The National Labor Relations Board (NLRB) governs certain rights of workers in union and non-union workplaces. NLRB cases impact such things as employee rights to complain about working conditions on behalf of oneself and others and the right to communicate to co-workers about interest in unionization. As a result, trends in NLRB decisions are important to all companies, union and non-union.

Continue Reading Active NLRB is reversing many trends; union and non-union companies need to be aware

On Wednesday, June 27, 2018, the United States Supreme Court ruled in a 5-to-4 decision that the application of public sector union fees to nonmembers is a violation of the nonmembers’ First Amendment rights. The Court’s decision in Janus v. AFSCME overturns precedent established in a 1977 Supreme Court decision, Abood v. Detroit Board of Education, where the Court allowed the collection of union fees from nonmembers for collective bargaining related costs, excluding lobbying and political expenses. In overturning the decision, the majority in Janus held that Abood was “poorly reasoned” and an “anomaly in…First Amendment jurisprudence.” The court’s decision in Janus will have a long-lasting effect on public sector labor unions and will affect millions of unionized workers across the country.

Continue Reading U.S. Supreme Court rules that public sector unions may no longer collect fees from nonmembers

In April 2015, the National Labor Relations Board (NLRB) implemented a rule that effectively speeds up the time in which union representation elections occur. The process toward a union representation election typically starts when the union petitions the NLRB to conduct an election. During the months since the rule took effect, the time between petition filing and the representation election has been about 23 days. That is down 39.5 percent from the 38 day average that was common before the rule went into effect. As long as the rule remains in effect, there is every reason to expect this trend of quicker elections will continue.

The employer community has great concerns about the NLRB rule and the resulting reduction in the time for union representation elections. It is often referred to by employer groups and representatives as the “quickie election rule” or the “ambush election rule.” The time between petition filing and election is a crucial period for employer communication to employees. When a union files a petition for representation election, the union is usually at the peak of its support among employees. Between petition filing and election, the union’s representatives will actively campaign for employee votes in the upcoming election. Employers have the same right to communicate lawful and honest information to employees in an effort to influence them to vote to stay non-union. An abbreviated time for communication makes it much more difficult for the employer to convey the message, especially in a large workforce. Therefore, shortening the time between petition and election may give unions an advantage. Although, it is interesting to note that in the months since the rule took effect the union percentage win rate in elections has been about 62 percent, which is very close to the overall union win rate in elections for the past few years.
Continue Reading Another Federal District Court upholds NLRB expedited election rules

Once a union has established majority support among a group of employees, the union’s right to represent those employees continues as long as the majority support continues. Employees can demonstrate they no longer want a union to represent them in a variety of ways. They can file a decertification petition with the NLRB to have an election conducted to see if the union still has majority support. Also, if a majority of the represented employees demonstrate clearly that they no longer want the union to represent them, such as by signing an uncoerced petition that was not initiated or supported by the employer, then the employer might be justified in no longer recognizing the union.

However, certain presumptions exist that protect a union for specified periods of time from any attack on their majority status. For example, the typical method by which unions establish majority support is in an NLRB-conducted certification election. If the union wins the election, the union enjoys an irrebuttable presumption of majority support for one year from the date the election results are certified. Also, if a collective bargaining agreement ("CBA") is signed between the employer and the union, the union enjoys a presumption of continued majority support for the length of the collective bargaining agreement, up to a maximum of three years. In two recent decisions, the NLRB reversed existing law in a way to give unions even greater protections from challenges to their majority support.

Continue Reading Unions Get Another Boost From NLRB