Recently, the U.S. Supreme Court ruled that government workers who choose not to join a union cannot be charged for the cost of collective bargaining and related activities.

In a 5-to-4 decision, a majority of the Court noted in Janus v. AFSCME, Council 31, that “agency fees” violate, “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

As we have reported before, this case stemmed from an Illinois public sector employee who challenged a requirement that government workers who opt out of a union still have to pay partial dues (known as an “agency fee”) to cover the union’s cost of negotiation and other functions associated with policing and enforcing the contract.  This decision overrules the Court’s own 41-year-old precedent, which said workers did not have to pay for unions’ political activities but could be required to contribute to other costs of representation, such as negotiating wages and benefits and processing grievances.  The Court’s decision frees those non-members from having to pay the fees. Continue Reading Janus Decision Expected to Weaken Public Sector Unions and What You Need to Know

On February 26, 2018, the Supreme Court of the United States will hear arguments in Janus v. AFSCME, Council 31, a case which should be watched by public employers and union officials as the fate of agency fees hangs in the balance. Agency fees are paid by non-union members to compensate the union for its services such as negotiating contracts and grievance representation. In this case, an employee claimed the union’s requirement that he pay an agency fee was unconstitutional as it violated his rights of freedom of speech because he disagreed with the union’s political message.

Agency fees have been found to be constitutional since the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.  The Supreme Court took up the issue of agency fees again in 2016 in Friedrichs v. California Teachers Association, which, with the passing of Justice Scalia, resulted in a 4-4 tie.  This time, the Court will have a new justice in Neil Gorsuch, who was appointed by President Trump in 2017.

The ramifications of a decision in favor of Janus has unions nervous since a decision prohibiting their ability to collect agency fees from persons who do not join the union would affect their ability to maintain staff and officers, as well as negatively impact their lobbying efforts.

We will be sure to keep you posted on this case and others.

A much anticipated decision was released last week in which the U.S. Supreme Court was deadlocked (4 to 4) on a challenge to so called “service fees” charged to employees who opt out of union membership.  The lawsuit was based upon a lawsuit brought by a number of California teachers who objected to being required to pay the fee (typically almost the same cost as union dues) if they chose not to join the union.  While the plaintiffs have announced their intent to request re-argument once a new justice is appointed replacing deceased Justice Antonin Scalia, for now the decision stands, meaning public sector unions may continue to require that non-members pay a “service fee” in states that allow it, including Connecticut.

In follow up to our previous post on April 13, 2011, the proposed rule to require employers covered by the National Labor Relations Act (“NLRA”) to post workplace notices describing employees’ rights under the NLRA has been delayed into 2012.  The stated purpose of the proposed rule is to inform employees of their rights to form, join, or assist labor organizations, to bargain collectively, and to act together to attempt to improve their working conditions, or to choose not to do any of these things, as well as to inform employees of where to seek help in understanding those rights.

The rule was to go into effect in November 2011 but just last week the NLRB announced that implementation of the rule has been postponed until January 31, 2012.  According to the NLRB’s announcement of the postponement, the “decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the [National Labor Relations] Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance.”  As discussed in our previous post, an employer’s failure to post the notice carries a variety of sanctions.  Employers subject to the NLRB ‘s jurisdiction should stay tuned for further updates concerning the status of the posting requirement. 

The National Labor Relations Board recently proposed changes to its pre-election and post-election procedures that would significantly impact employers and could result in a greater number of successful union elections.  Most notably, the reform would require that the pre-election hearing be held within 7 days after the hearing notice is served (absent special circumstances).  Currently, employers can expect at least 30 days following a union election petition in order to express its views on whether employees should vote for the union prior to the election.  Opponents of the rule argue that unions generally campaign long before a petition is filed, and that providing the employer with such a short window to express its views unfairly stacks the deck in the union’s favor.

Additional amendments include:

  • Deferring litigation of most voter eligibility issues until after the election;
  • Making Board review of post-election decisions discretionary rather than mandatory; and
  • Providing less time for employers to provide the NLRB with a list of eligible voters, lists that would be required to include employee phone numbers and e-mail addresses.

A side-by-side comparison of the current election procedures versus the proposed election procedures can be found on the NLRB’s website

The proposed reform was sharply contested by Member Hayes, who drafted a dissent critical of both the alleged need for change and the specific amendments proposed.  According to Member Hayes, the election reform would implement the type of “quickie election” that has long been sought by unions out of a desire to “effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” 

The NLRB held public hearings on the proposed reform on July 18 and 19, and many in the business community opposed the changes. Public comments can be submitted in writing or electronically through www.regulations.gov until August 22, 2011.  If the reform is implemented, employers can expect to be required to comply with the new rules before the end of 2011.

On the heels of the well publicized settlement this past February between the Hartford office of the National Labor Relations Board (“NLRB”) and AMR of Connecticut resulting from the NLRB’s complaint that the employer unlawfully terminated an employee in response to the employee’s criticism of her supervisor on Facebook, another social media issue has caught the attention of a nearby NLRB regional office. 

Specifically, the New York NLRB regional office (Region 2) has stated its intent to issue a complaint, absent settlement, against Thomson Reuters based upon the employer’s allegedly overbroad policy that restricts employees from making statements disparaging the company.  It appears that the employer’s policy came to light after the employer invited employees to post suggestions on its Twitter account about how to make Reuters a better place to work.  In response, one employee tweeted that the company should “deal honestly” with union employees.  Soon thereafter, the employee was contacted at home by her supervisor and advised of the company’s policy prohibiting employees from making statements that would damage the company’s reputation.  Reuters denies that it disciplined the employee in response to her Tweet, but the employee claimed that she felt threatened and intimidated by the employer’s response.

The overarching issue runs deeper than social media policies and extends to any employment policies that could be interpreted to restrict the right of employees to engage in concerted, protected activity under Section 7 of the National Labor Relations Act.  While the case law in this area continues to develop, the bottom line is that employers, now more than ever, must exercise caution in creating and enforcing policies that restrict an employee’s ability to engage in activities such as discussing or complaining about working conditions, the company, or management personnel.  Even policies created with the simple intent to promote a positive work environment, for instance by requiring employees to act civil and demonstrate respect for one another, have been called into question by the NLRB on the theory that protected activity is not always civil and to require such could chill union activity.  What may seem to an employer at first glance to be a standard employment requirement, not intended to inhibit union activity, may be deemed unlawful.    

Apparently Connecticut Is No Wisconsin.  Despite ground breaking legislation in Wisconsin, Michigan and other locales aimed at providing relief for cash strapped municipalities, none of the initiatives proposed in Connecticut have found any traction in Committee.  Among the reforms sought was one which would have kept interest arbitration intact, but provided minor relief, such as in the way arbitrators are picked.  Under the current system, the neutral arbitrator is mutually agreed to by the parties.  Some critics feel this system places pressure on arbitrators not to issue awards that are unduly harsh to one side or the other.  The proposed changed would have made selection random. 

Other seemingly minor changes were proposed.  The failure of these initiatives provides ammunition to those who feel the General Assembly is too union friendly for any meaningful reform to take hold in Connecticut.

Recent developments following the National Labor Relations Board (NLRB) election results indicate that the NLRB will affect sweeping changes in 2011 making union organizing easier and compliance more onerous and expensive for employers. Employers face greater enforcement mechanisms, modifications to agency policies and procedures, and additional regulatory requirements under certain initiatives implemented and under consideration.

For instance, the NLRB issued a Notice of Proposed Rulemaking which was published in the Federal Register on December 22, 2010. If adopted, the rule requires employers to post in the workplace notices describing employees’ rights under the National Labor Relations Act (NLRA), including, but not limited to, the right to organize a union, engage in collective bargaining, and conduct other forms of group-oriented activity (such as strikes and picketing). The stated purpose of the proposed rule is to inform employees of their rights to form, join, or assist labor organizations, to bargain collectively, and to act together to attempt to improve their working conditions, or to choose not to do any of these things, as well as to inform employees of where to seek help in understanding those rights.

Under this proposed rule, all employers covered by the NLRA would be required to physically post and maintain the notice in a conspicuous location, “including all places where notices to employees are customarily posted”. Employers that customarily communicate with their employees by electronic means are additionally required to disseminate the notice by email or by posting the notice on the company’s website. If a significant number of employees are not proficient in English, then the employer must provide the notice in the employees’ language.

Employers that fail to post the notice would be subject to the following sanctions:

(1) finding the failure to post the required notices to be an unfair labor practice (an NLRA violation);

(2) tolling the statute of limitations for filing unfair labor practice charges; and

(3) considering the failure to post the notices as evidence of unlawful motive in future unfair labor practice cases.

Although similar notices are required by other federal workplace laws (e.g., ADA, FLSA, ADEA and FMLA), the proposed NLRA notice is different in that the NLRA notice would contain not only a summary of the law, but actual examples of employer conduct that violates the NLRA. The sole dissenting Board member, Brian E. Hayes, questioned whether the NLRB has the authority to promulgate or enforce the notice posting rule.

This proposal is one of many NLRB initiatives that will substantially impact labor relations for employers in 2011 and beyond so check back as this is a hot topic and there will be more posts to come.”