Labor and Employment Law Weekly Update

Despite Its Leftward Leanings, NLRB Reminds Employees They Can Fight Back Against Unions, Even During the Term of a Collective Bargaining Agreement
By Christopher Ward

In our blog post last week titled, “NLRB Continues Its March To The Left” (http://tinyurl.com/6c7rhbr), we noted that in recent weeks, the NLRB, the agency charged with enforcing the National Labor Relations Act, has issued several controversial, union-friendly decisions, including rulings that assist unions to organize smaller sectors of an employer’s workforce and retain their exclusive representation rights for already organized workforces. We also noted that because the current NLRB is dominated by members appointed by President Obama, it comes as little surprise that the NLRB has issued these pro-union decisions. However, even in this era of a left-leaning NLRB, in a recent decision, the Board has reminded employees dissatisfied with their union representation they retain a potent, if not well known, means to express their dissatisfaction with an entrenched union: the “deauthorization petition.”

Employers with organized workforces are familiar with the “decertification petition,” a process by which employees can rescind a union’s legal authority to represent by filing a petition and participating in a secret ballot election. However, decertification petitions are subject both to the NLRB’s “contract bar” and “election bar” doctrines, which can prohibit them while a collective bargaining agreement is in effect (depending on the length of the agreement) and in the first year after a union wins a representation election. While a decertification petition can be a useful means for employees to voice their dissatisfaction over union representation, the opportunities to file it are often limited.

However, in Los Angeles Times Communications, LLC, the Board has reaffirmed the force of a deauthorization petition. In the case, the Board reiterated that any time a collective bargaining agreement contains a “union security provision” requiring membership in the union and/or payment of dues to the union as a condition of employment, disgruntled employees can bring a deauthorization petition which, if successful will remove employees’ obligations to pay dues to the union — even while the collective bargaining agreement remains in effect. The NLRB further found that the National Labor Relations Act gives employees this right even if they will not actually lose their employment by failing to financially support or become a member of the union. In other words, the mere fact that the collective bargaining agreement required membership in and/or financial support of the union was sufficient to allow employees to file a deauthorization petition.

The Board’s decision in Los Angeles Times reminds employers that once a year has passed since a representation election, if employees feel that a union is no longer doing its job, they can express their dissent by means other than a decertification petition. If supported by 30 percent of the bargaining unit employees, the filing of a deauthorization petition will require the Board to conduct a secret ballot election. If a majority votes against the union, the union will continue to legally represent employees, but the vote will likely signal that the union’s days are numbered. Even if a deauthorization petition does not result in a majority vote against a union, it can still act as leverage to force an entrenched union to curb activities employees do not support.

That the current NLRB has chosen not to limit this process, and that the mere existence of a union security provision itself is sufficient to give employees the ability to file a deauthorization petition, is a good sign that even in these pro-union times, disgruntled employees retain one significant option to express their discontent.

Two Cost Effective Strategies: Be Patient and Clear
By Dabney Ware

Today’s employment environment is getting more difficult to navigate — government agencies are more aggressive and there is more uncertainty (think issues with social networking) and more overlap of laws and regulations (think about issues which involve medical leaves, accommodation requests, and privacy concerns). Two valuable strategies to minimize cost and risk are often underutilized: being patient and clear.

Often, calls into human resources or legal resources involve complaints from a supervisor with an ongoing problem and a frustration level which has hit the boiling point. Even though frustrating, especially for the supervisor or coworkers who are dealing with a continuing problem, the best strategy may be patience (apart from instances where patience is clearly uncalled for — such as safety concerns or outrageous conduct). Close behind patience is the need to be clear — and not just for the individuals involved, but clear to third parties (think jurors or an agency investigator) who may later be reviewing the “paper trail.”

Here are just a few practical pointers involving patience and clarity (but remember, employee counseling and discipline is not a “one-size-fits-all” exercise):

• For written counseling or a performance improvement plan (PIP), make sure the time frame matches the underlying concern. If attendance or attitude is the issue, require immediate improvement. If the person is behind in a sales quota, make sure the time frame and associated goals can reasonably be achieved. It usually does not hurt to err on the side of being sure enough is provided.
• If the PIP is for a specified time, be clear about whether termination can occur before that time period has expired. If there are interim goals, or interim evaluation periods involved, make sure the PIP is clear that termination can occur at any time. Otherwise, there may be an implicit expectation that the full time of the PIP can be used to accomplish the goals or necessary improvement.
• Even if the employee seemed to understand things in a meeting, consider recapping the highlights in an email or document to the employee to confirm the expectations. Often, having a draft version of an email or document can help guide the meeting and the recap can then reflect the actual outcome.
• Consider asking the employee if he/she has suggestions about what would help him/her improve — would retraining help or some periodic meetings to help better prioritize workload? When defending a claim, having allowed the employee to suggest solutions that were actually tried, or at least considered, can be very persuasive evidence.
• If regular meetings are to be part of the PIP, be clear about who is to schedule or what preparation is needed. If the PIP does not specify those items, it leaves room for the employee to argue he or she did not understand the expectation.
• Similarly, even when the documentation may support a termination decision, consider how one more step in the discipline process might look — both to the employee and to an outsider who reviews the situation with the benefit of hindsight.

Labor and Employment Trivia

Last week’s question: On Monday, September 5, we celebrated Labor Day, a national holiday since 1894. What were the contradictory actions taken by the president who signed the law making Labor Day a national holiday?

Answer: Democratic President Grover Cleveland served his first term from 1885–1889 in a time of Republican domination. He was criticized by many in party for being anti-union, especially after arresting a group of labor protesters known as Coxey’s Army and calling out the U.S. Army to crush the Pullman Strike of 1894. There was such strong public outrage to his handling of the Pullman Strike that, within a matter of days following the end of the strike in June, 1894, Congress passed, and President Cleveland signed into law, the bill making Labor Day a national holiday.

This week’s question: What is a "yellow dog contract" and where did the term originate?

Please continue to send suggestions for trivia questions to mneuberger@foley.com.

Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week’s issue.