed that lower income households had a more favorable view of unions than higher income households: 54% of households earning less than $30,000 viewed unions favorably as compared to 45% of households earning $75,000 or more.  The South was the geographic region with the least favorable view of unions. Only 41% of people polled there viewed unions favorably. A majority (55%) of Midwesterners surveyed held favorable views of unions, followed by 50% of those in the Northeast and 49% of those in the West.

The poll results suggest that despite a steady decline in union membership over the last three decades, in general, Americans favor unions, at least in specific industries, but, according to the report, the degree of “favorable opinion can be sharply divided by demographic indicators such as ethnicity, income level, political affiliation and geography.”

NLRB Finds Union Improperly Interfered with Decertification Election

A union “interfere(d) with employee free choice” during the run-up to an NLRB election to decertify the union by seeking the discharge of the decertification Petitioner for alleged non-payment of dues and fees to the union, the National Labor Relations Board has held in an unpublished opinion. Bio-Medical Applications of New Jersey, Inc., Case 22-RD-114233 (Apr. 29, 2015).

According to the NLRB, Local 1199J, AFSCME falsely claimed to the employer and other bargaining unit voters that the Petitioner had not paid initiation fees and dues under the union contract, and then failed to inform the voters of its mistake after it dropped its demand for the employee’s discharge. When the union narrowly won the decertification election (15-13), objections were filed to the union’s conduct.

The Board found the union had sent the decertification petitioner letters on successive days claiming he owed $666.30 in unpaid dues and initiation fees, and asserting that under the collective bargaining agreement he could be discharged if he failed to pay. The letters did not explain how the union calculated this amount, but it is undisputed that it was inaccurate. The union also posted one of these letters on the employer’s premises in the employee lunchroom.  The union sent a letter to the employer, as well, requesting that the decertification petitioner be discharged for this non-payment. Two weeks later, the union Vice President met with the bargaining unit employees/voters and told them of the union’s demand to the have the decertification petitioner terminated. However, after the employer challenged the union’s discharge request, the union withdrew its request. It did not inform prospective voters (other than the decertification petitioner) that it had dropped its demand.

Applying its nine-factor test from Cedars-Sinai Medical Center, 342 NLRB 596 (2004) to evaluate whether the union’s conduct during the critical pre-election period interfered with employees’ freedom of choice in the election, the Board held the union’s conduct was objectionable and interfered with employee freedom of choice. Although the union had the right to seek the decertification petitioner’s discharge under the CBA, its claim was inaccurate, and although the union withdrew its demand for his discharge, that fact was not communicated to other bargaining-unit employees.

The Board infrequently finds that a union engaged in unlawful conduct. However, in this case, “[g]iven the severity of this incident, the extent of dissemination, the closeness of the election, and the Union’s failure to effectively disseminate its withdrawal of the threat,” the Board set aside the first election and directed a rerun.

Federal Contractors Must Continue to Post Notice of Labor Rights, Court Holds

A federal district court in Washington, D.C. has rejected a constitutional challenge by the National Association of Manufacturers and Virginia Manufacturers Association to President Barack Obama’s 2010 Executive Order requiring certain federal contractors to post a “Notification of Employee Rights under Federal Labor Laws” on the basis that it violates the First Amendment right of federal contractors to “refrain from speaking.” Nat’l Ass’n of Mfrs. v. Perez, No. 1:13-cv-01998 (D.D.C. May 7, 2015). The Poster notifies contractor employees of their right to organize and other provisions of the National Labor Relations Act (NLRA).  For more about this decision, click here.

Court Refuses to Restrain New NLRB Election Rules

A federal court in Washington, D.C. has refused to issue a temporary restraining order blocking the National Labor Relations Board’s (“NLRB’s”) new election rules.

On April 15, the day after the new rules went into effect, a union seeking to represent carpenters and laborers working for Baker DC LLC in the Washington, D.C. area filed an election petition with the NLRB. Baker filed a lawsuit to vacate and set aside the rules and asked the District Court to issue a temporary restraining order to halt the representation proceedings. Baker alleged that the NLRB exceeded its statutory authority as well as the Administrative Procedure Act in promulgating the rules. Baker also alleged the new rules, particularly the mandatory posting of a notice upon the receipt of a petition, violated the company’s right to refrain from certain speech and thus violated its due process rights. A few days after the complaint was filed, an amended complaint was filed on behalf of three employees, as well as Baker, alleging that the rules’ new requirement that Baker disclose certain employee personal contact information jeopardized the employees’ privacy rights.

The court refused to restrain the NLRB from proceeding under the new rules. It noted first that the company’s motion addressed only the NLRB’s notice posting requirement and the disclosure of the employee contact information. With respect to both mandates, the court found there was no showing of irreparable harm, an absolute requirement for a temporary restraining order. The court noted that there was nothing in the NLRB rules prohibiting the company from engaging in any speech it desired while the NLRB case proceeded. With respect to the employee contact information, the court noted that not only was the risk to the employees’ privacy merely speculative, but the NLRB’s rules prohibited the union from using the employee information for any purpose other than a representation proceeding. Further, in agreement with the NLRB, the court observed that even if the union prevailed in an election under the new rules, the employer could simply refuse to bargain, forcing the union to file an unfair labor practice charge and enabling Baker to contest in agency complaint proceedings the union’s representative status based on the allegedly flawed election rules, ultimately obtaining judicial review.

This is one of a number of cases challenging the NLRB election rules. The cases in Texas and in Washington, D.C. did not ask for restraining orders and will be decided on the merits of each case. In the meantime, the NLRB “quickie election” rules remain in effect.

Successor Employer Can Add Supervisor Duties to Jobs, NLRB General Counsel Found

The Division of Advice of the National Labor Relations Board’s Office of the General Counsel has determined that a “Burns” successor employer was permitted to add supervisory functions to job duties of the predecessor employer’s union-represented nurses because it timely informed the nurses and the union of its intention to do so. Chestnut Health and Rehabilitation Group d/b/a Blue Hills Health and Rehab., LLC, Case 01-CA-133937 (Mar. 6, 2015).

Under NLRB v. Burns Int’l Sec. Services, Inc., 406 U.S. 272 (1972), an employer is a successor if, in general, it continues the same business as its predecessor in the same manner and if a majority of its represented employees formerly worked for the predecessor. A successor employer is required to recognize and bargain with the union representing its employees, but usually may set its own initial terms and conditions of employment.

The successor employer in Chestnut Health assumed the operations of a nursing facility whose service employees and registered nurses were represented by separate unions. The service employees were hired, their union was recognized, and their collective bargaining agreement was adopted. The successor employer also hired the predecessor employer’s nurses, but told them their job would now include supervisory duties. (Under the successor employer’s business model, nurses independently disciplined and prepared performance reviews affecting pay increases and bonuses.) The successor employer told this to the union and the nurses weeks before employment was to begin, and it declined to recognize the union as the representative of the nurses because they were supervisors who are excluded from National Labor Relations Act coverage.

The nurses did not begin performing supervisory functions immediately. Answering a union inquiry, the employer said the nurses would soon participate in supervisory training. Nonetheless, the union filed an unfair labor practice charge alleging the employer unlawfully failed to recognize and bargain with the union. After conducting training, the employer instructed the nurses to commence performing responsibilities as supervisors.

During its investigation, the NLRB’s Regional Office determined the nurses were supervisors under the NLRA and submitted the case to the Division of Advice on whether to issue a complaint because the employer failed to bargain with the union as a Burns successor.

While the Division of Advice decided the employer was a Burns successor that must recognize the union as the representative of its employees, it also found that the employer may set initial employment terms for the nurses. Here, part of those initial terms included supervisory duties, which resulted in the formerly represented nurses being ineligible to be represented by a union. Thus, a potential successor employer may add supervisor duties to the work of employees of a predecessor employer it intends to hire by clearly and timely (in Chestnut Health, the successor did so in the first communication with the nurses and weeks before employment) informing the union and the employees that such duties will be part of the future employment terms.

Secondarily, the Division noted an exception to an employer’s right to set initial terms and conditions of employment. When it is “perfectly clear” the successor will retain all of the employees and (1) it has not clearly informed employees that it will institute different terms and conditions of employment, or (2) it has mislead employees to believe that there would not be changes, it loses the right to set the initial terms and conditions of employment. Spruce Up Corp., 209 NLRB 194 (1974). Here, the Division found the employer was not a “perfectly clear” successor because it provided clear notice to the employees and the union of the new conditions of employment. Consequently, the successor employer had the right to set the initial terms and conditions of employment of the nurses, including adding supervisory duties to their job.

It is uncertain how long a successor may have the opportunity to set initial terms and conditions. The Division also noted the General Counsel has opined that the Board should reconsider Spruce Up and return to what the General Counsel says is the plain language of the “perfectly clear” caveat in Burns: whenever it is “perfectly clear” that a successor plans to retain the predecessor’s workforce, regardless of what it has communicated to employees, the successor must bargain with the union before setting the initial terms and conditions of employment. If a complaint had issued here, the General Counsel could have litigated that position before the Board. However, employers are forewarned that the General Counsel likely is looking for a vehicle to attack Spruce Up and urge its reconsideration before the Board.

Board Orders Conditional Reinstatement of Undocumented Workers

The National Labor Relations Board has held on remand from a federal appeals court that “conditional reinstatement is an appropriate remedy where an employer knowingly employed individuals who lack authorization to work in the United States and then discharged them in violation of the N[ational] L[abor] R[elations] A[ct].”  Mezonos Maven Bakery, Inc., 362 NLRB No. 41 (Mar. 27, 2015).

Relying on the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Board originally held that back pay to undocumented workers was not an appropriate remedy for the employees’ unlawful termination for engaging in protected concerted activity.  However, the Board did not address the possibility of ordering the workers’conditional reinstatement.  Several of the former Mezonos undocumented workers appealed. While the U.S. Court of Appeals for the Second Circuit in New York affirmed the Board’s conclusion on back pay, it “remanded the case to the Board for consideration of issues relating to petitioners’ request for conditional reinstatement.”  Palma v. NLRB, 723 F.3d 176 (2d Cir. 2013). (Palma was one of five former Mezonos employees who petitioned the court for review.)

In Sure-Tan, Inc. v. NLRB, 467 U.S. 884 (1984), the Supreme Court held that the NLRB could grant a conditional reinstatement remedy for undocumented workers discharged unlawfully under the NLRA, without running afoul of the Immigration and Nationality Act (INA). [INA was later superseded by the Immigration Reform and Control Act of 1986 (IRCA), but the Board subsequently reaffirmed the propriety of conditional reinstatement in cases involving undocumented workers under IRCA. See A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995)].

On remand, the Board granted conditional reinstatement to Palma and his co-petitioners, relying on Sure-Tan. The Board concluded “conditional reinstatement is the only means available to the Board to provide relief to the discriminatees and the principal means of deterring future unfair labor practices,” because a later Supreme Court decision barred it from awarding back pay to undocumented employees. Hoffman Plastics. 

The Board ordered full reinstatement of the discriminatees to their former positions or “substantially equivalent positions, without prejudice to seniority or other rights and privileges,” provided they were able to complete I-9 forms and present the required documentation to the company “within a reasonable time.”  While the Board inferred from an earlier case that holding a position open for a period as long as four (4) years might be a reasonable, it refused to define that phrase.

The Board also refused to provide guidance on whether an employee who presented fraudulent documents in violation of IRCA is eligible for conditional reinstatement.  The answers to these questions will have to await future cases.

Board Attorneys’ ‘Progressive’ View of Union’s Alleged ‘Regressive’ Bargaining Sends Parties Back to Negotiating Table

The National Labor Relations Board’s General Counsel’s Office, Division of Advice, has ordered dismissal of an unfair labor practice charge alleging bad faith “regressive” bargaining by a union. In this case, after the employees rejected decisively the employer’s final offer, the union bargaining team resumed negotiations with new demands and proposed modifications of previously agreed-upon items. Amalgamated Transit Union Local 1433, 28-CB-127045 (Nov. 19, 2014, released Jan. 9, 2015).

The Division determines whether to issue administrative complaints on alleged unfair labor practices referred to it by Board regional offices in selected cases. During negotiations for a new collective bargaining agreement, the parties reached tentative agreement on many issues, but several items were still unresolved when the employer presented its best and final offer. The union negotiators, while not agreeing to the offer, put it to a vote of the employer’s employees. The employees overwhelmingly rejected the offer and voted to authorize a strike, if necessary.

When the parties returned to the bargaining table, the union presented a revised proposal that was more favorable to the employees. Not only did this proposal add new demands to the open issues, but it also modified a number of proposals the parties had agreed upon prior to the employees’ rejection of the final offer. The employer filed an unfair labor practice charge against the union alleging the union had unlawfully bargained regressively when it made new proposals containing increased demands regarding already agreed-upon issues and open proposals.

The Division noted that withdrawal of tentatively agreed-upon contract proposals could demonstrate bad-faith bargaining and substituting prior proposals with less advantageous ones (regressive proposals), could be viewed as unlawful if doing so was intended to frustrate the possibility of agreement. The Division concluded the union’s actions did not constitute bad-faith bargaining and that no complaint should be issued because the union’s actions occurred only after the employees overwhelmingly rejected the employer’s final offer and authorized a strike.

The Division also stated the union’s new demands, many of which addressed specific employee objections to the employer’s final offer, “… were not so ‘harsh, vindictive or otherwise unreasonable’ as to suggest they were offered in bad faith.” The Division further held the new and modified proposals reflected a strengthened bargaining position and thus a legitimate reason existed to seek improved terms the employees and the union could accept, thus, enhancing the possibility of reaching an agreement. Finally, the Division likened the union’s actions to those of an employer which, having weathered a strike, may lawfully return to the bargaining table with changed and more favorable (less conciliatory) contract terms.

This determination may facilitate a union negotiation strategy whereby rejection of an employer’s final offer, coupled with a strike authorization vote, will allow a union to reopen items previously agreed upon and increase its contract demands. The prospect may be particularly appealing where the union believes the employer cannot easily withstand a strike.

NLRB’s “Quickie Election” Rules Effective Today

The National Labor Relations Board’s new “quickie election” rules go into effect today. (Two lawsuits challenging the rules are still pending.)

Read here for more information on the rules and their impact on your organization.

To learn more about the rules and other important NLRB developments, attend Jackson Lewis’ seminar, “Surveying the New Labor Law Landscape: A Rocky Road Ahead,” being held in more than 45 locations across the country. To register, click here.

NLRB Expands Scope of Union Representatives’ Permissible Conduct during Investigatory Interviews under Weingarten

In a 2-to-1 decision, a three-member panel of the National Labor Relations Board has held it was unlawful for an employer to threaten a union steward with suspension for showing an employee, during the employer’s investigative interview about a violation of company procedure, the steward’s answer to a question asked by the interviewer, which was written in the steward’s notebook, so that the employee could read it to the interviewer. The assistance provided by the steward here was consistent with the U.S. Supreme Court’s decision in NLRB v. J. Weingarten, 420 U.S. 251 (1975), the National Labor Relations Board has held. Howard Industries, Inc., 362 NLRB No. 35 (Mar. 23, 2015).

The employer’s HR Generalist was questioning the employee about the violation of procedure when the steward raised a notebook in front of the employee and drew the employee’s attention to a section of the notebook which related to the interviewer’s question. The section contained his transcript of the employee’s statement to the steward in which the employee had asserted he lacked training in the procedure.

As the employee began to read what was written in the notebook, the interviewer directed the steward to close the notebook. The steward refused, stating it was being used “as a tool” to represent the employee. The interviewer then told the steward to “get the notebook out of there before I suspend you.” The steward complied.

The NLRB concluded the employer had violated the NLRA by threatening to suspend the steward. Under Weingarten, a union-represented employee may request the presence of a union representative at an investigatory interview the employee reasonably believes may result in disciplinary action. If a representative participating in the interview is acting within the ambit of Weingarten, providing proper assistance, the representative’s activity is protected under the NLRA. However, the precise role of union representatives in investigatory interviews under Weingarten is not well-defined and has been the subject of several NLRB decisions.

In Howard Industries, the Board majority concluded the steward could use the notebook to “remind[] [the employee] of his lack-of-training defense.”   The NLRB held the steward’s conduct was protected under the NLRA and the interviewer’s threat of suspension was unlawful.

In a dissenting opinion, Member Philip Miscimarra – quoting from the NLRB’s brief in Weingarten – said that while a union representative may provide assistance during an investigatory interview, the employer “is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation.” As the steward did not explain the purpose of the notebook, Member Miscimarra said it reasonably appeared to the interviewer that the employee was reading from a script.

While the Board’s decision does not go so far as to permit union representatives to script employee answers during investigatory interviews, employers need to proceed with caution. Interviewers should specifically state that responses should be in the employee’s own words and that a scripted response will not be accepted. Also, if the steward wishes to remind the employee, orally or in writing, of additional facts or explanations, he may do so, but the steward does not have to be permitted to answer the question for the employee. Of course, the employee’s failure to mention a significant defense to his actions until he is prompted by the steward likely will have a negative effect on his credibility in the eyes of the employer.

NLRB’s Renewed Focus On Immigration Issues Affects Complaint Cases

The General Counsel of the National Labor Relations Board has instructed agency regional directors and other officials charged with investigating unfair labor practice charges to consider whether the immigration status of affected employees may affect the Board’s ability to proceed in litigation and fashion effective remedies.

On February 27, 2015, General Counsel Robert F. Griffin, Jr., issued a Memorandum (GC-15-03) providing updated procedures to be applied when immigration status issues may affect NLRB investigations and proceedings. The new procedures require Regions to contact the NLRB’s Division of Operations-Management at any point in the proceedings if they believe that someone’s immigration status may impair the Region’s ability to litigate or remedy a potential unfair labor practice. Operations-Management will assist Regions with possible interagency collaboration, consult on possible remedies, and provide NLRB-wide coordination.

Undocumented workers are “employees” within the meaning of the National Labor Relations Act, and their immigration status is not relevant to an unfair labor practice investigation. Consequently, Regions will not investigate nor determine a worker’s immigration status during such an investigation. However, action taken by an employer to comply with immigration laws may be a defense to an alleged violation of the NLRA and a Region may investigate appropriate facts bearing on the employer’s motivation.

The Memorandum counsels that interagency coordination may be appropriate if immigration status could impact a charge’s investigation or remedy. The potential discriminatee or witness may be eligible for a U or T visa, or deferred action from or assistance by the Departments of Justice or Homeland Security to permit an investigation to continue or for an appropriate remedy to be determined and enforced.

While undocumented workers are not eligible for back pay and reinstatement under the NLRA, the General Counsel urged the Regions to consider alternative remedies such as enhanced notice requirements, training of employees and supervisors regarding employee rights and employer responsibilities under the law, a bargaining order, union access to employee contact information, reimbursement of organizing or bargaining expenses, and other appropriate remedies. Further, Regions are encouraged to seek a Formal Board Settlement, which is a Board Order (and is often accompanied by a federal court judgment) in connection with which the General Counsel can seek judicial relief in the event of non-compliance with the settlement by the employer.

Enhanced remedies in the event of a violation of the NLRA are only one of the negative implications of an inaccurate initial determination. Please consult experienced counsel if you have any questions.