Unions – Just Facts

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• Card Check
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any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.[4]

* Some labor organizations also support political candidates and engage in issue-based advocacy. For details, see the section below on politics and activism.

* A “bargaining unit” is a group of employees represented by a union.[5]

* Collective bargaining, as defined by Cornell University’s Legal Information Institute, “consists of negotiations between an employer and a group of employees so as to determine the conditions of employment.”[6]

* With regard to unionization in most of the private sector:

A federal agency called the National Labor Relations Board (NLRB) has the authority to conduct elections for installing unions at workplaces and to issue rulings about labor-related disputes and other such matters.[7] [8] [9] [10] [11]
The NLRB is controlled by five members and a General Counsel who are appointed by the President with the advice and consent of the Senate. These appointees serve for staggered five-year terms.[12] [13]
The NLRB acts through “regional and other field offices located in major cities in various sections of the country.”[14] [15]
By tradition (not law), the President appoints members of the opposing political party so that the Board contains three members of the President’s party and two from the opposition.[16]
As of October 2019:
- three of the NLRB board members are Republicans, one is a Democrat, and one seat is unfilled.[17] [18]
- the NLRB General Counsel is a Republican.[19]

* Unionization in the railroad and airline industries does not fall under the authority of the NLRB but a law first enacted in 1926 (and since modified) called the Railway Labor Act.[20] [21]

* With regard to unionization in most federal government agencies:

A federal agency called the Federal Labor Relations Authority (FLRA) has the authority to conduct elections for installing unions at workplaces and to issue rulings about labor-related disputes and other such matters.[22] [23]
The FLRA is controlled by three members and a General Counsel who are appointed by the President with the advice and consent of the Senate. These appointees serve for staggered five-year terms.[24] [25]
By law, no more than two of the three members of the FLRA may be of the same political party.[26]
The FLRA acts through regional offices.[27]
As of October 2019, two of the FLRA board members are Republicans, and one is a Democrat.[28] [29] [30]

* The U.S. Postal Service is not a federal agency but a government-owned corporation. Thus, its unionization does not fall under the purview of the FLRA but a separate legal framework.[31] [32]

* Federal law does not allow for the unionization of the U.S. armed forces or employees of the Federal Bureau of Investigation, Central Intelligence Agency, Secret Service, National Security Agency, Government Accountability Office, and several other agencies.[33] [34]

* With regard to unionization in state and local government agencies:

As of 2019, 31 states and the District of Columbia allow most public employees to bargain collectively through unions, 12 states allow only certain public employees to do so (such as police and teachers), and 8 states do not allow public employees to bargain collectively.
Laws and regulations for installing unions at workplaces and handling labor disputes vary widely by state.
In states that allow government employees to bargain collectively, key decisions are often made by Public Employees Relations Boards (PERBs).[35] [36] [37] [38]

Private Sector Organizing and Decertifying

NLRB Secret Ballot Elections

* Most private-sector unions have been established at workplaces through secret ballot elections in which a majority of employees vote to approve a bargaining representative.[39] [40] This process typically entails the following major steps:

Union organizers identify a preliminary bargaining unit of employees that they want to unionize, and organizers gather signatures from these employees to show that at least 30% of them are interested in being represented by a union.[41] [42]
Union organizers submit these signatures to the National Labor Relations Board (NLRB), which determines if the proposed bargaining unit is appropriate and if other legal requirements to conduct a union election are met.[43] [44] [45] [46]
The NLRB conducts a secret ballot election. If the majority of employees vote to approve a union, the union becomes “the exclusive representatives of all the employees” in the bargaining unit “for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….”[47] [48]

* The following legal intricacies bear upon the steps above:

What constitutes an “appropriate” bargaining unit can be a matter of contention (details below).
Under federal law, the NLRB must have “reasonable cause to believe” that “a substantial number of employees … wish to be represented” by a union before conducting a secret ballot election. The NLRB has the authority to regulate what this means, and it requires the signatures of at least 30% of employees to meet this standard.[49] [50] [51]
Because construction work sometimes involves short-term projects, federal law allows unions to represent certain workers even if the majority of employees in a bargaining unit have not chosen to unionize.[52] [53]

* In the federal government’s 2018 fiscal year, 98% of all NLRB elections to establish a union took place within 56 days from the filing of the election petition. The median time was 23 days.[54]

Voter Intent, Lobbying & Intimidation in NLRB elections

* In NLRB-conducted secret ballot elections to establish unions at private-sector workplaces:

the time and place of the election is set by the NLRB.[55] [56]
NLRB agents count the ballots, and all parties are allowed to be present during this process.[57]
the union or employer may contest the results of an election by filing objections with the NLRB.[58] [59] [60]

* Federal law prohibits employers and unions from encouraging or discouraging employees to support unions by rewarding, punishing, or threatening to reward or punish employees. This restriction applies to hiring, tenure, or “any term or condition of employment.”[61] [62] [63]

* Federal law states that the above prohibitions do not censor employers or unions from expressing “any views, argument, or opinion,” as long as “such expression contains no threat of reprisal or force or promise of benefit” to employees.[64] [65]

* The NLRB has adopted a policy of setting aside any election that “was accompanied by conduct that the NLRB thinks created an atmosphere of confusion or fear of reprisals and thus interfered with the employees’ freedom of choice.” Per the NLRB:

In any particular case the NLRB does not attempt to determine whether the conduct actually interfered with the employees’ expression of free choice, but rather asks whether the conduct tended to do so. If it is reasonable to believe that the conduct would tend to interfere with the free expression of the employees’ choice, the election may be set aside.[66] [67] [68]

* The NLRB and federal courts have created the following rules for private-sector union election campaigns:

Employers are required to give the unions the names and home addresses of all employees who are eligible to vote.[69] [70]
Union organizers can visit employees at their homes to lobby them, but employers cannot.[71]
Employers can hold mandatory group meetings during work hours to lobby employees, if the employers pay employees full compensation for their time.[72] [73] [74] [75] [76]
Employers cannot call employees into a superior’s office to lobby them.[77]
Employers cannot ask employees how they intend to vote.[78] [79] [80] [81]
Union organizers, advocates, and opponents who are company employees can lobby their coworkers on company property and during nonworking hours in nonworking areas (such as lunch rooms).[82] [83]
Union organizers, advocates, and opponents who are company employees can lobby their coworkers on company property and during work hours “unless the employer can demonstrate that a restriction is necessary to maintain production or discipline.”[84] Thus, if the company has a policy forbidding all forms of solicitations and lobbying during work hours, this also applies to union-related actions.[85] [86]
Employers can prohibit non-employees from lobbying on company property unless it is “impossible or unreasonably difficult for a union to distribute organizational literature to employees entirely off of the employer’s premises….”[87] [88]
Employers and unions are banned from giving “speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for an election.”[89]
Unions can videotape and photograph employees who support or reject a union, and unions can circulate these videos and pictures without the consent of the recorded employees.[90] Employers generally cannot engage in such activities, but they can videotape union organizing activities if the employer has a “reasonable basis to expect misconduct,” such as violence, trespassing, or vandalism.[91] [92] [93]

* In cases where the NLRB decides that an election rule has been broken, it typically conducts a rerun election. However, in at least two such cases, the NLRB has ordered employers to recognize and bargain with unions without having a rerun election.[94]

* In addition to setting aside elections, when the NLRB determines that an employer or union has committed an “unfair labor practice,” federal law instructs the NLRB to require the offender to “cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay….”[95]

* In the federal government’s 2018 fiscal year, NLRB actions led to reinstatement offers for over 1,200 employees, and the NLRB recovered more than $54.3 million in backpay, fines, dues, and fees.[96]

* Resistance or interference with the legal powers of the NLRB is punishable under federal law by fines of up to $5,000 and imprisonment for up to a year.[97]

Unionization Without NLRB Elections (Corporate Campaigns & Card Check)

* Federal law requires that “the majority of the employees” in a private-sector bargaining unit approve of a union before it becomes the exclusive representative of the employees. However, the law does not specify how to determine if a majority approves of a union except when an “employer declines to recognize” a union supported by a “substantial number of employees.” In such cases, the law requires the NLRB to conduct an “election by secret ballot.”[98] [99] [100] [101]

* The U.S. Supreme Court and NLRB members appointed by Democrats and Republicans have interpreted the above-cited law to mean that if an employer chooses to recognize a union, the union can become the exclusive representative of the employees through evidence of majority support other than an NLRB election. This can be “as informal as employees walking into the owner’s office and stating they wish to be represented by a union.”[102] [103] [104] [105]

* To pressure employers to accept unionization without an NLRB secret ballot election, unions sometimes conduct “corporate campaigns.”[106] [107] [108] Per the Encyclopedia of U.S. Labor and Working-Class History, “A corporate campaign is a mobilization of the labor movement and the community to tarnish a corporation’s image and to inflict serious economic damage” on it.[109]

* In an article about corporate campaigns published by Labor Research Review, union organizer Joe Crump wrote:

Organizing is war. The objective is to convince employers to do something that they do not want to do. That means a fight. If you don’t have a war mentality, your chances of success are limited. Organizing without the NLRB means putting enough pressure on employers, costing them enough time, energy and money to either eliminate them or get them to surrender to the union.[110]

* In corporate campaigns, unions often collaborate with environmental organizations, government agencies, corporations, politicians, journalists, entertainers, and other parties to financially harm corporations until they agree to a union’s demands. Strategies employed in such campaigns include:

boycotts.
disrupting shareholder meetings.
“targeting the company’s largest purchasers.”
putting “pressure on interlocking sectors of the business and financial community in hopes of isolating the offending employer.”
reporting the “target company” to government regulators.
supplying the media with “some ‘juicy’ information on a targeted employer’s business practices.”
“conflict escalation.”
“divide and conquer” tactics.[111] [112] [113] [114] [115] [116] [117] [118]

* Per a 1979 Harvard Crimson article profiling and interviewing Ray Rogers, the primary founder and leader of corporate campaigns:

Rogers’ thoughts and actions are as much influenced by his past as they are by Saul Alinsky and his book “Rules for Radicals.” … And his overall strategy against [textile manufacturer J.P.] Stevens is directed by Alinsky’s gospel, “Pick the target, freeze it, personalize it, and polarize it.”[119] [120] [121] [122]

* When unions succeed in pressuring employers to forgo an NLRB secret ballot election, they typically conduct “card check” campaigns in which union organizers lobby employees to sign cards accepting a union. If the organizers obtain signatures from a majority of employees in a bargaining unit, the union becomes the exclusive representative of all the employees in the unit.[123] [124] [125] [126]

* In 1969, the U.S. Supreme Court unanimously ruled in NLRB v. Gissel Packing Company that card check campaigns are “admittedly inferior to the election process,” but they can still “adequately reflect employee sentiment” and are not banned by federal law.[127]

* For federal, state, and local political elections, all U.S. states have banned ballots that are not cast in private and do not reveal all the available choices. Such ballots, which are called “party ballots,” were regularly used for political contests in the 1800s. Because they enabled activists to intimidate citizens, all U.S. states and numerous Western democracies banned party ballots and enacted the following three requirements:

Voters have a right to cast their ballots in private.
Ballots must display all the available options (not just one option or party).
Lobbying is forbidden in and around polling places so that people can cast their votes without pressure from others.[128] [129] [130] [131] [132]

* Union card check campaigns are not required to comply with any of the three principles above. In such campaigns:

Voters cannot cast their ballots in private.
The cards can display only the option to accept a union (not to reject it).
Union organizers can lobby employees in public and at employees’ homes to sign union acceptance cards as the organizers watch over them.[133] [134]

* With regard to union organizers pressuring employees to sign cards, the Gissel court wrote that the “same pressures are likely to be equally present” in card check campaigns as secret ballot elections, because “election cases arise most often with small bargaining units” where “virtually every voter’s sentiments can be carefully and individually canvassed.”[135]

* The Gissel ruling did not apply a different standard to large bargaining units, and it drew no distinction between the pressures of the following two scenarios:

Union organizers asking employees how they intend to vote in a secret ballot election
Union organizers asking employees to sign a union acceptance card in the presence of union organizers[136]

* The Gissel ruling also stated that if union organizers collect employee signatures for a card check campaign without telling employees what the cards mean, the signed cards are still valid. The court also applied this standard to “dual purpose cards,” which are cards that (1) petition the NLRB to hold a secret ballot election and (2) authorize a union to represent the employees. The court ruled that if union organizers tell employees that the purpose of getting their signature is to hold an election, but they do not mention the other purpose of the card, the signed cards are still valid for both purposes and can be used to authorize a union without an election. As long as the language on the card is “unambiguous,” the court held that:

employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election.[137] [138]

* The Gissel ruling did not address cases in which employees who sign the cards do not speak English or are illiterate.[139]

* The Gissel ruling did not address the issue that employee signatures collected over extended periods of time may not reflect the will of the majority at any point in time.[140] [141]

* In a 1992 Supreme Court ruling in Burson v. Freeman, the Justices unanimously agreed that secret ballots are necessary to prevent voter intimidation in political elections. The court split over whether a larger campaign-free zone outside of polling places is necessary, with the majority ruling (5–3) that it was.[142]

* In 2007, 227 Democrats and 7 Republicans in the U.S. House of Representatives sponsored a bill called the “Employee Free Choice Act.”[143] This legislation would have eliminated all NLRB secret ballot elections to certify unions. The bill directed the NLRB to stop conducting elections and to certify unions as the exclusive representative of all employees in a bargaining unit if a majority signs a union acceptance card.[144] [145]

* The bill left in place a preexisting law that requires an NLRB secret ballot election to decertify a union. Thus, under the new law, all unions would be certified under card check campaigns, but unions could only be decertified through NLRB secret ballot elections.[146] [147]

* The bill passed the U.S. House of Representatives with 98% of Democrats voting for it and 91% of Republicans voting against it.[148]

* Senate rules allowed for a “filibuster” in which a vote to pass certain bills could be blocked unless 60 of the Senate’s 100 members agree to let it take place.[149] [150] The bill failed to pass a filibuster with 98% of Democrats voting for it and 98% of Republicans voting against it.[151] [152]

* The primary sponsor of the Employee Free Choice Act was George Miller of California.[153] In 2001, Miller was the lead author of a letter to government officials in Mexico, which stated:

As members of Congress of the United States who are deeply concerned with international labor standards and the role of labor rights in international trade agreements, we are writing to encourage you to use the secret ballot in all union recognition elections.

We understand that the secret ballot is allowed for, but not required, by Mexican labor law. However, we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose.[154] [155]

* In addition to Miller, 14 House Democrats and Senator Bernie Sanders, an Independent and self-described “democratic socialist” who caucuses with Democrats, signed the letter above.[156] [157] [158] Of these signatories, all of the 12 who were still in Congress in 2007 (including Sanders) voted to eliminate NLRB secret ballot elections to form unions.[159] [160] [161] [162] [163]

* The Teamsters union, which describes itself as “North America’s strongest and most diverse labor union,” supports the Employee Free Choice Act. The Teamsters’ website states:

Don’t believe the lies of Big Business. Corporate America wants you to believe the Employee Free Choice Act will do away with the secret ballot. Not true. What the legislation does is to put that decision back in the hands of workers.[164] [165]

* The text of the Employee Free Choice Act states that when the NLRB “finds that a majority of the employees” in a bargaining unit have signed a card accepting a union, “the Board shall not direct an election but shall certify” the union as the exclusive representative of all the employees in the unit.[166] [167] [168] [169]

* As a U.S. Senator, President Obama voted for the “Employee Free Choice Act,” and as President, he told the AFL–CIO union that he would “keep on fighting” for it.[170] [171]

* The Obama administration’s 2010 guide to Conducting Local Union Officer Elections states that union election officials should “uphold American democratic traditions by protecting the right” to “vote by secret ballot for officers of your union.” It also states that this is among “the most fundamental of union rights.”[172] [173]

* Federal law requires that unions elect their officers by secret ballot, except for national and international federations comprised of multiple unions.[174]

* With reference to the Teamsters’ internal elections, the Teamsters’ constitution uses the phrase “secret ballot” 29 times. For example, “All voting shall be by secret ballot.”[175]

Decertification

* Once private-sector unions are established at workplaces, federal law requires that they remain indefinitely unless employees vote to remove the union or an employer proves that the majority of employees no longer support the union.[176] [177] [178] [179]

* The landmark union legislation of U.S. history is the National Labor Relations Act of 1935, also known as the Wagner Act.[180] This law gave private-sector employees “the right” to make unions the “exclusive representatives” of all employees in their bargaining units, but it did not contain a provision that allowed employees to revoke this authority.[181] [182] The Labor Management Relations Act of 1947 (a.k.a the Taft-Hartley Act) gave employees this option, which is called decertification.[183] [184]

* To decertify a private-sector union, federal law requires that 30% or more of the employees in a bargaining unit petition the NLRB to revoke the authority of a union to bargain for them. In such cases, federal law requires the NLRB to conduct a secret ballot election, and if at least half of the employees vote to decertify the union, it will no longer represent any of the employees.[185] [186]

* Federal law prohibits decertification elections for one year after a union wins an NLRB-conducted election.[187] Also, the NLRB has enacted rules that:

prohibit decertification elections “for a reasonable period of time” after an employer accepts a union without an NLRB election, such as with card check campaigns. The NLRB defines this period as six months to a year after the union and employer have their first bargaining session.[188] [189] [190]
prohibit decertification elections for up to three years after a bargaining agreement is approved or renewed, except during a 30-day “window period” near the end of this three-year timespan or the contract’s expiration date if the contract is for less than three years.[191] [192] [193] [194]
prohibit employers from encouraging or helping employees to file a decertification petition with the NLRB.[195]

* A 2004 nationwide survey of union members conducted by Zogby International found that 93% of union members never voted to establish a union at their current workplace, because the union was established before they were hired.[196]

* In 2001, the NLRB ruled, “We adhere to the established presumption that newly hired employees support the union in the same proportion as the employees they have replaced.”[197]

Public Sector Organizing and Decertifying

* At federal government agencies, federal law requires that unions receive a majority of votes in a secret ballot election in order to become the exclusive representative of all employees in a bargaining unit. The same standard applies to decertifying a union.[198]

* Federal law gives the Federal Labor Relations Authority (FLRA) the authority to conduct union certification and decertification elections for federal employees.[199] [200]

* Federal law gives the President the authority to exclude federal agencies or subdivisions from laws regarding unionization if they have “as a primary function intelligence, counterintelligence, investigative, or national security work.”[203]

* The President can also suspend unionization laws for any federal agency or portion thereof that is physically located outside the U.S. if “the suspension is necessary in the interest of national security.”[204]

* Federal law prohibits federal agencies and unions from encouraging or discouraging employees to support unions by rewarding, punishing, or threatening to reward or punish employees. This applies to “hiring, tenure, promotion, or other conditions of employment.”[205]

* Federal law prohibits union decertification elections for one year after a certification or decertification election has taken place.[206] [207]

* The FLRA has created the following rules for union election campaigns:

Federal agency managers are prohibited from expressing their opinions about unions to employees. When an election campaign in not taking place, managers can express their views about unions as long as there is no “threat of reprisal or force,” “promise of benefit,” or “coercive conditions.”[208] [209]
Federal workers are generally allowed to lobby for unions in work and non-work areas during times when they are not supposed to be working.[210]
Unions can discipline and expel union members who attempt to decertify a union.[211]
Federal workers cannot have a decertification election for three years after a bargaining agreement is approved or renewed, except during a 45-day “window period” near the end of this three-year timespan or the contract’s expiration date if the contract is for less than three years.[212] [213]

* Laws concerning unionization and decertification of state and local government employees vary significantly by state. Some of the issues and sources of contention are similar to those with the private sector.[214] [215] [216] [217]

Bargaining Unit Determination

* Per the Encyclopedia of Public Administration and Public Policy:

Unit determination is important, because the composition and size of the unit may affect bargaining success. … Depending on the nature of the bargaining unit, it might be easy or difficult to gain majority support, recognition, or certification as the exclusive bargaining agent for employees.

It is not uncommon for employers and unions to differ over the size and nature of the bargaining unit. From the employer’s perspective, large units are often preferred. This is because it facilitates cost efficiencies when a single agreement is negotiated with a standard package rather than multiple separate bargaining contracts, each with its own unique provisions. A proliferation of units involves more negotiating sessions, heightens the probability of disruption, and adds complexity of multiple working rules and personnel practices.

Employees, by contrast, usually favor small units. Smaller, more homogeneous units maximize opportunity for employee participation, may better reflect the needs and objectives of union members, amplify their voting power, foster greater solidarity, and are easier to organize.[218]

Private Sector

* Federal law restricts supervisors from being included in private-sector bargaining units (a supervisor may join a union, but not for purpose of collective bargaining). The law also restricts professional employees from being included in bargaining units with nonprofessionals, unless the majority of professionals vote to support the union.[219] [220] [221] [222]

* Within broad legal boundaries, the National Labor Relations Board (NLRB) has the authority to determine the size and scope of bargaining units for the private sector.[223] [224] [225] Per the NLRB:

Generally, the appropriateness of a bargaining unit is determined on the basis of a community of interest of the employees involved. Those who have the same or substantially similar interests concerning wages, hours, and working conditions are grouped together in a bargaining unit. In determining whether a proposed unit is appropriate, the following factors are also considered:

Any history of collective bargaining.
The desires of the employees concerned.
The extent to which the employees are organized.[226]

* As unions organize, they sometimes alter the proposed bargaining unit to maximize the chances for obtaining the approval of a majority of employees.[227] [228]

* Federal law prohibits the NLRB from using the extent that a union has gained the approval of employees as the controlling factor in bargaining unit determinations.[229] Congress enacted this requirement in the Taft-Hartley Act of 1947. The legislative record of the act states that this requirement:

strikes at a practice of the Board by which it has set up as units appropriate for bargaining whatever group or groups the petitioning union has organized at the time. Sometimes, but not always, the Board pretends to find reasons other than the extent to which the employees have organized as ground for holding such units to be appropriate…. While the Board may take into consideration the extent to which employees have organized, this evidence should have little weight, and … is not to be controlling.[230]

* In 2011, the United Food and Commercial Workers Union attempted to unionize the salespeople of a Macy’s department store in Saugus, Massachusetts, but the employees voted against the union. The union then altered the proposed bargaining unit to include only the salespeople in the cosmetics and fragrances departments. In 2014, the NLRB ruled 3–1 that this bargaining unit was appropriate, and the cosmetics and fragrances salespeople then voted 23–18 to unionize. All of the NLRB members who ruled in this case were appointed by President Obama. The three who formed the majority were Democrats, and the one who dissented was a Republican. In 2016, the Fifth Circuit Court of Appeals denied an appeal of the NRLB decision.[231] [232] [233] [234] [235]

* The NLRB has approved bargaining units that span multiple locations of the same employer and separate employers. The NLRB has also approved units with as few as two people. From 2001–2010, the median bargaining unit size approved by the NLRB was 23–26 employees.[236] [237] [238] [239] [240]

* Small bargaining units are sometimes called “micro-unions” or “micro-units.”[241]

* To prevent “disruptions in the delivery of health care services,” federal regulations restrict the number and types of bargaining units that can be formed in acute care hospitals.[242] [243]

Government Sector

* Within broad legal boundaries, the Federal Labor Relations Authority (FLRA) has the authority to determine the size and scope of bargaining units for federal employees “on a case-by-case basis.”[244] [245]

* Under federal law, bargaining unit determinations must ensure that the unit “will promote effective dealings with, and efficiency of the operations of the [federal] agency involved.”[246] No similar provision of the law exists for the private sector.[247]

* The FLRA “has a preference for preventing unit fragmentation” but has approved bargaining units with as few as four members.[248]

* Federal law prohibits the FLRA from using the extent of union support as the sole factor in bargaining unit determinations.[249]

* Federal law generally restricts supervisors from being included in federal employee bargaining units. It also restricts professional employees from being included in bargaining units with nonprofessionals, unless the majority of professionals vote to support the union.[250] [251] [252]

* For state and local government employees, Public Employees Relations Boards (PERBs) often make bargaining unit determinations.[253] Some of the issues and sources of contention are similar to those in the private sector.[254]

Compulsory Unionism

Forced Employment

* In the 1908 Supreme Court case of Adair v. United States, the Justices ruled (6–2) that a law forcing employers to retain union employees was an “invasion of the personal liberty, as well as of the right of property, guaranteed by” the U.S. Constitution. The ruling stated that:

it is not within the functions of government—at least in the absence of contract between the parties—to compel any person, in the course of his business and against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another.

In all such particulars, the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.[255]

* Under current federal law that was established in the 1935 Wagner Act, it is against the law for private-sector employers to fire employees for being members or advocates of unions.[256] [257] [258]

* In the 1937 Supreme Court case of National Labor Relations Board v. Jones and Laughlin Steel, the Justices ruled (5–4) that the above-cited provision of the Wagner Act does not violate the Constitutional rights of employers because it:

goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.

Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority.[259]

Forced Representation

* Under current federal law that was established in the 1935 Wagner Act, private sector unions approved by a majority of employees become “the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….”[260] [261]

* In the 1937 Supreme Court case of National Labor Relations Board v. Jones and Laughlin Steel, the Justices ruled (5–4) that the Wagner Act did not violate the U.S. Constitution or its Fifth Amendment right that no person shall be “deprived of life, liberty, or property, without due process of law.” With regard to this, the Court ruled that the exclusive representation provision of the Wagner Act did not deprive individual employees or employers of the freedom to bargain with each other. The majority wrote that the exclusive representation provision:

was designed only to prevent collective bargaining with any one purporting to represent employees’ other than the representative they had selected … “but not as precluding such individual contracts” as the “company might elect to make directly with individual employees.”

The act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer from refusing to make a collective contract and hiring individuals on whatever terms the employer may by unilateral action determine. [Internal quote marks omitted][262] [263] [264]

* Between 1937 and 1943, the U.S. President who signed the Wagner Act into law, Franklin Delano Roosevelt (D), appointed seven of the nine Justices on the Supreme Court.[265] [266] [267]

* In the 1944 Supreme Court case of J.I. Case Co. v. National Labor Relations Board, the justices ruled (8–1) that even though “some employees may lose” from a collective bargaining agreement, federal labor law does not have to “respect” their “freedom” to negotiate “better terms” with their employers. Per the ruling:

Increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group, and always creates the suspicion of being paid at the long range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices.

The workman is free, if he values his own bargaining position more than that of the group, to vote against representation, but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result.

Individual contracts cannot subtract from collective ones, and whether, under some circumstances, they may add to them in matters covered by the collective bargain we leave to be determined by appropriate forums under the laws of contracts applicable, and to the Labor Board if they constitute unfair labor practices.[268]

* This ruling gave unions a monopoly over the labor supply of unionized bargaining units. In these workplaces, individual workers and employers are prohibited from making employment agreements with each other. This differs from Western Europe, where employers are generally free to bargain with different employees.[269] [270] [271]

* As of October 2019, the National Right to Work Legal Defense Foundation is unaware of any private-sector workplace where individual workers are free to bargain for themselves where a union is formally established.[272]

* Under federal law, all federal government employees in bargaining units where a majority of employees voted for a union must be represented by that union.[273] [274] [275]

* Laws concerning forced representation of state and local government employees vary by state.[276] [277]

* In 2018, 1.6 million or 10% of people whose main jobs were covered by union contracts were not members of unions.[278] [279] This rate varied from 5% for transportation and utility workers to 25% for financial workers:

Workers Represented by Unions Who are Not Union Members

[280]

* By a majority vote, groups of employees can revoke the authority of a union to represent them. For details, see the section above on decertification.

Forced Dues

* Under current federal law that was established in the 1947 Taft-Hartley Act, private-sector employees have “the right to refrain from any or all” union-related “activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment….”[281] [282] [283]

* In the 1963 Supreme Court case of National Labor Relations Board v. General Motors Corporation, the justices ruled (8–0) that the above provision of the law means employees can be forced to be dues-paying members of unions, but employees cannot be forced to be full union members who are subject to all union rules.[284] [285] [286]

* Per the National Labor Relations Board (NLRB), the above provision of the law:

permits, under certain conditions, a union and an employer to make an agreement, called a union-security agreement, that requires employees to make certain payments to the union in order to retain their jobs.[287] [288]

* Such payments consist of dues that unions use for “representational activities (such as collective bargaining, contract administration, and grievance adjustment).” Employees can object to paying a portion of union dues used for other purposes, such as political activities (for more detail, see the section on politics and activism).[289] [290]

* Under various federal court rulings, when private-sector workers opt to pay only the portion of dues used for representational activities, unions generally can exclude them from voting on contracts that control the terms of their employment, such as wages, hours, vacations, strikes, health insurance, and safety practices.[291] [292] [293] [294] [295] [296] [297]

* Under current federal law that was established in the 1947 Taft-Hartley Act, individual states can prohibit contracts that force employees to pay union dues.[298] [299] States that have passed such laws are called “right-to-work” states, and as of 2019, they include the following 27 states:

Alabama	Iowa	Nevada	Texas
Arizona	Kansas	North Carolina	Utah
Arkansas	Kentucky	North Dakota	Virginia
Florida	Louisiana	Oklahoma	West Virginia
Georgia	Michigan	South Carolina	Wisconsin
Idaho	Mississippi	South Dakota	Wyoming
Indiana	Nebraska	Tennessee

[300] [301]

* In right-to-work states, when employees opt to not pay union dues, unions generally can exclude them from voting on contracts that control the terms of their employment, such as wages, hours, vacations, strikes, health insurance, and safety practices.[302] [303]

* In non-right-to-work states, unions typically insist that their collective bargaining contracts contain a “union security” provision that requires all employees in the bargaining unit to pay union dues.[304] [305]

* In the 2012 case of Erie Brush v. National Labor Relations Board, a Chicago company stopped negotiating with a newly organized union that insisted on a union security provision that the company opposed. In this case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia unanimously ruled that the NLRB could not force the company to continue negotiating with the union after they had reached an impasse on this matter.[306]

* Under federal law, any private-sector worker “who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections” to joining or supporting unions does not have to pay dues to the union, but he or she must make equivalent payments to charities specified in union contracts.[307] [308]

* Federal law prohibits contracts that force federal workers to pay union dues.[309] [310]

* Laws concerning forced union dues from state and local government employees previously varied by state.[311] [312] U.S. Supreme Court rulings have affected them as follows:

In the 1977 case of Abood v. Detroit Board of Education, the justices ruled that state governments can force government employees to pay union dues used for representational activities, but employees can object to paying a portion of dues used for other purposes, such as political activities.[313] [314] [315]

In the 2014 case of Harris v. Quinn:
- the majority (5–4) declared that the forced-dues requirement of the Abood ruling was “questionable on several grounds” and that a “critical pillar” of it rested upon “an unsupported empirical assumption….” The majority also wrote that the Abood Court “seriously erred” in their interpretation of earlier Supreme Court rulings and “did not foresee the practical problems that would face” government workers who do not want to support union political activities. However, the case before the Court differed from Abood, and the justices did not overrule it.[316]
- the issue involved a Medicaid program that provides states with federal money to compensate people who “provide in-home services to individuals whose conditions would otherwise require institutionalization.” Many of the people who provide this care are relatives of the people who receive the care, such as parents who care for their disabled children. The majority ruled that states cannot deem these caregivers to be government employees in order to force them to pay union dues.[317] [318]

In the 2018 case of Janus v. American Federation of State, County, and Municipal Employees, the majority (5–4) overruled the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. Thus, states can no longer force government employees to pay union dues of any sort.[319]

* When federal, state or local government workers opt not to pay union dues, unions can sometimes exclude them from voting on contracts that control the terms of their employment, such as wages, hours, vacations, strikes, health insurance, and safety practices.[320] [321] [322] [323] [324]

Deauthorization

* Under federal law, the majority of private-sector workers in a bargaining unit under a contract that mandates the payment of union dues can vote to rescind that aspect of the contract. This is called a “deauthorization” election.[325] [326]

* Deauthorization elections differ from decertification elections, which involve workers voting to rescind the authority of a union to represent them. In contrast, after a deauthorization election, the union still represents the workers, but the workers are not forced to pay union dues.[327]

* Under federal law, private-sector workers are prohibited from holding deauthorization or decertification elections for one year after a union wins an NLRB-conducted election.[328] However, deauthorization elections can be held more easily than decertification elections, because the NLRB has enacted rules that prohibit decertification elections for up to three years after a bargaining agreement is approved or renewed, except during a 30-day “window period” near the end of this three-year timespan or the contract’s expiration date if the contract is for less than three years.[329] These rules do not apply to deauthorization elections.[330]

* To hold a private-sector deauthorization election, federal law requires that 30% or more of the employees in a bargaining unit petition the NLRB to revoke the authority of a union to forcibly collect dues. In such cases, the NLRB must conduct a secret ballot election, and if a majority of workers vote to deauthorize, they will no longer be forced to pay union dues.[331] [332]

* Unlike representation and decertification elections, which are determined by a majority of votes cast in the election, a union will not be deauthorized unless a majority of all workers in the bargaining unit vote to deauthorize it.[333]

* There is no basis for federal employees or employees in right-to-work states to hold deauthorization elections, because these workers cannot be forced to pay union dues in the first place.[334] [335]

* Laws concerning deauthorization elections for state and local government employees vary by state.[336] [337] [338]

Bargaining and Negotiation

Private Sector

* Under current federal law that was established in the 1935 Wagner Act, it is against the law for private-sector employers “to refuse to bargain collectively” with unions approved by a majority of employees. The 1947 Taft-Hartley Act imposed the same requirement on unions, creating a “mutual obligation” for unions and employers “to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment….”[339] [340] [341] [342] [343]

* Under current federal law that was established in the 1947 Taft-Hartley Act, the obligation to bargain collectively “does not compel either party to agree to a proposal or require the making of a concession….”[344] [345]

* Per West’s Encyclopedia of American Law, “It is a fundamental part of federal labor policy that unions and management should resolve their disputes through voluntary collective bargaining and not through the imposition of a solution by the government.”[346]

* Federal law does not require employers and unions to continue negotiating in the face of an impasse. In the 2012 case of Erie Brush v. National Labor Relations Board, a Chicago company stopped negotiating with a newly organized union that insisted on a union security provision that the company opposed. In this case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia unanimously ruled that the NLRB could not force the company to keep negotiating with the union after they had reached an impasse on this matter.[347] [348]

* Under rules established by the National Labor Relations Board, most terms of private-sector collective bargaining contracts remain in force even after the contracts expire. This includes wages, hours, employee savings accounts, dues-checkoff provisions (which require employers to deduct union dues from employees’ paychecks and submit them to the union), and “other terms and conditions of employment.” Some exceptions to this rule are no-strike clauses, arbitration agreements, and management-rights provisions.[349] [350] [351]

* In 2007, 227 Democrats and 7 Republicans in the U.S. House of Representatives cosponsored a bill called “Employee Free Choice Act.”[352] This bill would have given an “arbitration board” the authority to dictate the terms of collective bargaining agreements for two years in cases where private-sector employers and newly established unions don’t come to an agreement after 120 days of bargaining.[353] This arbitration board would be under the authority of a single person who is appointed by the President with the consent of the Senate.[354] [355]

* The bill passed the U.S. House of Representatives with 98% of Democrats voting for it and 91% of Republicans voting against it.[356]

* Senate rules allowed for a “filibuster,” in which a vote to pass certain bills could be blocked unless 60 of the Senate’s 100 members agree to let it take place.[357] [358] The bill failed to pass a filibuster with 100% of Democrats voting for it and 98% of Republicans voting against it.[359] [360]

Public Sector

* Federal law requires that federal agencies and unions negotiate in “good faith” with each other.[361] In cases where they don’t reach an agreement, a federal panel comprised of people appointed by the President “may take whatever action it deems necessary to resolve the dispute, including imposition of contract terms through a final action.” The merits of these decisions “may not be appealed to any court.”[362] [363]

* Per the Congressional Research Service:

In the federal government, most employees do not bargain over wages. Salaried employees generally receive an annual pay adjustment and a locality pay adjustment, effective each January. Federal employees who are paid by the hour usually receive pay adjustments equal to those received by salaried workers in the same locality.[364]

* State and local laws concerning collective bargaining negotiations for public-sector unions vary significantly.[365] [366]

* Some states and localities have enacted “binding arbitration” laws that give selected panels, organizations, or individuals the authority to dictate the terms of some union contracts. Such contracts often involve public safety workers, such as police and firefighters, but sometimes teachers and other government employees.[367] [368] [369] [370]

* Some binding arbitration laws have been repealed by voters or struck down by courts on grounds that these laws confer authority to spend taxpayer money to arbitrators who are not accountable to the voters.[371] [372] [373] [374]

Strikes, Boycotts, Picketing, and Lockouts

* When unions and employers have disputes over the terms of a contract, they sometimes attempt to pressure each other through strikes, boycotts, picketing, and lockouts. Per West’s Encyclopedia of American Law:

A strike is “a concerted refusal of employees to perform work that they have been assigned, in order to force the employer to grant concessions that the employees have demanded.”
A boycott “is any type of union action that seeks to reduce or stop public patronage of a business.”
Picketing “consists of posting one or more union members at the site of a strike or boycott, in order to interfere with a particular employer’s business or to influence the public against patronizing that employer.”
A lockout “is an employer’s refusal to admit employees to the workplace, in order to gain a concession from them.”[375]

Private Sector

* Under current federal law that was established in the 1935 Wagner Act, private-sector employees have a “right to strike” under certain conditions.[376] [377] [378] [379] [380]

* In unionized bargaining units, unions can unilaterally determine who is allowed to participate in strike votes.[381] For instance, the Teamsters union allows all workers who will affected by a strike to vote on it,[382] while the Communications Workers of America only allows union members to vote.[383]

* In November 2013, U.S. Senator Orrin Hatch (R–UT) sponsored a bill that would give “every employee in a bargaining unit represented by a labor organization, regardless of membership status in the labor organization” the right to participate in strike votes. The bill was cosponsored by 28 other Republicans, and the Senate did not take action on it. In March 2019 U.S. Representative David Roe (R–TN), along with 34 Republican cosponsors, reintroduced the bill.[384] [385] [386] [387] [388] [389]

* Under various U.S. Supreme Court rulings pertaining to the choices of individuals to work during a strike:

When unions strike, employees who are not full union members are free to work and cannot be fined by unions for doing so.
When unions strike, they can impose fines on members who work.
Unions cannot prohibit members from resigning during strikes.
If union members resign during a strike, they are free to work and cannot be fined by unions, as long they resign before they begin working.[390] [391]

* In the 1939 Supreme Court case of National Labor Relations Board v. Fansteel Metallurgical Corp., the justices ruled (6–2) that employers are free to fire employees who engage in unlawful actions while they are striking.[392] [393] [394] Per the NLRB, some examples of such include:

“A strike that violates a no-strike provision of a contract” between a union and employer.
“Strikers physically blocking persons from entering or leaving a struck plant.”
“Strikers threatening violence against nonstriking employees.”[395] [396]

* The National Labor Relations Board (NLRB) and federal courts have distinguished between two main types of legal strikes:

Economic strikes, in which employees strike for reasons such as wages, hours, or vacation time.
Unfair labor practice strikes, in which employees strike for reasons such as employer discrimination against union members or failure to bargain in good faith.[397] [398]

* In the 1938 Supreme Court case of National Labor Relations Board v. Mackay Radio & Telegraph Co., the justices ruled (7–0) that:

employers cannot fire employees for striking.
if a strike is for economic reasons, and the employer hires replacement workers to perform the jobs of the strikers, the government cannot force the employer to fire the replacement workers if the strikers want to return to work. Thus, the job positions formerly held by the strikers become filled by “permanent replacement” workers.
if the replacement workers leave or new positions become available, the government can force the employer to give these job openings to former strikers.
if a strike is about an unfair labor practice, the government can force the employer to fire the replacement workers and give these jobs to strikers who want to return to work.[399] [400] [401]

* Under decisions of the NLRB and federal appeals courts, if a strike concerns both an economic reason and an unfair labor practice, the government can force the employer to fire the replacement workers and give the jobs to strikers who want to return to work.[402]

* The website of the Teamsters Union states that strikes over unfair labor practices are “very rare” and “most strikes are called for economic reasons—to improve wages, health benefits, retirement benefits, etc.”[403]

* In a 2012 article published by Labor Notes (a magazine for union activists),[404] union lawyer Robert M. Schwartz advises unions preparing to strike that they should “precipitate” unfair labor practices by using certain “tactics.” Per the article:

Positioning a walkout as an unfair labor practice [ULP] strike is one of the key tasks for any union on the verge of a labor battle.

Employers often argue that strikes should be classified as economic because union officials took purposeful steps to make them look like ULP strikes. The NLRB often rejects such claims.

If the union lays groundwork that will enable it to prove its strike was either totally or partially caused by the employer’s unfair labor practices, the employer may be motivated to hold back from hiring “permanent” replacements because of the risk of a huge back-pay award [ordered by the NLRB].[405] [406] [407]

* Under federal law, private-sector employees have a “right to picket” under certain conditions.[408] [409] [410] [411]

* The central objective of picketing is to create bargaining leverage by financially harming a business. This is typically accomplished by coercing customers and employees to stay away from a business through nonviolent confrontation. To do this, picketers create a “symbolic barrier” between themselves and anyone who might enter a business.[412] [413]

[414]

* Under federal law, private-sector employers cannot fire employees for picketing their business unless the picketers engage in illegal behavior, such as acts of violence or physically blocking people from entering an establishment.[415] [416]

* Federal law prohibits unions from engaging in or encouraging picketing, strikes, or boycotts against employers with whom they do not directly have a labor dispute. These are called “secondary boycotts,” and examples of such include:

“Picketing an employer to force it to stop doing business with another employer who has refused to recognize the union.”
“Asking the employees of a plumbing contractor not to work on connecting up air-conditioning equipment manufactured by a nonunion employer whom the union is attempting to organize.”
“Urging employees of a building contractor not to install doors that were made by a manufacturer that is nonunion or that employs members of a rival union.”[417] [418] [419]

* The law against secondary boycotts does not prohibit unions from distributing literature that encourages people not to patronize employers with whom they do not directly have a labor dispute.[420]

Public Sector

* Federal law prohibits federal employee unions from picketing if it “interferes with an agency’s operations….”[421]

* Federal law prohibits federal employee unions from:

striking or participating in a work stoppage or slowdown.
condoning strikes and similar activities “by failing to take action to prevent or stop” them.
taking any actions “for the purpose of hindering or impeding the member’s work performance or productivity….”[422]

* In 1981, members of the Professional Air Traffic Controllers’ Organization union went on strike in violation of federal law. As a result, the employees were fired and the union decertified.[423] [424]

* Some state and local governments allow certain public employees to strike in certain circumstances.[425] [426] [427]

* Per the 1988 reference work Handbook on Human Service Administration:

Strikes are almost always illegal for public employees, although they have increased in number significantly over the past two decades. Most public employee strikes are by local government employees, and the one professional group of employees most likely to strike is teachers.

As in the laws governing federal employees, often there are very severe penalties in state laws for striking workers and labor organizations, but these penalties often are not imposed.[428] [429]

* In unionized public-sector bargaining units, unions generally can determine who is allowed to participate in strike votes.[430] [431] [432]

Economic Effects

* Per a 2005 paper in the Journal of Labor Research:

* Some examples of how unions may improve efficiency or cost effectiveness:

Conducting apprenticeship and training programs that make employees more productive.[434]
Boosting worker morale by increasing employee compensation and giving them a greater voice in company operations.[435] [436]
Protecting government employees from politically motivated firings.[437]
Reducing strife between employers and employees.[438]

* Some examples of how unions may harm efficiency or cost effectiveness:

Enacting work rules that impede the use of new technologies and confine workers to narrow tasks that hinder their productivity.[439] [440] [441]
Increasing employee compensation to levels that induce employers to outsource jobs and replace workers with machinery.[442] [443] [444]
Prohibiting incentives for individual achievement and protecting the jobs of workers who are poor performers or safety threats.[445] [446] [447] [448]
Increasing strife between employers and employees.[449] [450]

Important Notes on the Forthcoming Data and Studies

Economic differences between union and nonunion situations may be caused in part or whole by factors other than unionization, such as sector and industry dynamics,[451] [452] [453] [454] geographic disparities,[455] employer circumstances,[456] and worker characteristics.[457] [458] [459] Academics conducting studies often attempt to control for such variables,[460] but they cannot objectively rule out the possibility that other factors are at play. This is known as “omitted variable bias.”[461] [462] [463] [464] [465]

The potential for omitted variable bias can be reduced by analyzing time-series data surrounding changes in unionization. For example, a study may track certain workers’ compensation for several years before and after they unionize. This can limit the impact of many variables, but it cannot provably eliminate them.[466] [467] [468]

In order to curb the methodological trickery that besets public policy debates, Just Facts adheres to Standards of Credibility that call for the presentation of comprehensive “data in its rawest comprehensible form.” Time-series data that meet these criteria would be ideal for the study of union economic effects, but such data is rare.[469]

Unless otherwise indicated, the caveats above apply to the data and studies below.

Union Workers

* In 2018, the reported median weekly earnings of full-time union workers aged 25 years and older was 18% higher than that of nonunion workers. Across various age and ethnic groups, this wage differential ranged from as low as –4% for Asian men to as high as 40% for Hispanic men.[470] These figures do not account for fringe benefits or the costs of union dues.[471]

* In 2019, employers spent an average of $19.39 on benefits for every hour worked by union employees and $9.43 on benefits for every hour worked by non-union employees (excluding certain benefits not captured in this data ).[472] [473]

* Most studies of union wage effects have found that unions increased the average wages of union workers.[474] A 2004 paper in the Journal of Labor Research summarizing the results of 100+ studies on union wage effects from 1967 into the 2000s found that unions increased the average wage of union workers by about 16%.[475]

* Unions generally have been able to raise union workers’ compensation above market rates because exclusive representation laws give unions legal monopolies over employer labor supplies.[476] [477] [478] [479] The tradeoff for union workers is that this can cause their employers to become less competitive, which decreases the number of union jobs. Per a 2004 paper in the Journal of Labor Research:

In the 1970s and early 1980s, the [union] wage gap in the private sector rose while union density fell, as predicted in the standard textbook model of how employment responds to wages where the union has monopoly power over labor supply. … The fact that unions pushed for, and got, an increasing wage premium over this period, implies that they were willing to sustain membership losses to maintain real wages, or that unions were simply unaware of the consequences of their actions.[480] [481] [482] [483]

* To compensate for reduced competitiveness, unions sometimes engage in tactics that harm non-union competitors unless they unionize. Per an article in Labor Research Review by union organizer Joe Crump:

But when a nonunion competitor is beating your brains out and the union employers are looking for concessions or, worse, going out of business, then I don’t believe we have the luxury of sitting around and hoping that employees trapped in a “union free environment” will come knocking on our door looking for a solution to their problems.

If organizing is the lifeblood of the labor movement, then we have to create our own reality, by making our own breaks. And that means focusing on employers and making them pay for operating nonunion.[484] [485] [486]

* Unionized employees who are financially harmed by unions tend to be:

High-performing workers, who are penalized by union contracts that prohibit increased individual compensation for above-average performance.[487]
Newer workers, who are penalized by union policies that compensate workers for seniority and require that newer workers are the first to be dismissed during layoffs. [488] [489] [490] [491]
Workers who are unpopular with union leadership, as detailed below.

* Under previous federal law established in the 1935 Wagner Act, unions were permitted to negotiate “closed-shop” contracts in which workers could be barred from working in a bargaining unit represented by a union unless the union accepted them as members.[492] [493]

* Closed-shop contracts enabled unions to exclude anyone from membership for any reason, thus allowing them to stop certain people from working in certain bargaining units and trades that were highly unionized.[494] [495]

* Some examples of people who were barred from employment though closed-shop agreements included racial minorities, a worker who testified about a crime committed by a union member, a radio commentator who refused to make a financial contribution to a union cause, and a union member who ran for a union leadership position against an incumbent union official.[496] [497] [498] [499]

* The 1947 Taft-Hartley Act banned closed shops by requiring that union membership be “available” to all employees and could not be “denied or terminated for reasons other than the failure of the employee” to pay union dues and initiation fees.[500] [501] [502] This law still exists.[503]

* In the construction, building, and maritime industries, federal law allows for contracts that enable unions to determine which workers obtain work by using their own “non-discriminatory standards and procedures.”[504] [505] [506] Per the 2014 textbook Labor Relations in the Public Sector:

The closed shop approach is illegal in both public and private sectors under the Taft-Hartley amendments but continues to exist de facto in a few settings, principally though “hiring halls” that vet job applicants.[507] [508]

Consumers

* Federal law provides unions with labor supply monopolies that permit unions to fix labor prices and exclude competition.[509] [510] [511]

* Monopolies, price fixing, and the exclusion of competition generally lead to higher consumer prices.[512] [513] [514] [515]

* Higher consumer prices generally reduce people’s standards of living.[516] [517]

* Per the college textbook Survey of Economics:

Nominal income does not measure your real purchasing power. Finding out whether you are better or worse off over time requires converting nominal income to real income. … Real income measures the amount of goods and services that can be purchased with one’s nominal income.[518]

* In 2017, the average reported cash income per family in private-sector non-right-to-work states was 18% higher than in right-to-work states, but because the average prices of goods and services were lower in right-to-work states, the average real cash income per family was 5% higher in non-right-to work states:

[519] [520] [521]

Taxpayers

* In 2022, federal, state, and local governments spent $2.21 trillion on employee compensation. This amounts to an average of $17,016 from every household in the United States.[522] [523] [524] [525] [526] [527]

* In 2018, government employees comprised 15% of all civilian workers and 48% of all union members in the U.S.[528] [529]

* In the public sector during 2018, 34% of all civilian employees were members of unions as compared to 6% in the private sector.[530]

* Private-sector businesses must compete for customers, and this hinders the ability of unions to organize and raise wages.[531] [532] Such competition is lessened in the public sector because governments often have monopolies over certain services, such as law enforcement and public schools. Per the U.S. Supreme Court’s unanimous decision in Abood v. Detroit Board of Education:

A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and where they are they tend to be regarded as in some sense “essential” and therefore are often price-inelastic [i.e., the demand for the service is not affected by its price[533]].

Although a public employer, like a private one, will wish to keep costs down, he lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases. A public-sector union is correspondingly less concerned that high prices due to costly wage demands will decrease output and hence employment.[534]

* Governments are subject to certain types of competition because people and businesses sometimes migrate to locations where governments provide better value for their tax dollars, and because voters sometimes remove politicians for reasons such as increasing taxes and government spending.[535] [536]

* In 2014, 89% of U.S. Postal Service career employees were represented by unions, as compared to 7% of private-sector employees.[537] [538] In 2000, the journal Research in Labor Economics published a study comparing the wages of people who took and left jobs as full-time unionized Postal Service employees. Using three different datasets, the researchers found that:

private-sector workers who took jobs with the Postal Service received average wage increases ranging from 29% to 43%.
postal workers who left the Postal Service for private-sector jobs saw average wage decreases ranging from 25% to 33%.
the same workers received higher fringe benefits in the Postal Service than in the private sector.[539]

* In 2017, the Congressional Budget Office published a study comparing the compensation of full-time, year-round private sector workers to non-postal, civilian, federal workers in 2011 to 2015. The study accounted for education, occupation, work experience, geographic location, employer size, and various demographic characteristics. The study found that:

federal workers received an average of 17% more compensation than comparable private sector workers.
across various education levels, federal employee compensation premiums ranged from a low of –18% for workers with a professional degree or doctorate to a high of 53% for workers with a high school diploma or less:

Federal Employee Compensation Premiums Relative to Private Sector
Formal Education	Wages	Benefits	Total
High School Diploma or Less	34%	93%	53%
Some College	22%	80%	39%
Bachelor’s Degree	5%	52%	21%
Master’s Degree	–7%	30%	5%
Professional Degree or Doctorate	–24%	–3%	–18%
All Levels of Education	3%	47%	17%

[540]

* Per the same study:

If CBO had not structured the analysis so as to compare workers with similar observable traits, the difference in average wages between the two sectors would have been much larger. Comparing federal and private-sector employees with similar educational attainment was the most important element, for two reasons: Highly educated workers tend to earn much higher wages than less educated workers, and federal employees have more education, on average, than employees in the private sector.

People’s compensation is also affected by many characteristics that are not easy to observe or measure, such as their natural ability, personal motivation, and effort. The degree to which federal and private-sector employees may differ with regard to those characteristics is much harder to quantify, and no adjustments were made for those attributes in this analysis.[541]

* Click here for an article from Just Facts about the compensation of federal civilian employees and a broad range of studies about this issue.

* In 2010, full-time private industry workers worked an average of 12% more hours per year than full-time state and local government workers. This includes time spent working beyond assigned schedules at the workplace and at home.[542]

* During December 2011, state and local governments spent an average of 36% more for employee wages and benefits per contract hour worked by union employees than nonunion employees (excluding certain benefits not captured in this data[543]). Contract hours generally do not include the added time that professional employees often work “beyond the established work schedule of the employer due to the requirements of their jobs” and the added time that teachers often work beyond their established work schedules for “lesson preparation, test construction and grading, providing additional help to students, and other nonclassroom activities.” Across various occupations, this differential ranged from 26% for sales and office workers to 61% for service workers:

State and Local Government Costs per Employee Contract Hour, December 2011
Occupation	Union	Non-Union	Difference
All workers	$31.24	$23.01	36%
Management, professional, and related	$38.44	$29.64	30%
Service	$22.84	$14.23	61%
Sales and office	$19.64	$15.54	26%
Natural resources, and construction	$25.29	$18.06	40%
Production, transportation, and material moving	$21.84	$15.34	42%

[544] [545]

* In 2013, the journal Public Administration Research published a study comparing the compensation of full-time workers over 50 years of age in government and private sectors during 2006. The study accounted for wages and pensions but not “employment security, paid vacation, health insurance benefits,” and other types of compensation. It found that:

state government workers received 7% more compensation than private-sector workers with similar “educational attainment, gender, race, marital status,” and age.
local government workers received 8% more compensation than comparable private-sector workers.
federal workers received 34% more compensation than comparable private-sector workers.[546]

* As of October 2019, Just Facts is unaware of any credible study that compares the total compensation of unionized state and local government workers to comparable private-sector workers.[547]

* Below are some examples from news reports about compensation for unionized government workers:

“Records released Friday by the agency showed Port Authority police took home $41.4 million in overtime, with two officers making far more in overtime than the $107,900 they earn in base pay. Both were paid more than $256,000 this year. … [O]vertime pay is factored into New York state retirement benefits, inflating the pensions Port Authority police officers and other employees receive.”
– Star-Ledger (NJ), 2011[548]
In “Newport Beach, California … most of the fulltime lifeguards in this city earn well over $100,000 in total compensation a year…. Adding in pension contributions, medical benefits, life insurance and other pay, two battalion chiefs earned more than $200,000 in 2010, while the lowest-paid officer made more than $98,000. … Newport Beach’s lifeguards can retire at 50 with 90 percent of their salary with 30 years of service….”
– Associated Press, 2011[549]
“Richard Petrucelli, of East Boston, was paid a total of $288,562 in 2003 for his work as an electrician, part of an unusually high outlay of overtime pay that year for turnpike employees, including electricians and toll collectors.”
– Boston Globe, 2004[550]
“In Yonkers, more than 100 retired police officers and firefighters are collecting pensions greater than their pay when they were working. One of the youngest, Hugo Tassone, retired at 44 with a base pay of about $74,000 a year. His pension is now $101,333 a year. … According to pension data collected by the New York Times from the city and state, about 3,700 retired public workers in New York are now getting pensions of more than $100,000 a year, exempt from state and local taxes.”
– New York Times, 2010[551]
“Auditors say the New Jersey Turnpike Authority wasted $43 million on unneeded perks and bonuses. In one case, an employee with a base salary of $73,469 earned $321,985 when all payouts and bonuses were included.”
– Fox 5 New York, 2010[552] [553]
“Under the current contract, police and fire employees hired before June 2010 can retire at 50 with up to 90 percent of their final year’s salary. That means a fire department employee with 30 years of service who retires at age 50, at the department’s 2009 average salary of $103,877, would receive a yearly pension of about $93,500. If that retiree lived to age 80, his or her lifetime pension would total $2.8 million.”
– Peninsula Press (CA), 2011[554]
“Jean Keller earned $269,810 last year working as a nurse at a men’s prison on California’s central coast by tripling her regular pay with overtime hours.”[555]
– Bloomberg News, 2011
“Madison’s highest paid city government employee last year wasn’t the mayor. It wasn’t the police chief. It wasn’t even the head of Metro Transit. It was bus driver John E. Nelson. Nelson earned $159,258 in 2009, including $109,892 in overtime and other pay.”
– Wisconsin State Journal, 2010[556]
Dennis Gannon’s $158,000/year pension is “a prime example of how government officials and labor leaders have manipulated city pension funds at the expense of union workers and taxpayers. Like other labor leaders, he was able to take a long leave from a city job to work for a union and then receive a city pension based on a high union salary.”
– Chicago Tribune, 2011[557]
“Over the last three years, Niagara County taxpayers paid more than $1.25 million for face peels, breast implants, liposuction and other elective cosmetic surgery for county employees.”
– Buffalo News, 2002[558]

Membership Rates

Overall

* The portion of workers who were members of U.S. unions rose from 4% in 1897 to a peak of 32% in 1953. It has since declined, and 11% of U.S. workers were members of unions in 2018:

Portion of Workers Who are Members of U.S. Unions

[559]

Private Sector

* The portion of private-sector workers who were members of U.S. unions rose from 12% in 1929 to a peak of 36% in 1953. It has since declined, and 6% of private-sector U.S. workers were members of unions in 2018:

Portion of Private Workers Who are Members of U.S. Unions

[560]

Public Sector

* The portion of government employees who were members of U.S. unions rose from 8% in 1929 to a peak of 40% in 1976. It has since declined by several percentage points, and 34% of government employees in the U.S. were members of unions in 2018:

Portion of Government Workers Who are Members of U.S. Unions

[561]

Industries

* In 2018, the portion of workers in the U.S. who were members of unions in various industries/sectors ranged from 2% for financial activities to 40% for local government:

Union Membership Rates by Sector/Industry

[562]

* Excluding members of the armed forces and other federal employees who are not eligible for unionization,[563] [564] 57% of non-postal federal employees were represented by unions in 2017.[565]

* In 2018, 92% of U.S. Postal Service career employees were represented by unions.[566]

* In 2018, the composition of union membership in the U.S. was as follows:

[567]

Politics and Activism

Candidates

* From the 1990 election cycle through September 2019, labor unions and various other interest groups reported the following political contributions to federal candidates:

Federal Political Contributions of Interest Groups

[568]

* From the 1990 election cycle through September 2019, labor unions gave 91% of their reported federal political contributions to Democrats and 9% to Republicans.[569]

* An investigation conducted in 2001 by the Associated Press found that some:

unions have spent millions on TV ads and voter guides portraying the [Democratic] party favorably, and worked neighborhoods to get voters to the polls. But they routinely report zero political expenses to the IRS, a review of union documents shows.[570]

* An investigation conducted in 2010 by the Wall Street Journal found that:

Organized labor spends about four times as much on politics and lobbying as generally thought, according to a Wall Street Journal analysis, a finding that shines a light on an aspect of labor’s political activity that has often been overlooked.

Previous estimates have focused on labor unions’ filings with federal election officials, which chronicle contributions made directly to federal candidates and union spending in support of candidates for Congress and the White House.

But unions spend far more money on a wider range of political activities, including supporting state and local candidates and deploying what has long been seen as the unions’ most potent political weapon: persuading members to vote as unions want them to.[571] [572]

* In 2009, Andy Stern, president of the two-million-member Service Employees International Union (SEIU), stated, “We spent a fortune to elect Barack Obama—$60.7 million to be exact—and we’re proud of it.”[573] During the 2008 election cycle, the SEIU reported to the Federal Election Commission (FEC) a total of $40.1 million in contributions to all federal candidates, parties, political action committees, and related organizations, or 66% of the figure specified by Stern just for the election of Obama.[574]

* In response to a FAQ that reads, “What happens to the dues money that is paid to the Union?” the website of the United Food and Commercial Workers Union Local 23 in Canonsburg, PA makes no mention of political activities.[575] From the 1990 election cycle through September 2019, the United Food and Commercial Workers Union made $36,669,493 in political donations reported to the FEC, 99% of which went to Democrats.[576]

Issues

* Beyond direct contributions to political candidates and parties, unions have also promoted certain causes and agendas, such as the following:

The International Secretary-Treasurer of the SEIU, Eliseo Medina, “leads the union’s efforts to achieve comprehensive immigration reform….”[577] After pointing out that Latinos have “voted overwhelmingly for progressive candidates” and given Barack Obama “two out of every three” of their votes, Medina has called on the “progressive community” to “expand and solidify the progressive coalition for the future” by putting “12 million” illegal immigrants “on the path to citizenship and eventually voting.” Medina said that this will create “a governing coalition for the long term, not just for an election cycle.”[578]
A union representing 7,000 employees of U.S. Immigration and Customs Enforcement (ICE) has passed a unanimous “Vote of No Confidence” in the Obama administration’s leadership. This resolution stated that the administration’s officials “have abandoned the Agency’s core mission of enforcing United States Immigration Laws” and have engaged in “misguided and reckless initiatives, which could ultimately put many in America at risk.”[579] [580]
The Oregon Education Association, SEIU, American Federation of State, County and Municipal Employees (AFMSCE), and American Federation of Teachers have contributed to support ballot measures in Oregon to increase personal income taxes and corporate taxes.[581]
The president of Montana’s largest labor union (the MEA-MFT) has written, “Were it not for us almost any one of the virulent anti-government, anti-public school, anti-tax and spend ballot issues proposed in the last 25 years would have passed.”[582] [583]
The California Teachers Association contributed $1 million “to defeat a ballot initiative seeking to ban same-sex marriage in California.”[584] After this initiative passed, the SEIU and AFL–CIO filed briefs urging the U.S. Supreme Court to strike it down.[585]
The AFMSCE has published a “fact sheet” about the Affordable Care Act (Obamacare), which states: “We’ve fought to improve our health care system for decades—now we’ve won, and the Affordable Care Act (ACA) is being implemented.”[586]
The SEIU, AFMSCE, Food & Commercial Workers, and United Auto Workers have given money to the Planned Parenthood Action Fund or the Planned Parenthood Federation, which performed more than 300,000 abortions in 2012.[587] [588] [589]

* Kim Moody is “one of the most respected labor journalists in North America” and a co-founder of Labor Notes, a magazine for union activists.[590] [591] [592] In a 2007 article published in the journal International Socialism, Moody wrote that “most” of the staff of Labor Notes:

started with the International Socialists at that time, but the idea was that it would not be controlled by the organization and that it would be independent, which is what by and large has happened, although the staff tend to be socialist for the most part.

Forced Donations From Public-Sector Workers

* Federal law prohibits contracts that force federal workers to pay union dues.[594] [595]

* In the 1977 Supreme Court case of Abood v. Detroit Board of Education, the justices ruled (9–0) that state governments can force government employees to pay union dues that are used for representational activities (like collective bargaining and contract administration), but they cannot force government employees who are not full union members to pay for union political activities. Per the ruling:

[A]t the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State. … These principles prohibit a State from compelling any individual to affirm his belief in God … or to associate with a political party … as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees [the Detroit Board of Education] from requiring any of the appellants [teachers] to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.

We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative. Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.

* The Abood ruling was unanimous, but four of the nine justices joined in three separate opinions stating that the ruling did not go far enough in protecting workers from being forced to support union political activities. Per these opinions:

I am unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, and a similar requirement that a public employee contribute to the collective-bargaining expenses of a labor union.

[T]he Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.

I would adhere to established First Amendment principles and require the State to come forward and demonstrate, as to each union expenditure for which it would exact support from minority [nonmember] employees, that the compelled contribution is necessary to serve overriding governmental objectives. This placement of the burden of litigation [should be on the government, not the nonmember employees].[597]

* In the 2014 Supreme Court case of Harris v. Quinn, the majority (5–4) censured the Abood decision, but the Harris case differed from Abood, and the justices did not overrule it. In Harris, the majority wrote that the justices who decided Abood “seriously erred,” the decision was “questionable on several grounds,” and the Court:

does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as … [political or nonpolitical].

Employees who suspect that a union has improperly put certain expenses in the [nonpolitical] category must bear a heavy burden if they wish to challenge the union’s actions. “[T]he onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion” … and litigating such cases is expensive.[598]

* In the 2018 case of Janus v. American Federation of State, County, and Municipal Employees, the majority (5–4) overruled the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. Thus, states can no longer force government employees to pay union dues of any sort.[599]

Forced Donations From Private-Sector Workers

* In the 1963 Supreme Court case of National Labor Relations Board v. General Motors Corporation, the justices ruled (8–0) that the above provision of the law means employees can be forced to be dues-paying union members, but employees cannot be forced to be full union members who are subject to all union rules.[603] [604] [605] [606]

* In 1988, the Supreme Court ruled (5–3) in Communications Workers v. Beck that private-sector workers who are not full union members cannot be forced to pay for the “social, charitable, and political” activities of unions. They can only be forced to pay the portion of dues used for “collective bargaining, contract administration, and grievance adjustment.” Per the ruling, the federal law that requires compulsory unionism in certain situations does not:

provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose.[607] [608] [609] [610]

* Notwithstanding the above Supreme Court rulings and others,[611] the practical ability of private-sector workers to not be forced into supporting union political activities has been impacted by:

federal court and National Labor Relations Board (NLRB) rulings allowing unions to force workers to pay for union political activities unless they file an objection every year during a “window period” set by the unions.[612] [613] [614] [615]
a 1995 NLRB ruling stating that unions are not required to notify workers more than once per year that they can opt out of paying for union political activities. This notice can be published in the interior of a union newsletter primarily dedicated to promoting Democratic Party causes without any indication on the cover that such a notice is contained therein.[616] [617]
a 2012 NLRB ruling stating that unions do not need to provide employees with independent audited evidence that they have accurately accounted for the costs of union political activities.[618]
a 2012 NLRB ruling stating that unions can force workers to pay for union political activities if they are “closely linked” to a union’s representational activities.[619] The NLRB members who issued this ruling (all appointed by President Obama)[620] used reasoning that was:
- rejected by the Supreme Court in Communications Workers v. Beck because it is “plainly contrary to the intent of” the law.[621] [622]
- rejected by a federal appeals court because it would allow unions to force nonmembers to financially support “virtually all” of their “political activities.”[623] [624]

Footnotes

[1] Entry: “labor union.” Random House Kernerman Webster’s College Dictionary, 2010. <www.thefreedictionary.com>

“an organization of wage earners or salaried employees for mutual aid and protection and for dealing collectively with employers; trade union.”

[2] Entry: “trade union.” American Heritage Dictionary of the English Language. Houghton Mifflin, 2016. <www.thefreedictionary.com>

“A labor union, especially one limited in membership to people in the same trade.”

[3] Entry: “trade union.” Random House Kernerman Webster’s College Dictionary, 2010. <www.thefreedictionary.com>

“a labor union of workers in related crafts, as distinguished from general workers or a union including all workers in an industry.”

[4] U.S. Code Title 29, Chapter 7, Subchapter II, Section 152: “National Labor Relations—Definitions.” Accessed October 8, 2019 at <www.law.cornell.edu>

“The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”

[5] Entry: “bargaining unit.” Merriam-Webster’s Unabridged Dictionary. Accessed May 9, 2017 at <www.merriam-webster.com>

“the group of employees on whose behalf a union seeks to negotiate a collective agreement”

[6] Webpage: “Collective Bargaining.” Cornell University Law School, Legal Information Institute. Accessed May 9, 2017 at <www.law.cornell.edu>

“Collective bargaining consists of negotiations between an employer and a group of employees so as to determine the conditions of employment. The result of collective bargaining procedures is a collective agreement. Employees are often represented in bargaining by a union or other labor organization.”

[7] Entry: “National Labor Relations Board.” Nolo’s Plain-English Law Dictionary. Accessed May 10, 2017 at <www.nolo.com>

An independent agency created by Congress in 1935 to administer the National Labor Relations Act. The NLRB’s [National Labor Relations Board’s] purposes are to remedy unfair labor practices by unions or employers, and to hold elections to determine whether a particular group of employees wants to be represented by a particular union. NLRB refers both to the agency as a whole and to five members who sit as a court and issue decisions in labor disputes. These decisions can be appealed to the U.S. Court of Appeals.

[8] Article: “National Labor Relations Board.” Columbia Electronic Encyclopedia. Columbia University Press, 2013. <encyclopedia2.thefreedictionary.com>

This board determines proper bargaining units, conducts elections for union representation, and investigates charges of unfair labor practices by employers. Unfair practices include interference, coercion, or restraint in labor’s self-organizational rights; interference with the formation of labor unions; encouraging or discouraging membership in a union; and refusal to bargain collectively with a duly chosen employee representative. The NLRB [National Labor Relations Board] does not have the power to consider cases involving real estate brokers, agricultural employees, domestic workers, family workers, government employees, and church-run schools.

[9] Report: “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 14: “Jurisdiction to conduct an election. The jurisdiction of the NLRB [National Labor Relations Board] to direct and conduct an election is limited to those enterprises that affect commerce. (This is discussed in greater detail at pp. 33–36.)”

Pages 33–35:

Authority of the NLRB—Enterprises whose operations affect commerce. The NLRB gets its authority from Congress by way of the National Labor Relations Act. The power of Congress to regulate labor-management relations is limited by the commerce clause of the United States Constitution.† Although it can declare generally what the rights of employee are or should be, Congress can make its declaration of rights effective only in respect to enterprises whose operations “affect commerce” and labor disputes that “affect commerce.” The NLRB, therefore, can direct elections and certify the results only in the case of an employer whose operations affect commerce. Similarly, it can act to prevent unfair labor practices only in cases involving labor disputes that affect, or would affect, commerce.

What is commerce. “Commerce” includes trade, traffic, transportation, or communication within the District of Columbia or any Territory of the United States; or between any State or Territory and any other State, Territory, or the District of Columbia; or between two points in the same State, but through any other State, Territory, the District of Columbia, or a foreign country. Examples of enterprises engaged in commerce are:

• A manufacturing company in California that sells and ships its product to buyers in Oregon.

• A company in Georgia that buys supplies in Louisiana.

• A trucking company that transports goods from one point in New York State through Pennsylvania to another point in New York State.

• A radio station in Minnesota that has listeners in Wisconsin.

When the operations of an employer affect commerce. Although a company may not have any direct dealings with enterprises in any other State, its operations may nevertheless affect commerce. The operations of a Massachusetts manufacturing company that sells all of its goods to Massachusetts wholesalers affect commerce if the wholesalers ship to buyers in other States. The effects of a labor dispute involving the Massachusetts manufacturing concern would be felt in other States and the labor dispute would, therefore, “affect” commerce. Using this test, it can be seen that the operations of almost any employer can be said to affect commerce. As a result, the authority of the NLRB could extend to all but purely local enterprises.

The scope of the commerce clause is limited, however, by the first amendment’s prohibition against Congress’ enacting laws restricting the free exercise of religion. Because of this potential conflict, and because Congress has not clearly expressed an intention that the Act cover lay faculty in church-operated schools, the Supreme Court has held that the Board may not assert jurisdiction over faculty members in such institutions.

The Board does not act in all cases affecting commerce. Although the National Labor Relations Board could exercise its powers to enforce the Act in all cases involving enterprises whose operations affect commerce, the Board does not act in all such cases. In its discretion it limits the exercise of its power to cases involving enterprises whose effect on commerce is substantial. The Board’s requirements for exercising its power or jurisdiction are called “jurisdictional standards.” These standards are based on the yearly amount of business done by the enterprise, or on the yearly amount of its sales or of its purchases. They are stated in terms of total dollar volume of business and are different for different kinds of enterprises. The Board’s standards in effect on July 1, 1990, are as follows: …

The Act does not cover certain Individuals. In addition to the foregoing limitations, the Act states that the term “employee” shall include any employee except the following:

• Agricultural laborers.

• Domestic servants.

• Any individual employed by his parent or spouse.

• Independent contractors.

• Supervisors.

• Individuals employed by an employer subject to the Railway Labor Act.

• Government employees, including those employed by the U .S. Government, any Government corporation or Federal Reserve Bank, or any State or political subdivision such as a city, town, or school district.

† NOTE: For facts regarding the interpretation of the commerce clause of the U.S. Constitution, visit Just Facts’ research on the http://www.justfacts.com/socialspending.asp

[10] “2013 Performance and Accountability Report.” National Labor Relations Board, December 2, 2013. <www.nlrb.gov>

Page 16:

The NLRA [National Labor Relations Act] contains a code of conduct for employers and unions and regulates that conduct in unfair labor practice (ULP) proceedings. Unfair labor practices are remedied through adjudicatory procedures under the NLRA, in which the Board and the General Counsel have independent functions.

The General Counsel has sole responsibility—independent of the Board—to investigate charges of unfair labor practices, and to decide whether to issue complaints with respect to such charges. The Board, in turn, acts independently of the General Counsel in deciding ULP cases.

The General Counsel investigates ULP charges through the Agency’s network of Regional, Subregional, and Resident Offices (field offices). If there is reason to believe that a ULP charge has merit, the Regional Director, on behalf of the General Counsel, issues and prosecutes a complaint against the charged party, unless a settlement is reached. With some exceptions, a complaint that is not settled or withdrawn is tried before an administrative law judge (ALJ), who issues a decision. The decision may be appealed by any party to the Board through the filing of exceptions. The Board decides cases on the basis of the formal trial record, according to the statute and the body of case law that has been developed by the Board and the federal courts.

If the Board finds that a violation of the Act has been committed, the role of the General Counsel thereafter is to act on behalf of the Board to obtain compliance with the Board’s order remedying the violation. Although Board decisions and orders in ULP cases are final and binding with respect to the General Counsel, they are not self-enforcing. The statute provides that any party may seek review of the Board’s decision in a United States Court of Appeals. In addition, if a party refuses to comply with a Board decision, the Board itself must petition for court enforcement of its order. In court proceedings to review or enforce Board decisions, the General Counsel represents the Board and acts as its attorney. Also, the General Counsel acts as the Board’s attorney in contempt proceedings and when the Board seeks injunctive relief under Sections 10(e) and (f) of the NLRA after the entry of a Board order and pending enforcement or review of proceedings in circuit court.

Section 10(j) of the NLRA empowers the NLRB [National Labor Relations Board] to petition a federal district court for an injunction to temporarily prevent unfair labor practices by employers or unions and to restore the status quo, pending full review of the case by the Board. In enacting this provision, Congress was concerned that delays inherent in the administrative processing of ULP charges, in certain instances, would frustrate the Act’s remedial objectives. In determining whether the use of Section 10(j) is appropriate in a particular case, the principal question is whether injunctive relief is necessary to preserve the Board’s ability to effectively remedy the unfair labor practice alleged, and whether the alleged violator would otherwise reap the benefits of its violation.

[11] U.S. Code Title 29, Chapter 7, Subchapter II, Section 160: “Prevention of Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Powers of Board Generally

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise….

(b) Complaint and Notice of Hearing; Answer; Court Rules of Evidence Inapplicable

Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint….

(d) Modification of Findings or Orders Prior to Filing Record in Court

Until the record in a case shall have been filed in a court, as hereinafter provided, the Board may at any time upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it.

(e) Petition to Court for Enforcement of Order; Proceedings; Review of Judgment

The Board shall have power to petition any court of appeals of the United States, or if all the courts of appeals to which application may be made are in vacation, any district court of the United States, within any circuit or district, respectively, wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings, as provided in section 2112 of title 28. …

(f) Review of Final Order of Board on Petition to Court

Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside. …

(j) Injunctions

The Board shall have power, upon issuance of a complaint as provided in subsection (b) charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

[12] U.S. Code Title 29, Chapter 7, Subchapter II, Section 153: “National Labor Relations Board.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Creation, Composition, Appointment, and Tenure; Chairman; Removal of Members

The National Labor Relations Board (hereinafter called the “Board”) created by this subchapter prior to its amendment by the Labor Management Relations Act, 1947 [29 U.S.C. 141 et seq.], is continued as an agency of the United States, except that the Board shall consist of five instead of three members, appointed by the President by and with the advice and consent of the Senate. Of the two additional members so provided for, one shall be appointed for a term of five years and the other for a term of two years. Their successors, and the successors of the other members, shall be appointed for terms of five years each, excepting that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed. The President shall designate one member to serve as Chairman of the Board. Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause. …

d) General Counsel; Appointment and Tenure; Powers and Duties; Vacancy

There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than administrative law judges and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law. …

[13] “2013 Performance and Accountability Report.” National Labor Relations Board, December 2, 2013. <www.nlrb.gov>

Pages 13–14:

The five-member Board primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President with the advice and consent of the Senate, and serve staggered five-year terms.² The President designates one of the Board Members as Chairman.

The General Counsel

Congress created the position of General Counsel in its current form in the Taft-Hartley Act of 1947. The General Counsel is appointed by the President to a four-year term, with Senate consent, and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB [National Labor Relations Board] Regional Offices. In performing delegated functions, and in some aspects statutorily assigned functions, the General Counsel acts on behalf of the Board.

However, with respect to the investigation and prosecution of unfair labor practice cases, the General Counsel has sole prosecutorial authority under the statute, independent of the Board. Richard F. Griffin, Jr., was nominated by the President [Obama] for General Counsel and appointed to a full four-year term on November 1, 2013. …

² Even though Board Members have five-year-terms, a new five-year term begins running immediately upon the expiration of the previous Member’s term and the seat remains vacant until an individual is nominated and confirmed by the Senate. Therefore, a significant lapse of time could occur between when a term expires and a new Board Member is confirmed, which means that a new Board Member might serve only a portion of a five-year term.

[14] Report: “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 7:

The law is administered and enforced principally by the National Labor Relations Board and the General Counsel acting through 52 regional and other field offices located in major cities in various sections of the country. The General Counsel and the staff of the Regional Offices investigate and prosecute unfair labor practice cases and conduct elections to determine employee representatives. The five-member Board decides cases involving charges of unfair labor practices and determines representation election questions that come to it from the Regional Offices.

[15] “2013 Performance and Accountability Report.” National Labor Relations Board, December 2, 2013. <www.nlrb.gov>

Page 10: “Several consolidation efforts occurred in Agency field offices and in Headquarters in Washington, DC. By the end of FY 2013, the Agency had reduced the number of Regional Offices from 32 to 26, in order to adjust the Agency’s presence to the case filing developments that have occurred over the years by more evenly distributing case intake among regions.”

[16] Book: Labored Relations: Law, Politics, and the NLRB [National Labor Relations Board]. By William B. Gould. MIT Press, 2001.

Page 15: “Traditionally, the Board consists of three members of the president’s own party and two members of the opposition. In contrast to the situation in other regulatory agencies—most of which are also quasi-judicial—this political allocation is a matter of custom, not of law.”

[17] Webpage: “The Board.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

John F. Ring, Chairman

William J. Emanuel

Marvin E. Kaplan

Lauren McFerran

[18] Webpage: “Members of the NLRB [National Labor Relations Board] Since 1935.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

The Smith Seat	Term expires on August 27 of years ending in 6 and 1.	Emmanuel [R]
The Madden Seat	Term expires on August 27 of years ending in 5 and 0.	Kaplan [R]
The Carmody Seat	Term expires on August 27 of years ending in 8 and 3.	–
The Murdock Seat	Term expires on December 16 of years ending in 7 and 2.	Ring [R]
The Gray Seat	Term expires on December 16 of years ending in 9 and 4.	McFerran [D]
Party in Control of the Board		Republican
From		8/28/2018
To		Present

[19] Webpage: “General Counsels Since 1935.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

Name	Period of Service
Name	From	To
Peter B. Robb (R)	11/17/17	Present

[20] Article: “Labor Law.” West’s Encyclopedia of American Law, 2005.

“The railroad and airline industries are governed by the Federal Railway Labor Act (45 U.S.C.A. § 151 et seq.), originally passed in 1926 and substantially amended in 1934.”

[21] Report: “Federal Labor Relations Statutes: An Overview.” By Alexandra Hegji. Congressional Research Service, November 26, 2012. <fas.org>

Summary:

The Railway Labor Act (RLA) was enacted in 1926, and its coverage extends to railway and airline carriers, unions, and employees of the carriers. The RLA guarantees employees the right to organize and collectively bargain with their employers over conditions of work and protects them against unfair employer and union practices. It lays out specific procedures for selecting employee representatives and provides a dispute resolution system that aims to efficiently resolve labor disputes between parties, with an emphasis on mediation and arbitration. The RLA provides multiple processes for dispute resolution, depending on whether the dispute is based on a collective bargaining issue or the application of an existing collective bargaining agreement.

[22] Report: “Unfair Labor Practice Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. <www.flra.gov>

Page 8: “The Federal Labor Relations Authority (FLRA) is an independent administrative federal agency created by Title VII of the Civil Service Reform Act of 1978, which is commonly known as the Federal Service Labor-Management Relations Statute (Statute). The Statute recognizes the right of most non-postal federal employees to bargain collectively and to participate, through labor organizations of their choice, in decisions affecting their conditions of employment.”

Page 9: “The Authority is a quasi-judicial body…. The Authority adjudicates unfair labor practice disputes and issues raised by representation petitions and exceptions to grievance arbitration awards, and resolves negotiability disputes raised by the parties during collective bargaining.”

[23] “Fiscal Year 2013 Performance and Accountability Report.” U.S. Federal Labor Relations Authority, December 16, 2013. <www.flra.gov>

Page 3:

The U.S. Federal Labor Relations Authority (FLRA) is responsible for establishing policies and guidance regarding the labor-management relations program for 2.1 million non-Postal, federal employees worldwide, approximately 1.2 million of whom are represented in 2,200 bargaining units. The FLRA was created by Title VII of the Civil Service Reform Act of 1978, also known as the Federal Service Labor-Management Relations Statute (the Statute). The agency’s real genesis, however, dates from the issuance of Executive Order 10988 by President Kennedy in 1962. In 2012, the FLRA celebrated the 50th anniversary of the Order, which established the first government-wide, labor-management relations program within the federal government. In 1970, President Nixon established the Federal Labor Relations Council by Executive Order 11491 to administer the federal labor-management relations program and to make final decisions on policy questions and major disputes arising under Executive Order 10988. Executive Order 11491, as amended, was the basis for President Carter’s proposal to Congress to create the FLRA as an independent agency.

Page 4: “The Authority is empowered to: resolve disputes over the negotiability of proposals made in collective bargaining; decide whether conduct alleged in a complaint constitutes an unfair labor practice (ULP); resolve exceptions to grievance arbitration awards; and review the decisions of Regional Directors in representation disputes over union elections and unit determinations.”

Page 25:

The Federal Service Labor-Management Relations Statute sets out a specific procedure for employees to petition to be represented by a labor union and to determine which employees will be included in a “bargaining unit” that a union represents. Implementing this procedure, the FLRA conducts secret-ballot elections for union representation and resolves a variety of issues related to questions of union representation of employees. These issues include, for example, whether particular employees are managers or “confidential” employees excluded from union representation, whether there has been election misconduct on the part of agencies or unions, and whether changes in union and agency organizations affect existing bargaining units.

[24] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7104: “Federal Labor Relations Authority.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) The Federal Labor Relations Authority is composed of three members, not more than 2 of whom may be adherents of the same political party. No member shall engage in any other business or employment or hold another office or position in the Government of the United States except as otherwise provided by law.

(b) Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate, and may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office. The President shall designate one member to serve as Chairman of the Authority. The Chairman is the chief executive and administrative officer of the Authority.

(c) A member of the Authority shall be appointed for a term of 5 years. An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. The term of any member shall not expire before the earlier of—

(1) the date on which the member’s successor takes office, or

(2) the last day of the Congress beginning after the date on which the member’s term of office would (but for this paragraph) expire.

(d) A vacancy in the Authority shall not impair the right of the remaining members to exercise all of the powers of the Authority.

(e) The Authority shall make an annual report to the President for transmittal to the Congress which shall include information as to the cases it has heard and the decisions it has rendered.

(f)

(1) The General Counsel of the Authority shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The General Counsel may be removed at any time by the President. The General Counsel shall hold no other office or position in the Government of the United States except as provided by law.

(2) The General Counsel may—

(A) investigate alleged unfair labor practices under this chapter,

(B) file and prosecute complaints under this chapter, and

(3) The General Counsel shall have direct authority over, and responsibility for, all employees in the office of General Counsel, including employees of the General Counsel in the regional offices of the Authority.

[25] “Fiscal Year 2013 Performance and Accountability Report.” U.S. Federal Labor Relations Authority, December 16, 2013. <www.flra.gov>

Page 4: “The Members are appointed for five-year, staggered terms and one Member is designated by the President to serve as Chairman, who acts as the agency’s chief executive and administrative officer.”

[26] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7104: “Federal Labor Relations Authority.” Accessed October 8, 2019 at <www.law.cornell.edu>

“(a) The Federal Labor Relations Authority is composed of three members, not more than 2 of whom may be adherents of the same political party.”

[27] “Fiscal Year 2013 Performance and Accountability Report.” U.S. Federal Labor Relations Authority, December 16, 2013. <www.flra.gov>

Page 4:

The Authority is empowered to … review the decisions of Regional Directors in representation disputes over union elections and unit determinations. …

The Authority Members appoint Administrative Law Judges (ALJs) to hear and prepare recommended decisions in cases involving alleged ULPs [unfair labor practices], as well as decisions involving applications for attorney fees filed pursuant to the Back Pay Act or the Equal Access to Justice Act. The Office of the Administrative Law Judges (OALJ) also provides settlement opportunities in all ULP cases. Decisions of the ALJs may be appealed to the Authority.

Page 5: “The Regional Offices, on behalf of the General Counsel, investigate and resolve alleged ULPs, file and prosecute ULP complaints, and provide training and alternative dispute resolution (ADR) services. In addition, through delegation by the Authority, the Regional Offices process representation petitions and conduct secret ballot elections.”

[28] Webpage: “FLRA [Federal Labor Relations Authority] Leadership.” Federal Labor Relations Authority. Accessed October 8, 2019 at <www.flra.gov>

Authority

Chairman Coleen Duffy Kiko

Member Ernest DuBester

Member James T. Abbott

[29] Presentation: “Notable FLRA [Federal Labor Relations Authority] Decisions in 2016.” By Brandon H. Iriye. American Bar Association, February 8, 2017. <www.americanbar.org>

Page 2: “Member Ernest DuBester (D) … Member Patrick Pizzella (R)”

[30] Press release: “AFGE Supports DuBester Nomination to FLRA.” American Federation of Government Employees, October 2, 2017. <www.afge.org>

The American Federation of Government Employees [AFGE] strongly supports President Trump’s nomination of Ernest DuBester to continue serving on the Federal Labor Relations Authority [FLRA]. …

DuBester currently holds the lone Democratic seat on the FLRA. President Trump previously nominated James Thomas Abbott and Colleen Kiko for the two Republican seats on the three-member panel.

[31] Report: “Representation Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. <www.flra.gov>

Are any Federal agencies and their employees specifically excluded from the Statute’s coverage? …

Also excluded is the U.S. Postal Service because it is a government-owned corporation and is not an agency within the meaning of section 7103(a)(3). The Postal Service and its employees are subject to the National Labor Relations Act. U.S. Postal Serv., Dallas, Tex., 8 FLRA [Federal Labor Relations Authority] 386 (1982).

[32] Report: “Unfair Labor Practice Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. <www.flra.gov>

Pages 8–9:

The Federal Labor Relations Authority (FLRA) is an independent administrative federal agency created by Title VII of the Civil Service Reform Act of 1978, which is commonly known as the Federal Service Labor-Management Relations Statute (Statute). The Statute recognizes the right of most non-postal federal employees to bargain collectively and to participate, through labor organizations of their choice, in decisions affecting their conditions of employment. Employees of the U.S. Postal Service are covered under a different law—The Postal Reorganization Act of 1970.

[33] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: “Labor-Management Relations, Definitions; Application.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) For the purpose of this chapter—

(2) “employee” means an individual—

(A) employed in an agency …

(B) … but does not include—

(i) an alien or noncitizen of the United States who occupies a position outside the United States;

(ii) a member of the uniformed services;

(iii) a supervisor or a management official;

(iv) an officer or employee in the Foreign Service of the United States employed in the Department of State, the International Communication Agency, the Agency for International Development, the Department of Agriculture, or the Department of Commerce; or

(v) any person who participates in a strike in violation of section 7311 of this title;

(3) “agency” means an Executive agency (including a nonappropriated fund instrumentality described in section 2105 (c) of this title and the Veterans’ Canteen Service, Department of Veterans Affairs), the Library of Congress, the Government Printing Office, and the Smithsonian Institution¹ but does not include—

(A) the Government Accountability Office;

(B) the Federal Bureau of Investigation;

(D) the National Security Agency;

(E) the Tennessee Valley Authority;

(F) the Federal Labor Relations Authority;

(G) the Federal Service Impasses Panel; or

(H) the United States Secret Service and the United States Secret Service Uniformed Division.

[34] U.S. Code Title 37, Chapter 1, Section 101: “Pay and Allowances of the Uniformed Services, Definitions.” Accessed October 8, 2019 at <www.law.cornell.edu>

(3) The term “uniformed services” means the Army, Navy, Air Force, Marine Corps, Coast Guard, National Oceanic and Atmospheric Administration, and Public Health Service.

(4) The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.

[35] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (6th edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2019.

Page 444:

The institutional structure and legal rights related to bargaining vary by level of government, jurisdiction, and occupational group. National labor laws that govern collective bargaining and representation rights for federal and private sector employees do not pertain to state and local government employees. State and local public employees’ bargaining and representation rights are enumerated wherever authorized by state law and, less frequently, by local ordinance or executive order. In the aftermath of Wisconsin’s controversial bill on collective bargaining rights in 2011, state legislators throughout the country have introduced “right-to-work bills to impede unionization and collective bargaining rights and unions are losing ground in the states” (Eidelson, 2017; Frandsen & Webb, 2017). Nonetheless, there are 31 states and the District of Columbia that authorize collective bargaining, 12 other states allow bargaining for some state and/or local employees (e.g., public safety workers, teachers), and the remaining eight states lack collective bargaining statutes for their state and local government workforce (AFSCME [American Federation of State County & Municipal Employees], 2017; Dearney & Mareschal, 2014).

[36] Webpage: “Labor and Employment Laws.” Legal Information Institute, Cornell Law School. Accessed October 8, 2019 at <www.law.cornell.edu>

“This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work.”

[37] Encyclopedia of Public Administration and Public Policy (Volume 2, K–Z). Edited by Jack Rabin. CRC Press, 2003. Article: “Unit Determination.” By Jonathan P. West. Pages 1249–1251.

Page 1249: “At the state level, it is often the Public Employees Relations Boards (PERBs) that make these [bargaining unit] decisions.”

[38] As an example of the scope and complexity of state and local government employee labor relations, the laws controlling the California Public Employment Relations Board fill 111 pages of Word document in Times New Roman size 12 font. [Laws: “Chapter 10 Meyers-Milias-Brown Act, Local Public Employee Organizations.” State of California, January 1, 2013. <www.perb.ca.gov>]

[39] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 7: “To ensure that employees can freely choose their own representatives for the purpose of collective bargaining, or choose not to be represented, the Act establishes a procedure by which they can exercise their choice at a secret-ballot election conducted by the National Labor Relations Board.”

Page 13: “The most common method by which employees can select a bargaining representative is a secret-ballot representation election conducted by the Board.”

[40] Webpage: “How to Organize.” Communication Workers of America. Accessed October 8, 2019 at <www.cwa-union.org>

How You Choose to Go Union. How you and your co-workers decide whether you want a union depends on where you work.

• At most private employers, workers make the choice through elections overseen by the National Labor Relations Board. Your get your union if a majority of the workers voting in the election vote for the union.

[41] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

[42] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 14: “Regarding the showing of interest, it is the policy to require that a petitioner requesting an election for either certification of representatives or decertification show that at least 30 percent of the employees favor an election.”

[43] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(b) Determination of Bargaining Unit by Board

The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof….

(3) No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held.

NOTE: More information about what constitutes an “appropriate” bargaining unit are provided here.

[44] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 7:

Section 9(a) of the NLRA [National Labor Relations Act] provides that a representative selected by “a majority of the Employees in a unit appropriate for purposes of collective bargaining shall be the exclusive representative of all the Unit”.⁴⁷ The Board need not determine “the only appropriate unit, or the ultimate unit, or the most appropriate unit: the Act requires only that the unit be ‘appropriate.’ ”⁴⁸ Consequently, if a petitioning Union seeks a unit that the Board finds appropriate, the Employer’s alternative proposals will not be considered.⁴⁹

⁴⁷ 29 U.S.C. A7 159(a).

⁴⁸ Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950), enf’d, 190 F.2d 576 (7th Cir. 1951) (emphasis in original).

⁴⁹ P.J. Dick Contracting, 290 NLRB 150 (1988).

Page 8:

The NLRB [National Labor Relations Board] will assemble an “appropriate” bargaining unit based on the “community-of-interests” test, which assesses whether Employees enjoy a “substantial mutuality of interest in wages, hours and working conditions…”.⁵⁰The Board considers a number of factors in determining whether there exists an appropriate unit, including: (i) similarity of duties, skills, wages, fringe benefits, hours, ‘interest and working conditions; (ii) amount of interchange among Employees; (iii) the Employer’s organizational structure; (iv) integration of the work flow and interrelationship of the production process; (v) bargaining history in the particular unit and industry; (vi) extent of organization; and (vii) desires of petitioner.⁵¹

⁵¹ See Capital Bakers, Inc., 168 NLRB 904 (1967).

[45] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

“To start the election process, a petition and associated documents must be filed, preferably electronically, with the nearest NLRB [National Labor Relations Board] Regional Office showing support for the petition from at least 30% of employees. NLRB agents will then investigate to make sure the Board has jurisdiction, the union is qualified, and there are no existing labor contracts or recent elections that would bar an election.”

[46] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Pages 13–15:

Petition for certification of representatives. The NLRB [National Labor Relations Board] can conduct such an election only when a petition has been filed requesting one. A petition for certification of representatives can be filed by an employee or a group of employees or any individual or labor organization acting on their behalf, or it can be filed by an employer. If filed by or on behalf of employees, the petition must be supported by a substantial number of employees who wish to be represented for collective bargaining and must state that their employer declines to recognize their representative. If filed by an employer, the petition must allege that one or more individuals or organizations have made a claim for recognition as the exclusive representative of the same group of employees. …

Who can qualify as bargaining representative. Section 2(4) of the Act provides that the employee representative for collective bargaining can be “any individual or labor organization.” A supervisor or any other management representative may not be an employee representative. It is NLRB policy to direct an election and to issue a certification unless the proposed bargaining agent fails to qualify as a bona fide representative of the employees. In determining a union’s qualifications as bargaining agent, it is the union’s willingness to represent the employees rather than its constitution and bylaws that is the controlling factor. The NLRB’s power to certify a labor organization as bargaining representative is limited by Section 9(b)(3) which prohibits certification of a union as the representative of a unit of plant guards if the union “admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.”

Bars to Election—Existing collective-bargaining contract. The NLRB has established the policy of not directing an election among employees presently covered by a valid collective-bargaining agreement except in accordance with certain rules. These rules, followed in determining whether or not an existing collective-bargaining contract will bar an election, are called the NLRB contract bar rules. Not every contract will bar an election. Examples of contracts that would not bar an election are:

• The contract is not in writing, or is not signed.

• The contract has not been ratified by the members or the union, if such is expressly required.

• The contract does not contain substantial terms or conditions of employment sufficient to stabilize the bargaining relationship.

• The contract can be terminated by either party at any time for any reason.

• The contract contains a clearly illegal union-security clause.

• The bargaining unit is not appropriate.

• The union that entered the contract with the employer is no longer in existence or is unable or unwilling to represent the employees.

• The contract discriminates between employees on racial grounds.

• The contract covers union members only.

• The contracting union is involved in a basic internal conflict at the highest levels with resulting unstabilizing confusion about the identity of the union.

• The employer’s operations have changed substantially since the contract was executed.

Time provisions. Under the NLRB rules a valid contract for a fixed period of 3 years or less will bar an election for the period covered by the contract. A contract for a fixed period of more than 3 years will bar an election sought by a contracting party during the life of the contract, but will act as a bar to an election sought by an outside party for only 3 years following its effective date. A contract of no fixed period will not act as a bar at all.

[47] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

The NLRB [National Labor Relations Board] agents will seek an election agreement between the employer, union, and other parties setting the date, time, and place for balloting, the ballot language(s), the appropriate unit, and a method to determine who is eligible to vote. Once an agreement is reached, the parties authorize the NLRB Regional Director to conduct the election. If no agreement is reached, the Regional Director will hold a hearing and then may order an election and set the conditions in accordance with the Board’s rules and its decisions.

Typically, elections are held on the earliest practicable date after a Director’s order or authorization, which will vary from case to case. However, an election may be postponed if a party requests to block the petition based on charges alleging conduct that would interfere with employee free choice in the election, such as threatening loss of jobs or benefits by an employer or a union, granting promotions, pay raises, or other benefits to influence the vote. When an election is scheduled, the Employer is required to post a Notice of Election which will replace the previously posted Notice of Petition for Election.

When a union is already in place, a competing union may file an election petition if the labor contract has expired or is about to expire, and it can show interest by at least 30% of the employees. This would normally result in a three-way election, with the choices being the incumbent labor union, the challenging one, and “none.” If none of the three receives a majority vote, a runoff will be conducted between the top two vote-getters.

Elections to certify or decertify a union as the bargaining representative of a unit of employees are decided by a majority of votes cast. Observers from all parties may choose to be present when ballots are counted. Any party may file objections and an offer of proof in support of its objections with the appropriate Regional Director within 7 days of the vote count. In turn, except where the parties have agreed otherwise, the Regional Director’s ruling on objections may be appealed to the Board in Washington. Results of an election will be set aside if conduct by the employer or the union created an atmosphere of confusion or fear of reprisals and thus interfered with the employees’ freedom of choice.

Otherwise, a union that receives a majority of the votes cast is certified as the employees’ bargaining representative and is entitled to be recognized by the employer as the exclusive bargaining agent for the employees in the unit. Failure to bargain with the union at this point is an unfair labor practice.

[48] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board …

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.

[49] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees

(i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) …

[50] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

[51] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

[52] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 18:

In the construction industry, however, the same rules do not apply. Section 8(f) of the NLRA [National Labor Relations Act] Permits construction contractors and labor unions to enter into a form of collective bargaining agreement “without regard to the union’s majority status.” Employers in the construction industry, in recognition of the relatively short-term duration of projects and mobility of work forces, are permitted by Section 8(f) of the Act to execute bargaining agreements with Unions prior to the actual employment of Employees, without running afoul of prohibitions against Employers giving unlawful support and assistance to minority Unions. Such bargaining agreements may not be repudiated during the life of the Agreement; yet, upon expiration of the pre-hire agreement, the signatory Union does not enjoy a presumption of majority status, and either party may repudiate the bargaining relationship at that time.¹¹⁵ Of course, the contractor must comply with the notice provisions specified in the contract and with the withdrawal provisions of any Multi-Employer agreement to which it is a party. …

[53] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(f) Agreement Covering Employees in the Building and Construction Industry

It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in subsection (a) as an unfair labor practice) because

(1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement, or

(2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or

(3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or

(4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to subsection (a)(3): Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this title.

[54] “2018 Performance and Accountability Report.” National Labor Relations Board, October 9, 2019. <www.nlrb.gov>

Page 15: “98.2 percent of all initial elections were conducted within 56 days of filing of the petition. … Initial elections in union representation cases were conducted in a median of 23 days from the filing of the petition.”

[55] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 16: “NLRB [National Labor Relations Board] elections are conducted in accordance with strict standards designed to give the employee voters an opportunity to freely indicate whether they wish to be represented for purposes of collective bargaining. Election details, such as time, place, and notice of an election, are left largely to the Regional Director who usually obtains the agreement of the parties on these matters.”

[56] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

[57] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

“Elections to certify or decertify a union as the bargaining representative of a unit of employees are decided by a majority of votes cast. Observers from all parties may choose to be present when ballots are counted.”

[58] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 16: “Any party to an election who believes that the Board election standards were not met may, within 7 days after the tally of ballots has been furnished, file objections to the election with the Regional Director under whose supervision the election was held. In most cases, the Regional Director’s rulings on these objections may be appealed to the Board for decision.”

[59] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

“Any party may file objections and an offer of proof in support of its objections with the appropriate Regional Director within 7 days of the vote count. In turn, except where the parties have agreed otherwise, the Regional Director’s ruling may on objections may be appealed to the Board in Washington.”

[60] Decision: Clarence E. Clapp. National Labor Relations Board, April 18, 1986. Decided 3–0. <apps.nlrb.gov>

Pages 330–331:

The National Labor Relations Board, by a three-member panel, has considered objections to an election held 9 July 1985 and the Acting Regional Director’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows two for and two against the Petitioner, with no challenged ballots. Neither the Petitioner nor the Employer filed objections to the election. …

Following the 9 July 1985 election, Jeffrey P. Fudge, an eligible voter, complained by letter dated 28 July 1985, and received by the Subregional Office 31 July 1985, that he had arrived at the polling area prior to the scheduled 5 p.m. closing of the polls, but that he found the polls closed and was thereby denied an opportunity to cast a ballot. …

The Board has long held that individual employees are not “parties” within the definition of “party” as set forth in Section 102.8 of the National Labor Relations Board’s Rules and Regulations.¹ We find, therefore, that Jeffrey P. Fudge is not a “party” to this proceeding and we shall dismiss Fudge’s letter as purported objection made by an individual who is not a “party” to this proceeding.

[61] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Unfair Labor Practices by Employer

It shall be an unfair labor practice for an employer …

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization…

(b) Unfair Labor Practices by Labor Organization

It shall be an unfair labor practice for a labor organization or its agents …

(1) to restrain or coerce

(A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or …

(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; …

[62] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a)(3) of this title.

[63] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed July 7, 2014 at <www.nlrb.gov>

Examples of employer conduct that violates the law:

• Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.

• Threatening to close the plant if employees select a union to represent them.

• Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.

• Promising benefits to employees to discourage their union support.

• Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity.

• Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB [National Labor Relations Board].

Examples of labor organization conduct that violates the law:

• Threats to employees that they will lose their jobs unless they support the union.

• Seeking the suspension, discharge or other punishment of an employee for not being a union member even if the employee has paid or offered to pay a lawful initiation fee and periodic fees thereafter.

• Refusing to process a grievance because an employee has criticized union officials or because an employee is not a member of the union in states where union security clauses are not permitted. …

[64] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

[65] Report: “An Outline of Law and Procedure in Representation Cases.” By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. <www.nlrb.gov>

Page 300:

The Board’s early decisions, at least until 1941, were predicated on two major concepts. First, that every appeal by an employer in opposition to unions violated the Wagner Act provision against interference, restraint, and coercion because it inevitably created a fear in the minds of employees that the employer would use economic power against those who disregarded the employer’s expressed desires. Second, that the choice of a bargaining representative was the exclusive concern of the employees and that the employer did not possess an interest sufficient to permit to intrusion. See Cox & Bok, Labor Law Cases and Materials, 170 et seq. (7th ed., 1969).

There was some conflict in the court of appeals and as is not infrequently the case when a conflict of principles becomes sharp enough in a significant area of law which by its nature is prone to a high emotional boiling point, the highest court of the land inevitably has to pass on it. This happened here. In 1941, in NLRB [National Labor Relations Board] v. Virginia Electric & Power Co., 314 U.S. 469 (1941), the United States Supreme Court was presented with the opportunity. The Court decided that the National Labor Relations Act did not prohibit employers from expressing their views about labor organizations, and this, for all practical purposes, marked the death knell of the so-called neutrality or enforced-silence requirement which had prevailed during the first 6 years. “The employer in this case,” said the Court, “is as free as ever to take any side it may choose on this controversial issue.”

This did not come as too great a surprise, for about a year earlier in Thornhill v. Alabama, 310 U.S. 88 (1940), the Supreme Court had made it clear that in the circumstances of our times “the dissemination of information concerning the facts of a labor dispute must be regarded as within the area of free discussion that is guaranteed by the Constitution” and that “labor relations are not matters of mere local or private concern.” Indeed, added the Court, “free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of industrial society.”

[66] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 17:

An election will be set aside if it was accompanied by conduct that the NLRB [National Labor Relations Board] considers created an atmosphere of confusion or fear of reprisals and thus interfered with the employees’ freedom of choice. In any particular case the NLRB does not attempt to determine whether the conduct actually interfered with the employees’ expression of free choice, but rather asks whether the conduct tended to do so. If it is reasonable to believe that the conduct would tend to interfere with the free expression of the employees’ choice, the election may be set aside. Examples of conduct the Board considers to interfere with employee free choice are:

• Threats of loss of jobs or benefits by an employer or a union to influence the votes or union activities of employees.

• A grant of benefits or promise to grant benefits to influence the votes or union activities of employees.

• An employer firing employees to discourage or encourage their union activities or a union causing an employer to take such action.

• An employer or a union making campaign speeches to assembled groups of employees on company time within the 24-hour period before the election.

• The incitement of racial or religious prejudice by inflammatory campaign appeals made by either an employer or a union.

• Threats or the use of physical force or violence against employees by an employer or a union to influence their votes.

• The occurrence of extensive violence or trouble or widespread fear of job losses which prevents the holding of a fair election, whether caused by an employer or a union.

[67] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

“Results of an election will be set aside if conduct by the employer or the union created an atmosphere of confusion or fear of reprisals and thus interfered with the employees’ freedom of choice.”

[68] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 14:

The Employer may speak freely with the Employees concerning its position on unionization, but it cannot promise benefits nor threaten reprisals for Union activity.⁹⁸ According to the Supreme Court, an employer is allowed to make “predictions” regarding the possible consequences of unionization so long as the “prediction” is carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.”⁹⁹ Applying this standard, the Board has invalidated elections where, not based on objective facts, the Employer has threatened that unionization would cause a loss of business and plant closure, that unionization would lead to a loss of jobs, and that strikes or shutdowns would inevitably result.

⁹⁹ NLRB [National Labor Relations Board] v. Gissell Packing Co., 395 U.S. 575 (1969).

[69] Report: “An Outline of Law and Procedure in Representation Cases.” By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. <www.nlrb.gov>

Page 317:

The Excelsior rule requires the employer to file with the Regional Director an election eligibility list containing the names and addresses of all eligible voters within 7 days after approval by the Regional Director of an election agreement or after a direction of election, and this information must be made available by the Regional Director to all parties in the election proceeding. Excelsior Underwear, 156 NLRB [National Labor Relations Board] 1236 (1966). See also J. P. Phillips, Inc., 336 NLRB 1279 (2001) (duty to send Excelsior list to the parties lies squarely with the Region). …

In Trustees of Columbia University, 350 NLRB 574 (2007), the Board declined to require that the employer provide the e-mail addresses of the unit employees in compliance with the Excelsior rule. The Board majority stated that it was unwilling to extend Excelsior “without the benefit of amicus briefing and a fully developed record.”

Compliance requires that the employer provide the full first and last name of the employees. Laidlaw Waste Systems, 321 NLRB 760 (1996); North Macon Health Care Facility, 315 NLRB 359 (1994); and Weyerhaeuser Co., 315 NLRB 963 (1994).

To be timely, the eligibility list must be received by the Regional Director within the required time; no extension of time is granted except in extraordinary circumstances. The filing of a petition for review does not stay this requirement. If the payroll period for eligibility purposes is subsequent to the election agreement or direction of election, the list must be filed within 7 days after the close of the determinative eligibility period. Failure to comply with this rule is deemed interference with the election and a ground, on proper objection, for invalidating the election.

[70] Webpage: “Proposed Improvements: NLRB Representation Case Procedures.” National Labor Relations Board. Accessed August 25, 2014 at <www.nlrb.gov>

The National Labor Relations Board’s (NLRB) proposed amendments to its rules and regulations governing representation case procedures are intended to modernize current Board procedures and streamline the processes governing representation elections. Specifically, the proposal will help to reduce unnecessary litigation, increase transparency and update the Board’s rules to reflect modern communications technology. …

A list of eligible voters would include phone numbers and email addresses (when available).

[71] Report: “An Outline of Law and Procedure in Representation Cases.” By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. <www.nlrb.gov>

Page 312:

Where company officials and supervisors called at employees’ homes, the Board found that the cumulative effect of the interviews in these circumstances, which admittedly established the company’s disapproval of the petitioning union, interfered with their free choice. In this posture, too, the election was set aside despite the absence of actual coercion. The Board reiterated the rule which consistently condemns the technique of calling all or a majority of the employees in the unit into the employer’s office individually or calling on them at their homes to urge them to reject a union as their bargaining representative. Peoria Plastic Co., 117 NLRB [National Labor Relations Board] 545 (1957); see also Hurley Co., 130 NLRB 282 (1961).

Page 313:

The rationale for invalidating elections involving the assembly of employees is not unlike the rationale in cases involving home visitations by officials and supervisors of the employer. In the latter situation the Board has made it clear that, whether or not the remarks during such visitations were coercive in character, the technique of visiting employees at their homes to urge them to reject the union as their bargaining representative is a ground for setting aside an election. See, for example, F. N. Calderwood, Inc., 124 NLRB 1211 (1959). The crux of that rationale is in the fact that the employer has “the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews” that it conducts. Plant City Welding & Tank Co., 119 NLRB 131, 133–134 (1957). …

Before leaving this line of cases, it should be explained that the Board has not drawn an analogy between home visitations by union representatives in the preelection period and home visitations by supervisors. “There is a substantial difference,” the Board pointed out, “between the employment of the technique of individual interviews by employers on the one hand and by the union on the other. Unlike employers, unions often do not have the opportunity to address employees in assembled or informal groups, and never have the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews conducted by employers. Thus, not only do unions have more need to seek out individual employees to present their views, but, more important, lack the relationship with the employees to interfere with their choice of representatives thereby.” Plant City Welding, supra at 133–134. See also Teamsters Local 705 (K-Mart), 347 NLRB 439 (2006).

[72] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 16: “Generally, it is not an unfair labor practice for an Employer to a make a pre-election speech to Employees on company time and premises and to deny the Union’s request for an Opportunity to respond.”

[73] Paper: “Employer Free Speech.” By Norman F. Burke. Fordham Law Review, 1957. Pages 266–291. <ir.lawnet.fordham.edu>

Pages 281–282:

The Livingston Shirt Decision

… The case was set in the not uncommon situation in the South of an alignment of the forces of the community with the industrial employer to enter the lists against the would-be union. The employer had a no-solicitation rule which forbade organizational activities only during working hours. His antiunion activity included several noncoercive speeches to the assembled employees during working hours while denying the union equal opportunity to reply. After several elections, which the union lost, had been set aside, the union filed an unfair labor practice charge. The Board majority dismissed the complaint, holding:

“that, in the absence of either an unlawful broad no-solicitation rule (prohibiting union access to company premises on other than working time) or a privileged no-solicitation rule (broad, but not unlawful because of the character of the business), an employer does not commit an unfair labor practice if he makes a preelection speech on company time and premises to his employees and denies the union’s request for an opportunity to reply.”⁹⁰

89. Livingston Shirt Corp., 107 N.L.R.B. 400 (1953).

90. Id. at 409.

[74] Report: “An Outline of Law and Procedure in Representation Cases.” By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. <www.nlrb.gov>

Page 318:

In Bonwit Teller [issued in 1951], the Board held that, regardless of the breadth of an employer’s no-solicitation rule, an antiunion speech on company time and premises, combined with a denial of a union request to reply, is a basis for setting aside a subsequent representation election and finding an unfair labor practice. In General Electric and McCulloch, supra at 1251, the Board declined to overrule Livingston Shirt and return to Bonwit Teller.

Page 323: “A speech otherwise permissible by Peerless was found objectionable because the employees were required to attend without full compensation and without receiving their regular paychecks until after the meeting. Comet Electric, 314 NLRB [National Labor Relations Board] 1215 (1994).”

[75] “Annual Report of the National Labor Relations Board For The Fiscal Year Ended September 30 1994.” National Labor Relations Board, June 23, 1995. <www.nlrb.gov>

Page 36:

In Comet Electric,¹⁷ the Board majority found that an employer interfered with the employees’ free choice in an election by requiring their attendance at a “captive audience” speech after their normal quitting time, without providing them full compensation for the time spent at the meeting and without distributing the employees’ paychecks until the meeting concluded.

One week before the election, the employer told its employees to report back to the shop at 3 p.m. for a meeting. The employees’ regular quitting time is 4 p.m. At the meeting, which lasted from 3 to 5:30 p.m., the employer’s owners made an antiunion speech to the assembled employees. Although the employees normally would have received their paychecks at 4 p.m. that day, they were not paid until the meeting concluded. Following the meeting, the employees were not fully compensated for the time spent at the meeting.

The Board found that employee attendance at the meeting was mandatory and that employees were compelled to remain for its entire duration as a condition of receiving their paychecks. No employee was compensated for the 1-1/2 hours spent at the meeting beyond the normal 4 p.m. quitting time. In these circumstances, the Board found that “employees would reasonably perceive that the Union’s campaign had caused them to suffer an economic detriment.” The Board concluded that because of the captive audience speech, employees were required to give uncompensated time to the employer, and were effectively punished for seeking union. representation. Accordingly, the Board sustained the petitioner’s objection and set aside the election.

Member Stephens, dissenting, would have found that the record was too ambiguous to support the finding that the employees were “compelled” to attend the entire meeting. He noted that it is not unlawful for an employer to subject its employees during working time to antiunion remarks. Member Stephens also noted that no employee left the meeting before it ended, the employer did not prevent any employee from leaving after 4 p.m., and there was no evidence that the owners would have withheld checks from anyone who had attempted to depart after 4 p.m.

¹⁷ 314 NLRB [National Labor Relations Board] 1215 (Chairman Gould and Members Devaney, Browning, and Cohen, Member Stephens dissenting).

[76] Decision: 2 Sisters Food Group, Inc. and United Food and Commercial Workers International Union, Local 1167. National Labor Relations Board, December 29, 2011. <apps.nlrb.gov>

Pages 10, 14:

MEMBER BECKER, dissenting in part. …

An express or implied threat of discipline for not listening to the employer’s speech indisputably adds to the speech the element of coercion that takes it outside the protection of both the First Amendment and Section 8(c) and permits it to serve as grounds for overturning the results of an election. I would restore at least some of the luster to the Board’s “crown” the Board-supervised representation election—by holding objectionable such obvious and overtly coercive yet widespread conduct.

[77] Report: “An Outline of Law and Procedure in Representation Cases.” By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. <www.nlrb.gov>

Pages 312–313:

Among the issues that the Board has had to determine in this area of law is the one that deals with the assembly of employees by the employer at a focal point of authority. Indeed, in General Shoe itself this was a question for the Board to decide.

On the day before the election the employer had the employees brought to his office in 25 groups of 20 to 25 and, in the language of that decision, “in the very room which each employee must have regarded as the locus of final authority in the plant, read every small group the same intemperate anti-union address.” In the same case, the employer instructed his supervisors “to propagandize employees in their homes.” The Board found that this went “so far beyond the presently accepted custom of campaigns directed at employees’ reasoning faculties that we are not justified in assuming that the election results represented the employees’ own true wishes.” These were not unfair labor practice findings. They were determinations based on the policy that matters which may not be available to prove a violation, but may still be pertinent, “if extreme enough”—to borrow a Board phrase—in deciding whether an election satisfies the Board’s own administrative standards.

In Economic Machinery Co., 111 NLRB [National Labor Relations Board] 947 (1955), “the technique of calling the employees into the Employer’s office individually to urge them to reject the Union,” the Board held, “is, in itself, conduct calculated to interfere with their free choice in the election.” The employer had privately interviewed all employees in his office. In some instances the interviews were as long as 3 hours. The Board reasoned that this was interference with the election “regardless of the non-coercive tenor of an employer’s actual remarks.”

… The Board reiterated the rule which consistently condemns the technique of calling all or a majority of the employees in the unit into the employer’s office individually or calling on them at their homes to urge them to reject a union as their bargaining representative. Peoria Plastic Co., 117 NLRB 545 (1957); see also Hurley Co., 130 NLRB 282 (1961).

In NVF Co., 210 NLRB 663 (1974), the Board concluded that cases involving the technique of calling employees either individually or in small groups into private areas to urge them to vote against the union was not per se objectionable. Rather, each case will be considered on its facts to determine whether the election represents the employee’s wishes. See also Flex Products, 280 NLRB 1117 (1986).

“The unique effectiveness of speeches addressed to employees assembled during working hours at the locus of their employment,” the Board noted, “has received congressional and judicial recognition and has been substantiated by research studies.” See H. W. Elson Bottling Co., 155 NLRB 714, 716 fn. 7 (1965); also NLRB v. United Aircraft Corp., 324 F.2d 128 (2d Cir. 1963), cert. denied 376 U.S. 951 (1964). It would seem that a vital factor in the Board’s reasoning is that when individual employees are taken from their workplaces and subjected to antiunion propaganda at the hands of a supervisor in the privacy of a company office or in an isolated area away from other employees, there is a “likelihood that outright fear or uneasiness tinged with fear as to the consequences of unionism will be created in the mind of the employee thus singled out for special attention.” Great Atlantic & Pacific Tea Co., 140 NLRB 133, 134 (1963).

The Board does not use a mechanistic approach but gives full consideration to all the circumstances. Thus, where 2 days before an election, several nurses aides were appealed to for a no-vote in noncoercive terms by the employer’s executive director at a meeting in the nursing director’s office, this incident was held not to justify setting aside the election under the General Shoe Corp., 77 NLRB 124 (1948), “locus of managerial authority” doctrine, since the office was the regular place of work of the admissions nurse and had been used for training sessions. Three Oaks, Inc., 178 NLRB 534 (1969).

A significant exception to the rule relating to employee interviews at the plant is found in Mall Tool Co., 112 NLRB 1313 (1955). In that case, the employer spoke to about half of its employees at their workbenches. The interviews lasted no more than 3 minutes. In these circumstances, the interviews were distinguished from the Economic Machinery Co., 111 NLRB 947 (1955), type and found not to constitute a basis for upsetting the election. See also Frito Lay, Inc., 341 NLRB 515 (2004) (use of “ride-alongs”—management representatives who rode with unit drivers to discuss working conditions—not objectionable).

[78] Ruling 96-1040: Allegheny Ludlum Corporation v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, January 17, 1997. Decided 2–1 (partial dissent). <caselaw.findlaw.com>

Employer “Polling” of Employees and Section 8(a)(1)

Section 7 of the Act gives all nonexempt employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157 (1994). Section 8(a)(1) of the Act makes it an illegal “unfair labor practice” for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].” 29 U.S.C. § 158(a)(1) (1994).

In its 1967 Struksnes decision, the Board observed that an employer’s “polling” of its employees regarding their pro-union or anti-union sentiment was usually both a violation of the employees’ § 7 rights in itself, and a likely prelude to further and more severe such violations. See Struksnes Construction Co., 165 N.L.R.B. 1062 (1967). An employer “poll” may in itself interfere with employees’ exercise of their § 7 rights because “any attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights.” Id. at 1062; see also Cannon Electric Co., 151 N.L.R.B. 1465, 1470 (1965) (“Coercion by interrogation is one of the ‘subtler’ forms of management’s interference with labor’s protected rights.” (quoting N.L.R.B. v. Camco, 340 F.2d 803, 804 (5th Cir.1965))); overruled on other grounds by Resistance Technology, 280 N.L.R.B. 1004, 1986 WL 54042 (1986). An employer “poll” also may lay the groundwork for further violations of § 7 rights because “[a]n employer cannot discriminate against union adherents without first determining who they are.” Id. (quoting Cannon Electric Co., 151 N.L.R.B. at 1468). The Board observed that in “innumerable cases” employer “polling” had been the “prelude” to employer discrimination against union sympathizers, and thus concluded that employer “polling” was not only a necessary precursor to discrimination but also an affirmative signal that discrimination would follow. Id; see also Cannon Electric Co., 151 N.L.R.B. at 1468 (“The frequency of a pattern of employer conduct associating discrimination against union adherents with employer’s efforts to learn the names of union activists supports the conclusion that there is a ‘danger inherent’ in such conduct: a tendency toward interference with the exercise by employees of their organizational rights.” (citations omitted)). …

Absent unusual circumstances, the polling of employees by an employer will be violative of Section 8(a)(1) of the [Act] unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union’s claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere.

[79] Ruling 97-1335: Perdue Farms, Inc. v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, May 29, 1998. Decided 2–1. <openjurist.org>

Interrogation of Employees

Claiming that the Board erroneously applied the relevant legal standard, Perdue challenges the Board’s determination that Chappell violated section 8(a)(1) by interrogating employees when he asked them if Union representatives had visited them at their homes. Interrogation of employees violates section 8(a)(1) if, under all the circumstances, it reasonably “tends to restrain, coerce, or interfere with rights guaranteed by the Act.” Rossmore House, 269 N.L.R.B. 1176, 1177, 1984 WL 36297 (1984). Both the Board and the courts agree that the starting point for determining whether unlawful interrogation has occurred is the five-factor test set forth in Bourne v. NLRB [National Labor Relations Board], 332 F.2d 47 (2d Cir.1964):

(1) The background, i.e., is there a history of employer hostility and discrimination?

(2) The nature of the information sought, e.g. did the interrogator appear to be seeking information on which to base taking action against individual employees?

(3) The identity of the questioner, i.e., how high was he in the company hierarchy?

(4) Place and method of interrogation, e.g., was employee called from work to the boss’s office? Was there an atmosphere of “unnatural formality”?

(5) Truthfulness of the reply.

Id. at 48; see also Chauffeurs, Local 633 v. NLRB, 509 F.2d 490, 494 (D.C.Cir.1974). Determining whether employee questioning violates the Act does not require strict evaluation of each factor; instead, “[t]he flexibility and deliberately broad focus of this test make clear that the Bourne criteria are not prerequisites to a finding of coercive questioning, but rather useful indicia that serve as a starting point for assessing the ‘totality of the circumstance.’ ” Timsco Inc. v. NLRB, 819 F.2d 1173, 1178 (D.C.Cir.1987).

Reviewing the entire record and the Board’s decision and “ ‘recogniz[ing] the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship,’ ” Southwire Co. v. NLRB, 820 F.2d 453, 456 (D.C.Cir.1987) (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969)), we think the Board properly applied the Bourne factors and that its section 8(a)(1) finding is supported by substantial evidence. Employee Willie Jackson testified that during a meeting with about fifty employees on or about May 19, Chappell asked whether “our homes and everything had been visited, you know, by the union associate.” According to Jackson, he and one other man raised their hands in response. Chappell denied that the meeting ever occurred, but the ALJ [administrative law judge] discredited his testimony, credited Jackson’s testimony instead, and found that Chappell had questioned employees in violation of section 8(a)(1). The ALJ said:

The setting of the interrogation was a general meeting of employees and the record does not reflect that the union sympathies of those present were known to [Perdue]. The questioner was a high official of [Perdue] who gave no assurances that by asking the question the employees would have nothing to fear. Additionally, Chappell was from the Maryland headquarters and did not have any established friendly relationship with the Alabama workers. There was no apparent legitimate reason for the question, but by seeking this information [Perdue] could learn who had been talking to the Union’s organizers.

Although we agree with Perdue that the “place and method” of Chappell’s questioning of employees (the fourth Bourne factor) were not particularly coercive, the other Bourne factors support the Board’s finding of unlawful interrogation. Chappell came from Perdue’s headquarters and served as its top human resources supervisor (factor 3). See Bourne, 332 F.2d at 48; Midwest Reg. Joint Bd., Amalgamated Clothing Workers of Am., 564 F.2d 434, 443 (D.C.Cir.1977). In his questions to employees, Chappell appeared to seek information about individual employee union sympathies (factor 2). Cf. Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1359 (D.C.Cir.1997) (“ ‘[A]ny attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his [statutory] rights.’ ”) (quoting Struksnes Constr. Co., 165 N.L.R.B. 1062, 1062 (1967)). Perdue claims that the ALJ considered circumstances outside the Bourne factors, i.e., that Chappell “gave no assurances that by asking the question the employees would have nothing to fear,” Cooking Good Div. 323 N.L.R.B. No. 50, at 5, 1997 WL 156724, but both this court and the Board have found that failure to give such assurances is relevant to the unlawful interrogation determination. See Midwest Reg. Joint Bd., 564 F.2d at 443; Fiber Glass Sys., Inc., 298 N.L.R.B. 504, 504–05, 1990 WL 123341 (1990).

Challenging the ALJ’s finding that Chappell had no legitimate reason to interrogate employees, Perdue claims that because it had received complaints that Union organizers were representing themselves as Perdue agents when visiting employees in their homes, it needed to know the answers to Chappell’s questions to gauge the reach of the Union’s misrepresentations. But Perdue received the complaints over a month before the Union filed its election petition, the company immediately met with employees to warn them that Union organizers representing themselves as Perdue agents were reportedly visiting employee homes, and the meeting at which Chappell questioned employees occurred over two months later, a week after the election had been scheduled. Because Perdue never claimed that it was still receiving complaints at that time, we think the record supports the Board’s conclusion that Chappell had no legitimate reason for asking the question.

[80] Ruling 02-1278: Shamrock Foods Company v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, October 21, 2003. Decided 3–0. <openjurist.org>

We next consider the NLRB’s [National Labor Relations Board’s] determination that Shamrock’s night-shift manager, Bud Shalley, unlawfully interrogated warehouse worker David Trujillo about the union’s organizing efforts. Trujillo testified that on or about June 4, 1998, in the midst of the organizing campaign, Shalley approached him while he was sitting alone in a warehouse office completing paperwork. After a few moments of small talk, Shalley asked Trujillo if he had heard anything about the union and whether D’Anella had asked Trujillo to sign a union card. When Trujillo answered that he had “not yet” been asked, Shalley walked out of the office. J.A. at 83. A few days later, on June 9, Shalley again approached Trujillo in the warehouse office. This time, Shalley said: “I can’t believe Vinnie [D’Anella] hasn’t come to you yet about the union.” When that remark failed to evoke a response, Shalley followed up with: “Well, if you find out that Vinnie’s trying to hand out union cards, let me know.” Id. at 83–84. Trujillo testified that he promised Shalley that he would keep his “eyes open.” Id. at 84; see Shamrock Foods Co., 337 N.L.R.B. No. 138, at 4 (ALJ Op.).

Although Shalley denied that either conversation took place, the ALJ [Administrative Law Judge] credited Trujillo’s account and concluded that the conversations, as described by Trujillo, violated section 8(a)(1). The Board affirmed. In its petition for review, Shamrock contends both that the conversations never took place, and that even if they did, they did not violate the NLRA [National Labor Relations Act]. …

We first address Shamrock’s fallback argument that even if the conversations did occur, they were not unlawful. This argument requires little discussion. The questioning of an employee about union activities or sympathies constitutes unlawful interrogation “if, under all the circumstances, it reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.” Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C.Cir. 1998) (internal quotation marks omitted). …

For the foregoing reasons, we deny Shamrock’s petition for review and grant the Board’s cross-application for enforcement of its order.

[81] Decision: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations]. National Labor Relations Board, August 26, 2011. Decided 3–0 with 1 partial dissent. <apps.nlrb.gov>

Page 1215: “The judge found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by … (2) coercively interrogating employees about their union sympathies….”

Pages 1228, 1258–1259:

STATEMENT OF THE CASE

JAMES M. KENNEDY, Administrative Law Judge. Maitre d’. This case was tried before me in Yakima, Washington, over 53 hearing days during 1998 and 1999, on an amended consolidated complaint issued by the Regional Director for Region 19 of the National Labor Relations Board (the Board) on October 9, 1998. …

Employees are entitled to either express their opinions about labor unions and unionization and they are equally entitled to keep their opinions to themselves. It is entirely inappropriate for an employer to surreptitiously dig into an employee’s heart to determine his or her union sentiments. … Employees should never be placed in a situation where they reveal their union sentiments, even if that sentiment is revealed by inaction.

[82] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 14: “General Rule—Employees have the right to distribute union literature in nonworking areas on company property during nonworking time….”

[83] Decision: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations]. National Labor Relations Board, August 26, 2011. Decided 3–0 with 1 partial dissent. <apps.nlrb.gov>

Page 1215: “The judge found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by (1) telling employees that they could not engage in union activity on company property….”

[84] Ruling: Lechmere, Inc. v. NLRB [National Labor Relations Board]. U.S. Supreme Court, January 27, 1992. Decided 6–3. <supreme.justia.com>

Thus, while “[n]o restriction may be placed on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline,” 351 U. S., at 113 (emphasis added) (citing Republic Aviation Corp. v. NLRB, 324 U. S. 793, 803 (1945)), “no such obligation is owed nonemployee organizers,” 351 U. S., at 113.

[85] Decision: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations]. National Labor Relations Board, August 26, 2011. Decided 3–0 with 1 partial dissent. <apps.nlrb.gov>

Pages 1218–1220:

Contrary to the judge and our dissenting colleague, we find that the Respondent did not violate Section 8(a)(3) and (1) of the Act by: (1) warning employees and demoting employee Pamela Smith for violating the Respondent’s no-solicitation rule; and (2) by discharging employee Ana Guzman for work-related misconduct.

A. Discipline for Allegedly Violating No-solicitation Rule

The Respondent maintains a no-solicitation rule for employees which states:

Approaching fellow employees in the work place regarding activities, organizations or causes, regardless of how worthwhile, important or benevolent, can create unnecessary apprehension and pressures for fellow employees. Such conduct is inappropriate and unnecessary. . . . No employee shall solicit or promote support for any cause or organization during his or her working time or during the working time of the employee or employees at whom such activity is directed.¹⁸

The General Counsel concedes that this rule, which was in effect prior to the union organizing campaign, is valid on its face. He argues, instead, that the Respondent discriminatorily enforced the rule in violation of Section 8(a)(3) and (1) by applying it to discipline employees Pam Smith, Maria Andrade, Rosa Salas, and Sonia Abundiz for discussing the Union while working in 1997.

On September 4, Smith’s duties included delivering an electric motor to coworker Clayton Johnson at the Union Gap plant. While delivering the motor to the plant, Smith, an active union organizer, initiated a conversation, which included references to the Union, with employee Gabriel Villarreal while she waited for Johnson. After he arrived, Johnson removed the motor from Smith’s car and, accompanied by Smith, brought it inside the plant. Johnson testified that as they walked to the plant, Smith asked him how he felt about the Union and told him that a union would mean better wages and benefits. Although Johnson indicated he did not support the Union, Smith continued to press him about it. Smith later continued her conversation about the Union with Villarreal during an approximately 15-minute trip to the local hardware store to do an errand for Johnson. Smith does not deny that her conversations with Johnson and Villarreal occurred during working time and were intended to solicit and promote support for the Union. Johnson reported Smith’s conversations to the Respondent.

The Respondent also received complaints from five other employees that prounion employees Andrade, Salas, and S. Abundiz were “harassing” them with talk about the Union and were constantly pressuring them to attend meetings and to support the Union. One employee testified that she asked her supervisor to move her workstation away from Abundiz to escape the harassment. Andrade and Salas did not deny that they solicited support for the Union during worktime. Abundiz did not testify.

On September 10, the Respondent issued Smith a warning for “soliciting the union during work hours at the Union Gap plant. It is a violation of company policy to solicit during work hours.” The warning also stated that Smith would be dismissed for a further incident of soliciting for the Union during working hours. The Respondent also removed Smith from her parts runner position, a demotion resulting in loss of premium pay. On October 23, the Respondent issued written warnings to Andrade, Salas, and S. Abundiz about “[c]omplaints from several employees for soliciting the Union during work time.”

The judge found that these warnings and the demotion were unlawful because the employees involved did no more than talk about the Union while they were working and that this conduct did not amount to “solicit[ing] or promot[ing] support for any cause or organization” in breach of the Respondent’s no-solicitation rule. The judge also stressed that there was no showing that these conversations interfered with the work of Smith, Andrade, Salas, S. Abundiz or any employee. Relying on Jennie-O Foods, 301 NLRB [National Labor Relations Board] 305 (1991), the judge further concluded that, in effect, the Respondent “was imposing a no union talk rule” against these employees, which is a violation of Section 8(a)(1).

We disagree with the judge’s analysis. The General Counsel concedes that the Respondent’s rule is valid on its face. The rule, on its face, prohibits solicitation and the promotion of support. These terms are to be understood in terms of the overall purpose of the rule. That purpose is readily apparent from the opening sentence of the rule. That is, the Respondent is concerned about employees “approaching fellow employees in the work place regarding activities, organizations, or causes.” Such “can create unnecessary apprehension and pressure for fellow employees.” Accordingly, such conduct is “inappropriate.” The conduct involved here was of that kind and, thus, clearly fell within the ambit of the rule. Accordingly, without resolving the semantic question of whether the words “solicit” or “promote,” standing alone, would cover the conduct here, the conduct here clearly fell within the ambit of the rule.

Similarly, the fact that the Respondent tolerates “talk” in the workplace does not warrant a contrary result. It is one thing, for example, to “talk” to fellow employees about Sunday’s football game. It is quite another to try to “persuade” fellow employees to support a cause. The former is allowed. The latter is not, irrespective of whether the cause is the union or something else.¹⁹

Finally, the fact that there was no actual interference with work does not render unlawful the rule or its application. The Board has found that rules restricting solicitation activity during work-time are permitted because of the employer’s right to prevent interference with work. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). There is, however, no requirement that actual interference be shown to justify the rule.

The conduct for which Smith, Andrade, Salas, and S. Abundiz were disciplined was encompassed by the Respondent’s valid rule. Thus, the Respondent clearly permits employees to talk among themselves while working, without restriction as to subject matter, so long as their personal discussions do not rise to the level of solicitation or promotion within the meaning of the rule. Here, the conduct of these four employees exceeded discussion and was proscribed under the Respondent’s rule. Pam Smith did not merely talk to Johnson and Villareal about the Union—she persistently urged them to support the Union. Andrade, Salas, and S. Abundiz also did not simply talk to their coworkers about the Union—they constantly pressured them to attend meetings and to support the Union. This conduct is precisely that which the Respondent intended by proscribing promotion and solicitation. Thus, based on a concededly valid rule, the Respondent lawfully prohibited employees from soliciting or promoting support for a cause during working time.

Accordingly, we shall dismiss the 8(a)(3) and (1) allegations based on these four warnings and Smith’s demotion.

[86] Decision: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations]. National Labor Relations Board, August 26, 2011. Decided 3–0 with 1 partial dissent. <apps.nlrb.gov>

Pages 1224–1225:

MEMBER WALSH, dissenting in part.

The majority erroneously dismisses the complaint allegations that the Respondent violated the Act by disciplining four employees for talking about the Union….

Pam Smith, a long-term employee of the Respondent, was a particularly active union supporter. On September 4, 1997,³ she spoke to two employees during working time about the advantages of unionization, but she did not present them with a card or petition to sign. The judge specifically found that “her efforts were simply talk.” The judge also found that the “Respondent’s employees . . . speak to each other frequently about all sorts of things and have never been disciplined for doing so.” Nevertheless, on September 11, the Respondent issued Smith the following warning: “Pam was soliciting the union during work hours at the Union Gap plant. It is a violation of company policy to solicit during work hours. Future solicitation during work hours will result in dismissal.”⁴ Simultaneously, Smith was demoted and suffered a loss in pay.

On October 23, the Respondent issued similar warnings to prounion employees Maria Andrade, Rosa Salas, and Sonia Abundiz, allegedly because it had received reports from other employees about “harassment.” The warnings threatened Andrade, Salas, and Abundiz with discharge if a similar occurrence were to take place. The warnings are identical and state: “Complaints from several employees for soliciting the Union during worktime.” The judge found, however, that Andrade, Salas, and Abundiz did not solicit their coworkers to sign any documents, but merely talked to them about the Union. The judge also found that the Respondent made “no effort . . . to determine the actual facts,” but summarily “concluded that [the employees’] talking about the Union qualified as harassment.”

B. Analysis

As the judge recognized, an employer violates the Act when it prohibits talking about the union during work-time while permitting discussions about any other subject. Jennie-O Foods, 301 NLRB [National Labor Relations Board] 305, 316 (1991).

That is precisely what occurred here. Although the Respondent permitted talking on the job about a wide variety of subjects unrelated to work, it discriminatorily singled out the four employees in question for discipline because they spoke in favor of the Union. Significantly, the four employees did not engage in “soliciting,” as the Respondent erroneously alleged in the warnings it issued them. Under established precedent, “talking about a union” is not the same thing as “solicitation for a union.” W. W. Grainger, Inc., 229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118 (7th Cir. 1978). “ ‘Solicitation’ for a union usually means asking someone to join the union by signing his name to an authorization card.” Id. The judge specifically found [phrase deleted] that the four employees’ conduct did not rise to the level of “solicitation” in violation of the Respondent’s no-solicitation rule.

The majority concedes that the Respondent could not discipline the employees for merely talking about the Union. And the majority stops short of finding that the employees engaged in prohibited “soliciting.” Nevertheless, the majority concludes that the discipline was lawful. The majority reasons that the employees’ conduct fell generally within “the ambit of the rule,” which prohibits not only “soliciting,” but also “promoting” a cause. I disagree.

As set forth above, Board law is clear that an employer cannot prohibit employees from simply talking about a union, if it allows talking about other subjects. Despite the fact that the General Counsel has not challenged the “promoting” a cause portion of the rule as being overbroad in violation of Section 8(a)(1), it is improper, in my view, to allow the Respondent to enforce an otherwise clearly unlawful prohibition based on such highly ambiguous language. Rather than reach such a result, I would simply read the Respondent’s rule narrowly, as prohibiting solicitation, rather than prohibiting simply talking about the Union. Since the judge correctly found that the employees did not engage in solicitation in violation of the rule, it follows that the Respondent violated Section 8(a)(3) and (1) when it issued Smith a warning and demoted her, and when it issued warnings to Andrade, Salas, and Abundiz, all because of their protected activities on behalf of the Union.

[87] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 15:

The Employer generally may prohibit distribution of Union literature on its premises by Non-Employee Union organizers, except in rare circumstances. The threshold test, stated the Supreme Court, is whether “the location of a plant and the living quarters of the Employees place the Employees beyond the reach of reasonable union efforts to communicate with them.”¹⁰³ The Court in Lechmere emphasized that this exception to the Employer’s right to deny access to Non-Employees is narrow. The Court identified (1) Isolated Logging Camps, (2) Mining Camps, and (3) Mountain Resorts as “classic examples” of situations where the Employer may have to allow Non-Employee organizers onto its property.¹⁰⁴

¹⁰³ See St. Luke’s Hosp., 300 NLRB [National Labor Relations Board] 836 (1990); Tri-County Medical Center, Inc.; 222 NLRB 1089 (1976).

¹⁰⁴ Lechmere, Inc. v. NLRB, 502 US 527 (1992).

[88] Ruling: Lechmere, Inc. v. NLRB [National Labor Relations Board]. U.S. Supreme Court, January 27, 1992. Decided 6–3. <supreme.justia.com>

The National Labor Relations Act (NLRA) guarantees employees “the right to self-organization, to form, join, or assist labor organizations,” § 7, and makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees” in the exercise of their § 7 rights, § 8(a)(1). Petitioner Lechmere, Inc., owns and operates a retail store located in a shopping plaza in a large metropolitan area. Lechmere is also part owner of the plaza’s parking lot, which is separated from a public highway by a 46-foot-wide grassy strip, almost all of which is public property. In a campaign to organize Lechmere employees, nonemployee union organizers placed handbills on the windshields of cars parked in the employees’ part of the parking lot. After Lechmere denied the organizers access to the lot, they distributed handbills and picketed from the grassy strip. In addition, they were able to contact directly some 20% of the employees. The union filed an unfair labor practice charge with respondent National Labor Relations Board (Board), alleging that Lechmere had violated the NLRA by barring the organizers from its property. An Administrative Law Judge ruled in the union’s favor, recommending that Lechmere, inter alia, be ordered to cease and desist from barring the organizers from the parking lot. The Board affirmed, relying on its ruling in Jean Country, 291 N. L. R. B. 11, that in all access cases the Board should balance (1) the degree of impairment of the § 7 right if access is denied, against (2) the degree of impairment of the private property right if access is granted, taking into consideration (3) the availability of reasonably effective alternative means of exercising the § 7 right. Id., at 14. The Court of Appeals enforced the Board’s order.

Held: Lechmere did not commit an unfair labor practice by barring nonemployee union organizers from its property. Pp. 531–541.

(a) By its plain terms, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. Thus, as a rule, an employer cannot be compelled to allow nonemployee organizers onto his property. NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 113. Babcock’s holding was neither repudiated nor modified by this Court’s decisions in Central Hardware Co. v. NLRB, 407 U. S. 539, and Hudgens v. NLRB, 424 U. S. 507. See also Sears, Roebuck & Co. v. Carpenters, 436.

(c) The facts in this case do not justify application of Babcock’s inaccessibility exception. Because Lechmere’s employees do not reside on its property, they are presumptively not “beyond the reach” of the union’s message. Nor does the fact that they live in a large metropolitan area render them “inaccessible.” Because the union failed to establish the existence of any “unique obstacles” that frustrated access to Lechmere’s employees, the Board erred in concluding that Lechmere committed an unfair labor practice by barring the nonemployee organizers from its property. Pp.539–541. …

Babcock arose out of union attempts to organize employees at a factory located on an isolated 100-acre tract. The company had a policy against solicitation and distribution of literature on its property, which it enforced against all groups. About 40% of the company’s employees lived in a town of some 21,000 persons near the factory; the remainder were scattered over a 30-mile radius. Almost all employees drove to work in private cars and parked in a company lot that adjoined the fenced-in plant area. The parking lot could be reached only by a 100-yard-long driveway connecting it to a public highway. This driveway was mostly on company-owned land, except where it crossed a 31-foot-wide public right-of-way adjoining the highway. Union organizers attempted to distribute literature from this right-of-way. The union also secured the names and addresses of some 100 employees (20% of the total) and sent them three mailings. Still other employees were contacted by telephone or home visit.

The union successfully challenged the company’s refusal to allow nonemployee organizers onto its property before the Board. While acknowledging that there were alternative, non-trespassory means whereby the union could communicate with employees, the Board held that contact at the workplace was preferable. The Babcock & Wilcox Co., 109 NLRB. 485, 493–494 (1954). “[T]he right to distribute is not absolute, but must be accommodated to the circumstances. Where it is impossible or unreasonably difficult for a union to distribute organizational literature to employees entirely off of the employer’s premises, distribution on a nonworking area, such as the parking lot and the walkways between the parking lot and the gate, may be warranted.” Id., at 493. Concluding that traffic on the highway made it unsafe for the union organizers to distribute leaflets from the right-of-way and that contacts through the mails, on the streets, at employees’ homes, and over the telephone would be ineffective, the Board ordered the company to allow the organizers to distribute literature on the company’s parking lot and exterior walkways. Id., at 486–487.

[89] Report: “An Outline of Law and Procedure in Representation Cases.” By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. <www.nlrb.gov>

Page 322:

The Peerless Plywood rule, applicable to employers and unions alike, forbids election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for an election. Violation of this prohibition is a ground for setting aside the election whenever valid objections are filed. Peerless Plywood Co., 107 NLRB [National Labor Relations Board] 427, 429 (1954).

“Such a speech,” said the Board in its rationale, “because of its timing, tends to create a mass psychology which overrides arguments made through other campaign media and gives an unfair advantage to the party, whether employer or union, who in this manner obtains the last most telling word.” The Board adverted to its longstanding rule prohibiting electioneering by either party at or near the polling place. “We have previously prescribed space limitations,” said the Board, “now we prescribe time limitations as well.”

This rule does not interfere with the rights of unions and employers to circulate campaign literature on or off the premises at any time prior to an election (see General Electric Co., 161 NLRB 618 (1966), and Andel Jewelry Corp., 326 NLRB 507 (1998)), nor does it prohibit the use of any other legitimate campaign propaganda or media. It forbids speeches, whether coercive or not (see Excelsior Laundry Co., 186 NLRB 914 (1970)), during the prescribed 24-hour period on company time and property, but it does not “prohibit an employer from making (without granting the union an opportunity to reply) campaign speeches on company time prior to the 24-hour period, provided, of course, such speeches are not otherwise violative of Section 8(a)(1).” The Board added that the rule does not prohibit employers and unions from making campaign speeches on or off company premises during the 24-hour period “if employee attendance is voluntary and on the employees’ own time.” Peerless Plywood Co., supra at 430. See also Nebraska Consolidated Mills, 165 NLRB 639 (1967).

[90] Report: “An Outline of Law and Procedure in Representation Cases.” By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. <www.nlrb.gov>

Page 331:

In Randell Warehouse of Arizona, 328 NLRB [National Labor Relations Board] 1034 (1999), the Board found that union videotaping of the distribution of literature to employees as they accepted or rejected the literature is not objectionable. In doing, so, a divided Board overruled Pepsi-Cola Bottling Co., 289 NLRB 736 (1988), and reaffirmed Mike Yurosek & Son, 292 NLRB 1074 (1989). Mike Yurosek was a case in which the photographing was accompanied by statements that “could reasonably put employees in fear that the pictures would be used for future reprisals.”

Randell Warehouse was decided by the Board after oral argument with a second case that was settled prior to decision. That second case dealt with the issue of employer videotaping. The Board’s Randell decision includes the views of the minority and concurring Members on the majority holding that it would make a distinction between union and employer videotaping.

See also Nu Skin International, 307 NLRB 223 (1992), in which photographing employees attending the union’s picnic luncheon was not found to be objectionable.

In Enterprise Leasing Co—Southeast LLC, 357 NLRB No. 159 (2011), a Board majority refused to set aside union election victory where the union solicited employees to have their photographs appear in campaign literature and that literature then included the picture of one employee who did not agree. The majority decision distinguished its holding from the Board’s decision in Allegheny Ludlum Corp., 333 NLRB 734 (2001), which held that the employer unlawfully polled employees to participate in a campaign video. The majority and dissent disagreed over whether Allegheny Ludlum should apply to unions as well as employers.

[91] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 16:

The Employer may not conduct surveillance of Employees engaging in Union activities regardless of whether (i) the Employees know of the surveillance or (ii) the surveillance is conducted by supervisors either encouraged by the Employer or acting on their own. The Employer is also prohibited from creating the impression among Employees that it is engaged in surveillance. Surveillance includes unjustified recording, photographing, or videotaping of protected activity.

[92] Decision: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO. National Labor Relations Board, August 26, 2011. Decided 3–0 with 1 partial dissent. <apps.nlrb.gov>

Pages 1216–1218:

As more fully explained below, we agree with the judge that the Respondent did not violate Section 8(a)(1) [of the National Labor Relations Act] by videotaping employees during a union rally. …

On the morning of August 12, Plath met with Warehouse Manager Tommy Hanses and Human Resources Manager Lupe Martinez. Plath told them about the Union’s planned rally and expressed to them his concerns about the safety of employees and their cars; the safety of the Respondent’s packing equipment; and possible incidents of violence and trespassing.¹³ Plath asked Martinez to have a video camera ready to videotape the rally so as to preserve on tape evidence of any damage done to vehicles and packing equipment on the Respondent’s premises.

In mid-afternoon on August 12, Teamsters and AFL–CIO [American Federation of Labor and Congress of Industrial Organizations] officials led a march of 50 to 60 people from the Union’s train station office to the Respondent’s main office, where they set up a large table, intended to serve as a symbolic bargaining table. A union official estimated that by the time the group arrived at the Respondent’s office, there were over 100 demonstrators. The rally leaders sat at the table with the crowd around them chanting for Plath to come out of the building, which he did for a short time.

Martinez recorded about 19 minutes of videotape. The tape shows that demonstrators in the street significantly affected traffic. Traffic slowed to a crawl as some drivers attempted to negotiate through the crowd, while other drivers made U-turns to avoid the crowd. The “bargaining table” and some benches in the street blocked traffic and there were demonstrators sitting on cars. The tape also shows that, at one point, a large number of demonstrators entered the Respondent’s office as a group. Martinez testified that he recognized only 12 of the demonstrators as being employees of the Respondent, while a union official testified that she recognized about 40 employees. Either way, a majority of the approximately 100 demonstrators appeared not to be employees of the Respondent. Three employees eventually made their way into the office with a written demand for recognition, which the Respondent rejected.

The principles the Board applies to videotaping cases were fully set out in National Steel & Shipbuilding Co., 324 NLRB [National Labor Relations Board] 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998), where the Board stated:

[T]he fundamental principles governing employer surveillance of protected employee activity are set forth in F. W. Woolworth Co., 310 NLRB 1197 (1993). The Board in Woolworth reaffirmed the principle that an employer’s mere observation of open, public union activity on or near its property does not constitute unlawful surveillance. Photographing and videotaping such activity clearly constitute more than mere observation, however, because such pictorial record keeping tends to create fear among employees of future reprisals. The Board in Woolworth reaffirmed the principle that photographing in the mere belief that something might happen does not justify the employer’s conduct when balanced against the tendency of that conduct to interfere with employees’ right to engage in concerted activity. . . . Rather, the Board requires an employer engaging in such photographing or videotaping to demonstrate that it had a reasonable basis to have anticipated misconduct by the employees. ‘‘[T]he Board may properly require a company to provide a solid justification for its resort to anticipatory photographing. . . . The inquiry is whether the photographing or videotaping has a reasonable tendency to interfere with protected activity under the circumstances in each case.” [Citations omitted.]

The judge correctly followed this precedent and examined whether the Respondent had demonstrated sufficient justification for its videotaping of the rally. The judge found that at the time Path made his decision, he knew that the Union was planning a high-profile event with a group of people, including high-ranking union officials from out of town, who would be marching from the train station to hold a public demonstration at the Respondent’s office. Plath did not know the purpose of the march, or when it would start, or whether the Union could control the crowd. What Plath did know, as found by the judge, was that he had to be concerned about the safety of both the Respondent’s employees and the Respondent’s equipment. Faced with these circumstances, and concerned about a recurrence of trespassing on the property, Plath asked Martinez to videotape the upcoming rally to gather and preserve evidence. Finding the Respondent’s concerns with trespassing and safety issues to be reasonable, the judge properly found no violation of the Act based on the Respondent’s videotaping.¹⁴

Our dissenting colleague would find a violation because, in his view, the Respondent failed to establish proper justification for its decision to videotape the Union’s rally. According to the dissent, the Respondent had only a “mere belief” or “sheer suspicion” that unprotected activity might occur at the rally because Plath had minimal information about the rally; the rally occurred on public property; and the videotaping began without any union or employee misconduct occurring that day or on prior occasions. We disagree with the dissent on all three points.

First, given the available information, Plath’s reason for deciding to videotape was based on more than what the Board refers to as a “mere” belief that something might happen. At the time he made the decision, Plath knew that there was going to be a demonstration possibly involving a large number of people in front of the Respondent’s office. Plath knew that officials from the AFL–CIO had come into town from Washington, D.C., to take part in the demonstration. Plath could easily visualize the consequences of such a high-profile gathering, and he could predict that he would have safety, property, and security issues to face.

Second, Plath certainly had every reason to expect that there would be, at the very least, trespassing by union supporters and organizers on the Respondent’s property, given the close proximity of the public areas. Unlike Robert Orr-Sysco Food Services, 334 NLRB 977, 978 (2001), where the Board found no proper justification for employer videotaping of employees’ handbilling, the public property in the present case literally began at the respondent’s doorstep, rather than “two turns away from the [respondent’s] driveway” as in Robert Orr-Sysco Food Services. 334 NLRB at 978. Furthermore, given prior incidents of trespassing on the Respondent’s property, which had led Plath to contact the police, it was prudent of Plath to plan on documenting the Union’s rally.

Finally, the Respondent, like the employer in Saia, supra, had legitimate safety and trespassing concerns which justified its videotaping of the demonstration. and its videotaping was consistent with the Board’s Rule that the taking of photographs or videotaping to document trespassory activities for the purpose of making a claim of trespass is lawful.¹⁵ In Saia Motor Freight Line, supra, the Board found that the employer was justified in videotaping handbilling activities, which occurred on the employer’s property in its driveway. The Board accepted the employer’s concern about safety and potential negligence liability as a legitimate justification for photographing employees engaged in handbilling. The Board in Saia also pointed out that the employer began its videotaping after the handbilling began and after becoming dissatisfied with police efforts to stop handbillers’ interference with traffic entering its facility. It does not follow, however, that the Board requires that “solid justification” can be established only after specific instances of anticipated problems have occurred. The Board’s rules regarding picture-taking of protected activity do not mean that an employer is precluded from asserting a legitimate concern simply because no disruption has yet occurred. If that were the case, there would be no reason for the Board to require “solid justification for its resort to anticipatory photographing.” National Steel & Shipbuilding, supra. As the Board has held, in a different context, “The pedestrian need not wait to be struck before leaping for the curb.” Betts Cadillac Olds, Inc., 96 NLRB 268, 286 (1951).

Thus, we conclude, in agreement with the judge, that the Respondent had a reasonable basis to expect misconduct based upon the circumstances discussed above. Accordingly, we conclude that the Respondent’s videotaping of the union rally did not violate the Act.¹⁶We shall dismiss this allegation.

[93] Decision: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations]. National Labor Relations Board, August 26, 2011. Decided 3–0 with 1 partial dissent. <apps.nlrb.gov>

Pages 1224, 1226:

MEMBER WALSH, dissenting in part.

The applicable principles are well established. Absent proper justification, an employer’s videotaping of employees engaged in protected activities violates Section 8(a)(1) because “it has a tendency to intimidate.” F. W. Woolworth, 310 NLRB [National Labor Relations Board] 1197 (1993). An employer must “provide a solid justification for its resort to anticipatory [videotaping].” NLRB v. Colonial Haven Nursing Home, 542 F.2d 691, 701 (7th Cir. 1976). The mere belief that “something ‘might’ happen does not justify [videotaping] when balanced against the tendency of that conduct to interfere with the employees’ right to engage in concerted activity.” Flambeau Plastics Corp., 167 NLRB 735, 743 (1967), enfd. 401 F.2d 128, 136 (7th Cir. 1968), cert. denied 393 U.S. 1019 (1969).

In the instant case, the issue is whether the information Plath received from Gempler provided “solid justification” for Plath’s decision to videotape the rally. The judge made the following findings about that conversation:

• Plath could not determine much from what Gempler had said. He did discern that it was going to be a Teamster operation.

• [T]he information which was relayed to Plath was minimal and came only the night before.

• All [Plath] had heard was that a lot of people would be marching on his plant.

• Plath was “mostly in the dark.”

This falls far short of the required showing. It is no answer to say, as the majority does, that Plath was concerned about safety and trespassing issues. Providing a “solid justification” requires more than simply suspecting that unprotected activity might occur.⁶ The employer must “demonstrate that it had a reasonable basis to have anticipated misconduct by the employees.” National Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998). Nothing that Gempler said would support a finding that Plath had a reasonable basis for anticipating misconduct during the rally. Significantly, there is no evidence of Union or employee misconduct on prior occasions.

[94] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 19:

The NLRB [National Labor Relations Board] may order an Employer to recognize and bargain with a Union where the Employer, among other things, has committed unfair labor practices (“ULPs”) that have made a fair election unlikely or has undermined the Unions majority and caused an election to be set aside.¹¹⁶ In Gissel Packing Company, the Supreme Court identified three separate categories of ULPs that it would consider in deciding whether a bargaining order would be an appropriate remedy. The first category of cases, known as Gissel-I cases, involves situations in which the Employer has committed outrageous or pervasive ULPs that would make it impossible to hold a fair election. The court determined that in these exceptional cases a bargaining order is the appropriate remedy “without need of inquiry into majority status.”¹¹⁷ The Supreme Court did not, however, specifically endorse the idea of non-majority bargaining orders. The second category of cases, known as Gissel-II cases, involves “less extraordinary cases marked by less pervasive practices which nonetheless have the tendency to undermine majority strength and impede the election processes.”¹¹⁸ The Supreme Court approved this use of bargaining orders but held that a bargaining order is justified only where there is also a showing that at some point the Union had the support of the majority of Employees in the appropriate unit. The Court counseled the Board to “take into consideration the extensiveness of an Employer’s unfair practices” in terms of their past effect upon election conditions and the likelihood of their recurrence “in the future” in determining whether a bargaining order is an appropriate remedy.¹¹⁹ Finally, the Supreme Court identified a third category of cases, Gissel-III cases, involving minor or less extensive ULPs that have only a minimal impact on the election machinery and do not support the issuance of a bargaining order.

Despite Gissel’s dictum regarding the issuance of bargaining orders without proof that the Union ever obtained majority status (Gissel-I cases), the Board did not issue any bargaining orders under these circumstances until 1981. In United Dairy Farmers Cooperative Association¹²⁰ and Connair Corp.¹²¹ a divided Board issued bargaining orders even though the Unions had never demonstrated majority support. In 1984, however, the Board reexamined the issue of Gissel-I bargain orders in Gourmet Foods, Inc.¹²² The Board concluded that a remedial bargaining order is completely unwarranted if the Union lacks majority support. Specifically, the Board found that the issuance of a bargaining order without any evidence that the Union ever had the support of a majority of the affected Employees contravened the principles embodied in the Act. Although the decision has been questioned in recent years, the Board continues to follow Gourmet Foods.

Page 24:

If the Regional Director or Board, as appropriate, invalidates an election based on meritorious objections, the usual remedy is a rerun election.¹⁵⁴ The Board, however, has authority to grant a so-called Gissell or remedial bargaining order, in lieu of an election or rerun election, where the union had obtained majority support prior to the scheduled election and the Employer’s ULPs are found sufficiently serious to impede a fair election.¹⁵⁵ The Regional Director has discretion as to the timing and other details of the rerun election.

[95] U.S. Code Title 29, Chapter 7, Subchapter II, Section 160: “Prevention of Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Powers of Board Generally

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. …

The testimony taken by such member, agent, or agency or the Board shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take further testimony or hear argument. If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him: And provided further, That in determining whether a complaint shall issue alleging a violation of subsection (a)(1) or (a)(2) of section 158 of this title, and in deciding such cases, the same regulations and rules of decision shall apply irrespective of whether or not the labor organization affected is affiliated with a labor organization national or international in scope. Such order may further require such person to make reports from time to time showing the extent to which it has complied with the order. If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. In case the evidence is presented before a member of the Board, or before an administrative law judge or judges thereof, such member, or such judge or judges as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed.

[96] “2018 Performance and Accountability Report.” National Labor Relations Board, October 9, 2019. <www.nlrb.gov>

Page 62: “The NLRB [National Labor Relations Board] regularly monitors settlement and litigation success rates of ULP [unfair labor practice] cases. In FY 2018, Regional offices settled 97.5 percent of meritorious ULP cases and won 88 percent of ULP and Compliance matters in whole or in part. A total of over $54.3 million was recovered in backpay, fines, dues and fees and over 1,200 employees were offered reinstatement.”

[97] U.S. Code Title 29, Chapter 7, Subchapter II, Section 162: “Offenses and Penalties.” Accessed October 8, 2019 at <www.law.cornell.edu>

“Any person who shall willfully resist, prevent, impede, or interfere with any member of the Board or any of its agents or agencies in the performance of duties pursuant to this subchapter shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year, or both.”

[98] Decision: Levitz Furniture Co. of the Pacific. National Labor Relations Board, March 29, 2001. Decided 4–0. Majority: Truesdale, Liebman, Walsh. Concurring: Hurtgen. <apps.nlrb.gov>

Page 720: “Although majority status is pivotal to determining employers’ statutory duties, the Act does not specify how a union’s majority support must be determined. The only provisions that bear on the issue of determining majority status are the provisions for representation and decertification elections found in Section 9(c).”

[99] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees

(i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) …

[100] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 13: “The most common method by which employees can select a bargaining representative is a secret-ballot representation election conducted by the Board.”

[101] Webpage: “How to Organize.” Communication Workers of America. Accessed October 8, 2019 at <www.cwa-union.org>

How You Choose to Go Union. How you and your co-workers decide whether you want a union depends on where you work.

[102] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

“In addition to NLRB [National Labor Relations Board]-conducted elections, federal law provides employees a second path to choose a representative: They may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means. These agreements are made outside the NLRB process.”

[103] Decision: Dana Corp. National Labor Relations Board, September 29, 2007. <www.nlrb.gov>

Page 436: “We do not question the legality of voluntary recognition agreements based on a union’s showing of majority support. Voluntary recognition itself predates the National Labor Relations Act and is undisputedly lawful under it.”

[104] Dissent 351 NLRB [National Labor Relations Board] 28: Dana Corp. National Labor Relations Board, September 29, 2007. <www.nlrb.gov>

Page 445:

Under the Act, an election is not the exclusive means of determining majority status. “Almost from the inception of the Act . . . it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation . . . .” NLRB v. Gissel Packing Co., 395 U.S. 575, 596–597 (1969). An employer’s duty to bargain under Section 8(a)(5) of the Act is subject, not to Section 9(c), which deals with elections, but to Section 9(a), which states that a representative “designated or selected” by the majority of employees in a unit shall be the exclusive bargaining representative.

[105] Decision: Lamons Gasket Company. National Labor Relations Board, August 26, 2011. <apps.nlrb.gov>

Page 740:

Voluntary recognition must be based on evidence of majority support for representation. Absent majority support, voluntary recognition is unlawful. …

The evidence of majority support that must underlie voluntary recognition may take many forms. The Dana majority referred to voluntary recognition as “card-based recognition” … but that is an inaccurate or, at least, a drastically underinclusive characterization.⁵Voluntary recognition may be, and has been, based on evidence of majority support as informal as employees walking into the owner’s office and stating they wish to be represented by a union … and as formal as a secret-ballot election conducted by a third party such as the American Arbitration Association….

Clear evidence of Congress’ intentions concerning the relationship between voluntary recognition and Board-supervised elections is contained in Section 9(c)(1)(A)(i) of the Act. In that section, Congress provided that employees could file a petition for an election, alleging that a substantial number of employees wish to be represented and “that their employer declines to recognize their representative.” That language makes unmistakably clear that Congress recognized the practice of voluntary recognition and strongly suggests that Congress believed Board-supervised elections were necessary only when an employer had declined to recognize its employees’ chosen representative.

[106] Report: “Trends in Union Corporate Campaigns.” By Jarol B. Manheim (George Washington University). U.S. Chamber of Commerce, 2005. <www.uschamber.com>

Page 5: “To date, unions have waged nearly 300 campaigns against employers, primarily, though not exclusively, to facilitate organizing. … Typically, the role of the corporate campaign today is to force management to accede to union demands for ‘card check and neutrality’….”

[107] Report: “Labor Union Recognition Procedures: Use of Secret Ballots and Card Checks.” By Gerald Mayer. Congressional Research Service, April 2, 2007. <digitalcommons.ilr.cornell.edu>

Page 12:

In general, under a neutrality agreement, an employer agrees to remain neutral during a union organizing campaign. The employer may agree not to attack or criticize the union, while the union may agree not to attack or criticize the employer. The agreement may allow managers to answer questions or provide factual information to employees. A neutrality agreement may give a union access to company property to meet with employees and distribute literature. …

Corporate Campaigns. To gain an agreement from an employer for a card check campaign—possibly combined with a neutrality agreement—unions sometimes engage in ‘corporate campaigns.’ … A union may engage in a corporate campaign to achieve other objectives, e.g., a contract agreement. …

[108] Article: “Supreme Court to Review Union Corporate Campaign Tactic: Are Neutrality Agreements Lawful?” By Bradford L. Livingston. Lexology, June 24, 2013. <www.lexology.com>

The ultimate goal of a corporate campaign, however, is usually to get the employer to remain neutral—in other words, to get the employer to agree not to contest the union’s efforts to organize employees, or to exercise its free speech rights under NLRA [National Labor Relations Act] Section 8(c)—as a tradeoff for the union stopping the corporate campaign. With a neutrality agreement, unions are typically given access to the workplace and employee contact details, and the employer often agrees to recognize and bargain with the union once it has been able to convince a majority of the employees to sign authorization cards (called card check recognition)—without any secret ballot NLRB [National Labor Relations Board] election.

[109] Encyclopedia of U.S. Labor and Working-Class History (Volume 1, A-F). Edited by Eric Arnesen. Routledge, 2007.

Page 2: “A corporate campaign is a mobilization of the labor movement and the community to tarnish a corporation’s image and to inflict serious economic damage on the company to pressure management to negotiate a fair contract.”

[110] Article: “The Pressure is On: Organizing Without the NLRB.” By Joe Crump (Secretary-Treasurer of United Food and Commercial Workers Local 951, Grand Rapids, Michigan). Labor Research Review, 1991. <digitalcommons.ilr.cornell.edu>

Pages 35–36:

Organizing is war. The objective is to convince employers to do something that they do not want to do. That means a fight. If you don’t have a war mentality, your chances of success are limited. Organizing without the NLRB [National Labor Relations Board] means putting enough pressure on employers, costing them enough time, energy and money to either eliminate them or get them to surrender to the union. This is what the UFCW [United Food and Commercial Workers] calls a pressure campaign.

[111] Book: An Injury to All: The Decline of American Unionism. By Kim Moody. Verso, 1988.

Page 306:

In the search for successful strategies and tactics, the corporate campaign came into increasing use in the 1980s. The term itself came from Ray Rogers…. The techniques involved a combination of tactics such as consumer boycotts, legal appeals, attempts to broaden the issues from simple labor relations to moral or social matters, and pressure on interlocking sectors of the business and financial community in hopes of isolating the offending employer. According to Charles Perry, one of the first academics to study corporate campaigns, a central feature of the corporate campaign is ‘conflict escalation’. In particular, the corporate campaign ‘seeks to define or redefine the issue in dispute so as to draw the sympathy and support of the general public and special interest groups.’⁵

Back cover: “Kim Moody, on the staff of the Detroit-based Labor Notes, is one of the most respected labor journalists in North America. He works closely with the rank-and-file anti-concession movement, and has been on the scene of most of the current labor struggles he describes.”

[112] Manual: Developing New Tactics: Winning with Coordinated Corporate Campaigns. AFL–CIO [American Federation of Labor and Congress of Industrial Organizations] Industrial Union Department, 1985.

Page 6:

Businesses are regulated by a virtual alphabet soup of federal, state, and local agencies, which monitor nearly every aspect of corporate behavior. Although these watchdog agencies employ inspectors to monitor compliance by companies, most also rely on employees and other individuals to file complaints about violations. Once the regulators are alerted to violations by a company, they sometimes assume an adversarial relationship toward the offender.

Regulatory agencies exist to protect citizens, and unions can use the regulators to their advantage. An intransigent employer may find that in addition to labor troubles, there are suddenly government problems as well. To achieve this objective, unions should examine the various regulations that the target company must comply with. Chances are that there are areas in which the company has broken the law, which can form the basis for complaints to the government. Union interest and involvement can make a company extremely uncomfortable, but it is important to make sure that any complaints the union makes are valid.

[113] Encyclopedia of U.S. Labor and Working-Class History (Volume 1, A–F). Edited by Eric Arnesen. Routledge, 2007.

Page 1476: “An intentionally provoked strike was losing badly until the union changed tactics and began to run a corporate campaign against the company by allying with environmentalists, politicians, federal government enforcement agencies, foreign politicians and unions and companies against BASF in its various businesses and environmental affairs.”

Page 2: “A central aspect of the Staley workers’ corporate campaign was targeting the company’s largest purchasers of Staley high-fructose corn syrup, Miller Beer and Pepsi Cola. … The campaign had its first big success in early 1994, when Miller Beer announced it was switching to another corn syrup manufacturer.”

Page 708:

Alongside the boycott, the maverick activist Ray Rogers ran the first “corporate campaign” in U.S. history. As part of this, ACTWU’s [Amalgamated Clothing and Textile Workers Union] supporters disrupted Steven’s shareholders’ meeting, securing publicity of the company’s labor record …

At its peak, the Stevens campaign also inspired the film Norma Rae (1979). In the popular movie, Sally Field won an Oscar for her depiction of a character that was loosely based on Roanoke Rapids worker Crystal Lee Sutton. Following the movie’s release, Sutton herself conducted a nationwide tour promote the union’s cause, securing a great deal of positive press coverage in the process. As a public relations weapon, in fact, the boycott was clearly a success, although its economic impact on the firm was mild, especially as Stevens only sold around one third of its products directly to the consumer.

[114] Article: “The Pressure is On: Organizing Without the NLRB [National Labor Relations Board].” By Joe Crump (Secretary-Treasurer of United Food and Commercial Workers Local 951, Grand Rapids, Michigan). Labor Research Review, 1991. <digitalcommons.ilr.cornell.edu>

Page 41:

After researching the employer and deciding what issues have a chance of appealing to customers, the most effective way of communicating with them must be determined, given the financial and people-power constraints of the union. Television may be the most effective medium, but unless you have a lot of money, purchased TV time is out of the question. However, if you dig up some ‘‘juicy” information on a targeted employer’s business practices, a local TV investigative reporter may be interested in revealing the details to the viewing public.

[115] Article: “A Move to Put the Union Label on Solar Power Plants.” By Todd Woody. New York Times, June 19, 2009. <www.nytimes.com>

After Stirling Energy Systems filed plans with California regulators to install 30,000 solar dishes on 10 square miles of desert land, its executives got a call from Mr. Joseph, the union lawyer. Sean Gallagher, a vice president for Tessera Solar, the development arm for Stirling, said the company declined Mr. Joseph’s request to commit to using union labor.

California Unions for Reliable Energy subsequently filed 143 data requests with the company on the final day such requests could be made, and later intervened in a second, 850-megawatt Stirling solar project.

It was a different story after BrightSource Energy pledged to hire union-friendly contractors to build its Mojave Desert solar power plant complex. Despite questions raised by environmental groups about the project’s impact on wildlife, the union group took no action, according to commission documents.

[116] Article: “Organized Labor is Increasingly Less So.” By William Serrin. New York Times, November 18, 1984. <www.nytimes.com>

If unions want to deal successfully with employers, Ray Rogers, a labor consultant, said recently, ‘‘they won’t get far by simply trying to harass and embarrass’’ corporations. Unions, the former field representative for the Amalgamated Clothing and Textile Workers said, must ‘‘organize’’ workers and ‘‘disorganize’’ employers, utilizing a ‘‘divide and conquer strategy’’ that pits employer against employer. Companies must be ‘‘forced to deal with inescapable economic and political pressure,’’ Mr. Rogers added.

[117] Webpage: “About Corporate Campaign, Inc.” Corporate Campaign, Inc. Accessed August 16, 2014 at <www.corporatecampaign.org>

“Corporate Campaign, Inc. (CCI), and its director, Ray Rogers, have been helping labor unions, human rights and environmental groups and others struggle for justice and achieve major victories since its founding in 1981.”

[118] Webpage: “What We Do.” Corporate Campaign, Inc. Accessed August 16, 2014 at <www.corporatecampaign.org>

“A Corporate Campaign can best be viewed as a multidimensional campaign that attacks an adversary from every conceivable angle, creating relentless pressure on multiple individual and institutional targets.”

[119] Article: “Ray Rogers Hits J. P. Stevens Where it Hurts.” By James L. Tyson. Harvard Crimson, September 26, 1979. <www.thecrimson.com>

But Rogers’ thoughts and actions are as much influenced by his past as they are by Saul Alinsky and his book “Rules for Radicals.” He directs the campaign against Stevens directors adhering to Alinsky’s proposition that “it is not man’s ‘better nature’ but his self-interest that demands the he be his brother’s keeper.” He forces Stevens directors to take what he calls “the low road to morality,” or to make a moral decision not because of a sincere moral concern, but because of a threatened personal interest. And his overall strategy against Stevens is directed by Alinsky’s gospel, “Pick the target, freeze it, personalize it, and polarize it.”

[120] Book: Workers in America: A Historical Encyclopedia (Volume 1). By Robert E. Weir. ABC-CLIO, 2013.

Page 183: “Corporate campaigns are largely the brainchild of Ray Rogers, who heads Corporate Campaigns Inc. (CCI), in New York City, although many of its tactics evoke those pioneered by the United Farm Workers of America.”

[121] Webpage: “About Corporate Campaign, Inc.” Corporate Campaign, Inc. Accessed August 16, 2014 at <www.corporatecampaign.org>

[122] Webpage: “What We Do.” Corporate Campaign, Inc. Accessed August 16, 2014 at <www.corporatecampaign.org>

[123] Webpage: “What We Do: Conduct Elections.” National Labor Relations Board. Accessed October 8, 2019 at <www.nlrb.gov>

[124] Decision: Lamons Gasket Company. National Labor Relations Board, August 26, 2011. <apps.nlrb.gov>

Page 741: “Despite the fact that signed cards authorizing the union to represent the signer are only one form of evidence of majority support that may underlie lawful, voluntary recognition, we use that example throughout our opinion here in order to more clearly state our disagreement with the Dana majority.”

[125] Report: “Trends in Union Corporate Campaigns.” By Jarol B. Manheim (George Washington University). U.S. Chamber of Commerce, 2005. <www.uschamber.com>

[126] Research Handbook on the Economics of Labor and Employment Law. Edited by Cynthia L. Estlund and Michael L. Wachter. Edward Elgar Publishing, 2012. Article: “Union Organizing and the Architecture of Employee Choice.” By Benjamin I. Sachs (Professor of Labor and Industry, Harvard Law School).

Page 151: “Under a card check regime, if a majority of employees in the relevant bargaining unit sign authorization cards, the employers is then required to recognize the union as the employees’ agent and to bargain collectively with the union.”

[127] Ruling: NLRB [National Labor Relations Board] v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8–0. <supreme.justia.com>

We next consider the question whether authorization cards are such inherently unreliable indicators of employee desires that, whatever the validity of other alternate routes to representative status, the cards themselves may never be used to determine a union’s majority and to support an order to bargain. In this context, the employers urge us to take the step the 1947 [Taft-Hartley] amendments and their legislative history indicate Congress did not take, namely, to rule out completely the use of cards in the bargaining arena. …

That the cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when that process has been impeded needs no extended discussion, for the employers’ contentions cannot withstand close examination.

[128] Book: Reforming the Electoral Process in America: Toward More Democracy in the 21st Century. By Brian L. Fife. Praeger, 2010.

Pages 16–17:

The party ballot was used extensively by the mid-19th century in the United States. The party ballots were generally printed and contained the names of the candidates and the designation of the offices. The ticket of each party was separate and could be distinguished from other tickets as they were typically of a different color.⁵⁹ Because of this practice, there was no secrecy when it came to voting in America. In fact, voter intimidation was quite common at this point in history. Bribery was a fairly overt practice as well.⁶⁰

Because of the lack of privacy and other realities associated with open voting, reformers in Australia sought to alleviate some of the deficiencies in their electoral system so voting would be done secretly to reduce mob violence in their country. The secret ballot was first proposed in Australia in 1851 and implemented in 1857. The secret ballot, commonly known as the Australian ballot, includes the name of all the candidates….

The utilization of the Australian ballot permitted citizens to register their electoral preferences without fear of reprisal. Compared to the previous system, popular sovereignty was enhanced and the collective preferences of the people were more accurately depicted. The importance of secret voting was encompassed in a very important document after World War II. In the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948, the responsibility of government to ensure democratic elections is emphatically noted:

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

[129] Book: Parties and Elections in America: The Electoral Process (6th edition). By L. Sandy Maisel and Mark D. Brewer. Roman & Littlefield, 2012.

Page 40: “Progressive reforms in the electoral area had more immediate impacts. The first was the Australian ballot, a state-printed ballot cast in secret and listing all candidates for a particular position (not one party’s candidates for all positions). The new ballot, adopted in all but two states from 1889 to 1891, enabled split-ticket voting and reduced voter intimidation at the polls.”

[130] Article: “Australian Ballot.” Encyclopedia of U.S. Campaigns, Elections, And Electoral Behavior (Volume 2). Edited by Kenneth F. Warren. Sage Publications, 2008.

Page 50: “The Australian ballot was an essential step in the development of democratic elections. Until these reforms, voting took place by voice or show of hands under conditions that were invariably rigged to favor one side. Corruption, bribery, drunkenness, and acts of violence were common, explaining why democratic decision-making came to be known as the manly act of voting.”

[131] Ruling: Burson, Attorney General and Reporter for Tennessee v. Freeman. U.S. Supreme Court, May 26, 1992. Decided 5–3. Majority: Blackmun, Rehnquist, White, Kennedy. Concurring: Kennedy, Scalia. Dissenting: Stevens, O’Connor, Souter. <www.law.cornell.edu>

Majority (<www.law.cornell.edu>):

In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this wide spread and time tested consensus demonstrates that some restricted zone is necessary in order to serve the States’ compelling interest in preventing voter intimidation and election fraud. …

Finally, the dissent argues that we confuse history with necessity. Yet the dissent concedes that a secret ballot was necessary to cure electoral abuses. Contrary to the dissent’s contention, the link between ballot secrecy and some restricted zone surrounding the voting area is not merely timing—it is common sense. The only way to preserve the secrecy of the ballot is to limit access to the area around the voter.

Dissent (<www.law.cornell.edu>):

[T]he fact that campaign-free zones were, as the plurality indicates, introduced as part of a broader package of electoral reforms does not demonstrate that such zones were necessary. The abuses that affected the electoral system could have been cured by the institution of the secret ballot and by the heightened regulation of the polling place alone, without silencing the political speech outside the polling place.

Scalia concurrence (<www.law.cornell.edu>):

Ever since the widespread adoption of the secret ballot in the late 19th century, viewpoint neutral restrictions on election day speech within a specified distance of the polling place—or on physical presence there—have been commonplace, indeed prevalent. By 1900, at least 34 of the 45 States (including Tennessee) had enacted such restrictions.

[132] Ruling: Edwards v. Abrams. Supreme Court of South Carolina, January 10, 1978. Decided 4–0. <law.justia.com>

Our constitution not only permits, but mandates the General Assembly to regulate and provide for elections. Among those things required is that the legislature “…insure secrecy of voting, …” the question thus presented is: Does the statute here under attack, which would allow husbands and wives to enter a voting booth together and discuss the ballot, violate the constitutional provisions? We think it does. …

… In commenting in the case of Corn v. Blackwell, 191, S.C. 183, 4 S.E. (2d) 254 (1939), this Court held that secrecy of the ballot is absolutely essential. …

To allow husbands and wives to vote together admittedly has considerable appeal. However, if we should sustain the right of the legislature to allow husbands and wives to enter a voting booth together, we see no rationale upon which we could deny its right to permit brothers and sisters, parents and children, consenting friends, etc., to vote together. Moreover, if the General Assembly can allow two persons to vote together, it might by like token permit three or more persons to enter a voting booth together.

Counsel for the Relator argues that the right to cast a secret ballot may be waived. There is some authority for the proposition that secrecy is a personal right granted to the voter. We think, however, that the overriding purpose of the secrecy provision is to insure the integrity of the voting process. It is calculated to secure privacy, personal independence and freedom from party or individual surveillance. It tends to promote an independent and free exercise of the elective franchise.

Counsel for the Relator argues that the right of secrecy is not absolute and cites Code § 7-13-780, which provides that a voter who needs assistance by reason of inability to read or write, or by reason of physical handicap incapacitating him from preparing a ballot, is entitled to receive assistance in voting. Without such assistance, blind persons, and some others, would be denied the right of suffrage. Either the right of suffrage must be denied or the mandate of secrecy relaxed for handicapped persons. There is no rational basis why the mandate of secrecy in the state constitution must be relaxed for two persons perfectly capable of voting alone. We hold that § 7-13-750 of the 1976 Code is unconstitutional.

[133] Research Handbook on the Economics of Labor and Employment Law. Edited by Cynthia L. Estlund and Michael L. Wachter. Edward Elgar Publishing, 2012. Article: “Union Organizing and the Architecture of Employee Choice.” By Benjamin I. Sachs (Professor of Labor and Industry, Harvard Law School).

Page 151: “Unlike an NLRB [National Labor Relations Board] election, in a card check regime there is emphatically no requirement of secrecy. To the contrary, cards may be solicited by a union supporter and signed in the presence of the union supporter who solicited the card. Moreover, although the validity of a card can be challenged ex post on the ground that it was obtained through coercion or fraud, there is no contemporaneous oversight of the card solicitation process.”

[134] “Testimony of Jennifer Jason, Former UNITE HERE Organizer.” U.S. House of Representatives, Committee on Education and Labor, Subcommittee on Health, Employment, Labor and Pensions, February 8, 2007. <www.gpo.gov>

My name is Jen Jason. I am a former labor organizer for UNITE HERE, a union that represents more than 450,000 active members and more than 400,000 retirees throughout North America in the textile, lodging, foodservice and manufacturing industries. …

As an Organizer for UNITE, I primarily worked on and later led “card check’’ organizing campaigns. …

During my tenure, I organized under U.S. labor law and in Canada under different provincially specific laws in Ontario, British Columbia, as well as Quebec and Manitoba. I was directed to organize thousands of workers using “card check’’ strategies against companies such as TJ Maxx, Levi’s, New Flyer Bus Company, and Cintas. …

A “card check’’ campaign begins with union organizers going to the homes of workers over a weekend, a tactic called “housecalling,’’ with the sole intent of having those workers sign authorization cards. Called a “blitz’’ by the unions, it entails teams of two or more organizers going directly to the homes of workers. …

In most cases, the workers have no idea that there is a union campaign underway. Organizers are taught to play upon this element of surprise to get “into the door.’’ They are trained to perform a five part house call strategy that includes: Introductions, Listening, Agitation, Union Solution, and Commitment. The goal of the organizer is to quickly establish a trust relationship with the worker, move from talking about what their job entails to what they would like to change about their job, agitate them by insisting that management won’t fix their workplace problems without a union and finally convincing the worker to sign a card. …

When the union is allowed to implement the “card check’’ strategy, the decision about whether or not an individual employee would choose to join a union is reduced to a crisis decision. This situation is created by the organizer and places the worker into a high pressure sales situation. … I have personally heard from workers that they signed the union card simply to get the organizer to leave their home and not harass them further.

[135] Ruling: NLRB [National Labor Relations Board] v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8–0. <supreme.justia.com>

Further, the employers argue that, without a secret ballot, an employee may, in a card drive, succumb to group pressures or sign simply to get the union “off his back,” and then be unable to change his mind as he would be free to do once inside a voting booth. But the same pressures are likely to be equally present in an election, for election cases arise most often with small bargaining units,²² where virtually every voter’s sentiments can be carefully and individually canvassed. And no voter, of course, can change his mind after casting a ballot in an election, even though he may think better of his choice shortly thereafter.

[136] Ruling: NLRB [National Labor Relations Board] v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8–0. <supreme.justia.com>

NOTE: See the footnote above and the entirety of the ruling.

[137] Ruling: NLRB [National Labor Relations Board] v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8–0. <supreme.justia.com>

The employers’ second complaint, that the cards are too often obtained through misrepresentation and coercion, must be rejected also in view of the Board’s present rules for controlling card solicitation, which we view as adequate to the task where the cards involved state their purpose clearly and unambiguously on their face. We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses, primarily arising out of misrepresentations by union organizers as to whether the effect of signing a card was to designate the union to represent the employee for collective bargaining purposes or merely to authorize it to seek an election to determine that issue. And we would be equally blind if we did not recognize that various courts of appeals and commentators have differed significantly as to the effectiveness of the Board’s Cumberland Shoe doctrine (see supra at 395 U. S. 584) to cure such abuses. …

We need make no decision as to the conflicting approaches used with regard to dual-purpose cards, for in each of the five organization campaigns in the four cases before us, the cards used were single-purpose cards, stating clearly and unambiguously on their face that the signer designated the union as his representative. … Thus, the sole question before us, raised in only one of the four cases here, is whether the Cumberland Shoe doctrine is an adequate rule under the Act for assuring employee free choice.

In resolving the conflict among the circuits in favor of approving the Board’s Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elections have been, after all, and will continue to be, held in the vast majority of cases; the union will still have to have the signatures of 30%²⁵ of the employees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employer here that employees, as a rule, are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. In addition to approving the use of cards, of course, Congress has expressly authorized reliance on employee signatures alone in other areas of labor relations, even where criminal sanctions hang in the balance,²⁶ and we should not act hastily in disregarding congressional judgments that employees can be counted on to take responsibility for their acts.

[138] Ruling: National Labor Relations Board v. Cumberland Shoe Corporation. United States Court of Appeals, Sixth Circuit, October 26, 1965. <openjurist.org>

On review of the Rulings of the Trial Examiner (to which both respondent and the general counsel had filed exceptions), the [National Labor Relations Board] found:

“We believe that the instant case is factually distinguishable from Englewood Lumber, supra, and that hence that case is inapplicable. While it is true, as found by the Trial Examiner, that 17 of the signatories testified that they were told that the purpose of the cards was to secure a Board election,³ it does not appear that they were told that this was the only purpose of the cards, and we cannot say, on the basis of this record that the card solicitors so indicated to employees.⁴ The record indicates that the testimony to this effect consisted of affirmative responses by the signatories to leading questions propounded by Respondent’s counsel, upon cross-examination, as to whether they were told that the purpose of the cards was to secure an election. We do not deem such testimony sufficient to controvert the statement of the purpose and effect of such cards contained on the face thereof, nor do we consider it inconsistent with an understanding that the cards served the dual purpose of designating a representative and of securing an election.⁴ In the Englewood Lumber case the solicitor explained to almost all the employees that the cards were only for the purpose of securing a Board election and thereby secured many signatures, including those of two employees whose hostility to the designated union was open and notorious and explicitly communicated to the solicitor. …”

NOTE: The full NLRB ruling is currently not available online.

[139] Ruling: NLRB [National Labor Relations Board] v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8–0. <supreme.justia.com>

NOTE: See the entirety of the ruling.

[140] Decision: Dana Corp. National Labor Relations Board, September 29, 2007. <www.nlrb.gov>

Page 439:

Third, like a political election, a Board election presents a clear picture of employee voter preference at a single moment. On the other hand, card signings take place over a protracted period of time. In the present Metaldyne cases, for instance, the Union took over a year to collect the cards supporting its claim of majority support. During such an extended period, employees can and do change their minds about union representation.²³ On this point, several briefs filed in this proceeding refer to statistics from a 1962 presentation by former Board Chairman McCulloch as empirical evidence of the lesser reliability of cards to indicate actual employee preference for union representation. These statistics showed a significant disparity between union card showings of support and ensuing Board election results. In particular, unions with a 50- to 70-percent majority card showing won only 48 percent of elections. Even unions with more than a 70-percent card showing won only 74 percent of elections.²⁴

²³ See, e.g., Alliant Foodservice, 335 NLRB [National Labor Relations Board] 695 (2001), where 16 employees who signed cards for one union subsequently signed cards for another union.

²⁴ McCulloch, A Tale of Two Cities: Or Law in Action, Proceedings of ABA Section of Labor Relations Law 14, 17 (1962). Of course, cards submitted as a showing of interest in support of election petitions merely provide administrative grounds for conducting the election. In this respect, the dissent fails to recognize that all of the aforementioned reasons for questioning the reliability of the cards become moot once an election is held. Unlike card-based voluntary recognition, “it is the election, not the showing of interest, which decides the substantive issue [of representation].” Northeastern University, 218 NLRB 247, 248 (1975).

[141] Ruling: NLRB [National Labor Relations Board] v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8–0. <supreme.justia.com>

NOTE: See the entirety of the ruling.

[142] Ruling: Burson, Attorney General and Reporter for Tennessee v. Freeman. U.S. Supreme Court, May 26, 1992. Decided 5–3. Majority: Blackmun, Rehnquist, White, Kennedy. Concurring: Kennedy, Scalia. Dissenting: Stevens, O’Connor, Souter. <www.law.cornell.edu>

Majority (<www.law.cornell.edu>):

Dissent (<www.law.cornell.edu>):

Scalia concurrence (<www.law.cornell.edu>):

[143] Webpage: “Cosponsors: House Resolution 800—Employee Free Choice Act of 2007.” U.S. House of Representatives, 110th Congress (2007–2008). Accessed May 16, 2017 at <www.congress.gov>

“Sponsor: Rep. Miller, George [D-CA-7] … Cosponsors … Democratic [=] 226 … Republican [=] 7”

[144] House Resolution 800: “Employee Free Choice Act of 2007.” 110th Congress (2007–2008). Accessed May 16, 2017 at <www.congress.gov>

An Act

To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes. …

Sec. 2. Streamlining Union Certification. …

(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

NOTE: See the next footnote for the above-cited “subsection (a).”

[145] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

[146] House Resolution 800: “Employee Free Choice Act of 2007.” 110th Congress (2007–2008). Accessed May 16, 2017 at <www.congress.gov>

NOTE: See entirety of bill.

[147] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees …

ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) …

[148] Calculated with data from vote 118: “The Employee Free Choice Act.” U.S. House of Representatives, March 1, 2007. <clerk.house.gov>

House
Party	Voted “Yes”		Voted “No”		Voted “Present” or Did Not Vote †
Party	Number	Portion	Number	Portion	Number	Portion
Republican	13	6%	183	91%	5	2%
Democrat	228	98%	2	1%	3	1%
Independent	0	0%	0	0%	0	0%
NOTE: † Voting “Present” is effectively the same as not voting.

[149] Report: “Filibusters and Cloture in the Senate.” By Richard S. Beth & Valerie Heitchusen. Congressional Research Service, December 24, 2014. <www.senate.gov>

Summary (page 2 of PDF):

The filibuster is widely viewed as one of the Senate’s most characteristic procedural features. Filibustering includes any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote. The possibility of filibusters exists because Senate rules place few limits on Senators’ rights and opportunities in the legislative process. …

Senate Rule XXII, however, known as the “cloture rule,” enables Senators to end a filibuster on any debatable matter the Senate is considering. Sixteen Senators initiate this process by presenting a motion to end the debate. The Senate does not vote on this cloture motion until the second day after the motion is made. Then it usually requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture. (Invoking cloture on a proposal to amend the Senate’s standing rules requires the support of two-thirds of the Senators present and voting, whereas cloture on nominations other than to the U.S. Supreme Court requires a numerical majority.)

Page CRS-9:

Invoking cloture usually requires a three-fifths vote of the entire Senate—“three-fifths of the Senators duly chosen and sworn.” Thus, if there is no more than one vacancy, 60 Senators must vote to invoke cloture. In contrast, most other votes require only a simple majority (that is, 51%) of the Senators present and voting, assuming that those Senators constitute a quorum. In the case of a cloture vote, the key is the number of Senators voting for cloture, not the number voting against. Failing to vote on a cloture motion has the same effect as voting against the motion: it deprives the motion of one of the 60 votes needed to agree to it.

There are two important exceptions to the three-fifths requirement to invoke cloture. First, under Rule XXII, an affirmative vote of two-thirds of the Senators present and voting is required to invoke cloture on a measure or motion to amend the Senate rules. This provision has its origin in the history of the cloture rule. Before 1975, two-thirds of the Senators present and voting (a quorum being present) was required for cloture on all matters. In early 1975, at the beginning of the 94th Congress, Senators sought to amend the rule to make it somewhat easier to invoke cloture. However, some Senators feared that if this effort succeeded, that would only make it easier to amend the rule again, making cloture still easier to invoke. As a compromise, the Senate agreed to move from two-thirds of the Senators present and voting (a maximum of 67 votes) to three-fifths of the Senators duly chosen and sworn (a minimum of 60 votes) on all matters except future rules changes, including changes in the cloture rule itself.¹⁷Second, pursuant to precedent established by the Senate on November 21, 2013, the Senate can invoke cloture on nominations other than those to the U.S. Supreme Court by a majority of Senators voting (a quorum being present).¹⁸

[150] “Standing Rules of the Senate: Rule XXII: Precedence Of Motions.” Accessed May 19, 2017 at <www.rules.senate.gov>

2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting—then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Thereafter no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks. Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o’clock p.m. on the day following the filing of the cloture motion if an amendment in the first degree, and unless it had been so submitted at least one hour prior to the beginning of the cloture vote if an amendment in the second degree. No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.

After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins. The thirty hours may be increased by the adoption of a motion, decided without debate, by a three-fifths affirmative vote of the Senators duly chosen and sworn, and any such time thus agreed upon shall be equally divided between and controlled by the Majority and Minority Leaders or their designees. However, only one motion to extend time, specified above, may be made in any one calendar day.

[151] Webpage: “Actions on House Resolution 800: Employee Free Choice Act of 2007.” U.S. House of Representatives, 110th Congress (2007–2008). Accessed July 22, 2014 at <www.congress.gov>

“06/26/2007 Senate Cloture on the motion to proceed not invoked in Senate by Yea–Nay Vote. 51–48. Record Vote Number: 227.”

[152] Calculated with data from vote 227: “Employee Free Choice Act of 2007.” U.S. Senate, June 26, 2007. <www.senate.gov>

Senate
Party	Voted “Yes”		Voted “No”		Voted “Present” or Did Not Vote †
Party	Number	Portion	Number	Portion	Number	Portion
Republican	1	2%	48	98%	0	0%
Democrat	48	98%	0	0%	1	2%
Independent	2	100%	0	0%	0	0%
NOTE: † Voting “Present” is effectively the same as not voting.

[153] Webpage: “Summary of House Resolution 800—Employee Free Choice Act of 2007.” 110th Congress (2007–2008). Accessed July 22, 2014 at <www.congress.gov>

“Sponsor: Rep. Miller, George [D-CA-7]”

[154] House report 110-23: “Employee Free Choice Act of 2007.” Committee on Education and Labor, U.S. House of Representatives, February 16, 2007. <www.congress.gov>

Page 55:

August 29, 2001

Junta Local de Conciliacion y Arbitraje del Estado de Puebla [Local Board of Conciliation and Arbitration of Puebla, Mexico] Lic. Armando Poxqui Quintero, 7 Norte, Numero 1006 Altos, Colonia Centro, Puebla, Mexico C.P.

Dear members of the Junta Local de Conciliacion y Arbitraje of the state of Puebla:

We understand that the secret ballot is allowed for, but not required by, Mexican labor law. However, we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose.

We respect Mexico as an important neighbor and trading partner, and we feel that the increased use of the secret ballot in union recognition elections will help bring real democracy to the Mexican workplace.

Sincerely, [16 members of Congress]

George Miller, Marcy Kaptur, Bernard Sanders, William J. Coyne, Lane Evans, Bob Filner, Martin Olav Sabo, Barney Frank, Joe Baca, Zoe Lofgren, Dennis J. Kucinich, Calvin M. Dooley, Fortney Peter Stark, Barbara Lee, James P. McGovern, Lloyd Doggett

[155] Article: “Puebla (State, Mexico).” Encyclopædia Britannica. Accessed July 22, 2014 at <www.britannica.com>

“Puebla, estado (state), east-central Mexico. It is bounded by the states of Veracruz to the north and east, Oaxaca to the south, Guerrero to the southwest, Morelos and México to the west, and Tlaxcala and Hidalgo to the northwest. Nearly half of its population is concentrated in the city of Puebla (Puebla de Zaragoza), which is the state capital and chief commercial centre.”

[156] Article: “Exceedingly Social, But Doesn’t Like Parties.” By Michael Powell.

Washington Post, November 5, 2006. <www.washingtonpost.com>

Quoting Sanders: “I’m a democratic socialist.”

[157] Article: “Bernie Sanders: Obamacare Is a ‘Good Republican Program’.” By Bryan Koenig. CNN, September 24th, 2013. <politicalticker.blogs.cnn.com>

“Sanders, an Independent who caucuses with Senate Democrats, reiterated his support of a universal single-payer Medicare for all, inspired by health care programs in Europe.”

[158] House report 110-23: “Employee Free Choice Act of 2007.” Committee on Education and Labor, U.S. House of Representatives, February 16, 2007. <www.congress.gov>

Page 55: “Sincerely, [16 members of Congress] George Miller, Marcy Kaptur, Bernard Sanders, William J. Coyne, Lane Evans, Bob Filner, Martin Olav Sabo, Barney Frank, Joe Baca, Zoe Lofgren, Dennis J. Kucinich, Calvin M. Dooley, Fortney Peter Stark, Barbara Lee, James P. McGovern, Lloyd Doggett”

[159] House Resolution 800: “Employee Free Choice Act of 2007.” U.S. House of Representatives, 110th Congress (2007–2008). Accessed May 16, 2017 at <www.congress.gov>

An Act

Sec. 2. Streamlining Union Certification. …

NOTE: See the next footnote for the above-cited “subsection (a).”

[160] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

[161] Vote 118: “The Employee Free Choice Act.” U.S. House of Representatives, March 1, 2007. <clerk.house.gov>

“AYES … Baca … Doggett … Filner … Frank (MA) … Kaptur … Kucinich … Lee … Lofgren, Zoe … McGovern … Miller, George … Stark”

NOTE: As shown in the next footnote, all of these individuals also sponsored the bill.

[162] Webpage: “Cosponsors of House Resolution 800: Employee Free Choice Act of 2007.” U.S. House of Representatives, 110th Congress (2007–2008). Accessed May 16, 2017 at <www.congress.gov>

“Sponsor: Rep. Miller, George [D-CA-7] (Introduced 02/05/207) … Cosponsors … Kucinich, Dennis J. [D-OH-10] … Lee, Barbara [D-CA-9] … Filner, Bob [D-CA-51] … Stark, Fortney Pete [D-CA-13] … Baca, Joe [D-CA-43] … Kaptur, Marcy [D-OH-9] … Frank, Barney [D-MA-4] … McGovern, James P. [D-MA-3] … Lofgren, Zoe [D-CA-16] … Doggett, Lloyd [D-TX-25]”

[163] Vote 227: “Employee Free Choice Act of 2007.” U.S. Senate, June 26, 2007. <www.senate.gov>

“Sanders (I-VT), Yea”

[164] Webpage: “Who Are The Teamsters?” Teamsters Union. Accessed October 8, 2019 at <teamster.org>

“The Teamsters Union is North America’s strongest and most diverse labor union. In 1903, the Teamsters started as a merger of the two leading team driver associations. These drivers were the backbone of America’s robust economic growth, but they needed to organize to wrest their fair share from greedy corporations. Today, the Union’s task is exactly the same.”

[165] Webpage: “Teamsters Legislative Update: Employee Free Choice Act.” Teamsters Union, 2010. Accessed August 22, 2014 at <teamster.org>

… We ask you to join in the fight to pass the Employee Free Choice Act because every working American should have the right to become part of a union.

NOTE: This webpage is undated, but based upon the following sentence, at least a portion of it dates to 2010: “To email your members of Congress and ask that they make pension relief legislation a top priority in 2010, click here.”

[166] NOTE: A search conducted on October 9, 2019 at congress.gov shows the most recent version of the “Employee Free Choice Act” was introduced in the U.S. House of Representatives in 2016. As shown in the footnotes below, the key operative language in these bills is the same as the “Employee Free Choice Act of 2007.”

[167] House Resolution 800: “Employee Free Choice Act of 2007. U.S. House of Representatives, 110th Congress (2007–2008). Accessed May 16, 2017 at <www.congress.gov>

An Act

Sec. 2. Streamlining Union Certification. …

NOTE: See the next footnote for the above-cited “subsection (a).”

[168] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

[169] House Resolution 5000: “Employee Free Choice Act of 2016.” U.S. House of Representatives, 114th Congress (2015–2016). Accessed October 9, 2019 at <www.congress.gov>

Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

[170] Vote 227: “Employee Free Choice Act of 2007.” U.S. Senate, June 26, 2007. <www.senate.gov>

“Obama (D-IL), Yea”

[171] Article: “Obama Says He’ll ‘Keep on Fighting’ to Pass ‘Card Check’ Bill.” By Michael O’Brien. The Hill, August 4, 2010. <thehill.com>

“President Obama told the AFL–CIO [American Federation of Labor and Congress of Industrial Organizations] on Wednesday that he would ‘keep on fighting’ to pass the controversial ‘card check’ bill. … ‘[W]e’re going to keep on fighting to pass the Employee Free Choice Act,” Obama told the union.’ ”

[172] Conducting Local Union Officer Elections: A Guide for Election Officials. U.S. Department of Labor (Hilda L. Solis, Secretary), Office of Labor-Management Standards, 2010. <www.dol.gov>

Introduction:

Congratulations! You have been selected to serve as an election official in your union. You may have volunteered, been elected by the membership, appointed by your union’s president, chosen by one of the candidates, or maybe you were “drafted” to serve in this role. In any event, during the upcoming weeks you and your fellow election officials will be entrusted with the responsibility of providing members with the opportunity to exercise the most fundamental of union rights, the right to elect their union’s officers by secret ballot. …

As an election official … you should uphold American democratic traditions by protecting the right of every member in good standing to nominate candidates, run for office, and vote by secret ballot for officers of your union.

Page 28: “The opportunity to cast a secret ballot in an officer election is the most fundamental right guaranteed by the LMRDA [Labor-Management Reporting and Disclosure Act of 1959, as Amended] to all union members in good standing.”

[173] Webpage: “The Executive Branch.” White House. Accessed October 9, 2019 at <www.whitehouse.gov>

Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress. Fifteen executive departments—each led by an appointed member of the President’s Cabinet—carry out the day-to-day administration of the federal government. They are joined in this by other executive agencies such as the CIA and Environmental Protection Agency, the heads of which are not part of the Cabinet, but who are under the full authority of the President.

The Department of Labor oversees federal programs for ensuring a strong American workforce. These programs address job training, safe working conditions, minimum hourly wage and overtime pay, employment discrimination, and unemployment insurance.

[174] Conducting Local Union Officer Elections: A Guide for Election Officials. U.S. Department of Labor (Hilda L. Solis, Secretary), Office of Labor-Management Standards, 2010. <www.dol.gov>

Page 77 (of PDF):

Sec. 401. (a) Every national or international labor organization, except a federation of national or international labor organizations, shall elect its officers not less often than once every five years either by secret ballot among the members in good standing or at a convention of delegates chosen by secret ballot.

(b) Every local labor organization shall elect its officers not less often than once every three years by secret ballot among the members in good standing.

[175] “International Brotherhood of Teamsters Constitution.” Adopted by the 28th International Convention, June 27–July 1, 2011. <www.teamsterslocal20.com>

NOTE: Below are seven examples in context. Credit for bringing this to the attention of Just Facts belongs to Deroy Murdoch [Commentary: “Secret Ballots for Me, But Not for Thee.” By Deroy Murdock. National Review, March 20, 2009. <www.nationalreview.com>]

Page 21:

Delegates to any International Convention in which any International Union officers are nominated or elected shall be chosen by secret ballot vote of the membership in accordance with Article XXII and applicable law relating to the nomination and election of union officers. … Local Unions having regularly scheduled officer elections during the fall of the year preceding the Convention may elect delegates and alternate delegates at the same time as officers are elected, provided that separate secret ballots are utilized for the delegates and alternate delegate election. … All Local Unions not conducting delegate and alternate delegate elections in connection with their regular officer elections shall conduct separate secret ballot elections for those positions. … Secret ballot elections shall be held not less than thirty (30) days after the nomination meeting.

Page 22: “Local Unions in Trusteeship may send delegates to the Convention only if a secret ballot election is conducted in accordance with Article XXII.

Pages 23–24:

All International officers shall be entitled to all the privileges of regularly credentialed delegates, but shall not be permitted to nominate or vote for officers at the Convention unless they have been elected as delegates in secret ballot delegate elections held by a Local Union; provided that this shall not be construed to make eligible for International office any member who is not otherwise eligible through having worked within the jurisdiction for such a length of time as to have made him eligible for International office as is provided in this Constitution.

Page 33:

Section 3(a). No less than four (4) months and no more than six (6) months after the Convention, candidates nominated for the ballot for the offices of General President, General Secretary-Treasurer, Vice Presidents, and International Trustees shall be elected by direct rank-and-file voting by members in good standing. All voting shall be by secret ballot. All eligible members shall be entitled to vote for General President, General Secretary-Treasurer, Vice Presidents At-Large, and International Trustees. Eligible members shall also be entitled to vote for their respective Regional Vice Presidents.

[176] Book: Labour Law in the USA (3rd edition). By Alvin L. Goldman and Roberto L. Corrada. Kluwer Law International, 2011.

Pages 441–442: “A basic principle affecting the rules concerning withdrawal of recognition is the doctrine that once recognized as a bargaining agent, a labor organization is presumed to have continued support from the majority of bargaining unit employees regardless of whether there has been a change in the bargaining unit personnel.”

[177] Webpage: “Decertification Election.” National Labor Relations Board. Accessed June 25, 2014 at <www.nlrb.gov>

“Under certain circumstances, you can vote out or ‘decertify’ your union, or replace it with a different union. At least 30% of your coworkers must sign cards or a petition asking the NLRB [National Labor Relations Board] to conduct an election. Unless a majority of the votes cast in the election are in favor of union representation, the union will be decertified.”

[178] Decision: Levitz Furniture Co. of the Pacific. National Labor Relations Board, March 29, 2001. Decided 4–0. Majority: Truesdale, Liebman, Walsh. Concurring: Hurtgen. <apps.nlrb.gov>

Majority:

In this case we reconsider whether, and under what circumstances, an employer may lawfully withdraw recognition unilaterally from an incumbent union.¹ The Board has long held that an employer may withdraw recognition by showing either that the union has actually lost the support of a majority of the bargaining unit employees or that it has a good-faith doubt, based on objective considerations, of the union’s continued majority status. Celanese Corp., 95 NLRB [National Labor Relations Board] 664 (1951). On the same showing of good-faith doubt, an employer may test an incumbent union’s majority status by petitioning for a Board-conducted (RM) election, United States Gypsum Co., 157 NLRB 652 (1966),² or by polling its employees to ascertain their union sentiments, Texas Petrochemicals Corp., 296 NLRB 1057, 1059 (1989), enfd. as modified 923 F.2d 398 (5th Cir. 1991).

The General Counsel, the Charging Party Union, and the AFL–CIO [American Federation of Labor and Congress of Industrial Organizations] as amicus curiae urge the Board to abandon the Celanese rule and prohibit employers from withdrawing recognition except pursuant to the results of a Board-conducted election. They also oppose lowering the standard that employers must meet to obtain RM elections. Employers urge the Board to retain the Celanese rule but to lower the standard for processing RM petitions.

While this case was pending, the Supreme Court issued Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), which addressed the Board’s good-faith doubt standard. The Court held that maintaining a unitary standard for an employer’s withdrawal of recognition, filing an RM petition, and polling its employees was rational, but indicated that the Board also could rationally adopt a nonunitary standard, including, in theory, imposing more stringent requirements for withdrawal of recognition.³ The Court also held that the Board’s “good-faith doubt” standard must be interpreted to permit the employer to act where it has a “reasonable uncertainty” of the union’s majority status, rejecting the Board’s argument that the standard required a good-faith disbelief of the union’s majority support.

In addressing the arguments concerning the Celanese rule and the standards for holding RM elections, then, we must take into account the Court’s teachings in Allentown Mack. In particular, we must avoid the confusion over terminology which the Court identified in our application of the good-faith doubt standard.

After careful consideration, we have concluded that there are compelling legal and policy reasons why employers should not be allowed to withdraw recognition merely because they harbor uncertainty or even disbelief concerning unions’ majority status. We therefore hold that an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees, and we overrule Celanese and its progeny insofar as they permit withdrawal on the basis of good-faith doubt. Under our new standard, an employer can defeat a postwithdrawal refusal to bargain allegation if it shows, as a defense, the union’s actual loss of majority status.

We have also decided to allow employers to obtain RM elections by demonstrating good-faith reasonable uncertainty (rather than disbelief) as to unions’ continuing majority status. We adopt this standard to enable employers who seek to test a union’s majority status to use the Board’s election procedures—in our view the most reliable measure of union support—rather than the more disruptive process of unilateral withdrawal of recognition. …

Absent specific statutory direction, the Board has been guided by the Act’s clear mandate to give effect to employees’ free choice of bargaining representatives. The Board has also recognized that, for employees’ choices to be meaningful, collective-bargaining relationships must be given a chance to bear fruit and so must not be subjected to constant challenges. Therefore, from the earliest days of the Act, the Board has sought to foster industrial peace and stability in collective-bargaining relationships, as well as employee free choice, by presuming that an incumbent union retains its majority status.¹⁶ Except at certain times, however, that presumption is rebuttable.¹⁷ The showing required to rebut the presumption is the subject of this case. …

… In our view, there is no basis in either law or policy for allowing an employer to withdraw recognition from an incumbent union that retains the support of a majority of the unit employees, even on a good-faith belief that majority support has been lost. Accordingly, we shall no longer allow an employer to withdraw recognition unless it can prove that an incumbent union has, in fact, lost majority support.

While adopting a more stringent standard for withdrawals of recognition, we find it appropriate to adopt a different, more lenient standard for obtaining RM elections. Thus, we emphasize that Board-conducted elections are the preferred way to resolve questions regarding employees’ support for unions.⁴² For that reason, we find it appropriate to abandon the unitary standard for withdrawing recognition and processing RM petitions. Instead, we shall allow employers to obtain RM elections by demonstrating reasonable good-faith uncertainty as to incumbent unions’ continued majority status. …

… An employer who withdraws recognition from a majority union, even in good faith, invades his employees’ Section 7 rights every bit as much as an employer who unwittingly extends recognition to a minority union. Consequently, an employer who withdraws recognition from an incumbent union, in the honest but mistaken belief that the union has lost majority support, should be found to violate Section 8(a)(5). …

We emphasize that an employer with objective evidence that the union has lost majority support—for example, a petition signed by a majority of the employees in the bargaining unit—withdraws recognition at its peril. If the union contests the withdrawal of recognition in an unfair labor practice proceeding, the employer will have to prove by a preponderance of the evidence that the union had, in fact, lost majority support at the time the employer withdrew recognition. If it fails to do so, it will not have rebutted the presumption of majority status, and the withdrawal of recognition will violate Section 8(a)(5). …

In the end, our dispute with our colleague is over whether an incumbent union should continue to be the bargaining representative while its support is being tested in a Board election. He would allow an employer to oust the union on a showing of good-faith uncertainty, and thus to avoid a bargaining obligation until RC election proceedings have run their course. Under our approach, the union remains the bargaining representative, and the employer’s bargaining obligation continues, while the RM (or RD) election proceedings are underway.

[179] Decision: Levitz Furniture Co. of the Pacific. National Labor Relations Board, March 29, 2001. Decided 4–0. Majority: Truesdale, Liebman, Walsh. Concurring: Hurtgen. <apps.nlrb.gov>

Concurrence:

In sum, my colleagues have subjected employers to a guessing game. If the employer guesses wrongly, the employer violates the Act, notwithstanding his good faith. I prefer that these matters not be the subject of a guessing game. They should be a matter of good faith. If the employer has a good-faith uncertainty as to majority status, the employer can withdraw recognition. If the employer has a good-faith belief of majority status, he can continue recognition.⁴

My colleagues say that there is a way out of the dilemma, viz the employer can file an RM [Board-conducted election] petition and obtain a Board election. And, in this regard, they say that they would permit the processing of an RM petition if there is uncertainty as to the Union’s majority status. I agree with this RM standard.⁵ However, I do not agree that the RM petition offers a solution to the problem discussed above. That is, it does not obviate the necessity for the extant rule which grants employers the option of withdrawal of recognition on a showing of uncertainty as to the union’s majority status. My reasons are set forth below.

RM petitions are subject to the “blocking charge” principle. Faced with an RM petition, unions can file charges to forestall or delay the election. Concededly, in some situations, the Regional Director can dismiss the charges or can decide that the charges, even if meritorious, would not preclude a valid election. However, that determination requires investigatory time. During that time, the employer must continue recognition of the incumbent Union.

Further, the Regional Director also has the power to issue complaint, and the authority to conclude that the charges do preclude a valid election. The Board has no power to review the former determination, and the Board reviews the latter only under an “abuse of discretion” standard. If the Regional Director so concludes, the charge will block the election for the prolonged period during which the charge/complaint is litigated. Although the employer could settle the case, he may not wish to do so if he believes that he has a valid defense. Further, even if the employer litigates and wins after prolonged litigation, the block will be removed only after that litigation. In the meantime, the employer must continue recognition of the incumbent.

In addition, even if there is no blocking charge, or if the block is removed, the election will not necessarily resolve the question concerning representation. In those cases where the union loses the election, the union can file objections and/or challenges. There is often a prolonged period for the litigation of these matters. The employer must recognize the incumbent during the period of this litigation.

In sum, the RM road can be a long and difficult one. During this prolonged period, the employer must continue recognition, even though there is good-faith uncertainty as to the union’s majority status. In my view, it is far better to resolve the matter by having an RC election. That is, after the employer has withdrawn recognition based on a good-faith uncertainty (a lawful withdrawal in my view), the union can immediately file an RC petition. Although the union could file blocking charges, its interest presumably would be to have a quick election and resume its representation status. Further, the Board correctly gives a high priority to processing such petitions as expeditiously as possible. Thus, I would continue this approach. It comports with current law and procedures, and it is not shown to be deficient. …

Finally, my colleagues argue that their rule is justified by a sense of parity. They note that an employer has a right to an election where the union seeks to become the representative, and thus, a union should be given an election when the employer seeks to terminate the relationship. The argument has no merit. The situations are not parallel. In the former situation, the union is seeking an election as soon as possible, and thus, is reluctant to file blocking charges. In the latter situation, the union is seeking to delay the election as much as possible, and thus, has an interest in filing blocking charges.

Because there are no valid reasons for reversing the extant rule, and because the new rule is imprudent and unfair, I do not embrace the new rule.

[180] Article: “Wagner Act.” Encyclopedia Britannica Ultimate Reference Suite 2004.

“officially National Labor Relations Act (1935) the single most important piece of labour legislation enacted in the United States in the 20th century.”

[181] Paper: “Union Decertification under the NLRA [National Labor Relations Act].” By Janice R. Bellace. Chicago-Kent Law Review, October 1981. Pages 643–694. <scholarship.kentlaw.iit.edu>

Page 646: “When the Wagner Act¹⁷ was enacted in 1935, section 9 set out the procedure enabling employees in an appropriate bargaining unit to select a union as their exclusive bargaining representative.¹⁸ The Wagner Act, however, contained no provision whereby employees dissatisfied with their union could rescind their choice.”

[182] Public Law 74-198: “National Labor Relations Act of 1935” (a.k.a. “Wagner Act”). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. <www.nlrb.gov>

Sec. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment

[183] Paper: “Union Decertification under the NLRA [National Labor Relations Act].” By Janice R. Bellace. Chicago-Kent Law Review, October 1981. Pages 643–694. <scholarship.kentlaw.iit.edu>

Page 647: “In 1947, as part of the revision of national labor policy embodied in the Taft-Hartley Act,¹⁹ section 9(c)(1)(A) was inserted to provide that an election petition [for decertification] could be filed….”

[184] Public Law 80-101: “Labor Management Relations Act of 1947” (a.k.a “Taft-Hartley Act”). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. <uscode.house.gov>

(e) (2) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 8(a)(3)(ii), of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit, and shall certify the results thereof to such labor organization and to the employer.

[185] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 14:

Petition for decertification election. The Act also contains a provision whereby employees or someone acting on their behalf can file a petition seeking an election to determine if the employees wish to retain the individual or labor organization currently acting as their bargaining representative, whether the representative has been certified or voluntarily recognized by the employer. This is called a decertification election. …

Showing of interest required. Regarding the showing of interest, it is the policy to require that a petitioner requesting an election for either certification of representatives or decertification show that at least 30 percent of the employees favor an election. The Act also requires that a petition for a union-security deauthorization election be filed by 30 percent or more of the employees in the unit covered by the agreement for the NLRB [National Labor Relations Board] to conduct an election for that purpose. The showing of interest must be exclusively by employees who are in the appropriate bargaining unit in which an election is sought.

[186] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees …

(3) No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held.

[187] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees …

[188] Decision: Lamons Gasket Company. National Labor Relations Board, August 26, 2011. <apps.nlrb.gov>

Page 724:

To be sure, the [National Labor Relations] Act provides that the Board can certify a representative, with the attendant legal advantages thereof (including a 12-month bar [against decertification elections]) only after a Board-supervised election. Nevertheless, far from being the suspect and underground process the Dana majority characterized it to be, voluntary recognition has been woven into the very fabric of the Act since its inception and has, until the decision in Dana, been understood to be a legitimate means of giving effect to the uncoerced choice of a majority of employees.

Page 748:

We therefore overrule Dana and return to the previously settled rule that an employer’s voluntary recognition of a union [without a Board-supervised election], based on a showing of the union’s majority status, bars an election petition for a reasonable period of time.

As in UGL-UNICCO, supra, also decided today, which defined the reasonable period of bargaining during which the “successor bar” will apply, we alter the rule of Keller Plastics in one respect. Drawing on the Board’s decision in Lee Lumber & Building Material Corp., 334 NLRB [National Labor Relations Board] 399 (2001), we define a reasonable period of bargaining, during which the recognition bar will apply, to be no less than 6 months after the parties’ first bargaining session and no more than 1 year. In determining whether a reasonable period has elapsed in a given case, we will apply the multifactor test of Lee Lumber and impose the burden of proof on the General Counsel to show that further bargaining should be required.³⁴

³⁴ Under Lee Lumber, supra, the determination of whether a reasonable period of bargaining has elapsed after 6 months depends on a “multifactor analysis,” which considers “(1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues being negotiated and of the parties’ bargaining processes; (3) the amount of time elapsed since bargaining commenced and the number of bargaining sessions; (4) the amount of progress made in negotiations and how near the parties are to concluding an agreement; and (5) whether the parties are at impasse.” 334 NLRB at 402. The burden is on the General Counsel to prove that a reasonable period of bargaining had not elapsed after 6 months. Id. at 405.

NOTE: Although the board decided to ban decertification elections during this period, it still allows certification elections in the same period. Page 741: “Furthermore, despite the language in Sec. 9(c)(1)(A)(i), the Board has permitted unions to petition for an election after being voluntarily recognized in order to obtain certification and the attendant statutory advantages flowing therefrom.”

[189] Dissent 357 NLRB [National Labor Relations Board] 72: Lamons Gasket Company. National Labor Relations Board, August 26, 2011. <apps.nlrb.gov>

Page 749:

The majority also mischaracterizes statutory and judicial support for imposition of an election bar following voluntary recognition. The Act itself does not impose such a bar in the wake of voluntary recognition. It imposes an election bar only after there has been a valid Board election. In the same manner, the Act provides that certification of a union’s representative status must be based on Board election results. In other words, in the Taft-Hartley Act, Congress, undisputedly cognizant of the practice of voluntary recognition that the majority portrays as “fully woven into the very fabric of the Act” since its inception, chose not to give voluntary recognition either election bar quality or the special protections of 9(a) certification status.

[190] Decision: Dana Corp. National Labor Relations Board, September 29, 2007. <www.nlrb.gov>

Page 437:

The Board announced the recognition-bar doctrine in Keller Plastics Eastern, Inc., 157 NLRB [National Labor Relations Board] 583 (1966). This was an unfair labor practice case in which the complaint alleged that the respondent employer unlawfully executed a collective-bargaining agreement with a minority union. It was stipulated that the employer had lawfully recognized the union based on its majority representative status, but the union no longer retained majority support when the parties executed their contract a month later. The Board, Id. at 587, dismissed the complaint, reasoning that,

like situations involving certifications, Board orders, and settlement agreements, the parties must be afforded a reasonable time to bargain and to execute the contracts resulting from such bargaining. Such negotiations can succeed, however, and the policies of the Act can thereby be effectuated, only if the parties can normally rely on the continuing representative status of the lawfully recognized union for a reasonable period of time.

Soon after Keller Plastics, the Board relied on the recognition-bar doctrine in holding that a respondent employer unlawfully withdrew its voluntary recognition of a union based on the filing of a decertification petition approximately 2-1/2 months after the recognition agreement. Universal Gear Services Corp., 157 NLRB 1169 (1966), enfd. 394 F.2d 396 (6th Cir. 1968). Then, in Sound Contractors, 162 NLRB 364 (1966), the Board said that the recognition-bar doctrine would apply in representation cases to bar the filing of election petitions for a reasonable time after voluntary recognition. Although the Board permitted the processing of a petition in Sound Contractors because the rival union filing it was engaged in organizing the employer’s employees at the time the incumbent was recognized, the Board has since broadly applied the recognition bar and dismissed petitions in circumstances that raise serious questions whether employee free choice was given adequate weight.

[191] Webpage: “Decertification Election.” National Labor Relations Board. Accessed June 25, 2014 at <www.nlrb.gov>

Under certain circumstances, you can vote out or “decertify” your union, or replace it with a different union. At least 30% of your coworkers must sign cards or a petition asking the NLRB [National Labor Relations Board] to conduct an election. Unless a majority of the votes cast in the election are in favor of union representation, the union it will be decertified. Such elections are barred, however, for one year following the union’s certification by the NLRB. Plus, if your employer and union reach a collective-bargaining agreement, you cannot ask for a decertification election (or an election to bring in another union) during the first three years of that agreement, except during a 30-day “window period.” That period begins 90 days and ends 60 days before the agreement expires (120 and 90 days if your employer is a healthcare institution). After a collective-bargaining agreement passes the three-year mark or expires, you may ask for an election to decertify your union or to vote in another union at any time.

[192] Book: Employment and Labor Law (7th edition). By Patrick J. Cihon and James Ottavio Castagnera. South-Western, Cengage Learning, 2001.

Page 384:

Under the contract bar rule, a written labor contract—signed and binding on the parties and dealing with substantial terms and conditions of employment—bars an election among the affected bargaining unit during the life of that bargaining agreement. This rule has two exceptions. First, the Board provides a window, or “open season,” during which a rival union can offer its challenge by filing an election petition. This window is open between the ninetieth day and the sixtieth day prior to the expiration of the current collective bargaining agreement. The rationale here is that a rival union should not be completely prevented from filing an election petition. Otherwise, the employer and incumbent union could continually bargain new contracts regardless of whether the employees wished to continue to be represented by the incumbent union.

If no new petition is filed during the open-season period, then the last sixty days of the contract provide a period during which the parties can negotiate a new agreement insulated from any outside challenges If a petition is filed during this insulated period, it will be dismissed as untimely. In the event that the employer and incumbent union fail to reach a new agreement and the old agreement expires, then petitions may be filed anytime after the expiration of the existing agreement.

The second exception to the contract bar rule is that a contract for longer than three years will operate only as a bar to an election for three years. In American Seating Co.,¹ the Board held that an agreement of excessive duration cannot be used to preclude challenges to the incumbent union indefinitely. Therefore, any contract longer than three years duration will be treated as if it were three years long for the purposes of filing petitions; that is, the open-season period would occur between the ninetieth and the sixtieth day prior to the end of the third year of that agreement.

[193] Paper: “Union Decertification Under the NLRA [National Labor Relations Act].” By Janice R. Bellace. Chicago-Kent Law Review, October 1981. Pages 643–694. <scholarship.kentlaw.iit.edu>

Pages 658–660:

In attempting to effectuate the sometimes conflicting statutory objectives of fostering stability in labor relations while according employees freedom to select representatives of their own choosing, the Board has resorted to a policy whereby the employees’ ability to vote in a Board election is postponed for a certain period of time because a valid collective agreement is in effect. This doctrine, called contract bar, is premised on the belief that:

[c]ontracts established the foundation upon which stable labor relations usually are built. As they tend to eliminate strife which leads to interruptions of commerce, they are conducive to industrial peace and stability. Therefore, when such a contract has been executed by an employer and a labor organization … the postponement of the right to select a representative is warranted for a reasonable period of time.⁷⁶

The Board’s contract bar doctrine dates from 1939, when it was applied to postpone a representation election.⁷⁷ After the passage of the Taft-Hartley Act, the doctrine was extended to decertification cases.⁷⁸ The precise application of the doctrine has been modified several times, with a thorough reconsideration of the rules in a series of cases in 1958.⁷⁹ The establishment of the contract bar doctrine and various rules implementing it has usually been deemed to be within the discretion of the Board as an exercise of its administrative expertise.⁸⁰

Duration of the Contract

The contract bar doctrine restrains the employees’ right to select their representatives at certain times, a restraint that is not mentioned in the statute. Because of this, the Board has several times considered whether the length of the contract bar was proving an unwarranted restraint of the employees’ section 7 rights. … The Board further reasoned that, since the main justification for the contract bar doctrine was the promotion of industrial peace, no contract should operate as a bar unless it represented a commitment to stability in industrial relations. Hence, contracts having no fixed duration, such as contracts lacking termination or duration provisions or contracts terminable at will, do not serve as a bar to the filing of a petition.⁸⁴ …

… Since many employees are likely to have only a thirty-day period once every three years in which to file for decertification, it is of utmost importance that the filing period should be easily calculated in advance, and the Board’s present rules ensure that this can be done.

76. Paragon Prods. Corp., 134 N.L.R.B. 662, 663 (1961).

77. National Sugar Ref. Co., 10 N.L.R.B. 1410 (1939).

78. Snow & Neally Co., 76 N.L.R.B. 390 (1948).

79. Keystone Coat, Apron & Towel Supply Co., 121 N.L.R.B. 880 (1958); Hershey Chocolate Corp., 121 N.L.R.B. 901 (1958); Pacific Coast Ass’n of Pulp & Paper Mfrs., 121 N.L.R.B. 990 (1958); Deluxe Metal Furniture Co., 121 N.L.R.B. 995 (1958); Appalachian Shale Prods. Co., 121 N.L.R.B. 1160 (1958); General Extrusion Co., 121 N.L.R.B. 1165 (1958).

80. See, e.g., Local 1545, United Bhd. of Carpenters v. Vincent, 286 F.2d 127 (2d Cir. 1960); NLRB [National Labor Relations Board] v. Efco Mfg., Inc., 203 F.2d 458 (1st Cir. 1953) (per curiam). …

84. 121 N.L.R.B. at 993–94.

[194] Book: The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act (6th edition). Edited by John E. Higgins, Jr. Bloomberg BNA, 2012.

Page 600: “The formulation, application, and modification of the Board’s contract-bar rules are committed to the Board’s judgment and are not subject to ordinary judicial review.”

[195] Paper: “Union Decertification Under the NLRA [National Labor Relations Act].” By Janice R. Bellace. Chicago-Kent Law Review, October 1981. Pages 643–694. <scholarship.kentlaw.iit.edu>

Page 650: “The Board has taken the view that an employer cannot instigate or encourage decertification, since such activity would be incompatible with the performance of his continuing statutory obligation to recognize and bargain with the union as the representative of his employees. It should be noted that this restraint on the employer’s freedom of speech ceases to operate once it is decided that there exists a valid question of representation regarding the unit.”

[196] “A Nationwide Survey of Union Members and Their Views on Labor Unions.” Zogby International (commissioned by the Mackinac Center for Public Policy), July 20, 2004. <www.mackinac.org>

Was the union to which you belong organized before or after your current employer first hired you?

The union I belong to was organized before I was hired ….93%

The union I belong to was organized after I was hired …….7%

[197] Decision: Levitz Furniture Co. of the Pacific. National Labor Relations Board, March 29, 2001. Decided 4–0. Majority: Truesdale, Liebman, Walsh. Concurring: Hurtgen. <apps.nlrb.gov>

Page 728: “We adhere to the established presumption that newly hired employees support the union in the same proportion as the employees they have replaced.”

[198] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: “Exclusive Recognition of Labor Organizations.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election.

(b) If a petition is filed with the Authority—

(1) by any person alleging—

(A) in the case of an appropriate unit for which there is no exclusive representative, that 30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative, or

(B) in the case of an appropriate unit for which there is an exclusive representative, that 30 percent of the employees in the unit allege that the exclusive representative is no longer the representative of the majority of the employees in the unit; or

(2) by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation;

the Authority shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing (for which a transcript shall be kept) after reasonable notice. If the Authority finds on the record of the hearing that a question of representation exists, the Authority shall supervise or conduct an election on the question by secret ballot and shall certify the results thereof. An election under this subsection shall not be conducted in any appropriate unit or in any subdivision thereof within which, in the preceding 12 calendar months, a valid election under this subsection has been held.

(1) has been designated by at least 10 percent of the employees in the unit specified in any petition filed pursuant to subsection (b) of this section;

(2) has submitted a valid copy of a current or recently expired collective bargaining agreement for the unit; or

(3) has submitted other evidence that it is the exclusive representative of the employees involved;

may intervene with respect to a petition filed pursuant to subsection (b) of this section and shall be placed on the ballot of any election under such subsection (b) with respect to the petition.

(d) The Authority shall determine who is eligible to vote in any election under this section and shall establish rules governing any such election, which shall include rules allowing employees eligible to vote the opportunity to choose—

(1) from labor organizations on the ballot, that labor organization which the employees wish to have represent them; or

(2) not to be represented by a labor organization.

In any election in which no choice on the ballot receives a majority of the votes cast, a runoff election shall be conducted between the two choices receiving the highest number of votes. A labor organization which receives the majority of the votes cast in an election shall be certified by the Authority as the exclusive representative.

[199] “Fiscal Year 2013 Performance and Accountability Report.” U.S. Federal Labor Relations Authority, December 16, 2013. <www.flra.gov>

Page 25:

The Federal Service Labor-Management Relations Statute sets out a specific procedure for employees to petition to be represented by a labor union and to determine which employees will be included in a “bargaining unit” that a union represents. Implementing this procedure, the FLRA [Federal Labor Relations Authority] conducts secret-ballot elections for union representation and resolves a variety of issues related to questions of union representation of employees. These issues include, for example, whether particular employees are managers or “confidential” employees excluded from union representation, whether there has been election misconduct on the part of agencies or unions, and whether changes in union and agency organizations affect existing bargaining units.

[200] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: “Exclusive Recognition of Labor Organizations.” Accessed October 9, 2019 at <www.law.cornell.edu>

(1) from labor organizations on the ballot, that labor organization which the employees wish to have represent them; or

(2) not to be represented by a labor organization.

[201] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: “Definitions; Application.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) For the purpose of this chapter—

(2) “employee” means an individual—

(A) employed in an agency …

(B) …

but does not include—

(i) an alien or noncitizen of the United States who occupies a position outside the United States;

(ii) a member of the uniformed services;

(iii) a supervisor or a management official;

(v) any person who participates in a strike in violation of section 7311 of this title;

(3) “agency” means an Executive agency (including a nonappropriated fund instrumentality described in section 2105 (c) of this title and the Veterans’ Canteen Service, Department of Veterans Affairs), the Library of Congress, the Government Publishing Office, and the Smithsonian Institution¹ but does not include—

(A) the Government Accountability Office;

(B) the Federal Bureau of Investigation;

(D) the National Security Agency;

(E) the Tennessee Valley Authority;

(F) the Federal Labor Relations Authority;

(G) the Federal Service Impasses Panel; or

(H) the United States Secret Service and the United States Secret Service Uniformed Division.

[202] U.S. Code Title 37, Chapter 1, Section 101: “Pay and Allowances of the Uniformed Services, Definitions.” Accessed October 9, 2019 at <www.law.cornell.edu>

(3) The term “uniformed services” means the Army, Navy, Air Force, Marine Corps, Coast Guard, National Oceanic and Atmospheric Administration, and Public Health Service.

(4) The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.

[203] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: “Definitions; Application.” Accessed October 9, 2019 at <www.law.cornell.edu>

(b)

(1) The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that—

(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and

(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.

(2) The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.

[204] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: “Definitions; Application.” Accessed October 9, 2019 at <www.law.cornell.edu>

(b) (2) The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.

[205] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7116: “Unfair Labor Practices.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency—

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment….

(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization—

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(2) to cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter….

[206] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: “Exclusive Recognition of Labor Organizations.” Accessed October 9, 2019 at <www.law.cornell.edu>

“(b) … An election under this subsection shall not be conducted in any appropriate unit or in any subdivision thereof within which, in the preceding 12 calendar months, a valid election under this subsection has been held.”

[207] Report: “Representation Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. <www.flra.gov>

Pages 19–20 (of PDF):

An election may not be conducted in “any appropriate unit or subdivision thereof within which, in the preceding 12 calendar months, a valid election . . . has been held.” Section 7111(b). The election bar only applies if an election is conducted and the employees do not vote for an exclusive representative, i.e., if there is no incumbent exclusive representative, another election cannot be conducted for 12 months. If there is an incumbent exclusive representative, then the certification or contract bar (see below) may apply.

• The Authority has not defined when an election is “held” or “conducted.” However, in Mallinckrodt Chemical Works, the National Labor Relations Board determined that an election occurs on the date of the balloting, not the date the results are certified. 84 NLRB [National Labor Relations Board] 291 (1949); see also NLRB v. Tri-Ex Tower Corp., 595 F.2d 1 (9th Cir. 1979).

• Although the Statute prohibits an election within one year of an election in the same unit or subdivision, it does not prohibit the election if the proposed unit is broader than the unit in the previous election. FAA, 2 A/SMLR 340 (1972).

[208] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7116: “Unfair Labor Practices.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency—

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter….

(e) The expression of any personal view, argument, opinion or the making of any statement which—

(1) publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election,

(2) corrects the record with respect to any false or misleading statement made by any person, or

(3) informs employees of the Government’s policy relating to labor-management relations and representation, shall not, if the expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions,

(A) constitute an unfair labor practice under any provision of this chapter, or

(B) constitute grounds for the setting aside of any election conducted under any provisions of this chapter.

[209] Report: “Unfair Labor Practice Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. <www.flra.gov>

Pages 17–18:

What standard does the Authority use to determine whether an agency has violated section 7116(a)(1)?

• The standard: Whether, under the circumstances, the statement or conduct tends to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. See U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Elkton, Ohio, 62 FLRA [Federal Labor Relations Authority] 199 (2007).

• This standard is objective. Id. Although the Authority considers the circumstances surrounding the statement, the standard is not based on the employee’s own perceptions or on the employer’s intent. Id.

• An agency may violate section 7116(a)(1) even if it has not committed other unfair labor practices or shown a general dislike for the union (referred to in Authority cases as union animus). Id.

• “If an employee has to think twice before exercising a statutory right, the employee’s right has been interfered with.” Dep’t of the Treasury, IRS, Louisville, Ky., 11 FLRA 290, 298 (1983) (ALJ [administrative law judge] Decision adopted by FLRA without discussion).

Page 19:

Can management officials express their personal views about the union without violating the Statute?

Yes. Section 7116(e) of the Statute protects the expression of personal views….

What types of statements does section 7116(e) protect?

• If the Authority is not conducting a representational election, persons may express any personal view, argument, or opinion that contains no threat or promise of benefit and is not made under coercive conditions: Okla. City Air Logistics Ctr. (AFLC), Tinker AFB, Okla., 6 FLRA 159 (1981) (adopting the ALJ reasoning and decision). …

… In AFLC, a manager stated to his employees, “The Union isn’t worth the paper it’s printed on…$11.00 a month isn’t worth the money invested in it….The Union has to represent you whether you are a member or not, dues are high, I hate to see you waste your money.” 6 FLRA 159, 160 (1981). The statements were permissible since they were not made during a representational election, there was no threat or promise of benefit, and the comments were not made under coercive conditions because each employee had asked the manager for his opinion of the union.

[210] Report: “Unfair Labor Practice Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. <www.flra.gov>

Page 21:

Does the Statute protect employees when they are asking other employees to join the union?

• Yes, depending on the circumstances. The right to assist a union under section 7102 includes the right to solicit membership on behalf of the union. See Treasury, IRS, Ogden Serv. Ctr., 42 FLRA [Federal Labor Relations Authority] 1034, 1050 (1991).

• Solicitation during non-duty time: Unless there are special circumstances, a policy or ruling that prohibits employees from soliciting union membership on the agency’s premises during “non-duty” time violates section 7116(a)(1) of the Statute. See Okla. City Air Logistics Ctr., AFB, Okla., 6 FLRA 159, 190 (1981). The Authority has held that “non-duty” time includes periods where employees are not required to perform their jobs, such as during breaks or a meal period, even if the employee is being paid for the break. Breaks include both scheduled breaks and unscheduled breaks allowed by management. See U.S. Dep’t of the Navy, Naval Air Station, 61 FLRA 562, 564 (2006).

• Solicitation in work and non-work areas: The Statute protects solicitation in non-work areas as well as work areas if the employees being solicited are also in non-duty status, unless the solicitation would disrupt the agency’s operations. See Dep’t of Commerce, Bureau of the Census, 26 FLRA 311, 319 (1987).

[211] Report: “Unfair Labor Practice Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. <www.flra.gov>

Page 78:

Members who try to de-certify the union: The union can discipline its members for conduct that the Statute appears to protect. For example, a union that disciplined its steward who discussed bringing in another labor organization with the agency’s personnel office and with other employees, did not violate the Statute. A labor organization is entitled to “expel a member for filing a decertification petition because it represents an attack on the very existence of the union.” AFGE, 29 FLRA [Federal Labor Relations Authority] 1359 (1987); see Tawas Tube Products, Inc., 151 NLRB [National Labor Relations Board] 46 (1965).

[212] Report: “Representation Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. <www.flra.gov>

Page 20 (of PDF):

What is a contract bar?

Under 5 U.S.C. 7111(f)(3), the Authority will not certify an exclusive representative:

if there is then in effect a lawful written collective-bargaining agreement between the agency involved and an exclusive representative (other than the labor organization seeking exclusive recognition) covering any employees included in the unit specified in the petition, unless—

(A) the collective-bargaining agreement has been in effect for more than 3 years, or

(B) the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the collective-bargaining agreement.

In other words, the Authority will not process an election petition if the unit is covered by a valid contract, unless the petition is filed within the 45-day window defined in section 7111(f)(3)(B).

[213] Decision: National Aeronautics and Space Administration, Goddard Space Flight Center, Wallops Island, Virginia (Agency) and Ronald H. Walsh (Petitioner) and American Federation Of Government Employees (Exclusive Representative). Decided 3–0. Majority: Pope, DuBester. Concurring: Pizzella. Federal Labor Relations Authority, September 19, 2014. <www.flra.gov>

The main question before us is whether the contract bar applies to decertification petitions. Based on the wording of the Federal Service Labor-Management Relations Statute (the Statute), precedent under both Executive Order 11,491 (the executive order) and the National Labor Relations Act (the Act), several policies, and the Authority’s Regulations, we find that the answer is yes. And we also find that the RD did not err in determining that the agreement is a lawful, written, collective-bargaining agreement under the Statute, and that the agreement bars the petition.

[214] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (6th edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2019.

Page 444:

[215] Webpage: “Labor and Employment Laws.” Legal Information Institute, Cornell Law School. Accessed October 8, 2019 at <www.law.cornell.edu>

“This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work.”

[216] Webpage: “How to Organize.” Communication Workers of America. Accessed October 8, 2019 at <www.cwa-union.org>

“In the public sector, how you choose a union depends where you live. Some states and localities permit workers to make the choice through majority sign up. Others require a traditional union election, where majority vote decides the question.”

[217] Webpage: “Public Sector Decertification Laws (as of 3/2019).” National Right to Work Legal Defense Foundation. Accessed October 18, 2019 at <www.nrtw.org>

[218] Encyclopedia of Public Administration and Public Policy (Volume 2, K–Z). Edited by Jack Rabin. CRC Press, 2003. Article: “Unit Determination.” By Jonathan P. West. Pages 1249–1251.

Page 1249:

A bargaining unit decision necessarily precedes labor-management collective bargaining, because it helps to determine whom the employers must deal with in negotiations. … At the federal level, where 2218 labor bargaining unit exists, the Federal Labor Relations Authority (FLRA) makes such determinations. In the private sector, the National Labor Relations Board sets the standards for determination of the bargaining unit. At the state level, it is often the Public Employees Relations Boards (PERBs) that make these decisions. …

Employees, by contrast, usually favor small unit. Smaller, more homogeneous units maximize opportunity for employee participation, may better reflect the needs and objectives of union members, amplify their voting power, foster greater solidarity, and are easier to organize.

[219] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 12:

It should be noted that a bargaining unit can include only persons who are “employees” within the meaning of the Act. The Act excludes certain individuals, such as agricultural laborers, independent contractors, supervisors, and persons in managerial positions, from the meaning of “employees.” None of these individuals can be included in a bargaining unit established by the Board. In addition, the Board, as a matter of policy, excludes from bargaining units employees who act in a confidential capacity to an employer’s labor relations officials.

Page 13: “Section 9(b)(1) [of the National Labor Relations Act] provides that the Board shall not approve as appropriate a unit that includes both professional and nonprofessional employees, unless a majority of the professional employees involved vote to be included in the mixed unit.”

[220] U.S. Code Title 29, Chapter 7, Subchapter II, Section 152: “National Labor Relations—Definitions.” Accessed October 9, 2019 at <www.law.cornell.edu>

When used in this subchapter—…

(3) The term “employee” … shall not include … any individual employed as a supervisor….

(11) The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

(12) The term “professional employee” means—

(a) any employee engaged in work

(i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work;

(ii) involving the consistent exercise of discretion and judgment in its performance;

(iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

(iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or

(b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a).

[221] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(b) Determination of Bargaining Unit by Board

(1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit;

[222] U.S. Code Title 29, Chapter 7, Subchapter II, Section 164: “Construction of Provisions.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) Supervisors as Union Members

Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.

[223] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Pages 12–13:

What is an appropriate bargaining unit. A unit of employees is a group of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining. The determination of what is an appropriate unit for such purposes is, under the Act, left to the discretion of the NLRB [National Labor Relations Board] . Section 9(b) states that the Board shall decide in each representation case whether, “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”

This broad discretion is, however, limited by several other provisions of the Act. Section 9(b)(1) provides that the Board shall not approve as appropriate a unit that includes both professional and nonprofessional employees, unless a majority of the professional employees involved vote to be included in the mixed unit.

Section 9(b)(2) provides that the Board shall not hold a proposed craft unit to be inappropriate simply because a different unit was previously approved by the Board, unless a majority of the employees in the proposed craft unit vote against being represented separately. Section 9(b)(3) prohibits the Board from including plant guards in the same unit with other employees. It also prohibits the Board from certifying a labor organization as the representative of a plant guard unit if the labor organization has members who are nonguard employees or if it is “affiliated directly or indirectly” with an organization that has members who are nonguard employees.

[224] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(b) Determination of Bargaining Unit by Board

(2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation or

(3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer’s premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.

[225] U.S. Code Title 29, Chapter 7, Subchapter II, Section 153: “National Labor Relations Board.” Accessed October 9, 2019 at <www.law.cornell.edu>

“The Board is also authorized to delegate to its regional directors its powers under section 159 of this title to determine the unit appropriate for the purpose of collective bargaining….”

[226] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 12:

How the appropriateness of a unit is determined. Generally, the appropriateness of a bargaining unit is determined on the basis of a community of interest of the employees involved. Those who have the same or substantially similar interests concerning wages, hours, and working conditions are grouped together in a bargaining unit. In determining whether a proposed unit is appropriate, the following factors are also considered:

1. Any history of collective bargaining.

2. The desires of the employees concerned.

3. The extent to which the employees are organized. Section 9(c)(5) [of the National Labor Relations Act] forbids the Board from giving this factor controlling weight.

[227] “Testimony of Jennifer Jason, Former UNITE HERE Organizer.” U.S. House of Representatives, Committee on Education and Labor, Subcommittee on Health, Employment, Labor and Pensions, February 8, 2007. <www.gpo.gov>

As an Organizer for UNITE, I primarily worked on and later led “card check’’ organizing campaigns. …

In addition to the “housecall,’’ the union frequently employs other tactics to manipulate the card numbers and add legitimacy to their organizing drive. One strategy is to manipulate unit size. One of the most common ways that we ensured the union could claim that we had reached a majority was to change the size of the group of workers we were going to organize after the drive was finished. During the blitz, workers in every department would be “housecalled,’’ but if need be, certain groups of workers would be removed from the final unit, regardless of their level of union support. In doing so, the union reduced the number of cards needed to reach a majority.

[228] See also the example below about the United Food and Commercial Workers Union and the Macy’s department store in Saugus, Massachusetts.

[229] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(b) Determination of Bargaining Unit by Board

(5) In determining whether a unit is appropriate for the purposes specified in subsection (b) the extent to which the employees have organized shall not be controlling.

[230] Report: “Legislative History of the Labor Management Relations Act, 1947 (Volume I).” National Labor Relations Board, 1948.

Pages 292, 327–329:

April 11, 1947.—Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. Hartley, from the Committee on Education and Labor, submitted the following REPORT [To accompany H. R 3020]

The Committee on Education and Labor, to whom was referred the bill (H. R. 3020) to prescribe fair and equitable rules of conduct to be observed by labor and management in their relations with one another which affect commerce, to protect the rights of individual workers in their relations with labor organizations whose activities affect commerce, to recognize the paramount public interest in labor disputes affecting commerce that endanger the public health, safety, or welfare, and for other purposes, having considered the same, reports favorably thereon with amendments and recommends that the bill as so amended do pass. …

Sections 9 (f) (2) and 9 (f) (3).—These two clauses concern units that the Board sets up under sections 9 (b) and 9 (d). Under these sections it is the duty of the Board to determine what group or groups of employees may appropriately be placed in any unit for which a representative sits as the exclusive bargaining agent. The act says that the Board shall determine in each case whether the “appropriate” unit is “the employer unit, craft unit, plant unit, or sub-division thereof.” Under this broad grant of authority, the Board often has acted in a way that has seemed arbitrary, and it has shown little regard for distinguishable minorities that did not wish a union to represent them, and has forced many such minorities into bargaining units against their will. The Board seems to have wished to make bargaining units as large as it could, notwithstanding that its policy deprived large minorities of that freedom to decline to bargain collectively that the Labor Act and the Norris-LaGuardia Act both declare to be our national policy. (See Howard W. Metz, Labor Policy of the Federal Government, The Brookings Institution (1945), pp. 92–93.) The Board has gone far in this. Although the employees in several plants or mines may wish one union, or no union at all, to represent them, the Board may include these employees in a single unit with employees in other plants or mines who wish another union as their representative and who, by greatly outnumbering them, can force upon them a bargaining agent they do not choose. (See Matter of Pittsburgh Plate Glass Co., 10 N. L. R. B. 1470 (1939); Matter of Inland Steel Co., 9 N. L. R. B. 783 (1938); Matter of Sears, Roebuck Co., 34 N. L. R. B. 244 (1941); Matter of Alston Coal Co., 13 N. L. R. B. 683 (1939); Matter of Gulf Oil Corporation, 19 N. L. R. B. 334 (1940); Matter of Iowa Southern Utilities Co., 15 N. L. R. B. 580 (1939).)

Carrying out the national policy to assure full freedom to workers to choose, or to refuse, to bargain collectively, as they wish, is an important task for this Congress. Sections 9 (f) (2) and 9 (f) (3) are steps in carrying out that task. …

Section 9 (f) (3) strikes at a practice of the Board by which it has set up as units appropriate for bargaining whatever group or groups the petitioning union has organized at the time. Sometimes, but not always, the Board pretends to find reasons other than the extent to which the employees have organized as ground for holding such units to be appropriate (Matter of New England Spun Silk Co., 11 N. L. R. B. 852 (1939); Matter of Botany Worsted Mills, 27 N. L. R. B. 687 (1940)). While the Board may take into consideration the extent to which employees have organized, this evidence should have little weight, and, as section 9 (f) (3) provides, is not to be controlling. If, for example, a group votes itself out of a unit under section 9 (f) (2), it does not necessarily constitute a separate unit that is appropriate for the purposes of collective bargaining. The act still leaves the new Board wide discretion in setting up bargaining units.

[231] Article: “Macy’s Workers in Saugus, Mass., Finally Get a Voice on the Job with Local 1445.” United Food and Commercial Workers Union, August 6, 2014. <www.ufcw.org>

“On July 31, cosmetics and fragrances workers at a Macy’s store in Saugus … voted 23–18 to join Local 1445….”

[232] “2013 Performance and Accountability Report.” National Labor Relations Board, December 2, 2013. <www.nlrb.gov>

Page 14:

Below is information about the terms of the current Presidential appointees of the NLRB [National Labor Relations Board].

Appointee	Sworn In
Mark Gaston Pearce (Chairman)	4/7/2010
Philip A. Miscimarra (Member)	8/7/2013
Kent Y. Hirozawa (Member)	8/5/2013
Nancy J. Schiffer (Member)	8/2/2013

[233] Webpage: “Chronology of Swearing-In Events.” Joint Congressional Committee on Inaugural Ceremonies. Accessed August 23, 2013 at <www.inaugural.senate.gov>

“Fifty-Seventh Inaugural Ceremonies … January 21, 2013 … Barack H. Obama … Fifty-Sixth Inaugural Ceremonies … January 20, 2009 … Barack H. Obama”

[234] Webpage: “Board Members Since 1935.” National Labor Relations Board. Accessed August 29, 2014 at <www.nlrb.gov>

Board Members	Political Party
Mark G. Pearce	D
Nancy J. Schiffer	D
Kent Y. Hirozawa	D
Philip A. Miscimarra	R

[235] Ruling: Macy’s Incorporated v. National Labor Relations Board. U.S. Court of Appeals for the Fifth Circuit, June 2, 2016. Decided 3–0. <apps.nlrb.gov>

“Because the Board did not violate the NLRA [National Labor Relations Act] or abuse its discretion in certifying the unit of cosmetics and fragrances employees, we DENY the petition for review and GRANT the Board’s cross petition for enforcement of its order.”

[236] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 12: “A unit may cover the employees in one plant of an employer, or it may cover employees in two or more plants of the same employer. In some industries in which employers are grouped together in voluntary associations, a unit may include employees of two or more employers in any number of locations.”

[237] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 11:

Multi-Employer Bargaining Units—A group of Employers can agree to be bound in future collective bargaining by the group rather than by their individual actions. The consent must be objective, not based on custom or past practice. The Union’s consent is also required. A Union or individual Employer can unilaterally withdraw from the Multi-Employer unit by unequivocal written notice to all parties prior to commencement of negotiations. Once negotiations have commenced, the Union or an Employer can withdraw from the unit only with the express consent of all parties.⁷⁷

[238] Paper: “Determination of Appropriate Bargaining Unit by the NLRB [National Labor Relations Board]: Principles, Rules, and Policies.” By Walter L. Daykin. Fordham Law Review, 1958. <ir.lawnet.fordham.edu>

Pages 227–230:

Multi-Employer Units

After the passage of the Taft-Hartley Act it was ruled that this statute did not require the giving of preferential treatment to separate units.⁵⁸ Attempts were made to develop some standards for the establishment of multi-employer units. If the extent of organization was the only basis for such a unit the certification was generally refused. It was reasoned that the essential element for such a unit is the engagement in joint bargaining negotiations, either personally or through representatives, by a group of employers who are either members of a multi-employer association or nonmembers of such an organization.⁵⁹ On the basis of this standard multi-employer units have been refused certification even though the employers were members of a trade association because they bargained with the union individually.”⁶⁰ It has also been ruled that there is no basis to include employees in an employer association unit if their employer does accept the association-wide contract but does not participate in the negotiations himself or through representatives.⁶¹ A multiemployer unit is not considered appropriate even though collective bargaining is conducted by an employer’s association for a year if bargaining has been conducted for a longer period of time on an individual-employer basis.⁶²

The justifications for the refusal to accept multi-employer units contained in the Armour Co. ruling⁶³ summarize the Board’s point of view relative to this problem. In this case the existence of multi-plant contracts covering the employees of four meat packing companies did not bar the establishing of single plant units in the industry. It was argued that no distinct or special community of interest existed between the employees in the plants, there was no interchange of employees, no administrative or functional grouping was involved, no pattern of multi-plant bargaining had been established in the industry and the multi-plant contracts failed to reveal any distinct intention on the part of participants that they desired to eliminate the original plant units.

It has been decided that if an employer withdraws from an association and makes it known that he desires to bargain on an individual basis then a single-employer unit is appropriate.⁶⁴ An employer can withdraw entirely from a multi-employer bargaining unit at the appropriate time. He cannot partially withdraw and remove from the larger unit some of his employees covered by the multi-employer agreement.⁶⁵ For example, an employer cannot remove his drivers from the association-wide unit and continue to bargain on the association-wide basis for his production workers.⁶⁶ In order to protect the stability of collective bargaining, a single employer-unit was denied where a multi-employer contract existed even though the employer had intended to function on an individual basis in the area of labor relations.⁶⁷

On the other hand, multi-employer units have been considered appropriate even in the absence of employer associations or any formal organization when employers participate in collective bargaining through delegated representatives or negotiating committees as a group and not on an individual basis,” and the results of the bargaining are incorporated in separate contracts” or if the employers desire to be governed by the joint group action rather than bargain on an individual basis.⁷⁰Maintenance employees who cannot constitute an appropriate bargaining unit are permitted to be included in a multi-employer unit if the employees are governed by the same contractual arrangement negotiated for similar employees who are in the broad unit.⁷¹

[239] Decision: Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9. National Labor Relations Board, August 26, 2011. Decided 3–1. Majority: Liebman, Becker, Pearce. Dissenting: Hayes. <www.ballardspahr.com>

Pages 10–11:

Nor is a unit inappropriate simply because it is small.²³ The fact that a proposed unit is small is not alone a relevant consideration, much less a sufficient ground for finding a unit in which employees share a community of interest nevertheless inappropriate.²⁴ As the Supreme Court has observed, “A cohesive unit—one relatively free of conflicts of interest—serves the Act’s purpose of effective collective bargaining, Pittsburgh Plate Glass Co. v. NLRB [National Labor Relations Board], 313 U.S. 146, 165 (1941), and prevents a minority interest group from being submerged in an overly large unit, Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172–173 (1971).” NLRB v. Action Automotive, 469 U.S. at 494 (parallel citations omitted). The Board has articulated a “polic[y] of not compelling labor organizations to seek representation in the most comprehensive grouping.” Mc-Mor-Han Trucking Co., 166 NLRB at 701. “A union is, therefore, not required to request representation in the most comprehensive or largest unit of employees of an employer unless ‘an appropriate unit compatible with that requested unit does not exist.’ ” Overnite, 322 NLRB at 723–724 (citations omitted); see also Federal Electric Corp., 157 NLRB at 1132. “The issue,” the Board recently made clear, “is not whether there are too few or too many employees in the unit.” Wheeling Island Gaming, 355 NLRB No. 127, slip op. at 1 fn. 2 (2010).

²³ In fact, the proposed unit of CNAs in this case is over twice the median size of units found appropriate prior to Board-supervised elections in the last decade. 76 Fed. Reg. 36821 (June 22, 2011) (stating that median unit size from 2001 to 2010 has been 23–26 employees).

²⁴ Only in the case of a unit composed of a single employee is small size disqualifying. See, e.g., Mount St. Joseph’s Home for Girls, 229 NLRB 251, 252 (1977); Luckenbach Steamship Co., 2 NLRB 181, 193 (1936) (“the principle of collective bargaining presupposes that there is more than one eligible person who desires to bargain”). But the Act permits the Board to find a unit appropriate so long as it contains more than one eligible employee. Id.; Copier Care Plus, 324 NLRB 785 (1997) (two-person unit); Sonoma-Marin Publishing Co., 172 NLRB 625 (1968) (three-person unit at time of certification).

[240] Article: “Five-Member Board Called ‘Ready to Go’ As NLRB Transitions to New General Counsel.” By Lawrence E. Dubé. Bloomberg BNA, November 13, 2013. <www.bna.com>

“Richard F. Griffin (D), who was sworn in Monday as the NLRB’s [National Labor Relations Board’s] general counsel, spoke to the ABA group along with Lafe E. Solomon (D), who was acting general counsel for more than three years. … As early as the 1940s, Griffin said, NLRB approved bargaining units consisting of as few as two employees where appropriate.”

[241] Article: “U.S. Labor Agency Approves ‘Micro-Unit’ in Macy’s Bargaining Case.” By Amanda Becker. Reuters, July 24, 2015. <www.reuters.com>

Business groups and employers said the decision was a shift in NLRB policy that would allow so-called micro-unions to proliferate and fracture workplace relations. …

Macy’s said that a more appropriate bargaining unit would be all store employees or all sales employees at that location. It said that if only cosmetics and fragrances workers unionize, there could be a “proliferation of micro-units” based on the products sold by employees.

[242] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 13: “Finally, with regard to units in the health care industry, the Board also is guided by Congress’ concern about preventing disruptions in the delivery of health care services, and its directive to minimize the number of appropriate bargaining units.”

[243] Code of Federal Regulations Title 29, Subtitle B, Chapter I, Part 103, Subpart C: “Appropriate Bargaining Units in the Health Care Industry.” Accessed June 21, 2014 at <www.law.cornell.edu>

(a) This portion of the rule shall be applicable to acute care hospitals, as defined in paragraph (f) of this section: Except in extraordinary circumstances and in circumstances in which there are existing non-conforming units, the following shall be appropriate units, and the only appropriate units, for petitions filed pursuant to section 9(c)(1)(A)(i) or 9(c)(1)(B) of the National Labor Relations Act, as amended, except that, if sought by labor organizations, various combinations of units may also be appropriate:

(1) All registered nurses.

(2) All physicians.

(3) All professionals except for registered nurses and physicians.

(4) All technical employees.

(5) All skilled maintenance employees.

(6) All business office clerical employees.

(7) All guards.

(8) All nonprofessional employees except for technical employees, skilled maintenance employees, business office clerical employees, and guards.

Provided That a unit of five or fewer employees shall constitute an extraordinary circumstance.

(b) Where extraordinary circumstances exist, the Board shall determine appropriate units by adjudication. …

(f) For purposes of this rule, the term:

(1) Hospital is defined in the same manner as defined in the Medicare Act, which definition is incorporated herein (currently set forth in 42 U.S.C. 1395x(e), as revised 1988);

(2) Acute care hospital is defined as: either a short term care hospital in which the average length of patient stay is less than thirty days, or a short term care hospital in which over 50% of all patients are admitted to units where the average length of patient stay is less than thirty days. Average length of stay shall be determined by reference to the most recent twelve month period preceding receipt of a representation petition for which data is readily available. The term “acute care hospital” shall include those hospitals operating as acute care facilities even if those hospitals provide such services as, for example, long term care, outpatient care, psychiatric care, or rehabilitative care, but shall exclude facilities that are primarily nursing homes, primarily psychiatric hospitals, or primarily rehabilitation hospitals. Where, after issuance of a subpoena, an employer does not produce records sufficient for the Board to determine the facts, the Board may presume the employer is an acute care hospital. …

(g) Appropriate units in all other health care facilities: The Board will determine appropriate units in other health care facilities, as defined in section 2(14) of the National Labor Relations Act, as amended, by adjudication.

[54 FR 16347, Apr. 21, 1989]

[244] Encyclopedia of Public Administration and Public Policy (Volume 2, K–Z). Edited by Jack Rabin. CRC Press, 2003. Article: “Unit Determination.” By Jonathan P. West. Pages 1249–1251.

Page 1249: “At the federal level, where 2218 labor bargaining unit exists, the Federal Labor Relations Authority (FLRA) makes such determinations.”

[245] Report: “Representation Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. <www.flra.gov>

Pages 10–12 (of PDF):

What standard does the Authority use to determine whether a unit is appropriate?

The standard: The Authority examines whether the unit would:

1. Ensure a clear and identifiable community of interest among employees in the unit;

2. Promote effective dealings with the agency; and

3. Promote efficiency of the operations of the agency. …

• The Authority applies these three criteria on a case-by-case basis. …

• The Authority has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. …

How does the Authority assess whether the unit would ensure a clear and identifiable community of interest among employees in the unit?

A community of interest involves a commonality or sharing of interests between employees in a unit. This ensures that employees can deal collectively with management as a single group. …

• The Authority considers factors such as whether the employees in the proposed unit:

o Are part of the same organizational component of the agency;

o Support the same mission;

o Are subject to the same chain of command;

o Have similar or related duties, job titles, and work assignments;

o Are subject to the same general working conditions; and

o Are governed by the same personnel and labor relations policies that are administered by the same personnel office. …

• Other factors may also bear on this inquiry. For example:

o Geographic proximity;

o Unique conditions of employment;

o Distinct local concerns;

o Degree of interchange between other organizational components; and

o Functional or operational separation. …

How does the Authority assess whether the unit would promote effective dealings with the agency?

The requirement that the unit promote effective dealings concerns the relationship between management and the exclusive representative selected by unit employees. …

In assessing this requirement, the Authority examines factors such as:

• The efficient use of resources that might be derived from inclusion of other units;

• The parties’ past collective-bargaining experience;

• The locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit;

• The limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and

• The level at which labor relations policy is set in the agency. Id.

How does the Authority assess whether the unit would promote the efficiency of agency operations?

The Authority examines the degree to which the unit structure bears a rational relationship to the operational and organizational structure of the agency. See 82nd Training Wing, 57 FLRA [Federal Labor Relations Authority] at 156–57.

This inquiry considers the effect of the proposed unit on the agency’s operations in terms of cost, productivity, and use of resources. Id.

Must the unit be the most or the only appropriate unit?

No. The Statute does not require that the unit be the most or the only appropriate unit. The proposed unit meets the requirements if it is an appropriate unit. …

[246] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7112: “Determination of Appropriate Units for Labor Organization Representation.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) The [Federal Labor Relations] Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.

[247] U.S. Code Title 29, Chapter 7, Subchapter II: “National Labor Relations Act.” Accessed October 9, 2019 at <www.law.cornell.edu>

NOTE: Just Facts scanned this entire act and found nothing approximating this provision in the footnote directly above. Furthermore, none of the multiple footnotes above give any indication of such a provision for the private sector.

[248] Report: “Representation Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. <www.flra.gov>

Page 14 (of PDF): “Can a small unit be considered appropriate? Yes. See 82nd Training Wing, 57 FLRA [Federal Labor Relations Authority] at 154, 156–57 (four person unit appropriate). But the Authority has a preference for preventing unit fragmentation. See Fleet & Family, 64 at 787 (small unit of 31 employees would result in artificial, unwarranted fragmentation). See also Edwards AFB, 35 FLRA at 1314.”

[249] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7112: “Determination of Appropriate Units for Labor Organization Representation.” Accessed October 9, 2019 at <www.law.cornell.edu>

“(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized….”

[250] Report: “Representation Case Law Outline.” By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. <www.flra.gov>

Page 15 (of PDF):

Do bargaining units which include supervisors or management officials exist in the federal sector?

Yes. Under section 7112(b)(1) of the Statute, supervisors and management officials may not be in bargaining units, with one exception, found in 5 U.S.C. § 7135(a). Section 7135(a) provides for the:

“continuation or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter.”

• The Authority will permit exclusive recognition in a unit consisting solely of supervisors in very limited circumstances in which a labor organization has:

a) traditionally or historically represented units of supervisors in private industry and

b) held exclusive recognition for a unit of supervisors in a federal agency on the effective date of the Statute.

See Dep’t of Energy, W. Area Power Admin., Golden, Colo., 38 FLRA [Federal Labor Relations Authority] 935, 940 (1990) (citing Dep’t of the Navy, 10 FLRA 396, 397 (1982)).

• Courts have rejected the Authority’s view that § 7135(a)(2) permits mixed units of both supervisory and nonsupervisory personnel. U.S. Dep’t of Energy v. FLRA, 880 F.2d 1163 (10th Cir. 1989).

Under § 7112(b)(1), supervisors must be excluded from bargaining units unless their inclusion is expressly authorized by § 7135(a)(2). Because § 7135(a)(2) refers to “units of” supervisors, “supervisors is the whole set,” and the term cannot refer to units that include anything other than supervisors. Id. at 1167. Therefore, the Authority may “recognize only exclusive units of supervisors, not mixed units.” Id.

[251] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7112: “Determination of Appropriate Units for Labor Organization Representation.” Accessed October 9, 2019 at <www.law.cornell.edu>

(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes—

(1) except as provided under section 7135 (a)(2) of this title, any management official or supervisor;

(2) a confidential employee;

(3) an employee engaged in personnel work in other than a purely clerical capacity;

(4) an employee engaged in administering the provisions of this chapter;

(5) both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit;

(6) any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or

(7) any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.

[252] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: “Definitions; Application.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) For the purpose of this chapter—…

(10) “supervisor” means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which includes firefighters or nurses, the term “supervisor” includes only those individuals who devote a preponderance of their employment time to exercising such authority;

(11) “management official” means an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency; …

(15) “professional employee” means—

(A) an employee engaged in the performance of work—

(i) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital (as distinguished from knowledge acquired by a general academic education, or from an apprenticeship, or from training in the performance of routine mental, manual, mechanical, or physical activities);

(ii) requiring the consistent exercise of discretion and judgment in its performance;

(iii) which is predominantly intellectual and varied in character (as distinguished from routine mental, manual, mechanical, or physical work); and

(iv) which is of such character that the output produced or the result accomplished by such work cannot be standardized in relation to a given period of time; or

(B) an employee who has completed the courses of specialized intellectual instruction and study described in subparagraph (A)(i) of this paragraph and is performing related work under appropriate direction or guidance to qualify the employee as a professional employee described in subparagraph (A) of this paragraph;

[253] Encyclopedia of Public Administration and Public Policy (Volume 2, K–Z). Edited by Jack Rabin. CRC Press, 2003. Article: “Unit Determination.” By Jonathan P. West. Pages 1249–1251.

Page 1249: “At the state level, it is often the Public Employees Relations Boards (PERBs) that make these [bargaining unit] decisions.”

[254] Handbook on Human Service Administration. Edited by Jack Rabin and Marcia B. Steinhauer. CRC Press, 1988. Chapter 9: “Employee Organizations in Human Services Administration.” By Paul. E. Fitzgerald, Jr. Pages 309–340.

Page 318:

Several issues are of particular interest regarding laws governing state employees, including bargaining unit determination, the role of supervisors in bargaining units, and strikes. Each of these will now be examined.

The issue of bargaining units is extremely critical, as it is in all other industries, but particularly in government services with a diverse range of employees and professions. The key is to develop units which are neither too small nor too large. A proliferation of small units develops a situation that is fragmented for workers and the organization. With many smaller units, more specific issues come to the forefront from special-interest groups, but the disadvantage is that the smaller groups often have less bargaining clout. Management must also face the prospect of an overbearing number of contract bargaining sessions.

[255] Ruling: Adair v. United States. U.S. Supreme Court, January 27, 1908. Decided 6–2. Majority: Harlan, Brewer, White, Peckham, Day, Fuller. Dissenting: McKenna, Holmes. <www.law.cornell.edu>

Majority decision:

This case involves the constitutionality of certain provisions of the act of Congress of June 1, 1898, 30 Stat. 424, c. 370, concerning carriers engaged in interstate commerce and their employees. …

The 10th section, upon which the present prosecution is based, is in these words:

That any employer subject to the provisions of this act and any officer, agent, or receiver of such employer, who shall require any employee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization; or who shall require any employee or any person seeking employment, as a condition of such employment, to enter into a contract whereby such employee or applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes; to release such employer from legal liability for any personal injury by reason of any benefit received from such fund beyond the proportion of the benefit arising from the employer’s contribution to such fund; or who shall, after having discharged an employee, attempt or conspire to prevent such employee from obtaining employment, or who shall, after the quitting of an employee, attempt or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof in any court of the United States of competent jurisdiction in the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars. …

The first inquiry is whether the part of the tenth section of the act of 1898 upon which the first count of the indictment was based is repugnant to the Fifth Amendment of the Constitution declaring that no person shall be deprived of liberty or property without due process of law. In our opinion, that section, in the particular mentioned, is an invasion of the personal liberty, as well as of the right of property, guaranteed by that Amendment. Such liberty and right embraces the right to make contracts for the purchase of the labor of others and equally the right to make contracts for the sale of one’s own labor; each right, however; being subject to the fundamental condition that no contract, whatever its subject matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good. This court has said that, in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. …

It is a part of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with anyone with whom he can make contracts, and if he is wrongfully deprived of this right by others, he is entitled to redress. …

The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578. Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. … In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course, the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. …

While, as already suggested, the rights of liberty and property guaranteed by the Constitution against deprivation without due process of law are subject to such reasonable restraints as the common good or the general welfare may require, it is not within the functions of government—at least in the absence of contract between the parties—to compel any person, in the course of his business and against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another. The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee. It was the legal right of the defendant Adair—however unwise such a course might have been—to discharge Coppage because of his being a member of a labor organization, as it was the legal right of Coppage, if he saw fit to do so—however unwise such a course on his part might have been—to quit the service in which he was engaged because the defendant employed some persons who were not members of a labor organization. In all such particulars, the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.

[256] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Unfair Labor Practices by Employer

It shall be an unfair labor practice for an employer—…

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization…

(b) Unfair Labor Practices by Labor Organization

It shall be an unfair labor practice for a labor organization or its agents …

(1) to restrain or coerce

[257] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

[258] Public Law 74-198: “National Labor Relations Act of 1935” (a.k.a. “Wagner Act”). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. <www.nlrb.gov>

Sec. 8. It shall be an unfair labor practice for an employer—

(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.

(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it….

(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in the National Industrial Recovery Act … as amended from time to time, or in any code or agreement approved or prescribed thereunder, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective bargaining unit covered by such agreement when made.

[259] Ruling: National Labor Relations Board v. Jones and Laughlin Steel. U.S. Supreme Court, April 12, 1937. Decided 5–4. Majority: Hughes, Brandeis, Cardozo, Roberts, Stone. Dissenting: McReynolds, Butler, Sutherland, Van Devanter. <caselaw.lp.findlaw.com>

Majority decision:

Second. The Unfair Labor Practices in Question.-The unfair labor practices found by the Board are those defined in section 8, subdivisions ( 1) and (3). These provide:

‘Sec. 8. It shall be an unfair labor practice for an employer-

‘(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (section 157 of this title). …

‘(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.’ …

Section 8, subdivision (1), refers to section 7, which is as follows:

‘Section 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.’

Thus, in its present application, the statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.

That is a fundamental right. Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority. Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that, if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers opportunity to deal on an equality with their employer. … We reiterated these views when we had under consideration the Railway Labor Act of 1926, 44 Stat. 577. Fully recognizing the legality of collective action on the part of employees in order to safeguard their proper interests, we said that Congress was not required to ignore this right but could safeguard it. Congress could seek to make appropriate collective action of employees an instrument of peace rather than of strife. We said that such collective action would be a mockery if representation were made futile by interference with freedom of choice. Hence the prohibition by Congress of interference with the selection of representatives for the purpose of negotiation and conference between employers and employees, ‘instead of being an invasion of the constitutional right of either, was based on the recognition of the rights of both.’ …

The act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion. …

Our conclusion is that the order of the Board was within its competency and that the act is valid as here applied. The judgment of the Circuit Court of Appeals is reversed and the cause is remanded for further proceedings in conformity with this opinion. It is so ordered.

[260] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

[261] Public Law 74-198: “National Labor Relations Act of 1935” (a.k.a. “Wagner Act”). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. <www.nlrb.gov>

[262] Fifth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[263] Ruling: National Labor Relations Board v. Jones and Laughlin Steel. U.S. Supreme Court, April 12, 1937. Decided 5–4. Majority: Hughes, Brandeis, Cardozo, Roberts, Stone. Dissenting: McReynolds, Butler, Sutherland, Van Devanter.

<caselaw.lp.findlaw.com>

Contesting the ruling of the Board, the respondent argues … that the provisions of the act violate section 2 of article 3 and the Fifth and Seventh Amendments of the Constitution of the United States. …

We think it clear that the National Labor Relations Act may be construed so as to operate within the sphere of constitutional authority. …

Questions under the Due Process Clause and Other Constitutional Restrictions …

The provision of section 9(a)¹⁰ that representatives, for the purpose of collective bargaining, of the majority of the employees in an appropriate unit shall be the exclusive representatives of all the employees in that unit, imposes upon the respondent only the duty of conferring and negotiating with the authorized representatives of its employees for the purpose of settling a labor dispute. This provision has its analogue in section 2, Ninth, of the Railway Labor Act, as amended (45 U.S.C.A. 152, subd. 9), which was under consideration in Virginian Railway Co. v. System Federation No. 40, supra. The decree which we affirmed in that case required the railway company to treat with the representative chosen by the employees and also to refrain from entering into collective labor agreements with any one other than their true representative as ascertained in accordance with the provisions of the act. We said that the obligation to treat with the true representative was exclusive and hence imposed the negative duty to treat with no other. We also pointed out that, as conceded by the government,¹¹ the injunction [301 U.S. 1, 45] against the company’s entering into any contract concerning rules, rates of pay and working conditions except with a chosen representative was ‘designed only to prevent collective bargaining with any one purporting to represent employees’ other than the representative they had selected. It was taken ‘to prohibit the negotiation of labor contracts, generally applicable to employees’ in the described unit with any other representative than the one so chosen, ‘but not as precluding such individual contracts’ as the company might ‘elect to make directly with individual employees.’ We think this construction also applies to section 9(a) of the National Labor Relations Act (29 U.S.C.A. 159(a).

The act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer ‘from refusing to make a collective contract and hiring individuals on whatever terms’ the employer ‘may by unilateral action determine.’¹²

¹¹ See Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 600, note 6, decided March 29, 1937.

¹² See note 11.

[264] Ruling: Virginian Railway Co. v. Federation. U.S. Supreme Court, March 29, 1937. Decided 9–0. <caselaw.lp.findlaw.com>

Petitioner’s insistence that the statutes does not warrant so much of the decree as forbids it to enter into contracts of employment with its individual employees is based upon a misconstruction of the decree. Both the statute and the decree are aimed at securing settlement of labor disputes by inducing collective bargaining with the true representative of the employees and by preventing such bargaining with any who do not represent them. The obligation imposed on the employer by section 2, Ninth ( 45 U.S.C.A. 152, subd. 9), to treat with the true representative of the employees as designated by the Mediation Board, when read in the light of the declared purposes of the act, and of the provisions of section 2, Third and Fourth (45 U.S.C.A. 152, subds. 3, 4), giving to the employees the right to organize and bargain collectively through the representative of their own selection, is exclusive. It imposes the affirmative duty to treat only with the true representative, and hence the negative duty to treat with no other. We think, as the government concedes in its brief,⁶ that [300 U.S. 515 , 549] the injunction against petitioner’s entering into any contract concerning rules, rates of pay, and working conditions, except with respondent, is designed only to prevent collective bargaining with any one purporting to represent employees, other than respondent, who has been ascertained to be their true representative. When read in its context, it must be taken to prohibit the negotiation of labor contracts, generally applicable to employees in the mechanical department, with any representative other than respondent, but not as precluding such individual contracts as petitioner may elect to make directly with individual employees. The decree, thus construed, conforms, in both its affirmative and negative aspects, to the requirements of section 2. …

⁶(Note 35a.) ‘The Government interprets the negative obligations imposed by the statute and decree as having the following effect:

‘When the majority of a craft or class has (either by secret ballot or otherwise) selected a representative, the carrier cannot make with anyone other than the representative a collective contract (i.e., a contract which sets rates of pay, rules, or working conditions), whether the contract covers the class as a whole or a part thereof. Neither the statute nor the decree prevents the carrier from refusing to make a collective contract and hiring individuals on whatever terms the carrier may by unilateral action determine. In hirings of that sort the individual does not deal in a representative capacity with the carrier and the hiring does not set general rates of pay, rules, or working conditions. Of course, as a matter of voluntary action, not as a result of the statute or the decree, the carrier may contract with the duly designated representative to hire individuals only on the terms of a collective understanding between the carrier and the representative; but any such agreement would be entirely voluntary on the carrier’s part and would in no sense be compelled.

‘If the majority of a craft or class has not selected a representative, the carrier is free to make with anyone it pleases and for any group it pleases contracts establishing rates of pay, rules, or working conditions.’

[265] Public Law 74-198: “National Labor Relations Act of 1935” (a.k.a. “Wagner Act”). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. <www.nlrb.gov>

[266] Article: “Roosevelt, Franklin Delano.” Contributor: James T. Patterson (Ph.D., Professor of History, Brown University). World Book Encyclopedia, 2007 Deluxe Edition.

“By 1944, so many justices had retired or died that all but two Court members were Roosevelt appointees.”

NOTE: For details on FDR’s strategy to pack the Supreme Court with Justices who would uphold the legislation he supported, see Just Facts’ research on Social Spending.

[267] Webpage: “Members of the Supreme Court of the United States.” U.S. Supreme Court. Accessed October 6, 2014 at <www.supremecourt.gov>

Name	Appointed by President	Judicial Oath Taken	Date Service Terminated
Black, Hugo	Roosevelt, F.	8/19/1937	9/17/71
Reed, Stanley	Roosevelt, F.	1/31/1938	2/25/57
Frankfurter, Felix	Roosevelt, F.	1/30/1939	8/28/62
Douglas, William	Roosevelt, F.	4/17/1939	11/12/75
Murphy, Frank	Roosevelt, F.	2/5/1940	7/19/49
Byrnes, James	Roosevelt, F.	7/8/1941	10/3/42
Jackson, Robert	Roosevelt, F.	7/11/1941	10/9/54
Rutledge, Wiley	Roosevelt, F.	2/15/1943	9/10/49

[268] Ruling: J.I. Case Co. v. National Labor Relations Board. U.S. Supreme Court, February 28, 1944. Decided 8–1. Majority: Stone, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge. Dissenting: Roberts. <supreme.justia.com>

Individual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bargaining, nor to exclude the contracting employee from a duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective agreement. “The Board asserts a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices.” National Licorice Co. v. Labor Board, 309 U. S. 350, 309 U. S. 364. Wherever private contracts conflict with its functions, they obviously must yield or the Act would be reduced to a futility.

It is equally clear, since the collective trade agreement is to serve the purpose contemplated by the Act, the individual contract cannot be effective as a waiver of any benefit to which the employee otherwise would be entitled under the trade agreement. The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his preexisting contract of employment.

But it is urged that some employees may lose by the collective agreement, that an individual workman may sometimes have, or be capable of getting, better terms than those obtainable by the group, and that his freedom of contract must be respected on that account. We are not called upon to say that under no circumstances can an individual enforce an agreement more advantageous than a collective agreement, but we find the mere possibility that such agreements might be made no ground for holding generally that individual contracts may survive or surmount collective ones. The practice and philosophy of collective bargaining looks with suspicion on such individual advantages. Of course, where there is great variation in circumstances of employment or capacity of employees, it is possible for the collective bargain to prescribe only minimum rates or maximum hours or expressly to leave certain areas open to individual bargaining. But, except as so provided, advantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way of interfering with organization and choice of representatives; increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group, and always creates the suspicion of being paid at the long range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices. The workman is free, if he values his own bargaining position more than that of the group, to vote against [union] representation, but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result. We cannot except individual contracts generally from the operation of collective ones because some may be more individually advantageous. Individual contracts cannot subtract from collective ones, and whether, under some circumstances, they may add to them in matters covered by the collective bargain we leave to be determined by appropriate forums under the laws of contracts applicable, and to the Labor Board if they constitute unfair labor practices.

It also is urged that such individual contracts may embody matters that are not necessarily included within the statutory scope of collective bargaining, such as stock purchase, group insurance, hospitalization, or medical attention. We know of nothing to prevent the employee’s, because he is an employee, making any contract provided it is not inconsistent with a collective agreement or does not amount to or result from or is not part of an unfair labor practice. But, in so doing, the employer may not incidentally exact or obtain any diminution of his own obligation or any increase of those of employees in the matters covered by collective agreement.

[269] Paper: “The Antitrust Laws and Labor.” Fordham Law Review, January 1962. Pages 759–775. <ir.lawnet.fordham.edu>

Page 760:

Monopoly power has been defined as the power to fix prices or to exclude competition.¹¹ On this basis, there can be no doubt that unions possess such capabilities. It is of the very nature and purpose of every labor organization that it be able to eliminate competition in the labor market.¹² It is only when labor possesses this monopoly power in the labor market that a range for collective bargaining appears at all. Since the employer is a powerful single unit on his side, while the employee is typically a very small part of the larger aggregate, there is clearly an overwhelming case for sanctioning collective action by labor in an effort to establish a single unit to negotiate with management.¹³ Thus, it is not suggested that the antitrust laws should be applied to the labor market as such.¹⁴

[270] Paper: “Labor’s Love Lost? Changes in the U.S. Environment and Declining Private Sector Unionism.” By Edward E. Potter. Journal of Labor Research, Spring 2001. Pages 321–334. <link.springer.com>

Page 321: “Unions are unique to our society because, under the National Labor Relations Act they are given an exclusive franchise to organize individuals in the workplace for purposes of representation and negotiating terms and conditions of employment. No other nongovernmental organization is given such a monopoly or express procedures for establishing its exclusive representation status.”

[271] Book: The Labor Relations Process (9th edition). By William H. Holley, Jr., Kenneth M. Jennings, and Roger S. Wolters. South-Western Cengage Learning, 2008.

Page 653: “In the United States, the exclusive bargaining representative has a monopoly over all employee bargaining, and the employer is required to bargain only with the legally certified union. In Western Europe, the employer often bargains with a number of unions in addition to worker councils elected by the employees.”

[272] Email: Raymond J. LaJeunesse, Jr. (Vice President and Legal Director of the National Right to Work [NRTW] Legal Defense Foundation) to James D. Agresti (President of Just Facts), October 10, 2019.

Question (Just Facts): Are you aware of a case in which an employer insisted on negotiating an initial contract without an exclusive bargaining provision with a union certified under an NLRB [National Labor Relations Board] election that insisted on an exclusive bargaining provision? If so, how did the NLRB/courts rule?

Answer (NRTW): No. However, such an employer would undoubtedly be held to have committed an unfair labor practice.

Question (Just Facts): Are there any contracts currently in force that do not contain an exclusive bargaining provision between an employer and union certified under an NLRB election?

Answer: Not to my knowledge. We of course do not have access to all of the thousands of union contracts around the country.

Question (Just Facts): Does the NLRA’s [National Labor Relations Act’s] exclusive bargaining requirement also apply to unions established outside of an NLRB secret ballot election (like card check)? Based upon my reading, it seems that it does.

Answer (NRTW):Yes.

Question (Just Facts): Generally speaking, in what types of situations are non-exclusive bargaining contracts permissible?

Answer (NRTW): When an employer and union that has not been certified as exclusive bargaining agent voluntarily enter into such a contract.

[273] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: “Exclusive Recognition of Labor Organizations.” Accessed October 9, 2019 at <www.law.cornell.edu>

(d) … A labor organization which receives the majority of the votes cast in an election shall be certified by the Authority as the exclusive representative.

[274] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7114: “Representation Rights and Duties.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) (1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.

[275] Report: “Unfair Labor Practice Case Law Outline.” Federal Labor Relations Authority, Office Of The General Counsel, November 2018. <www.flra.gov>

Page 83: “All unit employees are entitled to vote in an election to determine whether there will be union representation. But once a union is chosen as the exclusive representative, the union then acts for, and negotiates collective-bargaining agreements covering, all employees.”

[276] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (6th edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2019.

Page 444:

[277] Webpage: “Labor and Employment Laws.” Legal Information Institute, Cornell Law School. Accessed October 9, 2019 at <www.law.cornell.edu>

“This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work.”

[278] News release: “Union Members—2018.” U.S. Bureau of Labor Statistics, January 18, 2019. <www.bls.gov>

Page 2: “In 2018, 16.4 million wage and salary workers were represented by a union. This group includes both union members (14.7 million) and workers who report no union affiliation but whose jobs are covered by a union contract (1.6 million).”

Page 4:

The estimates in this release are obtained from the Current Population Survey (CPS), which provides basic information on the labor force, employment, and unemployment. The survey is conducted monthly for the Bureau of Labor Statistics by the U.S. Census Bureau from a scientifically selected national sample of about 60,000 eligible households. The union membership and earnings data are tabulated from one-quarter of the CPS monthly sample and are limited to wage and salary workers. All self-employed workers are excluded. …

Union membership rate. Data refer to the proportion of total wage and salary workers who are union members.

Represented by unions. Data refer to both union members and workers who report no union affiliation but whose jobs are covered by a union or an employee association contract.

CALCULATION: 1.6 / 16.4 = 9.8%

[279] Questionnaire: “Current Population Survey (CPS): Labor Force Items.” U.S. Census Bureau. Last revised December 1, 2016. <www2.census.gov>

What is the name of the (company/non-profit organization) for which (you/he/she) work (at main job)/worked (at main job)/works (at main job) (work/works/worked)

… What is the name of the government agency for which (you/he/she) (work/works)

… On this job, (are / is) (name/you) a member of a labor union or of an employee association similar to a union?

1 Yes

2 No

… On this job, (are / is) (name/you) covered by a union or employee association contract?

1 Yes

2 No

[280] Calculated with the dataset: “Table 3. Union Affiliation of Employed Wage and Salary Workers by Occupation and Industry (Numbers in Thousands), 2018.” U.S. Department of Labor, Bureau of Labor Statistics. Accessed October 9, 2019 at <www.bls.gov>

NOTE: An Excel file containing the data and calculations is available upon request.

[281] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

NOTE: See next footnote for section 158 (a)(3).

[282] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Unfair Labor Practices by Employer

It shall be an unfair labor practice for an employer—…

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159 (a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement….

[283] Public Law 80-101: “Labor Management Relations Act of 1947” (a.k.a “Taft-Hartley Act”). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. <uscode.house.gov>

Rights of Employees

Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

[284] Ruling: National Labor Relations Board v. General Motors Corporation. U.S. Supreme Court, June 3, 1963. Decided 8–0: White, Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart. <www.law.cornell.edu>

Moreover, the 1947 amendments [of the Taft-Hartley Act] not only abolished the closed shop but also made significant alterations in the meaning of ‘membership’ for the purposes of union-security contracts. Under the second proviso to § 8(a)(3), the burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues. It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. ‘Membership’ as a condition of employment is whittled down to its financial core. This Court has said as much before in Radio Officers’ Union v. Labor Board, 347 U.S. 17, 41, 74 S.Ct. 323, 336, 98 L.Ed. 455:

‘This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions’ concern about ‘free riders,’ i.e., employees who receive the benefits of union representation but are unwilling to contribute their fair share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason. …’

[285] Book: Labor and Employment Law: Text & Cases (15th edition). By David Twomey. South-Western Cengage Learning, 2007.

Page 167: “The union shop agreement permitted by Section(a)(3) does not require full union membership, but only dues-paying membership.”

[286] Ruling: Pattern Makers’ League of North America v. National Labor Relations Board. U.S. Supreme Court, June 27, 1985. Decided 6–3. Majority: Powell, Burger, White, Rehnquist, O’Connor. Concurring: Blackmun. Dissenting: Brennan, Marshall, Stevens. <caselaw.lp.findlaw.com>

Closed shop agreements, legalized by the Wagner Act in 1935,¹⁵ became quite common in the early 1940’s. Under these agreements, employers could hire and retain in their employ only union members in good standing. R. Gorman, Labor Law, ch. 28, 1, p. 639 (1976). Full union membership was thus compulsory in a closed shop; in order to keep their jobs, employees were required to attend union meetings, support union leaders, and otherwise adhere to union rules. Because of mounting objections to the closed shop, in 1947—after hearings and full consideration—Congress enacted the Taft-Hartley Act. Section 8(a)(3) of that Act effectively eliminated compulsory union membership by outlawing the closed shop. The union security agreements permitted by 8(a)(3) require employees to pay dues, but an employee cannot be discharged for failing to abide by union rules or policies with which he disagrees.¹⁶

Full union membership thus no longer can be a requirement of employment. If a new employee refuses formally to join a union and subject himself to its discipline, he cannot be fired. Moreover, no employee can be discharged if he initially joins a union, and subsequently resigns. We think it noteworthy that 8(a)(3) protects the employment rights of the dissatisfied member, as well as those of the worker who never assumed full union membership. By allowing employees to resign from a union at any time, 8(a)(3) protects the employee whose views come to diverge from those of his union.

[287] “2018 Performance and Accountability Report.” National Labor Relations Board, October 9, 2019. <www.nlrb.gov>

Page 19:

Under the NLRA, [National Labor Relations Act] Employees Have the Right to:

• Form, or attempt to form, a union among the employees of an employer

• Join a union whether the union is recognized by the employer or not

• Assist a union in organizing employees

• Engage in protected concerted activity. Generally, “protected concerted activity” is group activity that seeks to improve wages or working conditions in a particular workplace.

• Refuse to do any or all of these things. However, the union and employer, in a State where such agreements are permitted, may enter into a lawful union-security clause requiring employees to pay union dues and fees.

[288] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 9:

The Act permits, under certain conditions, a union and an employer to make an agreement, called a union-security agreement, that requires employees to make certain payments to the union in order to retain their jobs. A union-security agreement cannot require that applicants for employment be members of the union in order to be hired, and such an agreement cannot require employees to join or maintain membership in the union in order to retain their jobs. Under a union-security agreement, individuals choosing to be dues-paying nonmembers may be required, as may employees who actually join the union, to pay full initiation fees and dues within a certain period of time (a “grace period”) after the collective-bargaining contract takes effect or after a new employee is hired. However, the most that can be required of nonmembers who inform the union that they object to the use of their payments for nonrepresentational purposes is that they pay their share of the union’s costs relating to representational activities (such as collective bargaining, contract administration, and grievance adjustment).

Union-security agreements. The grace period, after which the union-security agreement becomes effective, cannot be less than 30 days except in the building and construction industry. The Act allows a shorter grace period of 7 full days in the building and construction industry (Section 8(f). A union-security agreement that provides a shorter grace period than the law allows is invalid, and any employee discharged because he or she has not complied with such an agreement is entitled to reinstatement.

[289] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 9:

Under a union-security agreement, individuals choosing to be dues-paying nonmembers may be required, as may employees who actually join the union, to pay full initiation fees and dues within a certain period of time (a “grace period”) after the collective-bargaining contract takes effect or after a new employee is hired. However, the most that can be required of nonmembers who inform the union that they object to the use of their payments for nonrepresentational purposes is that they pay their share of the union’s costs relating to representational activities (such as collective bargaining, contract administration, and grievance adjustment).

[290] Ruling: Communications Workers v. Beck. U.S. Supreme Court, June 29, 1988. Decided 5–3. Majority: Brennan, Rehnquist, White, Marshall, Stevens. Dissenting in part: Blackmun, O’Connor, Scalia. <caselaw.lp.findlaw.com>

Majority:

Section 8(a)(3) of the National Labor Relations Act of 1935 (NLRA), 49 Stat. 452, as amended, 29 U.S.C. 158(a)(3), permits an employer and an exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a condition of continued employment, whether or not the employees otherwise wish to become union members. Today we must decide whether this provision also permits a union, over the objections of dues-paying nonmember employees, to expend funds so collected on activities unrelated to collective bargaining, contract administration, or grievance adjustment, and, if so, whether such expenditures violate the union’s duty of fair representation or the objecting employees’ First Amendment rights. …

At the outset, we address briefly the jurisdictional question that divided the Court of Appeals. Respondents sought relief on three separate federal claims: that the exaction of fees beyond those necessary to finance collective-bargaining activities violates 8(a)(3); that such exactions violate the judicially created duty of fair representation; and that such exactions violate respondents’ First Amendment rights. …

Taken as a whole, 8(a)(3) permits an employer and a union² to enter into an agreement requiring all employees to become union members as a condition of continued employment, but the “membership” that may be so required has been “whittled down to its financial core.” NLRB [National Labor Relations Board] v. General Motors Corp., 373 U.S. 734, 742 (1963). The statutory question presented in this case, then, is whether this “financial core” includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not. …

… Congress authorized compulsory unionism only to the extent necessary to ensure that those who enjoy union-negotiated benefits contribute to their cost.

[291] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed July 7, 2014 at <www.nlrb.gov>

After employees choose a union as a bargaining representative, the employer and union are required to meet at reasonable times to bargain in good faith about wages, hours, vacation time, insurance, safety practices and other mandatory subjects. Some managerial decisions such as subcontracting, relocation, and other operational changes may not be mandatory subjects of bargaining, but the employer must bargain about the decision’s effects on unit employees.

[292] Legislative report: “Worker Paycheck Fairness Act of 1999.” U.S. House of Representatives, Committee on Education and the Workforce, October 11, 2000. <www.gpo.gov>

Page 9:

Several workers appearing before the Committee expressed frustration at the Hobson’s choice they were facing. Leonard Cipressi from Los Angeles, California told the Committee: “When you exercise your Beck rights you don’t get to vote on contracts that affect you, your family, your peers. Not only that, you don’t get to exercise free speech because you’re not allowed to go to union meetings.”²⁴

²⁴Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at 92 (April 18, 1996)(Serial No. 104–66).

[293] Paper: “Unions and Democracy: When Do Nonmembers Have Voting Rights?” Journal of Business & Technology Law, 2014. Pages 213–228. <digitalcommons.law.umaryland.edu>

Page 214: “The article explores the somewhat inconsistent judicial treatment of the question of whether agency fee payers are entitled to vote on matters related to the terms and conditions of employment.”

Page 220:

It is difficult to draw conclusions on an agency fee payer’s right to vote on matters relating to employment from such a slim history of inconsistent decisions. Often, courts have found that if a union retained any negotiating capacity, then it need not permit nonmembers to vote. If a matter relating to the terms and conditions of employment is left solely to a vote, however, some courts have found it to be a violation of a union’s duty of fair representation to refuse to allow nonmembers to vote. … While courts have often ruled against agency fee payers’ rights to vote on the basis that the decision is not significant enough to justify judicial interference in what are characterized as internal union matters, it is odd that in cases where more significant employment decisions were at issue … courts have declined to “interfere.” These odd distinctions and somewhat inconsistent decisions are partly the result of a paucity of cases; there have simply been so few cases it is difficult to identify common judicial themes or approaches. The inconsistencies, however, illustrate a general judicial aversion to challenge the conduct of unions, even when the equivalent discriminatory conduct would be intolerable in other contexts.

Page 227: “Under federal law and that of many states, at least, agency fee employees must either elect to join unions (and subsidize the unions’ political and campaign contributions) or be refused an opportunity to vote on employment matters.”

[294] Article: “Let’s Give the Employees a Voice: Legislation Regulating Union Strike Votes.” By George O. Bahrs (of the California Bar). American Bar Association Journal, January 1959. Pages 35–38.

Page 36: “There is no statutory provision whatever for determining which employees are eligible to participate in strike votes. There is not even any legal provisions that the voting will be limited to the employees who are represented in the particular negotiations and who are covered by the contract the union is trying to secure. This applies to some of the biggest unions and the biggest strikes in the country.”

NOTE: In October of 2019, Just Facts searched the current federal law for provisions controlling which employees are eligible to participate in strike votes. There were none [U.S. Code Title 29, Chapter 7, Subchapter II: “National Labor Relations Act.” <www.law.cornell.edu>]. This is also evidenced by the three footnotes below, which show variance in whom unions allow to participate and proposed legislation that would allow all affected workers to participate.

[295] Webpage: “Frequently Asked Questions (FAQ).” International Brotherhood of Teamsters. Accessed October 9, 2019 at <teamster.org>

“A majority of workers in the bargaining unit must vote in favor of a strike before one can be called. The decision rests with the affected workers.”

[296] “CWA [Communications Workers of America] Constitution as Amended April 2013.” Communications Workers of America. <cwafiles.org>

Page 31:

Section 6—Procedure for Local Strike Vote

In taking a strike vote Locals shall act in accordance with the following minimum requirements:

(a) The Locals shall, upon reasonable notice, call a meeting of its members, wherever feasible, and present the issue or issues involved in the proposed strike;

(b) The members present at such meeting shall vote by secret ballot on the question of whether or not a strike shall be called;

(c) Where meetings cannot, feasibly, be called, a secret ballot shall be taken of the members, by mail or otherwise, on the question of whether or not a strike shall be called;

(d) A majority of the members voting shall determine whether or not a strike shall be called;

(e) Copies of notice of the result of strike vote shall be sent to the Vice President or Executive Officer and to the President of the Union.

[297] Senate Bill 1712: “Employee Rights Act.” 113th U.S. Congress (2013–2014). Accessed May 18, 2017 at <www.congress.gov>

Mr. Hatch (for himself, Mr. Alexander, Mr. McConnell, Mr. Barrasso, Mr. Boozman, Mr. Burr, Mr. Chambliss, Mr. Coburn, Mr. Cochran, Mr. Cornyn, Mr. Enzi, Mr. Graham, Mr. Heller, Mr. Inhofe, Mr. Isakson, Mr. Johnson of Wisconsin, Mr. Lee, Mr. McCain, Mr. Paul, Mr. Risch, Mr. Rubio, Mr. Scott, Mr. Thune, and Mr. Wicker) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions….

(b) Rights of members.—Section 101(a)(1) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 411(a)(1)) is amended by adding at the end the following “Every employee in a bargaining unit represented by a labor organization, regardless of membership status in the labor organization, shall have the same right as members to vote by secret ballot regarding whether to ratify a collective bargaining agreement with, or to engage in, a strike or refusal to work of any kind against their employer.”.

[298] U.S. Code Title 29, Chapter 7, Subchapter II, Section 164: “Construction of Provisions.” Accessed October 9, 2019 at <www.law.cornell.edu>

(b) Agreements Requiring Union Membership in Violation of State Law

Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

[299] Public Law 80-101: “Labor Management Relations Act of 1947” (a.k.a “Taft-Hartley Act”). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. <uscode.house.gov>

“Sec. 14. (b) Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

[300] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed October 9, 2019 at <www.nlrb.gov>

“27 states have banned union-security agreements by passing so-called ‘right to work’ laws. In these states, it is up to each employee at a workplace to decide whether or not to join the union and pay dues, even though all workers are protected by the collective bargaining agreement negotiated by the union.”

[301] Webpage: “Right to Work States.” National Right to Work Legal Defense Foundation. Accessed October 9, 2019 at <www.nrtw.org>

[302] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed October 9, 2019 at <www.nlrb.gov>

[303] Brief: “Labor Employment Laws.” Arizona State Senate, December 1, 2013. <www.azleg.gov>

Page 6:

In right-to-work states, unions cannot ask and employers cannot agree to enter into union-security agreements. Employees cannot be required to either join the union or pay the equivalent dues in order to remain employed. Employees who want to join can do so, with all the privileges of membership, such as participation in contract negotiations, ratification of the contract, voting on the decision to strike and voting for leadership. Nonmembers are generally denied those privileges, but are accorded any contractual benefits. In addition, the union has a duty to represent all employees fairly without regard to their membership status.

[304] Report: “Major Collective Bargaining Agreements: Union Security and Dues Checkoff Provisions.” By Mary Ann Andrews. U.S. Department of Labor, Bureau of Labor Statistics, May 1982. <fraser.stlouisfed.org>

Pages 1–2:

Just as one of the major goals of a union is to provide job security for its members, the union also seeks security for itself as an institution in collective bargaining agreements. To accomplish this, the union normally demands some type of union security and automatic dues checkoff arrangements.

Union security provisions require some or all members of the bargaining unit to become or remain members of the union, or to pay service fees to the union, as a condition of employment. …

The primary benefit of union security and dues checkoff arrangements is the strengthening of the union. Besides being larger than they might otherwise be, union membership and financial resources became relatively permanent and steady. …

For this study, the Bureau examined 1,327 private industry agreements, excluding railroad and airline agreements, each covering 1,000 workers or more, or almost three-fourths of such agreements. The agreements covered 6.1 million workers, or about one-fourth of the total under collective bargaining agreements outside the excluded industries. …

The overall incidence of agreements containing union security provisions increased from 79 percent in 1958–1959 to 83 percent in 1981–82, and worker coverage increased from 82 percent to 90 percent.

[305] Article: “NLRB [National Labor Relations Board] Cannot Force Companies to Bargain in Face of Clear Impasse.” Inside Counsel, January 28, 2013. <www.law.com>

[Per] Stephen Key, a partner at Key Harrington Barnes …

“It is exceptionally rare for a union to agree to a contract that eliminates the union security clause,” Key says. “At the end of the day, the union is a business. So any other term in the contract, the union would be willing to compromise on, if it means the difference between keeping their dues and losing their dues.”

[306] Ruling: Erie Brush v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, November 27, 2012. Decided 3–0. <www.laborrelationstoday.com>

Page 3:

Erie manufactures washing and polishing brushes at its facility in Chicago, Illinois. The Seventh Circuit enforced a previous NLRB [National Labor Relations Board] order requiring Erie to recognize and bargain with the Service Employees International Union, Local 1 (“the Union”) for at least one year. … Erie began negotiations with the Union on June 28, 2005. At the parties’ first meeting, the Union’s chief negotiator, Charles Bridgemon, asked that the parties discuss noneconomic issues before economic ones, and Erie’s chief negotiator, Irving M. Geslewitz, agreed. Between June 28, 2005 and March 31, 2006, the parties met on eight occasions and reached agreement on all noneconomic issues except two: union security and arbitration of grievances. The Union insisted on including union security and arbitration clauses in the contract. Erie was equally committed to an open shop and opposed to arbitration. During the meetings, Bridgemon repeatedly told Geslewitz that the Union had no room to compromise on union security or arbitration, calling those issues “make or break on [the] whole contract” and saying that the Union “can’t work on these things” and “there wouldn’t be a contract without a union security clause.” Geslewitz was just as adamant, refusing to agree to a contract that contained union security or arbitration provisions.

Page 5:

After the Union brought unfair labor practice charges, the Board’s General Counsel issued a complaint. An NLRB Administrative Law Judge (“ALJ”) found that Erie had violated section 8(a)(5) and (1) by refusing to bargain with the Union between May 10 and June 21, 2006. …

Erie filed exceptions to the ALJ’s findings. A divided Board affirmed the ALJ’s findings and order with only minor modifications. See id. at 1–5 (Board Op.). Member Hayes dissented from the Board’s decision, stating that because the parties were at a bona fide impasse on union security and arbitration, he would reverse the ALJ’s finding of unlawful refusal to bargain. Id. at 9 (Dissenting Op.).

As a remedy, the Board ordered Erie to cease and desist from refusing to bargain. Id. at 4–5 (Board Op.), 13 (ALJ Op.). The Board ordered Erie to recognize and bargain with the Union as the exclusive bargaining representative of Erie employees for at least six months. Id. Finally, the Board required Erie to physically post and electronically distribute a notice announcing that Erie would no longer engage in violations of the Act. Id.

Erie petitions this court for review, arguing that the Board’s finding of unlawful refusal to bargain was not supported by substantial evidence in the record. In addition, Erie challenges the propriety of the Board’s affirmative bargaining order.

Page 6:

Section 8(a)(5) of the Act prohibits an employer from “refus[ing] to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). The obligation to “bargain collectively” requires “the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to … the negotiation of an agreement,” but it “does not compel either party to agree to a proposal or require the making of a concession.” Id. § 158(d). The bargaining obligation is suspended temporarily when the parties reach a lawful impasse. Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 232 (D.C. Cir. 1996). A lawful impasse “occurs when ‘good faith negotiations have exhausted the prospects of concluding an agreement.’ ” TruServ Corp. v. NLRB, 254 F.3d 1105, 1114 (D.C. Cir. 2001) (quoting Taft Broadcasting Co., 163 NLRB 475, 478 (1967)). In other words, impasse exists if the parties “are warranted in assuming that further bargaining would be futile.” Id. (quoting Wycoff Steel, Inc., 303 NLRB 517, 523 (1991)) (internal quotation mark omitted).

Page 11:

All record evidence supports the proposition that the parties’ diametrically opposed positions on union security “presented … an insurmountable obstacle to an agreement.” Richmond Electrical Services, Inc., 348 NLRB 1001, 1003 (2006). Because “the parties’ failure to agree on this issue destroyed any opportunity for reaching a … collective-bargaining agreement,” CalMat, 331 NLRB at 1098, the impasse on union security led to a breakdown in overall negotiations. Therefore, the record evidence clearly demonstrates that Erie met its burden of showing that the parties were at an impasse on the critical issue of union security on March 31, 2006.

Page 13:

Because Erie and the Union were at a lawful impasse on at least the critical issue of union security from March 31 through the end of the parties’ relevant communications, Erie was relieved of the duty to bargain during that time period. See id. at 232 (“[A] good-faith impasse in negotiations temporarily suspends the duty to bargain.”). Thus, Erie did not unlawfully refuse to bargain. The Board’s decision finding that Erie violated section 8(a)(5) and (1) was not supported by substantial evidence in the record.

Erie argues alternatively that the Board erred in imposing a bargaining order as a remedy and reminds us that we have often told the Board that such an order is an extraordinary remedy that may not be imposed in run-of-the-mill cases. See Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). While this proposition is true enough, we have no occasion to examine the question in the present case, as our decision on the merits issue of impasse moots any issue as to the propriety of remedy. Nor need we discuss the Board’s cross-petition for enforcement of the order since our merits decision renders that petition moot.

III. CONCLUSION

For the foregoing reasons, we grant the petition for review, vacate the Board’s decision and order, and deny the Board’s cross-petition for enforcement.

[307] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed October 9, 2019 at <www.nlrb.gov>

“An employee may object to union membership on religious grounds, but in that case, must pay an amount equal to dues to a nonreligious charitable organization.”

[308] U.S. Code Title 29, Chapter 7, Subchapter II, Section 169: “Employees with Religious Convictions; Payment of Dues and Fees.” Accessed October 9, 2019 at <www.law.cornell.edu>

Any employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required in a contract between such employees’ employer and a labor organization in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious, nonlabor organization charitable fund exempt from taxation under section 501 (c)(3) of title 26, chosen by such employee from a list of at least three such funds, designated in such contract or if the contract fails to designate such funds, then to any such fund chosen by the employee. If such employee who holds conscientious objections pursuant to this section requests the labor organization to use the grievance-arbitration procedure on the employee’s behalf, the labor organization is authorized to charge the employee for the reasonable cost of using such procedure.

[309] Report: “Federal Labor Relations Statutes: An Overview.” By Alexandra Hegji. Congressional Research Service, November 26, 2012. <fas.org>

Page 19: “Unions and employers are generally allowed to enter into union security agreements under which employees may be required, as a condition of employment, to become union members by paying dues and initiation fees.”

Page 35: “Union security agreements are prohibited under the FSLMRS [Federal Service Labor-Management Relations Statute]. Unions representing federal employees must represent all unit employees, regardless of whether they pay dues”

[310] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7102: “Employees’ Rights.” Accessed October 9, 2019 at <www.law.cornell.edu>

“Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right.”

[311] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (6th edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2019.

Page 444:

[312] Webpage: “Labor and Employment Laws.” Legal Information Institute, Cornell Law School. Accessed October 9, 2019 at <www.law.cornell.edu>

“This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work.”

[313] Ruling: Abood v. Detroit Board of Education. U.S. Supreme Court, May 23, 1977. Decided 9–0 (with three separate concurrences from four Justices who wrote that the Court did not go far enough in protecting workers from being forced to subsidized union political activities—see next footnote). <www.law.cornell.edu>

Majority decision:

The State of Michigan has enacted legislation authorizing a system for union representation of local governmental employees. A union and a local government employer are specifically permitted to agree to an “agency shop” arrangement, whereby every employee represented by a union even though not a union member must pay to the union, as a condition of employment, a service fee equal in amount to union dues. The issue before us is whether this arrangement violates the constitutional rights of government employees who object to public-sector unions as such or to various union activities financed by the compulsory service fees.

After a secret ballot election, the Detroit Federation of Teachers (Union) was certified in 1967 pursuant to Michigan law as the exclusive representative of teachers employed by the Detroit Board of Education (Board).¹ The Union and the Board thereafter concluded a collective-bargaining agreement effective from July 1, 1969, to July 1, 1971. Among the agreement’s provisions was an “agency shop” clause, requiring every teacher who had not become a Union member within 60 days of hire (or within 60 days of January 26, 1970, the effective date of the clause) to pay the Union a service charge equal to the regular dues required of Union members. A teacher who failed to meet this obligation was subject to discharge. Nothing in the agreement, however, required any teacher to join the Union, espouse the cause of unionism, or participate in any other way in Union affairs.

On November 7, 1969 more than two months before the agency-shop clause was to become effective Christine Warczak and a number of other named teachers filed a class action in a state court, naming as defendants the Board, the Union, and several Union officials. Their complaint, as amended, alleged that they were unwilling or had refused to pay dues² and that they opposed collective bargaining in the public sector. The amended complaint further alleged that the Union “carries on various social activities for the benefit of its members which are not available to non-members as a matter of right,” and that the Union is engaged

“in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice, and which are not and will not be collective bargaining activities, i.e., the negotiation and administration of contracts with Defendant Board, and that a substantial part of the sums required to be paid under said Agency Shop Clause are used and will continue to be used for the support of such activities and programs, and not solely for the purpose of defraying the cost of Defendant Federation of its activities as bargaining agent for teachers employed by Defendant Board.”³

The complaint prayed that the agency-shop clause be declared invalid under state law and also under the United States Constitution as a deprivation of, inter alia, the plaintiffs’ freedom of association protected by the First and Fourteenth Amendments, and for such further relief as might be deemed appropriate. …

To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union’s policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union’s wage policy because it violates guidelines designed to limit inflation, or might object to the union’s seeking a clause in the collective-bargaining agreement proscribing racial discrimination. The examples could be multiplied. To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.¹⁶ But the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. …

Our province is not to judge the wisdom of Michigan’s decision to authorize the agency shop in public employment.²⁰ Rather, it is to adjudicate the constitutionality of that decision. The same important government interests recognized in the Hanson and Street cases presumptively support the impingement upon associational freedom created by the agency shop here at issue. Thus, insofar as the service charge is used to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance adjustment, those two decisions of this Court appear to require validation of the agency-shop agreement before us. …

We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.³² Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.

There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited.³³ The Court held in Street, as a matter of statutory construction, that a similar line must be drawn under the Railway Labor Act, but in the public sector the line may be somewhat hazier. The process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process. We have no occasion in this case, however, to try to define such a dividing line. The case comes to us after a judgment on the pleadings, and there is no evidentiary record of any kind. The allegations in the complaints are general ones, see supra, at 212–213, and the parties have neither briefed nor argued the question of what specific Union activities in the present context properly fall under the definition of collective bargaining. The lack of factual concreteness and adversary presentation to aid us in approaching the difficult line-drawing questions highlights the importance of avoiding unnecessary decision of constitutional questions.³⁴ All that we decide is that the general allegations in the complaints, if proved, establish a cause of action under the First and Fourteenth Amendments.

[314] Ruling: Abood v. Detroit Board of Education. U.S. Supreme Court, May 23, 1977. <www.law.cornell.edu>

Powell and Blackmun concurring:

Before today it had been well established that when state law intrudes upon protected speech, the State itself must shoulder the burden of proving that its action is justified by overriding state interests. … The Court, for the first time in a First Amendment case, simply reverses this principle. Under today’s decision, a nonunion employee who would vindicate his First Amendment rights apparently must initiate a proceeding to prove that the union has allocated some portion of its budget to “ideological activities unrelated to collective bargaining.” Ante, at 237–241. I would adhere to established First Amendment principles and require the State to come forward and demonstrate, as to each union expenditure for which it would exact support from minority employees, that the compelled contribution is necessary to serve overriding governmental objectives. This placement of the burden of litigation, not the Court’s, gives appropriate protection to First Amendment rights without sacrificing ends of government that may be deemed important.

Rehnquist concurring: “I am unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, and a similar requirement that a public employee contribute to the collective-bargaining expenses of a labor union.”

Stevens concurring: “More specifically, the Court’s opinion does not foreclose the argument that the Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.”

[315] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>

Pages 1181–1185 (footnotes removed):

Conflict Between Organization and Members.—It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy. But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations. For example, such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.

Union shop agreements generally require, as a condition of employment, membership in the union on or after the thirtieth day following the beginning of employment. In Railway Employes’ Dep’t v. Hanson, the Supreme Court upheld the constitutionality of such agreements, noting that the record in the case did not indicate that union dues were being “used as a cover for forcing ideological conformity or other action in contravention of the First Amendment,” such as by being spent to support political candidates. In International Ass’n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.

In Abood v. Detroit Bd. of Education, the Court found Hanson and Street applicable to the public employment context. Recognizing that any system of compelled support restricted employees’ right not to associate and not to support, the Court nonetheless found the governmental interests served by an “agency shop” agreement—the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact upon employee freedom. But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collective-bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs. The remedy, however, was not to restrain the union from making non-collective-bargaining-related expenditures, but was to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions. Later, the Court further tightened the requirements. A proportionate refund is inadequate because “even then the union obtains an involuntary loan for purposes to which the employee objects”; an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union’s fee. Therefore, the union procedure must also “provide for a reasonably prompt decision by an impartial decisionmaker.”

In Davenport v. Washington Education Ass’n, the Court noted that, although Chicago Teachers Union v. Hudson had “set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,” it “never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as ‘outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirements under Abood.’ ” Thus, the Court held in Davenport that the State of Washington could prohibit “expenditure of a nonmember’s agency fees for election-related purposes unless the nonmember affirmatively consents.” The Court added that “Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely.”

And then, in Knox v. Service Employees International Union, the Court suggested constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic in the first place, and, then, charged that requiring non-union members to affirmatively opt out of contributing to political activities was “a remarkable boon for unions.” Continuing to call opt-out arrangements impingements on the First Amendment rights of non-union members, the majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed nonunion employees to opt in rather than requiring them to opt out. Two concurring Justices, echoed by the dissenters, heavily criticized the majority for reaching “significant constitutional issues not contained in the questions presented, briefed, or argued.” Rather, the concurrence more narrowly found that unions may not collect special political assessments from non-union members who earlier objected to non-chargeable (i.e., political) expenses, and could only collect from non-objecting nonmembers after giving notice and an opportunity to opt out.

In Ysursa v. Pocatello Education Ass’n, the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union’s First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was “justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.”

The Court has held that a labor relations body may not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.

[316] Ruling: Harris v. Quinn. U.S. Supreme Court, June 30, 2014. Decided 5–4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenting: Kagan, Ginsburg, Breyer, Sotomayor. <www.law.cornell.edu>

Majority decision:

This brings us to Abood, which, unlike Hanson and Street, involved a public-sector collective-bargaining agreement. The Detroit Federation of Teachers served “as the exclusive representative of teachers employed by the Detroit Board of Education.” … The collective-bargaining agreement between the union and the board contained an agency-shop clause requiring every teacher to “pay the Union a service charge equal to the regular dues required of Union members.” … A putative class of teachers sued to invalidate this clause. Asserting that “they opposed collective bargaining in the public sector,” the plaintiffs argued that “ ‘a substantial part’ ” of their dues would be used to fund union “ ‘activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice.’ ” …

This Court treated the First Amendment issue as largely settled by Hanson and Street. … The Court acknowledged that Street was resolved as a matter of statutory construction without reaching any constitutional issues … and the Court recognized that forced membership and forced contributions impinge on free speech and associational rights…. But the Court dismissed the objecting teachers’ constitutional arguments with this observation: “[T]he judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” …

The Abood Court understood Hanson and Street to have upheld union-shop agreements in the private sector based on two primary considerations: the desirability of “labor peace” and the problem of “ ‘free riders[hip].’ ” …

The Court thought that agency-shop provisions promote labor peace because the Court saw a close link between such provisions and the “principle of exclusive union representation.” … This principle, the Court explained, “prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employee of collectivization.” … In addition, the Court noted, the “designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment.” … And the Court pointed out that exclusive representation “frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.” …

Turning to the problem of free ridership, Abood noted that a union must “ ‘fairly and equitably … represent all employees’ ” regardless of union membership, and the Court wrote as follows: The “union-shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become ‘free riders’ to refuse to contribute to the union while obtaining benefits of union representation.” …

The plaintiffs in Abood argued that Hanson and Street should not be given much weight because they did not arise in the public sector, and the Court acknowledged that public-sector bargaining is different from private-sector bargaining in some notable respects. … For example, although public and private employers both desire to keep costs down, the Court recognized that a public employer “lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases.” … The Court also noted that “decisionmaking by a public employer is above all a political process” undertaken by people “ultimately responsible to the electorate.” … Thus, whether a public employer accedes to a union’s demands, the Court wrote, “will depend upon a blend of political ingredients,” thereby giving public employees “more influence in the decisionmaking process that is possessed by employees similarly organized in the private sector.” … But despite these acknowledged differences between private- and public-sector bargaining, the Court treated Hanson and Street as essentially controlling. …

The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.

The Abood Court seriously erred in treating Hanson and Street as having all but decided the constitutionality of compulsory payments to a public-sector union. As we have explained, Street was not a constitutional decision at all, and Hanson disposed of the critical question in a single, unsupported sentence that its author essentially abandoned a few years later. Surely a First Amendment issue of this importance deserved better treatment.

The Abood Court fundamentally misunderstood the holding in Hanson, which was really quite narrow. As the Court made clear in Street, “all that was held in Hanson was that [the Railway Labor Act] was constitutional in its bare authorization of union-shop contracts requiring workers to give ‘financial support’ to unions legally authorized to act as their collective bargaining agents.” … . In Abood, on the other hand, the State of Michigan did more than simply authorize the imposition of an agency fee. A state instrumentality, the Detroit Board of Education, actually imposed that fee. This presented a very different question.

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. In the years since Abood, as state and local expenditures on employee wages and benefits have mushroomed, the importance of the difference between bargaining in the public and private sectors has been driven home.⁷

Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government.

Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either “chargeable” (in Abood’s terms, expenditures for “collective-bargaining, contract administration, and grievance-adjustment purposes” …) or non-chargeable (i.e., expenditures for political or ideological purposes …). In the years since Abood, the Court has struggled repeatedly with this issue. … In Lehnert, the Court held that “chargeable activities must (1) be ‘germane’ to collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding ‘free riders’; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.” … But as noted in Justice Scalia’s dissent in that case, “each one of the three ‘prongs’ of the test involves a substantial judgment call (What is ‘germane’? What is ‘justified’? What is a ‘significant’ additional burden).” …

Abood likewise did not foresee the practical problems that would face objecting nonmembers. Employees who suspect that a union has improperly put certain expenses in the “germane” category must bear a heavy burden if they wish to challenge the union’s actions. “[T]he onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion” … and litigating such cases is expensive. Because of the open-ended nature of the Lehnert test, classifying particular categories of expenses may not be straightforward. …And although Hudson required that a union’s books be audited, auditors do not themselves review the correctness of a union’s categorization. …

Finally, a critical pillar of the Abood Court’s analysis rests on an unsupported empirical assumption, namely, that the principle of exclusive representation in the public sector is dependent on a union or agency shop. …

Focusing on the benefits of the union’s status as the exclusive bargaining agent for all employees in the unit, respondents argue that the agency-fee provision promotes “labor peace,” but their argument largely misses the point. Petitioners do not contend that they have a First Amendment right to form a rival union. Nor do they challenge the authority of the SEIU–HII [Service Employees International Union–Healthcare Illinois & Indiana] to serve as the exclusive representative of all the personal assistants in bargaining with the State. All they seek is the right not to be forced to contribute to the union, with which they broadly disagree.

A union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked. For example, employees in some federal agencies may choose a union to serve as the exclusive bargaining agent for the unit, but no employee is required to join the union or to pay any union fee. Under federal law, in agencies in which unionization is permitted, “[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right.”

NOTE: See the two footnotes below for more detail on this ruling.

[317] Ruling: Harris v. Quinn. U.S. Supreme Court, June 30, 2014. Decided 5–4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenting: Kagan, Ginsburg, Breyer, Sotomayor. <www.law.cornell.edu>

Majority decision:

This case presents the question whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support. We hold that it does not, and we therefore reverse the judgment of the Court of Appeals. …

Millions of Americans, due to age, illness, or injury, are unable to live in their own homes without assistance and are unable to afford the expense of in-home care. In order to prevent these individuals from having to enter a nursing home or other facility, the federal Medicaid program funds state-run programs that provide in-home services to individuals whose conditions would otherwise require institutionalization. … A State that adopts such a program receives federal funds to compensate persons who attend to the daily needs of individuals needing in-home care. … Almost every State has established such a program. …

One of those States is Illinois, which has created the Illinois Department of Human Services Home Services Program, known colloquially as the state “Rehabilitation Program.” … [T]he Rehabilitation Program allows participants to hire a “personal assistant” who provides homecare services tailored to the individual’s needs. Many of these personal assistants are relatives of the person receiving care, and some of them provide care in their own homes. …

Illinois law establishes an employer-employee relationship between the person receiving the care and the person providing it. The law states explicitly that the person receiving home care—the “customer”—“shall be the employer of the [personal assistant].” … A “personal assistant” is defined as “an individual employed by the customer to provide … varied services that have been approved by the customer’s physician,” … and the law makes clear that Illinois “shall not have control or input in the employment relationship between the customer and the personal assistants.”

Other provisions of the law emphasize the customer’s employer status. The customer “is responsible for controlling all aspects of the employment relationship between the customer and the [personal assistant (or PA)], including, without limitation, locating and hiring the PA, training the PA, directing, evaluating and otherwise supervising the work performed by the personal assistant, imposing … disciplinary action against the PA, and terminating the employment relationship between the customer and the PA.” … In general, the customer “has complete discretion in which Personal Assistant he/she wishes to hire.” …

While customers exercise predominant control over their employment relationship with personal assistants, the State, subsidized by the federal Medicaid program, pays the personal assistants’ salaries. The amount paid varies depending on the services provided, but as a general matter, it “corresponds to the amount the State would expect to pay for the nursing care component of institutionalization if the individual chose institutionalization.” …

Other than providing compensation, the State’s role is comparatively small. The State sets some basic threshold qualifications for employment. … The State mandates an annual performance review by the customer, helps the customer conduct that review, and mediates disagreements between customers and their personal assistants. … The State suggests certain duties that personal assistants should assume, such as performing “household tasks,” “shopping,” providing “personal care,” performing “incidental health care tasks,” and “monitoring to ensure the health and safety of the customer.” … In addition, a state employee must “identify the appropriate level of service provider” “based on the customer’s approval of the initial Service Plan” … and must sign each customer’s Service Plan. …

Section 6 of the Illinois Public Labor Relations Act (PLRA) authorizes state employees to join labor unions and to bargain collectively on the terms and conditions of employment.

The PLRA contains an agency-fee provision, i.e., a provision under which members of a bargaining unit who do not wish to join the union are nevertheless required to pay a fee to the union.

In the 1980’s, the Service Employees International Union (SEIU) petitioned the Illinois Labor Relations Board for permission to represent personal assistants employed by customers in the Rehabilitation Program, but the board rebuffed this effort. … The board concluded that “it is clear … that [Illinois] does not exercise the type of control over the petitioned-for employees necessary to be considered, in the collective bargaining context envisioned by the [PLRA], their ‘employer’ or, at least, their sole employer.” …

In March 2003, however, Illinois’ newly elected Governor, Rod Blagojevich, circumvented this decision by issuing Executive Order 2003–08. … The order noted the Illinois Labor Relations Board decision but nevertheless called for state recognition of a union as the personal assistants’ exclusive representative for the purpose of collective bargaining with the State. …

Several months later, the Illinois Legislature codified that executive order by amending the PLRA. … While acknowledging “the right of the persons receiving services … to hire and fire personal assistants or supervise them,” the Act declared personal assistants to be “public employees” of the State of Illinois—but “[s]olely for the purposes of coverage under the Illinois Public Labor Relations Act.” … The statute emphasized that personal assistants are not state employees for any other purpose, “including but not limited to, purposes of vicarious liability in tort and purposes of statutory retirement or health insurance benefits.” …

… The union and the State subsequently entered into collective-bargaining agreements that require all personal assistants who are not union members to pay a “fair share” of the union dues. … These payments are deducted directly from the personal assistants’ Medicaid payments. … The record in this case shows that each year, personal assistants in Illinois pay SEIU–HII [Service Employees International Union–Healthcare Illinois & Indiana] more than $3.6 million in fees. …

Three of the petitioners in the case now before us—Theresa Riffey, Susan Watts, and Stephanie Yencer-Price—are personal assistants under the Rehabilitation Program. They all provide in-home services to family members or other individuals suffering from disabilities.³ Susan Watts, for example, serves as personal assistant for her daughter, who requires constant care due to quadriplegic cerebral palsy and other conditions. …

In 2010, these petitioners filed a putative class action on behalf of all Rehabilitation Program personal assistants…. Their complaint, which named the Governor and the union as defendants, sought an injunction against enforcement of the fair-share provision and a declaration that the Illinois PLRA violates the First Amendment insofar as it requires personal assistants to pay a fee to a union that they do not wish to support. …

In upholding the constitutionality of the Illinois law, the Seventh Circuit relied on this Court’s decision in Abood supra, which held that state employees who choose not to join a public-sector union may nevertheless be compelled to pay an agency fee to support union work that is related to the collective-bargaining process. …

… [T]he State of Illinois now asks us to sanction what amounts to a very significant expansion of Abood—so that it applies, not just to full-fledged public employees, but also to others who are deemed to be public employees solely for the purpose of unionization and the collection of an agency fee. …

… Abood involved full-fledged public employees, but in this case, the status of the personal assistants is much different. The Illinois Legislature has taken pains to specify that personal assistants are public employees for one purpose only: collective bargaining. For all other purposes, Illinois regards the personal assistants as private-sector employees. This approach has important practical consequences. …

For one thing, the State’s authority with respect to these two groups is vastly different. In the case of full-fledged public employees, the State establishes all of the duties imposed on each employee, as well as all of the qualifications needed for each position. The State vets applicants and chooses the employees to be hired. The State provides or arranges for whatever training is needed, and it supervises and evaluates the employees’ job performance and imposes corrective measures if appropriate. If a state employee’s performance is deficient, the State may discharge the employee in accordance with whatever procedures are required by law.

With respect to the personal assistants involved in this case, the picture is entirely changed. The job duties of personal assistants are specified in their individualized Service Plans, which must be approved by the customer and the customer’s physician. … Customers have complete discretion to hire any personal assistant who meets the meager basic qualifications that the State prescribes in §686.10. See §676.30(b) (the customer “is responsible for controlling all aspects of the employment relationship between the customer and the [personal assistant], including, without limitation, locating and hiring the [personal assistant]” …

Customers supervise their personal assistants on a daily basis, and no provision of the Illinois statute or implementing regulations gives the State the right to enter the home in which the personal assistant is employed for the purpose of checking on the personal assistant’s job performance. … And while state law mandates an annual review of each personal assistant’s work, that evaluation is also controlled by the customer. … A state counselor is assigned to assist the customer in performing the review but has no power to override the customer’s evaluation. … Nor do the regulations empower the State to discharge a personal assistant for substandard performance. … Discharge, like hiring, is entirely in the hands of the customer. …

Consistent with this scheme, under which personal assistants are almost entirely answerable to the customers and not to the State, Illinois withholds from personal assistants most of the rights and benefits enjoyed by full-fledged state employees. As we have noted already, state law explicitly excludes personal assistants from statutory retirement and health insurance benefits. … It also excludes personal assistants from group life insurance and certain other employee benefits provided under the State Employees Group Insurance Act of 1971. … And the State “does not provide paid vacation, holiday, or sick leave” to personal assistants. …

Personal assistants also appear to be ineligible for a host of benefits under a variety of other state laws….

Just as the State denies personal assistants most of the rights and benefits enjoyed by full-fledged state workers, the State does not assume responsibility for actions taken by personal assistants during the course of their employment. The governing statute explicitly disclaims “vicarious liability in tort.” … So if a personal assistant steals from a customer, neglects a customer, or abuses a customer, the State washes its hands. …

… Illinois law specifies that personal assistants “shall be paid at the hourly rate set by law” … and therefore the union cannot be in the position of having to sacrifice higher pay for its members in order to protect the nonmembers whom it is obligated to represent. And as for the adjustment of grievances, the union’s authority and responsibilities are narrow, as we have seen. The union has no authority with respect to any grievances that a personal assistant may have with a customer, and the customer has virtually complete control over a personal assistant’s work.

The union’s limited authority in this area has important practical implications. Suppose, for example that a customer fires a personal assistant because the customer wrongly believes that the assistant stole a fork. Or suppose that a personal assistant is discharged because the assistant shows no interest in the customer’s favorite daytime soaps. Can the union file a grievance on behalf of the assistant? The answer is no. …

If respondents’ and the dissent’s views were adopted, a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach. Medicare-funded home health employees may be one such group. … The same goes for adult foster care providers in Oregon … and Washington … and certain workers under the federal Child Care and Development Fund programs….

If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line,²⁰ and we therefore confine Abood’s reach to full-fledged state employees.²¹

For all these reasons, we refuse to extend Abood in the manner that Illinois seeks. If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support. The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union.

[318] Ruling: Harris v. Quinn. U.S. Supreme Court, June 30, 2014. Decided 5–4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenting: Kagan, Ginsburg, Breyer, Sotomayor. <www.law.cornell.edu>

Minority opinion:

Abood v. Detroit Bd. of Ed … answers the question presented in this case. Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. That is exactly what Illinois did in entering into collective bargaining agreements with the Service Employees International Union Healthcare (SEIU) which included fair-share provisions. Contrary to the Court’s decision, those agreements fall squarely within Abood’s holding. Here, Illinois employs, jointly with individuals suffering from disabilities, the in-home care providers whom the SEIU represents. Illinois establishes, following negotiations with the union, the most important terms of their employment, including wages, benefits, and basic qualifications. And Illinois’s interests in imposing fair-share fees apply no less to those caregivers than to other state workers. The petitioners’ challenge should therefore fail. …

To see how easily Abood resolves this case, consider how Illinois structured the petitioners’ employment, and also why it did so. The petitioners work in Illinois’s Medicaid-funded Rehabilitation Program, which provides in-home services to persons with disabilities who otherwise would face institutionalization. Under the program, each disabled person (the State calls them “customers”) receives care from a personal assistant; the total workforce exceeds 20,000. The State could have asserted comprehensive control over all the caregivers’ activities. But because of the personalized nature of the services provided, Illinois instead chose (as other States have as well) to share authority with the customers themselves. The result is that each caregiver has joint employers—the State and the customer—with each controlling significant aspects of the assistant’s work. …

… Although the majority notes that caregivers do not receive statutory retirement and health insurance benefits … that is irrelevant: Collective bargaining between the State and SEIU has focused on benefits from the beginning, and has produced state-funded health insurance for personal assistants….

… Workforce shortages and high turnover have long plagued in-home care programs, principally because of low wages and benefits. That labor instability lessens the quality of care, which in turn, forces disabled persons into institutions and (massively) increases costs to the State. … The individual customers are powerless to address those systemic issues; rather, the State—because of its control over workforce-wide terms of employment—is the single employer that can do so. And here Illinois determined (as have nine other States, see Brief for Respondent SEIU 51, n. 14) that negotiations with an exclusive representative offered the best chance to set the Rehabilitation Program on firmer footing. Because of that bargaining, as the majority acknowledges, home-care assistants have nearly doubled their wages in less than 10 years, obtained state-funded health insurance, and benefited from better training and workplace safety measures. … The State, in return, has obtained guarantees against strikes or other work stoppages … and most important, believes it has gotten a more stable workforce providing higher quality care, thereby avoiding the costs associated with institutionalization. …

… For some 40 years, Abood has struck a stable balance—consistent with this Court’s general framework for assessing public employees’ First Amendment claims—between those employees’ rights and government entities’ interests in managing their workforces. The majority today misapplies Abood, which properly should control this case. Nothing separates, for purposes of that decision, Illinois’s personal assistants from any other public employees. The balance Abood struck thus should have defeated the petitioners’ demand to invalidate Illinois’s fair-share agreement. I respectfully dissent.

[319] Ruling: Janus v. American Federation of State, County, and Municipal Employees. U.S. Supreme Court, June 27, 2018. Decided 5–4. Majority: Alito, Thomas, Roberts, Gorsuch, Kennedy. Dissenting: Sotomayor, Kagan, Breyer, Ginsburg. <caselaw.findlaw.com>

Majority opinion:

Illinois law permits public employees to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Only the union may engage in collective bargaining; individual employees may not be represented by another agent or negotiate directly with their employer. Nonmembers are required to pay what is generally called an “agency fee,” i.e., a percentage of the full union dues. Under Abood v. Detroit Bd. of Ed … this fee may cover union expenditures attributable to those activities “germane” to the union’s collective-bargaining activities (chargeable expenditures), but may not cover the union’s political and ideological projects (nonchargeable expenditures). The union sets the agency fee annually and then sends nonmembers a notice explaining the basis for the fee and the breakdown of expenditures. Here it was 78.06% of full union dues.

Petitioner Mark Janus is a state employee whose unit is represented by a public-sector union (Union), one of the respondents. He refused to join the Union because he opposes many of its positions, including those taken in collective bargaining. Illinois’ Governor, similarly opposed to many of these positions, filed suit challenging the constitutionality of the state law authorizing agency fees. The state attorney general, another respondent, intervened to defend the law, while Janus moved to intervene on the Governor’s side. The District Court dismissed the Governor’s challenge for lack of standing, but it simultaneously allowed Janus to file his own complaint challenging the constitutionality of agency fees. The District Court granted respondents’ motion to dismiss on the ground that the claim was foreclosed by Abood. The Seventh Circuit affirmed.

Held:

1. The District Court had jurisdiction over petitioner’s suit. Petitioner was undisputedly injured in fact by Illinois’ agency-fee scheme and his injuries can be redressed by a favorable court decision. …

2. The State’s extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis [precedent] cannot support it. Abood is therefore overruled.

(a) Abood’s holding is inconsistent with standard First Amendment principles. …

(1) Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns. E.g., West Virginia Bd. of Ed. v. Barnette…. That includes compelling a person to subsidize the speech of other private speakers. E.g., Knox v. Service Employees…. In Knox and Harris v. Quinn … the Court applied an “exacting” scrutiny standard in judging the constitutionality of agency fees rather than the more traditional strict scrutiny. Even under the more permissive standard, Illinois’ scheme cannot survive. …

(2) Neither of Abood’s two justifications for agency fees passes muster under this standard. First, agency fees cannot be upheld on the ground that they promote an interest in “labor peace.” The Abood Court’s fears of conflict and disruption if employees were represented by more than one union have proved to be unfounded: Exclusive representation of all the employees in a unit and the exaction of agency fees are not inextricably linked. To the contrary, in the Federal Government and the 28 States with laws prohibiting agency fees, millions of public employees are represented by unions that effectively serve as the exclusive representatives of all the employees. Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that “labor peace” can readily be achieved through less restrictive means than the assessment of agency fees. …

3. For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

Dissenting opinion:

For over 40 years, Abood v. Detroit Bd. of Ed. … struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper. Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union’s political or ideological activities.

That holding fit comfortably with this Court’s general framework for evaluating claims that a condition of public employment violates the First Amendment. The Court’s decisions have long made plain that government entities have substantial latitude to regulate their employees’ speech—especially about terms of employment—in the interest of operating their workplaces effectively. Abood allowed governments to do just that. While protecting public employees’ expression about non-workplace matters, the decision enabled a government to advance important managerial interests—by ensuring the presence of an exclusive employee representative to bargain with. Far from an “anomaly” … the Abood regime was a paradigmatic example of how the government can regulate speech in its capacity as an employer.

Not any longer. Today, the Court succeeds in its 6-year campaign to reverse Abood. … Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.

Rarely if ever has the Court overruled a decision–let alone one of this import—with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the Court does today.

[320] Report: “Unfair Labor Practice Case Law Outline.” Federal Labor Relations Authority, Office Of The General Counsel, November 2018. <www.flra.gov>

Page 76: “Where a union is acting as the exclusive representative of bargaining unit employees, it has to represent all unit employees without discrimination. This includes employees who are not dues-paying members of the union.”

Page 82–83:

Are There Any Situations in Which Unions Can Treat Non-Members Differently Than Members?

• Yes. A union may limit participation in its meetings to members, NFFE, Local 1827, 49 FLRA [Federal Labor Relations Authority] 738, 741 (1994), and has the right to choose its own representatives, AFSCME [American Federation of State County & Municipal Employees], Local 2910, 23 FLRA 352 (1986). All unit employees are entitled to vote in an election to determine whether there will be union representation. But once a union is chosen as the exclusive representative, the union then acts for, and negotiates collective-bargaining agreements covering, all employees. Its members ratify and approve such agreements in the manner provided by the labor organization’s governing requirements. AFGE, Local 2000, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations], 14 FLRA 617 (1984).

[321] Book: Human Resource and Contract Management in the Public School: A Legal Perspective. By Bernadette Marczely and David W. Marczely. Scarecrow Press, 2002.

Page 30:

Employees who join the union will also have the right to fully participate in the union’s decision-making process. They will vote on the adoption or rejection of union initiatives, contract proposals, and on the decision to strike. They will also have the opportunity to monitor and perhaps participate in the in the selection of the union’s negotiating team and in the way the union allots its funding. Nonmembers, even those compelled to pay fair share fees, will not have a direct say in the way the union conducts its business.

[322] Webpage: “FAQ.” Civil Service Employees Association, Local 100, American Federation of State, County and Municipal Employees, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations]. Accessed October 13, 2014 at <cseany.org>

What’s the Difference Between a Member and Agency Fee Payer?

In most of CSEA’s [Civil Service Employees Association] locals there are agency shop provisions required by law. This means workers who choose not to join the union must pay a fee equal to the amount CSEA members pay in dues. In return, CSEA represents these fee payers and negotiates a contract in their behalf. Agency fee payers don’t, however, enjoy all the privileges of membership. They do not, for example, vote for union officers or vote to accept or reject their contract. They are also not eligible to take part in CSEA-sponsored programs and member only benefits.

Strangely enough, a lot of agency shop fee payers simply don’t realize they’re not full-fledged union members. Many of these people see money being deducted from their paychecks from week to week and assume this means they’re paying CSEA dues. They are often surprised to learn they’re not really members, and sometimes they’re even angry when they discover this at contract ratification time or when other important issues are voted upon by the membership.

[323] Paper: “Unions and Democracy: When Do Nonmembers Have Voting Rights?” Journal of Business & Technology Law, 2014. Pages 213–228. <digitalcommons.law.umaryland.edu>

[324] Webpage: “If We Decide to Strike: Q&A for University Members.” SEIU [Service Employees International Union] Local 503 Sublocal 085: University of Oregon, July 30, 2013. <local085.seiu503.org>

Who decides to conduct a strike?

You do. Our Union Bargaining Team will ask for authorization from members to initiate a strike, if necessary to move the university system, and all members will have the right to vote on the decision. If a strike occurs, the bargaining team would also make the decision to call for a vote of the membership to end the strike.

Who can vote?

All members in good standing. Fair share payers must first sign up as members to become eligible to vote.

[325] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(e) Secret Ballot; Limitation of Elections

(1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

NOTE: See next footnote for relevant portion of section 158 (a)(3).

[326] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Unfair Labor Practices by Employer

It shall be an unfair labor practice for an employer—…

(3) …nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159 (a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement….

[327] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 14:

Union-security deauthorization. Provision is also made for the Board to determine by secret ballot whether the employees covered by a union-security agreement desire to withdraw the authority of their representative to continue the agreement. This is called a union-security deauthorization election and can be brought about by the filing of a petition signed by 30 percent or more of the employees covered by the agreement.

[328] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees …

(3) No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held. …

(e) Secret Ballot; Limitation of Elections

(2) No election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.

[329] For details and documentation about the NLRB’s [National Labor Relations Board’s] “contract bar” rules for union decertification, see the section above on decertification elections.

[330] Book: Basic Labor and Employment Law for Paralegals. By Clyde E. Craig. Aspen Publishers, 2009.

Page 86: “[T]he contract bar rules do not apply to a deauthorization petition, and it may be filed at any time.”

[331] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 13: “The Act also requires that a petition for a union-security deauthorization election be filed by 30 percent or more of the employees in the unit covered by the agreement for the NLRB [National Labor Relations Board] to conduct an election for that purpose. The showing of interest must be exclusively by employees who are in the appropriate bargaining unit in which an election is sought.”

[332] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(e) Secret Ballot; Limitation of Elections

[333] Book: Employment and Labor Law (8th edition). By Patrick J. Cihon and James Ottavio Castagnera. South-Western, Cengage Learning, 2014.

Page 411: “Unlike representation elections and decertification elections, which are determined by a majority of the votes actually cast, deauthorization elections require that a majority of the members in the bargaining unit vote in favor of rescinding the union shop clause for it to be rescinded.”

[334] Report: “Federal Labor Relations Statutes: An Overview.” By Alexandra Hegji. Congressional Research Service, November 26, 2012. <fas.org>

[335] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed October 9, 2019 at <www.nlrb.gov>

[336] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (6th edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2019.

Page 444:

[337] Webpage: “Labor and Employment Laws.” Legal Information Institute, Cornell Law School. Accessed October 9, 2019 at <www.law.cornell.edu>

“This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work.”

[338] Webpage: “Public Sector Deauthorization Laws (as of 8/2010).” National Right to Work Legal Defense Foundation. <www.nrtw.org>

[339] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Unfair Labor Practices by Employer

It shall be an unfair labor practice for an employer …

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title. …

(b) Unfair Labor Practices by Labor Organization

It shall be an unfair labor practice for a labor organization or its agents …

(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 159 (a) of this title …

(d) Obligation to Bargain Collectively

[340] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Exclusive Representatives; Employees’ Adjustment of Grievances Directly with Employer

[341] Public Law 74-198: “National Labor Relations Act of 1935” (a.k.a. “Wagner Act”). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. <www.nlrb.gov>

Sec. 8. It shall be an unfair labor practice for an employer …

(5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of Section 9(a).

[342] Public Law 80-101: “Labor Management Relations Act of 1947” (a.k.a “Taft-Hartley Act”). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. <uscode.house.gov>

NOTE: This document from the University of Missouri-Kansas City School of Law provides interwoven texts of the 1935 Wagner Act, the 1947 Taft-Hartley Act, and the 1959 Landrum-Griffin Act.

(b) It shall be an unfair labor practice for a labor organization or its agents …

(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 9(a)….

[343] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed July 7, 2014 at <www.nlrb.gov>

How Is “Good Faith” Bargaining Determined?

There are hundreds, perhaps thousands, of NLRB [National Labor Relations Board] cases dealing with the issue of the duty to bargain in good faith. In determining whether a party is bargaining in good faith, the Board will look at the totality of the circumstances. The duty to bargain in good faith is an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement. This implies both an open mind and a sincere desire to reach an agreement as well as a sincere effort to reach a common ground.

The additional requirement to bargain in “good faith” was incorporated to ensure that a party did not come to the bargaining table and simply go through the motions. There are objective criteria that the NLRB will review to determine if the parties are honoring their obligation to bargain in good faith, such as whether the party is willing to meet at reasonable times and intervals and whether the party is represented by someone who has the authority to make decisions at the table.

Conduct away from the bargaining table may also be relevant. For instance if an Employer were to make a unilateral change in the terms and conditions of employees employment without bargaining, that would be an indication of bad faith.

[344] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(d) Obligation to Bargain Collectively

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification

[345] Public Law 80-101: “Labor Management Relations Act of 1947” (a.k.a “Taft-Hartley Act”). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. <uscode.house.gov>

NOTE: This document from the University of Missouri-Kansas City School of Law provides interwoven texts of the 1935 Wagner Act, the 1947 Taft-Hartley Act, and the 1959 Landrum-Griffin Act.

(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification….

[346] Article: “Labor Law.” West’s Encyclopedia of American Law, 2005. <www.encyclopedia.com>

It is a fundamental part of federal labor policy that unions and management should resolve their disputes through voluntary collective bargaining and not through the imposition of a solution by the government. If a labor dispute becomes serious enough to significantly affect national health or safety, the president has the statutory authority to obtain an 80-day injunction from the federal courts against any strike or lockout. This procedure has been used over three dozen times since 1947, but rarely since the 1970s.

[347] Report: “Major Collective Bargaining Agreements: Union Security and Dues Checkoff Provisions.” By Mary Ann Andrews. U.S. Department of Labor, Bureau of Labor Statistics, May 1982. <fraser.stlouisfed.org>

Page 1:

Dues checkoff provisions obligate management to withhold union dues and, in many cases, other financial obligations, such as initiation fees, assessments or fines, from an employee’s wages and to transmit these funds to the union. Review of labor agreements for dues checkoff provisions may understate their prevalence, since checkoff is a common practice in organized establishments and is not always dependent upon a formal clause. …

[348] Ruling: Erie Brush v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, November 27, 2012. Decided 3–0. <www.laborrelationstoday.com>

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III. CONCLUSION

For the foregoing reasons, we grant the petition for review, vacate the Board’s decision and order, and deny the Board’s cross-petition for enforcement.

[349] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed October 9, 2019 at <www.nlrb.gov>

“The parties’ obligations do not end when the contract expires. They must bargain in good faith for a successor contract, or for the termination of the agreement, while terms of the expired contract continue.”

[350] Decision: WKYC-TV, Inc. and National Association of Broadcast Employees and Technicians. National Labor Relations Board, December 12, 2012. Decided 3–1. Majority: Pearce, Griffin, Block. Dissent: Hayes. <apps.nlrb.gov>

Majority decision:

We agree with the Acting General Counsel and the Union. We find that requiring employers to honor dues-checkoff arrangements post-contract expiration is consistent with the language of the Act, its relevant legislative history, and the general rule against unilateral changes in terms and conditions of employment. …

The declared policy of the [National Labor Relations] Act, as stated in Section 1, is to “encourage[e] the practice and procedure of collective bargaining” and to protect the “full freedom” of workers in the selection of bargaining representatives of their own choice. Section 8(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” Because it is critically important that collective bargaining be meaningful, it has long been established that an employer violates Section 8(a)(5) when it unilaterally changes represented employees’ wages, hours, and other terms and conditions of employment without providing their bargaining representative prior notice and a meaningful opportunity to bargain about the changes. NLRB [National Labor Relations Board] v. Katz, 369 U.S. 736, 742–743 (1962). Under this rule, an employer’s obligation to refrain from unilaterally changing these mandatory subjects of bargaining applies both where a union is newly certified and the parties have yet to reach an initial agreement, as in Katz, and where the parties’ existing agreement has expired and negotiations have yet to result in a subsequent agreement, as in this case. Litton Financial Printing Division v. NLRB, 501 U.S. 190, 198 (1991). In the latter circumstances, an employer must continue in effect contractually established terms and conditions of employment that are mandatory subjects of bargaining, until the parties either negotiate a new agreement or bargain to a lawful impasse. Id. at 198–199. The Board recently explained the importance of this rule:

[T]he status quo [upon contract expiration] must be viewed as a collective whole. In the give-and-take of bargaining, a union presumably will make concessions in certain terms and conditions to achieve improvements in others[.] Preserving the status quo facilitates bargaining by ensuring that the tradeoffs made by the parties in earlier bargaining remain in place. Just as the employer continues to enjoy prior union concessions after the contract expires, as part of the “status quo,” so too the union continues to enjoy its bargained-for improvements, unless … the union has clearly and unmistakably agreed to waive them. Finley Hospital, 359 NLRB No. 9, slip op. at 2–3 (2012) (footnote omitted).

An employer’s decision to unilaterally cease honoring a dues-checkoff arrangement established in an expired collective-bargaining agreement plainly contravenes these salutary principles. Under settled Board law, widely accepted by reviewing courts,⁷ dues checkoff is a matter related to wages, hours, and other terms and conditions of employment within the meaning of the Act and is therefore a mandatory subject of bargaining. See, e.g., Tribune Publishing Co., 351 NLRB 196, 197 (2007), enfd. 564 F.3d 1330 (D.C. Cir. 2009). The status-quo rule, then, should apply to dues checkoff, unless there is some cogent reason for an exception. We see no such reason.

It is certainly true that a select group of contractually established terms and conditions of employment—arbitration provisions, no-strike clauses, and management-rights clauses—do not survive contract expiration, even though they are mandatory subjects of bargaining. In agreeing to each of these arrangements, however, parties have waived rights that they otherwise would enjoy in the interest of concluding an agreement, and such waivers are presumed not to survive the contract. For example, in Hilton-Davis Chemical Co., the Board held that parties have no post-expiration duty to honor a contractual agreement to arbitrate, reasoning that such an agreement “is a voluntary surrender of the right of final decision which Congress has reserved to the[ ] parties” because arbitration is, “at bottom, a consensual surrender of the economic power which the parties are otherwise free to utilize.” 185 NLRB 241, 242 (1970). As the Board later explained, “because an agreement to arbitrate is a product of the parties’ mutual consent to relinquish economic weapons, such as strikes or lockouts, otherwise available under the Act to resolve disputes … the duty to arbitrate … cannot be compared to the terms and conditions of employment routinely perpetuated by the constraints of Katz.” Indiana & Michigan Electric Co., 284 NLRB 53, 58 (1987).⁸ For similar reasons, a contractual no-strike clause normally does not act as a clear and unmistakable waiver of the union’s right to strike after the contract expires. Southwestern Steel & Supply, Inc. v. NLRB, 806 F.2d 1111, 1114 (D.C. Cir. 1986) (citations omitted). Accordingly, “in recognition of the statutory right to strike, no-strike clauses are [also] excluded from the unilateral change doctrine.” Litton Financial Printing, supra, 501 U.S. at 199. The Board has also held that a management-rights clause normally does not survive contract expiration, because “the essence of [a] management-rights clause is the union’s waiver of its right to bargain. Once the clause expires, the waiver expires, and the overriding statutory obligation to bargain controls.” Beverly Health & Rehabilitation Services, 335 NLRB 635, 636 (2001), enfd. in relevant part 317 F.3d 316 (D.C. Cir. 2003).⁹

The rationale behind these narrowly drawn exceptions to Katz does not apply to dues checkoff. Unlike no-strike, arbitration, and management-rights clauses, a dues-checkoff arrangement does not involve the contractual surrender of any statutory or nonstatutory right.¹⁰ Rather, it is simply a matter of administrative convenience to a union and employees whereby an employer agrees that it will establish a system where employees may, if they choose, pay their union dues through automatic payroll deduction.¹¹ Payments via a dues-checkoff checkoff agreements, such as employee savings accounts and charitable contributions, which the Board has recognized also create “administrative convenience” and—notably—survive the contracts that establish them. Quality House of Graphics, 336 NLRB 497, 497 fn. 3 (2001).¹²

[351] Decision: WKYC-TV, Inc. and National Association of Broadcast Employees and Technicians. National Labor Relations Board, December 12, 2012. Decided 3–1. Majority: Pearce, Griffin, Block. Dissent: Hayes. <apps.nlrb.gov>

Hayes dissenting:

[M]y colleagues know well that an employer’s ability to cease dues checkoff upon contract expiration has long been recognized as a legitimate economic weapon in bargaining for a successor agreement. The ability of parties to wield such weapons is an integral part of the system of collective bargaining that the Wagner and Taft-Hartley Acts envisioned for the peaceful resolution of industrial disputes. To strip employers of that opportunity would significantly alter the playing field that labor and management have come to know and rely on. Indeed, even in times of union boycott and other economic actions in opposition to an employer’s legitimate bargaining position, the employer will be forced to act as the collection agent for dues to finance this opposition.

[352] Webpage: “Cosponsors of House Resolution 800: Employee Free Choice Act of 2007.” 110th Congress (2007–2008). Accessed May 18, 2017 at <www.congress.gov>

“Sponsor: Rep. Miller, George [D-CA-7] … Cosponsors … Democratic [=] 226 … Republican [=] 7”

[353] House Resolution 800: “Employee Free Choice Act of 2007.” U.S. House of Representatives, 110th Congress (2007–2008). Accessed May 18, 2017 at <www.congress.gov>

Sec. 3. Facilitating Initial Collective Bargaining Agreements. …

… Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.

(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.’’. …

… Any employer who willfully or repeatedly commits any unfair labor practice within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation.

[354] U.S. Code Title 29, Chapter 7, Subchapter III, Section 172: “Federal Mediation and Conciliation.” Accessed October 10, 2019 at <www.law.cornell.edu>

There is created an independent agency to be known as the Federal Mediation and Conciliation Service…. The Service shall be under the direction of a Federal Mediation and Conciliation Director … who shall be appointed by the President by and with the advice and consent of the Senate. …

The Director is authorized, subject to the civil service laws, to appoint such clerical and other personnel as may be necessary for the execution of the functions of the Service, and shall fix their compensation in accordance with chapter 51 and subchapter III of chapter 53 of title 5, and may, without regard to the provisions of the civil service laws, appoint such conciliators and mediators as may be necessary to carry out the functions of the Service.

[355] Code of Federal Regulations Title 29, Subtitle B, Chapter XII, Part 1404, Subpart A, Section 1404.3: “Administrative Responsibilities.” Accessed October 24, 2014 at <www.law.cornell.edu>

(a) Director. The Director of FMCS has responsibility for all aspects of FMCS arbitration activities and is the final agency authority on all questions concerning the Roster and FMCS arbitration procedures.

(b) Office of Arbitration Services. The Office of Arbitration Services (OAS) maintains a Roster of Arbitrators (the Roster); administers subpart C of this part (Procedures for Arbitration Services); assists, promotes, and cooperates in the establishment of programs for training and developing new arbitrators; and provides names or panels of names of listed arbitrators to parties requesting them.

(c) Arbitrator Review Board. The Arbitrator Review Board shall consist of a chairman and members appointed by the Director who shall serve at the Director’s pleasure. The Board shall be composed entirely of full-time officers or employees of the Federal Government and shall establish procedures for carrying out its duties.

[356] Calculated with data from vote 118: “The Employee Free Choice Act.” U.S. House of Representatives, March 1, 2007. <clerk.house.gov>

House
Party	Voted “Yes”		Voted “No”		Voted “Present” or Did Not Vote †
Party	Number	Portion	Number	Portion	Number	Portion
Republican	13	6%	183	91%	5	2%
Democrat	228	98%	2	1%	3	1%
Independent	0	0%	0	0%	0	0%
NOTE: † Voting “Present” is effectively the same as not voting.

[357] Report: “Filibusters and Cloture in the Senate.” By Richard S. Beth & Valerie Heithusen. Congressional Research Service, December 24, 2014. http://www.senate.gov/reference/resources/pdf/RL30360.pdf

Summary (page 2 of PDF):

Page CRS-9:

Invoking cloture usually requires a three-fifths vote of the entire Senate—”three-fifths of the Senators duly chosen and sworn.” Thus, if there is no more than one vacancy, 60 Senators must vote to invoke cloture. In contrast, most other votes require only a simple majority (that is, 51%) of the Senators present and voting, assuming that those Senators constitute a quorum. In the case of a cloture vote, the key is the number of Senators voting for cloture, not the number voting against. Failing to vote on a cloture motion has the same effect as voting against the motion: it deprives the motion of one of the 60 votes needed to agree to it.

There are two important exceptions to the three-fifths requirement to invoke cloture. First, under Rule XXII, an affirmative vote of two-thirds of the Senators present and voting is required to invoke cloture on a measure or motion to amend the Senate rules. This provision has its origin in the history of the cloture rule. Before 1975, two-thirds of the Senators present and voting (a quorum being present) was required for cloture on all matters. In early 1975, at the beginning of the 94th Congress, Senators sought to amend the rule to make it somewhat easier to invoke cloture. However, some Senators feared that if this effort succeeded, that would only make it easier to amend the rule again, making cloture still easier to invoke. As a compromise, the Senate agreed to move from two-thirds of the Senators present and voting (a maximum of 67 votes) to three-fifths of the Senators duly chosen and sworn (a minimum of 60 votes) on all matters except future rules changes, including changes in the cloture rule itself.¹¹Second, pursuant to precedent established by the Senate on November 21, 2013, the Senate can invoke cloture on nominations other than those to the U.S. Supreme Court by a majority of Senators voting (a quorum being present).¹⁸

[358] “Standing Rules of the Senate: Rule XXII: Precedence Of Motions.” Accessed May 19, 2017 at <www.rules.senate.gov>

[359] Webpage: “Actions on House Resolution 800: Employee Free Choice Act of 2007.” U.S. House of Representatives, 110th Congress (2007–2008). Accessed May 19, 2017 at <www.congress.gov>

“06/26/2007 Senate Cloture on the motion to proceed not invoked in Senate by Yea–Nay Vote. 51–48. Record Vote Number: 227.”

[360] Calculated with data from vote 227: “Employee Free Choice Act of 2007.” U.S. Senate, June 26, 2007. <www.senate.gov>

Senate
Party	Voted “Yes”		Voted “No”		Voted “Present” or Did Not Vote †
Party	Number	Portion	Number	Portion	Number	Portion
Republican	1	2%	48	98%	0	0%
Democrat	48	98%	0	0%	1	2%
Independent	2	100%	0	0%	0	0%
NOTE: † Voting “Present” is effectively the same as not voting.

[361] Report: “Unfair Labor Practice Case Law Outline.” Federal Labor Relations Authority, Office Of The General Counsel, November 2018. <www.flra.gov>

Pages 27–30:

The Statute requires that both agencies and labor organizations, which have a collective bargaining relationship, bargain in good faith. Section 7103(a)(12) of the Statute defines collective bargaining as

the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.

What Does Bargaining in Good Faith Mean?

• The duty to bargain in good faith means the parties must:

- Approach negotiations with a sincere resolve to reach an agreement

- Meet at reasonable times and convenient places as frequently as needed

- Avoid unnecessary delays

• To determine whether a party has bargained in good faith, the Authority looks at all of these factors and considers the situation as a whole. …

• Certain conduct, such as unilaterally setting dates for negotiations and unwarranted delays, can be evidence of bad faith bargaining. …

• Section 7116(a)(5). It states that “it shall be an unfair labor practice for an agency to refuse to consult or negotiate in good faith with a labor organization as required by this chapter.”

Page 85:

Refusal to Bargain

Section 7116(b)(5) of the Statute states that it is an unfair labor practice for a labor organization: To refuse to consult or negotiate in good faith with an agency as required by this chapter; Unions have the same duty as agencies do to approach and participate in the collective bargaining process in good faith. See Section 6, above, on Duty to Bargain. A union violates section 7116(b)(5) if it fails to do this.

What Are Some Examples of Section 7116(B)(5) Violations?

• Union insists to impasse on a subject that is “covered by” an agreement….

• Union insists to impasse on using a recording device during contract negotiations….

• Union refuses to sign an agreement which has the terms the parties agreed to in negotiations….

• If it appears that the union negotiator has the authority to bind the union in negotiations, and there is no agreement that says something different, the union cannot insist that higher-level union officials must approve the agreement. The union is required to sign the agreement that has the agreed-upon terms.

[362] “Fiscal Year 2013 Performance and Accountability Report.” U.S. Federal Labor Relations Authority, December 16, 2013. <www.flra.gov>

Page 6:

The Federal Service Impasses Panel (FSIP or the Panel) resolves impasses between federal agencies and unions representing federal employees arising from negotiations over conditions of employment under the Statute and the Federal Employees Flexible and Compressed Work Schedules Act. The Chairman and six other Members of the Panel are appointed by the President for five-year terms. If bargaining between the parties, followed by mediation assistance, does not result in a voluntary agreement, then either party or the parties jointly may request the FSIP’s assistance.

Following a preliminary investigation by its staff, the Panel may determine to assert jurisdiction over the request. If jurisdiction is asserted, then the FSIP has the authority to recommend and/or direct the use of various ADR [alternative dispute resolution] procedures. These include informal conferences, additional mediation, fact-finding, written submissions, and mediation-arbitration by Panel Members, the Panel’s staff, or private arbitrators. If the parties still are unable to reach a voluntary settlement, then the FSIP may take whatever action it deems necessary to resolve the dispute, including imposition of contract terms through a final action. The merits of the FSIP’s decision may not be appealed to any court.

Page 28: “In carrying out the right to bargain collectively, it is not uncommon for a union representative and a federal agency to simply not agree on certain issues and for the bargaining to reach an impasse.”

[363] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7119: “Negotiation Impasses; Federal Service Impasses Panel.” Accessed October 10, 2019 at <www.law.cornell.edu>

(a) The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what manner it shall provide services and assistance.

(b) If voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party mediation, fail to resolve a negotiation impasse—

(1) either party may request the Federal Service Impasses Panel to consider the matter, or

(2) the parties may agree to adopt a procedure for binding arbitration of the negotiation impasse, but only if the procedure is approved by the Panel.

(c)

(1) The Federal Service Impasses Panel is an entity within the Authority, the function of which is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives.

(2) The Panel shall be composed of a Chairman and at least six other members, who shall be appointed by the President, solely on the basis of fitness to perform the duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations.

(3) Of the original members of the Panel, 2 members shall be appointed for a term of 1 year, 2 members shall be appointed for a term of 3 years, and the Chairman and the remaining members shall be appointed for a term of 5 years. Thereafter each member shall be appointed for a term of 5 years, except that an individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. Any member of the Panel may be removed by the President. …

(5)

(A) The Panel or its designee shall promptly investigate any impasse presented to it under subsection (b) of this section. The Panel shall consider the impasse and shall either—

(i) recommend to the parties procedures for the resolution of the impasse; or

(ii) assist the parties in resolving the impasse through whatever methods and procedures, including factfinding and recommendations, it may consider appropriate to accomplish the purpose of this section.

(B) If the parties do not arrive at a settlement after assistance by the Panel under subparagraph (A) of this paragraph, the Panel may—

(i) hold hearings;

(ii) administer oaths, take the testimony or deposition of any person under oath, and issue subpoenas as provided in section 7132 of this title; and

(iii) take whatever action is necessary and not inconsistent with this chapter to resolve the impasse.

(C) Notice of any final action of the Panel under this section shall be promptly served upon the parties, and the action shall be binding on such parties during the term of the agreement, unless the parties agree otherwise.

[364] Report: “Selected Characteristics of Private and Public Sector Workers.” By Gerald Mayer. Congressional Research Service, March 21, 2014. <fas.org>

Page 7:

Some federal workers can bargain over wages. The Postal Reorganization Act of 1970 (P.L. 91-375) gave postal workers the right to bargain over wages and benefits (excluding retirement benefits).¹¹ Air traffic controllers can bargain over wages because the Federal Aviation Administration (FAA) is required to recognize a union chosen by a majority of employees, but is allowed to develop its own pay system.¹² The Tennessee Valley Authority (TVA) has a longstanding policy that allows employees to bargain over wages.¹³

¹⁰ Although the law has never been implemented as enacted, adjustments to federal white-collar pay are based on the Federal Employees Pay Comparability Act of 1990 (FEPCA). See CRS [Congressional Research Service] Report RL34463, Federal White-Collar Pay: FY2009 and FY2010 Salary Adjustments, by Barbara L. Schwemle. Also see CRS Report RL33245, Legislative, Executive, and Judicial Officials: Process for Adjusting Pay and Current Salaries, by Barbara L. Schwemle.

¹¹ U.S. Government Accountability Office (GAO), Comparison of Collectively Bargained and Administratively Set Pay Rates for Federal Employees, GAO/FPCD-82-49, July 2, 1982, p. 10, available at <archive.gao.gov>

¹² U.S. Government Accountability Office (GAO), Human Capital: Selected Agencies’ Statutory Authorities Could Offer Options in Developing a Framework for Governmentwide Reform, GAO-05-398R, April 21, 2005, pp. 8, 31–32, available at <www.gao.gov>.

¹³ The Tennessee Valley Authority (TVA) Act of 1933 does not give TVA employees the right to engage in collective bargaining. However, a policy adopted by the TVA in 1935 allows employees to organize and bargain collectively. U.S. Government Accountability Office (GAO), Labor-Management Relations: Tennessee Valley Authority Situation Needs to Improve, GAO/GGD-91-129, September 1991, p. 13, available at <www.gao.gov>

[365] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (6th edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2019.

Page 444:

[366] Webpage: “Labor and Employment Laws.” Legal Information Institute, Cornell Law School. Accessed October 9, 2019 at <www.law.cornell.edu>

“This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work.”

[367] Paper: “Compulsory Arbitration: The Scope of Judicial Review.” By Victor Cohen. St. John’s Law Review, Spring 1977. Pages 604–631. <scholarship.law.stjohns.edu>

Page 606: “[A]s a means of settling contract disputes between governmental bodies and key public employees, a number of states have enacted statutes providing for compulsory interest arbitration.”

[368] Paper: “Binding Interest Arbitration in the Public Sector: Is It Constitutional?” William & Mary Law Review, 1977. Pages 787–821. <scholarship.law.wm.edu>

Pages 787–788:

In reality, however, public employee unrest continues.⁸

¹ (1976) GOV’T EMPL. REL. REP. (BNA) No. 670 D-3, citing New York Public Employment Relations Board 1975 Annual Report. In 1974 there were 16 strikes involving 4,100 public employees; in 1975 there were 32 strikes involving 77,745 public employees. Id.

² Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont permit some public employees to strike under specified circumstances. ALASKA STAT. § 23.40.200 (1972); HAWAII REV. STAT. § 89-12 (Supp. 1975); MINN. STAT. ANN. § 179.64 (West Cum. Supp. 1976); MONT. REV. CODES ANN. § 41-2209 (Cum. Supp. 1975); ORE. REV. STAT. § 243.726 (1975); PA. STAT. ANN. tit. 43, § 1101.1003 (Purdon Cum. Supp. 1976–1977); VT. STAT. ANN. tit. 21, § 1730 (Cum. Supp. 1976).

³(1976) GOV’T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).

⁴ McAvoy, Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector, 72 COLUM. L. REV. 1192, 1192 (1972).

⁵ The following 34 states have enacted 50 binding interest arbitration statutes covering some or all public employees: Alabama, Alaska, Connecticut, Delaware, Hawaii, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. 1971 ALA. ACTS ch. 993, § 21(b) (mass transit); ALASKA STAT. § 23.40.200 (1972) (policemen, firemen, jail and correctional institution employees, and hospital employees); CONN. GEN. STAT. ANN. § 7-473 (West 1958 & Cum. Supp. 1976) (local); DEL. CODE tit. 2, § 1613 (1974) (mass transit); HAWAII REV. STAT. § 89-11 (Supp. 1975) (state and local); IND. CODE ANN. § 22-6-4-12 (Burns Cum. Supp. 1976) (state and local); IOWA CODE ANN. § 90.15 (West 1972) (firemen); LA. REV. STAT. ANN. § 23:890 (West Cum. Supp. 1976) (mass transit); ME. REv. STAT. tit. 26, § 965(4) (Cum. Supp. 1976–1977) (local); ME. REV. STAT., tit. 26, § 979-D(4) (1964) (state); ME. REV. STAT. tit. 26, § 1026(4) (Cum. Supp. 1976–1977) (university employees); MASS. GEN. LAWS ANN. ch. 150E, § 9 (West Cum. Supp. 1976–1977) (state and local); MICH. CoMP. LAWS ANN. §§ 423.231-.240 (Cum. Supp. 1976–1977) (police and firemen); MINN. STAT. ANN. § 179.38 (West Cum. Supp. 1976) (hospital employees); MINN. STAT. ANN. § 179.72 (West Cum. Supp. 1976) (essential employees); MONT. REv. CODES ANN. § 59-1614(9) (Cum. Supp. 1975) (state and local); NEB. REV. STAT. § 48-810 to 819 (Supp. 1974) (state and local); NEV. REv. STAT. § 288.200 (1973) (local); N.H. REv. STAT. ANN. § 273-A:12 (Supp. 1975) (state and local); N.J. STAT. ANN. § 34:13A-7 (West 1965) (state and local); N.J. STAT. ANN. § 40:37A-96 (West Cum. Supp. 1976–1977) (mass transit); N.M. STAT. ANN. § 14-53-15 (1976) (mass transit); N.Y. CIv. SERV. LAW § 205.3 (McKinney Cum. Supp. 1975–1976) (police and firemen); OHIO REv. CODE ANN. § 306.12 (Page Supp. 1975) (mass transit); OKLA. STAT. ANN. tit. 11, § 548.1 (West Supp. 1976–1977) (police and firemen); ORE. REv. STAT. § 243.712(2)(c) (1975) (state and local); ORE. REv. STAT. § 243.742 (1975) (police, firemen, guards at mental and correctional institutions); PA. STAT. ANN. tit. 43, §§ 1101.804-.805 (Purdon Cum. Supp. 1976–1977) (state and local); PA. STAT. ANN. tit. 43, § 217.4 (Purdon Cum. Supp. 1976–1977) (police and firemen); PA. STAT. ANN. tit. 53, § 39951 (Purdon Cum. Supp. 1976–1977) (mass transit); PA. STAT. ANN. tit. 55, § 563.2 (Purdon 1964) (port authority); R.I. GEN. LAWS § 28-9.1–7 (1968) (firemen); R.I. GEN. LAws § 28-9.2–7 (1968) (police); R.I. GEN. LAWS § 28-9.3–9 (1968) (teachers); R.I. GEN. LAWS § 28-9.4–10 (1968) (municipal employees); R.I. GEN. LAWS § 28-9.5–9 (Supp. 1976), reprinted in [1976 Reference File - 124] GOV’T EMPL. REL. REP. (BNA) 51:4817 (school administrators); R.I. GEN. LAWS § 36-11-9 (Supp. 1975) (state); R.I. GEN. LAWS § 39-18-17 (1969) (mass transit); S.D. COMPILED LAWS ANN. § 9-14A (Cum. Supp. 1975) (police and firemen); TENN. CODE ANN. § 6-3802 (Supp. 1976) (mass transit); TEx. REV. CIv. STAT. ANN. art. 5154c-9 to -15 (Vernon Cum. Supp. 1976–1977) (police and firemen); UTAH CODE ANN. § 34-20a-7 (Supp. 1975) (firemen); VT. STAT. ANN. tit. 3, § 925 (Cum. Supp. 1976) (state); VT. STAT. ANN. tit. 21, § 1733 (Cum. Supp. 1976) (local); VA. CODE ANN. § 15.1-1357.2 (Cum. Supp. 1976) (mass transit); WASH. REV. CODE ANN. § 41.56.450 (Supp. 1975) (police and firemen); WASH. REV. CODE ANN. § 53.18.030 (Supp. 1975) (port authority); W. VA. CODE § 8-27-21 (1976) (mass transit); Wis. STAT. ANN. § 111.70 (West 1974) (Milwaukee police); Wis. STAT. ANN. § 111.77 (West 1974) (police and firemen); Wyo. STAT. § 27-269 (1967) (firemen).

⁶ See, e.g., SAN FRANCISCO, CAL., ADMIN. CODE, art. XI.A, § 16.216 (1974), reprinted in [1974 Reference File - 811 Gov’T EMPL. REL. REP. (BNA) 51:1437 (local); NEW YORK CITY, N.Y., ADMIN. CODE ch. 54, § 1173-8.0 (1972), reprinted in [1972 Reference File - 40] GOV’T EMPL. REL. REP. (BNA) 51:4167 (local).

⁷ See Barnum, From Private to Public: Labor Relations in Urban Transit, 25 INDus. & LAB. REL. REV. 95, 111 (1971).

⁸ See (1976) GOV’T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).

Page 792: “The majority of binding interest arbitration statutes give the arbitrators absolute authority to determine the terms of an award.”

[369] Article: “Teachers Push for Binding Arbitration.” By Jennifer D. Jordan. Providence Journal, May 9, 2012. <www.providencejournal.com>

The fight to secure binding arbitration for Rhode Island teachers is being revived at the State House after last year’s failed attempt by labor leaders in the last days of the legislative session. …

House Bill 7617 would expand the scope of binding arbitration for teachers to include wages and other financial matters and would include non-teacher educational employees such as janitors and support staff. It would also permit either side—labor or management—to declare the move to binding arbitration.

[370] Article: “Menino Rages as Arbitrator Grants Major Raise to Police.” By Andrew Ryan. Boston Globe, September 28, 2013. <www.bostonglobe.com>

“An arbitration panel ruled Friday evening that Boston police patrolmen deserve a 25.4 percent raise over six years, an amount more than double the increase of other city unions, according to Mayor Thomas M. Menino’s administration.”

[371] Article: “High Court Throws Out Binding Arbitration Law.” By Maura Dolan. Los Angeles Times, April 22, 2003. <articles.latimes.com>

California cannot require city and county governments to submit to binding arbitration during labor disputes with law enforcement officers and firefighters, the California Supreme Court ruled Monday.

The unanimous ruling—a victory for local government officials—struck down a 3-year-old law, which was sponsored by Senate President Pro Tem John Burton and signed by Gov. Gray Davis. The justices ruled that the law, which had been sought by labor unions for decades, violated the state Constitution. …

In an opinion written by Justice Ming W. Chin, the court held that the law permitting binding arbitration violated a state constitutional provision that forbids the Legislature from delegating municipal functions to a private party.

[372] Article: “Voters End Binding Arbitration for Palo Alto Police, Firefighters.” By Jessica Parks, Ray Braun, and Marcella De Laurentiis. Peninsula Press, November 8, 2011. <peninsulapress.com>

Palo Alto voters on Tuesday passed Measure D by 67.3 percent, ending binding arbitration for police and firefighters. The measure’s passage repealed an article of the City Charter that mandates binding arbitration when contract negotiations between the city and public safety unions come to an impasse. …

Under the current contract, police and fire employees hired before June 2010 can retire at 50 with up to 90 percent of their final year’s salary. That means a fire department employee with 30 years of service who retires at age 50, at the department’s 2009 average salary of $103,877, would receive a yearly pension of about $93,500. If that retiree lived to age 80, his or her lifetime pension would total $2.8 million.

[373] Article: “Union Organizing in a Government Setting.” By Madeline J. Meacham and Patrick R. Scully. The Colorado Lawyer (a publication of the Colorado Bar Association), October 2009. Pages 65–70. <www.cobar.org>

Page 66:

In Greeley Police Union v. City Council of Greeley,³⁷ the Colorado Supreme Court considered the constitutionality of an amendment to the city of Greeley’s Charter that gave police collective bargaining rights and imposed binding interest arbitration if negotiations between the city and the union stalled. Under the amendment, the American Arbitration Association (AAA) would provide the parties a list of five AAA arbitrators, from which each side could strike two names.³⁸ AAA would assemble a three-member arbitration panel from the remaining names.³⁹ The Court severed and struck the binding interest arbitration provision, which violated article XXI, § 4, by delegating governmental decision making on issues such as salaries, budgets, and the terms and conditions of employment to arbitrators who were not accountable to the People.⁴⁰ The Court, nevertheless, upheld the right of police to collectively bargain under the amendment.⁴¹

[374] Paper: “Binding Interest Arbitration in the Public Sector: Is It Constitutional?” William & Mary Law Review, 1977. Pages 787–821. <scholarship.law.wm.edu>

Pages 788–789:

[P]ublic employers and the electorate increasingly are alarmed at the broad powers delegated to arbitrators who are accountable to no one, and who, by awarding large salary and benefit hikes, indirectly can force substantial budgetary reallocations and tax increases.⁹ As a result, some local governments, claiming either an inability to pay¹⁰ or the unconstitutionality of binding interest arbitration laws,¹¹ have refused to participate in arbitration proceedings¹² or to honor arbitration decisions.¹³

⁹ See, e.g., Dearborn Fire Fighters Local 412 v. City of Dearborn, 394 Mich. 229, -, 231 N.W.2d 226, 248 (1975) (separate opinion).

¹⁰ See, e.g., City of Buffalo v. Patrolman’s Benevolent Ass’n (pending before N.Y. Sup. Ct.), summarized in (1976) GOV’T EMPL. REL. REP. (BNA) No. 674 B-10; Caso v. Coffey, Case 1400 E (N.Y. Sup. Ct., App. Div., decided July 12, 1976), summarized in [19761 GOV’T EMPL. REL. REP. (BNA) No. 667, B-5; Harney v. Russo, 435 Pa. 183, -, 225 A.2d 560, 564–65 (1969); City of Spokane v. Spokane Police Guild, - Wash. 2d - . 553 P.2d 1316, 1318 (1976).

¹¹ See, e.g., Town of Arlington v. Board of Conciliation & Arbitration, __ Mass. -, -, 352 N.E.2d 914, 916 (1976); Dearborn Fire Fighters Local 412 v. City of Dearborn, 394 Mich. 229, -, 231 N.W.2d 226, 228 (1975); City of Amsterdam v. Helsby, 37 N.Y.2d 19, 26, 332 N.E.2d 290, 292, 371 N.Y.S.2d 404, 406 (1975); Harney v. Russo, 435 Pa. 183, -, 255 A.2d 560, 561 (1969); City of Spokane v. Spokane Police Guild,__ Wash. 2d -, -, 553 P.2d 1316, 1318 (1976).

¹² See, e.g., City of Spokane v. Spokane Police Guild, - Wash. 2d . . 553 P.2d 1316, 1318 (1976).

¹³ See, e.g., City of Biddeford v. Biddeford Teachers Ass’n, 304 A.2d 387, 389 (Me. 1973); Harney v. Russo, 435 Pa. 183, -, 255 A.2d 560, 561 (1969).

[375] Article: “Labor Law.” West’s Encyclopedia of American Law, 2005.

A labor boycott is any type of union action that seeks to reduce or stop public patronage of a business. It is a refusal to purchase from or to handle the products of a particular employer. Employees may legally exert economic pressure on their employer through a boycott, so long as they act peacefully. But a union is forbidden to engage in a secondary boycott. For example, if a union’s primary dispute is with a hardware manufacturer, it may not picket or use other methods to get the employees of a hardware store, who are neutral or secondary parties, to stage a strike at the store in order to force it to cease handling the manufacturer’s products.

A strike is a concerted refusal of employees to perform work that they have been assigned, in order to force the employer to grant concessions that the employees have demanded. The right of employees to strike is protected by the courts. A lawful strike must be conducted in an orderly manner and may not be used as a shield for violence or crime. Intimidation and coercion in the course of a strike are unlawful. The peaceful carrying of signs and banners advertising a labor dispute is ordinarily a lawful means to publicize employees’ grievances against an employer.

Picketing consists of posting one or more union members at the site of a strike or boycott, in order to interfere with a particular employer’s business or to influence the public against patronizing that employer. It can be reasonably regulated. Lawful picketing is peaceful and honest. The use of force, intimidation, or coercion on a picket line is not constitutionally protected activity. In addition, employees are not acting within their rights when they seize any part of the employer’s property.

A lockout is an employer’s refusal to admit employees to the workplace, in order to gain a concession from them. In American Ship Building Co. v. NLRB, 380 U.S. 300, 85 S. Ct. 955, 13 L. Ed. 2d 855 (1965), the U.S. Supreme Court upheld the right of an employer to lock out employees if the intent is to promote the company’s bargaining position and not to destroy the collective bargaining process or the union.

[376] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….”

[377] U.S. Code Title 29, Chapter 7, Subchapter II, Section 163: “Right to Strike Preserved.” Accessed October 10, 2019 at <www.law.cornell.edu>

“Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.”

[378] Public Law 74-198: “National Labor Relations Act of 1935” (a.k.a. “Wagner Act”). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. <www.nlrb.gov>

“Sec. 13. Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike.”

[379] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 10:

The Right to Strike. Section 7 of the Act states in part, “Employees shall have the right … to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Strikes are included among the concerted activities protected for employees by this section. Section 13 also concerns the right to strike. It reads as follows:

Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.

It is clear from a reading of these two provisions that: the law not only guarantees the right of employees to strike, but also places limitations and qualifications on the exercise of that right. See for example, restrictions on strikes in health care institutions, page 32.

[380] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(g) Notification of Intention to Strike or Picket at Any Health Care Institution

A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of that intention, except that in the case of bargaining for an initial agreement following certification or recognition the notice required by this subsection shall not be given until the expiration of the period specified in clause (B) of the last sentence of subsection (d). The notice shall state the date and time that such action will commence. The notice, once given, may be extended by the written agreement of both parties.

[381] Article: “Let’s Give the Employees a Voice: Legislation Regulating Union Strike Votes.” By George O. Bahrs (of the California Bar). American Bar Association Journal, January 1959. Pages 35–38.

[382] Webpage: “Frequently Asked Questions (FAQ).” International Brotherhood of Teamsters. Accessed October 9, 2019 at <teamster.org>

“A majority of workers in the bargaining unit must vote in favor of a strike before one can be called. The decision rests with the affected workers.”

[383] “CWA [Communications Workers of America] Constitution as Amended April 2013.” Communications Workers of America. <cwafiles.org>

Page 31:

Section 6—Procedure for Local Strike Vote

In taking a strike vote Locals shall act in accordance with the following minimum requirements:

(a) The Locals shall, upon reasonable notice, call a meeting of its members, wherever feasible, and present the issue or issues involved in the proposed strike;

(b) The members present at such meeting shall vote by secret ballot on the question of whether or not a strike shall be called;

(c) Where meetings cannot, feasibly, be called, a secret ballot shall be taken of the members, by mail or otherwise, on the question of whether or not a strike shall be called;

(d) A majority of the members voting shall determine whether or not a strike shall be called;

(e) Copies of notice of the result of strike vote shall be sent to the Vice President or Executive Officer and to the President of the Union.

[384] Senate Bill 1712: “Employee Rights Act.” U.S. Senate, 113th Congress, November 14, 2013. <www.congress.gov>

[385] Webpage: “Cosponsors: Senate 1712: Employee Rights Act.” U.S. Senate, 113th U.S. Congress Accessed May 19, 2017 at <www.congress.gov>

“Sponsor: Hatch, Orrin G. [R–UT] (Introduced 11/14/13) … Cosponsor statistics: 28 current [28 Republican, 0 Democrats, 0 Independents]”

[386] Webpage: “All Actions S.1712: Employee Rights Act.” U.S. Senate, 113th U.S. Congress. Accessed October 29, 2014 at <www.congress.gov>

11/14/2013

Read twice and referred to the Committee on Health, Education, Labor, and Pensions.

Action By: Senate

[387] House Resolution 1855: “Employee Rights Act.” U.S. House of Representatives, 116th Congress (2019–2020). Accessed October 10, 2019 at <www.congress.gov>

[388] Webpage: “Cosponsors of House Resolution 1855: Employee Rights Act.” U.S. House of Representatives, 116th Congress (2019–2020). Accessed October 10, 2019 at <www.congress.gov>

“Sponsor: Rep. Roe, David P. [R-TN] (Introduced 03/25/2019) … Cosponsor statistics: 34 current—includes 12 original [34 Republican, 0 Democrats, 0 Independents]”

[389] Webpage: “Actions on House Resolution 1855: Employee Rights Act.” U.S. House of Representatives, 116th Congress (2019–2020). Accessed October 10, 2019 at <www.congress.gov>

03/25/2019
Referred to the House Committee on Education and Labor.

Action By: House of Representatives

03/25/2019
Introduced in House

Action By: House of Representatives

[390] Book: Employment and Labor Law (8th edition). By Patrick J. Cihon and James Ottavio Castagnera. South-Western, Cengage Learning, 2014.

Page 571:

Section 8(b)(1)(A) [of the National Labor Relations Act] prohibits union actions that restrain, coerce, or interfere with employee rights under Section7. Section 8(b)(1)(A), however, does provide that “This paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention or membership therein.”

In NLRB [National Labor Relations Board] v. Allis Chalmers Mfg. Co.,³¹ the Supreme Court held that a union could impose fines against embers who crossed a picket line and worked during an authorized strike. In NLRB v. Boeing,³² the Supreme Court held that a union may file suit in a state court to enforce fines imposed against members. However, if union members legally resign from the union before crossing the picket line and return to work during a strike, the union cannot impose fines against them, as held by the Supreme Court in NLRB v. Textile Workers Granite State Joint Board.³³ …

In response to the Textile Workers Granite State Joint Board decision, a number of unions adopted rules that limited the right of members to resign from the union during a strike. Such rules violate section 8(b)(1)(A) according to the Supreme Court decision in Pattern Makers’ League of North America v. NLRB.³⁵

[391] Ruling: Pattern Makers’ League of North America v. National Labor Relations Board. U.S. Supreme Court, June 27, 1985. Decided 6–3. Majority: Powell, Burger, White, Rehnquist, O’Connor. Concurring: Blackmun. Dissenting: Brennan, Marshall, Stevens. <caselaw.findlaw.com>

Majority decision:

The League is a national union composed of local associations (locals). In May 1976, its constitution was amended to provide that

“[n]o resignation or withdrawal from an Association, or from the League, shall be accepted during a strike or lockout, or at a time when a strike or lockout appears imminent.”

This amendment, known as League Law 13, became effective in October 1976, after being ratified by the League’s locals. …

We believe that [Section] 8(b)(1)(A) [of the National Labor Relations Act] properly may be construed as prohibiting the fining of employees who have tendered resignations ineffective under a restriction in the union constitution. …

Section 7 of the Act, 29 U.S.C. 157, grants employees the right to “refrain from any or all [concerted] . . . activities . . . .”⁷ This general right is implemented by 8(b)(1)(A). The latter section provides that a union commits an unfair labor practice if it “restrain[s] or coerce[s] employees in the exercise” of their [Section] 7 rights.⁸ When employee members of a union refuse to support a strike (whether or not a rule prohibits returning to work during a strike), they are refraining from “concerted activity.” Therefore, imposing fines on these employees for returning to work “restrain[s]” the exercise of their [Section] 7 rights. Indeed, if the terms “refrain” and “restrain or coerce” are interpreted literally, fining employees to enforce compliance with any union rule or policy would violate the Act.

Despite this language from the Act, the Court in NLRB [National Labor Relations Board] v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967), held that 8(b)(1)(A) does not prohibit labor organizations from fining current members. In NLRB v. Textile Workers, supra, and Machinists v. NLRB, 412 U.S. 84 (1973) (per curiam), the Court found as a corollary that unions may not fine former members who have resigned lawfully. Neither Textile Workers, supra, nor Machinists, supra, however, involved a provision like League Law 13, restricting the members’ right to resign. We decide today whether a union is precluded from fining employees who have attempted to resign when resignations are prohibited by the union’s constitution.⁹

The Court’s reasoning in Allis-Chalmers, supra, supports the Board’s conclusion that petitioners in this case violated 8(b)(1)(A). In Allis-Chalmers, the Court held that imposing court-enforceable fines against current union members does not “restrain or coerce” the workers in the exercise of their 7 rights.¹⁰ In so concluding, the Court relied on the legislative history of the Taft-Hartley Act. It noted that the sponsor of 8(b)(1)(A) never intended for that provision “ ‘to interfere with the internal affairs or organization of unions,’ ” 388 U.S., at 187 , quoting 93 Cong. Rec. 4272 (1947) (statement of Sen. Ball), and that other proponents of the measure likewise disclaimed an intent to interfere with unions’ “internal affairs.” 388 U.S., at 187–190. From the legislative history, the Court reasoned that Congress did not intend to prohibit unions from fining present members, as this was an internal matter. The Court has emphasized that the crux of Allis-Chalmers’ holding was the distinction between “internal and external enforcement of union rules . . . .” Scofield v. NLRB, 394 U.S., at 428 . See also NLRB v. Boeing Co., 412 U.S. 67, 73 (1973).

The congressional purpose to preserve unions’ control over their own “internal affairs” does not suggest an intent to authorize restrictions on the right to resign. Traditionally, union members were free to resign and escape union discipline.¹¹ In 1947, union constitutional provisions restricting the right to resign were uncommon, if not unknown.¹² Therefore, allowing unions to “extend an employee’s membership obligation through restrictions on resignation” would “expan[d] the definition of internal action” beyond the contours envisioned by the Taft-Hartley Congress. International Assn. of Machinists, Local 1414 (Neufeld Porsche-Audi, Inc.), 270 NLRB No. 209, p. 11 (1984).¹³

Language and reasoning from other opinions of this Court confirm that the Board’s construction of 8(b)(1)(A) is reasonable. In Scofield v. NLRB, supra, the Court upheld a union rule setting a ceiling on the daily wages that members working on an incentive basis could earn. The union members’ freedom to resign was critical to the Court’s decision that the union rule did not “restrain or coerce” the employees within the meaning of 8(b)(1)(A). It stated that the rule was “reasonably enforced against union members who [were] free to leave the union and escape the rule.” Id., at 430. The Court deemed it important that if members were unable to take full advantage of their contractual right to earn additional pay, it was because they had “chosen to become and remain union members.” Id., at 435 (emphasis added).

The decision in NLRB v. Textile Workers, 409 U.S. 213 (1972), also supports the Board’s view that 8(b)(1)(A) prohibits unions from punishing members not free to resign. There, 31 employees resigned their union membership and resumed working during a strike. We held that fining these former members “restrained or coerced” them, within the meaning of 8(b)(1)(A). In reaching this conclusion, we said that “the vitality of [Section] 7 requires that the member be free to refrain in November from the actions he endorsed in May.” Id., at 217–218. Restrictions on the right to resign curtail the freedom that the Textile Workers Court deemed so important. See also Machinists v. NLRB, 412 U.S. 84 (1973).

Section 8(b)(1)(A) allows unions to enforce only those rules that “impai[r] no policy Congress has imbedded in the labor laws . . . .” Scofield, supra, at 430. The Board has found union restrictions on the right to resign to be inconsistent with the policy of voluntary unionism implicit in 8(a)(3).¹⁴ See International Assn. of Machinists, Inc., Local 1414 (Neufeld Porsche-Audi, Inc.), supra; Machinists Local 1327 (Dalmo Victor II), 263 N. L. R. B., at 992 (Chairman Van de Water and Member Hunter, concurring). We believe that the inconsistency between union restrictions on the right to resign and the policy of voluntary unionism supports the Board’s conclusion that League Law 13 is invalid.

League Law 13 curtails this freedom to resign from full union membership. Nevertheless, petitioners contend that League Law 13 does not contravene the policy of voluntary unionism imbedded in the Act. They assert that this provision does not interfere with workers’ employment rights because offending members are not discharged, but only fined. We find this argument unpersuasive, for a union has not left a “worker’s employment rights inviolate when it exacts [his entire] paycheck in satisfaction of a fine imposed for working.” Wellington, Union Fines and Workers’ Rights, 85 Yale L. J. 1022, 1023 (1976). Congress in 1947 sought to eliminate completely any requirement that the employee maintain full union membership.¹⁷ Therefore, the Board was justified in concluding that by restricting the right of employees to resign, League Law 13 impairs the policy of voluntary unionism.

[392] Decision: Labor Board v. Fansteel Metallurgical Corp. U.S. Supreme Court, February 27, 1939. Decided 6–2. Majority: Hughes, Butler, Cardozo, McReynolds, Roberts. Concurring in part: Stone. Dissenting in part: Reed, Black. <supreme.justia.com>

Majority decision:

Respondent, Fansteel Metallurgical Corporation, is engaged at North Chicago, Illinois, in the manufacture and sale of products made from rare metals. …

Shortly after the second meeting in the afternoon of February 17th, the Union committee decided upon a “sit-down strike” by taking over and holding two of respondent’s “key” buildings. These were thereupon occupied by about 95 employees. Work stopped, and the remainder of the plant also ceased operations. Employees who did not desire to participate were permitted to leave, and a number of Union members who were on the night shift and did not arrive for work until after the seizure did not join their fellow members inside the buildings. At about six o’clock in the evening, the superintendent, accompanied by police officials and respondent’s counsel, went to each of the buildings and demanded that the men leave. They refused, and respondent’s counsel “thereupon announced in loud tones that all the men in the plant were discharged for the seizure and retention of the buildings.” The men continued to occupy the buildings until February 26, 1937. Their fellow members brought them food, blankets, stoves, cigarettes, and other supplies. …

… The [National Labor Relations] Board concluded that, by “the anti-union statements and actions” of the superintendent on September 10, 1936, and September 21, 1936, by “the campaign to introduce into the plant a company union,” by “the isolation of the union president from contact with his fellow employees,” and by the employment and use of a “labor spy,” respondent had interfered with its employees, and restrained and coerced them, in the exercise of their right to self-organization guaranteed in § 7 of the [National Labor Relations] Act, and thus had engaged in an unfair labor practice under § 8(1) of the Act.

Owing to the fact that, in September, 1936, the Union did not have a majority of the employees in the appropriate unit, the Board held that it was precluded from finding unfair labor practices in refusing to bargain collectively at that time, but the Board found that there was such a refusal on February 17, 1937, when the Union did have a majority of the employees in the appropriate unit, and that this constituted a violation of § 8(5).

These conclusions are supported by the findings of the Board, and the latter, in this relation, have substantial support in the evidence. …

For the unfair labor practices of respondent, the Act provided a remedy. Interference in the summer and fall of 1936 with the right of self-organization could at once have been the subject of complaint to the Board. The same remedy was available to the employees when collective bargaining was refused on February 17, 1937. But, reprehensible as was that conduct of the respondent, there is no ground for saying that it made respondent an outlaw, or deprived it of its legal rights to the possession and protection of its property. The employees had the right to strike, but they had no license to commit acts of violence or to seize their employer’s plant. We may put on one side the contested questions as to the circumstances and extent of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buildings was itself a wrong apart from any acts of sabotage. But, in its legal aspect, the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its property, or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labor dispute or of an unfair labor practice would be to put a premium on resort to force, instead of legal remedies, and to subvert the principles of law and order which lie at the foundations of society.

As respondent’s unfair labor practices afforded no excuse for the seizure and holding of its buildings, respondent had its normal rights of redress. Those rights, in their most obvious scope, included the right to discharge the wrongdoers from its employ. To say that respondent could resort to the state court to recover damages or to procure punishment, but was powerless to discharge those responsible for the unlawful seizure, would be to create an anomalous distinction for which there is no warrant unless it can be found in the terms of the National Labor Relations Act. We turn to the provisions which the Board invokes.

(2) In construing the Act in Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 45–46, we said that it “does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them;” that the employer

“may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” …

It is apparent under that construction of the Act that, had there been no strike, and employees had been guilty of unlawful conduct in seizing or committing depredations upon the property of their employer, that conduct would have been good reason for discharge, as discharge on that ground would not be for the purpose of intimidating or coercing employees with respect to their right of self-organization or representation, or because of any lawful union activity, but would rest upon an independent and adequate basis.

But the Board, in exercising its authority under §10(c) to reinstate “employees,” insists that, here, the status of the employees was continued, despite discharge for unlawful conduct, by virtue of the definition of the term “employee” in § 2(3). By that definition, the term includes

“any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment. . . .”

We think that the argument misconstrues the statute. We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct—to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property, which they would not have enjoyed had they remained at work. Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression. We find no such expression in the cited provision.

We think that the true purpose of Congress is reasonably clear. Congress was intent upon the protection of the right of employees to self-organization and to the selection of representatives of their own choosing for collective bargaining without restraint or coercion. Labor Board v. Jones & Laughlin Steel Corp., supra, page p. 301 U. S. 33. To assure that protection, the employer is not permitted to discharge his employees because of union activity or agitation for collective bargaining. Associated Press v. Labor Board, supra. The conduct thus protected is lawful conduct.

Congress also recognized the right to strike—that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands. Section 13 provides that nothing in the Act “shall be construed so as to interfere with or impede or diminish in any way the right to strike.” But this recognition of “the right to strike” plainly contemplates a lawful strike—the exercise of the unquestioned right to quit work. As we said in Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 304 U. S. 347, “if men strike in connection with a current labor dispute, their action is not to be construed as a renunciation of the employment relation, and they remain employees for the remedial purposes specified in the act.”

There is thus abundant opportunity for the operation of § 2(3) without construing it as countenancing lawlessness or as intended to support employees in acts of violence against the employer’s property by making it impossible for the employer to terminate the relation upon that independent ground.

Here, the strike was illegal in its inception and prosecution. As the Board found, it was initiated by the decision of the Union committee “to take over and hold two of the respondent’s key’ buildings.” It was pursuant to that decision that the men occupied the buildings and the work stopped. This was not the exercise of “the right to strike” to which the Act referred. It was not a mere quitting of work and statement of grievances in the exercise of pressure recognized as lawful. It was an illegal seizure of the buildings in order to prevent their use by the employer in a lawful manner, and thus, by acts of force and violence, to compel the employer to submit. When the employees resorted to that sort of compulsion, they took a position outside the protection of the statute, and accepted the risk of the termination of their employment upon grounds aside from the exercise of the legal rights which the statute was designed to conserve.

[393] Decision: National Labor Relations Board v. Fansteel Metallurgical Corp. U.S. Supreme Court, February 27, 1939. Decided 6–2. Majority: Hughes, Butler, Cardozo, McReynolds, Roberts. Concurring in part: Stone. Dissenting in part: Reed, Black. <supreme.justia.com>

Stone concurrence:

I concur in so much of the Court’s decision as holds that the Board was without statutory authority to order reinstatement of those employees who were discharged on February 17, 1937. But I rest this conclusion solely on the construction of § 2(3) and § 10(c) of the National Labor Relations Act. By § 10(c), the Board is given authority to reinstate in their employment only those who are “employees.” Before the Board made its order, respondent’s employees, by reason of their lawful discharge for cause, had lost their status as such, which would otherwise have been preserved to them under § 2(3). …

… I cannot attribute to Congress, in the adoption of § 2(3), explained as it was in the Senate Committee Report, a purpose to cut off the right of an employer to discharge employees who have destroyed his factory, and to refuse to reemploy them, if that is the real reason for his action. If a plainer indication of such a purpose had been given by the language of § 2(3), I should have thought it of sufficiently dubious constitutionality to require us to construe its language otherwise, if that could reasonably be done, leaving it to Congress to say so, in unmistakable language, if it really meant to impose that duty on the employer.

[394] Decision: National Labor Relations Board v. Fansteel Metallurgical Corp. U.S. Supreme Court, February 27, 1939. Decided 6–2. Majority: Hughes, Butler, Cardozo, McReynolds, Roberts. Concurring in part: Stone. Dissenting in part: Reed, Black. <supreme.justia.com>

Minority opinion:

The point is made that an employer should not be compelled to reemploy an employee guilty, perhaps, of sabotage. This depends upon circumstances. It is the function of the Board to weigh the charges and countercharges and determine the adjustment most conducive to industrial peace. Courts certainly should not interfere with the normal action of administrative bodies in such circumstances. Here, both labor and management had erred grievously in their respective conduct. It cannot be said to be unreasonable to restore both to their former status. Such restoration would apply to the sit-down strikers and those striking employees who aided and abetted them.

I am of the view that the provisions of the order of the Board ordering an offer of reinstatement to the employees discussed above should be sustained. As the remainder of the order is affected by the determination upon this issue but not wholly controlled by the conclusions, no opinion is expressed as to the other requirements of the order.

[395] Webpage: “The Right to Strike.” National Labor Relations Board. Accessed October 27, 2014 at <www.nlrb.gov>

Lawful and Unlawful Strikes. The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. The object, or objects, of a strike and whether the objects are lawful are matters that are not always easy to determine. Such issues often have to be decided by the National Labor Relations Board. The consequences can be severe to striking employees and struck employers, involving as they do questions of reinstatement and backpay. …

Strikes Unlawful Because of Timing—Effect of no-strike contract. A strike that violates a no-strike provision of a contract is not protected by the Act, and the striking employees can be discharged or otherwise disciplined, unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. It should be noted that not all refusals to work are considered strikes and thus violations of no-strike provisions. A walkout because of conditions abnormally dangerous to health, such as a defective ventilation system in a spray-painting shop, has been held not to violate a no-strike provision. …

Strikes Unlawful Because of Misconduct of Strikers. Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers. Serious misconduct has been held to include, among other things, violence and threats of violence. The U.S. Supreme Court has ruled that a “sitdown” strike, when employees simply stay in the plant and refuse to work, thus depriving the owner of property, is not protected by the law. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are:

• Strikers physically blocking persons from entering or leaving a struck plant.

• Strikers threatening violence against nonstriking employees.

• Strikers attacking management representatives.

[396] Webpage: “Frequently Asked Questions (FAQ).” International Brotherhood of Teamsters. Accessed October 9, 2019 at <teamster.org>

“[B]ecause most contracts include a no-strike clause, they [strikes] typically occur only after a contract expires, not during the term of the contract.”

[397] Webpage: “The Right to Strike.” National Labor Relations Board. Accessed October 10, 2019 at <www.nlrb.gov>

If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. …

… Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers.

[398] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Unfair Labor Practices by Employer

It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it…

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization…

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter;

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title.

[399] Ruling: National Labor Relations Board v. Mackay Radio & Telegraph Co. U.S. Supreme Court, May 16, 1938. Decided 7–0. <caselaw.findlaw.com>

Majority decision:

The respondent, a California corporation, is engaged in the transmission and receipt of telegraph, radio, cable, and other messages between points in California and points in other states and foreign countries. It maintains an office in San Francisco for the transaction of its business wherein it employs upwards of sixty supervisors, operators and clerks, many of whom are members of Local No. 3 of the American Radio Telegraphists Association, a national labor organization…. At midnight Friday, October 4, 1935, all the men there employed went on strike. The respondent, in order to maintain service, brought employees from its Los Angeles office and others from the New York and Chicago offices of the parent company to fill the strikers’ places.

Although none of the San Francisco strikers returned to work Saturday, Sunday, or Monday, the strike proved unsuccessful in other parts of the country and, by Monday evening, October 7th, a number of the men became convinced that it would fail and that they had better return to work before their places were filled with new employees. One of them telephoned the respondent’s traffic supervisor Monday evening to inquire whether the men might return. He was told that the respondent would take them back and it was arranged that the official should meet the employees at a downtown hotel and make a statement to them. Before leaving the company’s office for this purpose the supervisor consulted with his superior, who told him that the men might return to work in their former positions but that, as the company had promised eleven men brought to San Francisco they might remain if they so desired, the supervisor would have to handle the return of the striking employees in such fashion as not to displace any of the new men who desired to continue in San Francisco. …

… It turned out that only five of the new men brought to San Francisco desired to stay.

Five strikers who were prominent in the activities of the union and in connection with the strike, whose names appeared upon the list of eleven, reported at the office at various times between Tuesday and Thursday. Each of them was told that he would have to fill out an application for employment; that the roll of employees was complete, and that his application would be considered in connection with any vacancy that might thereafter occur. These men not having been reinstated in the course of three weeks, the secretary of Local No. 3 presented a charge to the National Labor Relations Board that the respondent had violated section 8(1) and (3) of the National Labor Relations Act.⁴ Thereupon the Board filed a complaint charging that the respondent had discharged and was refusing to employ the five men who had not been reinstated to their positions for the reason that they had joined and assisted the labor organization known as Local No. 3 and had engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection; that by such discharge respondent had interfered with, restrained, and coerced the employees in the exercise of their rights guaranteed by section 75 of the National Labor Relations Act and so had been guilty of an unfair labor practice within the meaning of section 8(1) of the act. The complaint further alleged that the discharge of these men was a discrimination in respect of their hire and tenure of employment and a discouragement of membership in Local No. 3, and thus an unfair labor practice within the meaning of section 8(3) of the act. The respondent filed an answer denying the allegations of the complaint, and moved to dismiss the proceeding on the ground that the act is unconstitutional. …

The subsidiary or evidentiary facts were found in great detail and, upon the footing of them, the Board reached conclusions of fact to the effect that Local No. 3 is a labor organization within the meaning of the act; that, “by refusing to reinstate to employment” the five men in question, “thereby discharging said employees,” the respondent by “each of said discharges,” discriminated in regard to tenure of employment, and thereby discouraged membership in the labor organization known as Local No. 3, and, by the described acts, “has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act.”

Second. Under the findings the strike was a consequence of, or in connection with, a current labor dispute as defined in section 2(9) of the act, 29 U.S.C.A. 152(9). That there were pending negotiations for the execution of a contract touching wages and terms and conditions of employment of point-to-point operators cannot be denied. But it is said the record fails to disclose what caused these negotiations to fail or to show that the respondent was in any wise in fault in failing to comply with the union’s demands; and, therefore, for all that appears, the strike was not called by reason of fault of the respondent. The argument confuses a current labor dispute with an unfair labor practice defined in section 8 of the act, 29 U.S.C.A. 158. …

Third. The strikers remained employees under section 2(3) of the act, 29 U.S.C.A. 152(3), which provides: ‘The term ‘employee’ shall include … any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment….’ Within this definition the strikers remained employees for the purpose of the act and were protected against the unfair labor practices denounced by it.

Fourth. It is contended that the Board lacked jurisdiction because respondent was at no time guilty of any unfair labor practice. Section 8 of the act denominates as such practice action by an employer to interfere with, restrain, or coerce employees in the exercise of their rights to organize, to form, join, or assist labor organizations, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or ‘by discrimination in regard to … tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. …’ There is no evidence and no finding that the respondent was guilty of any unfair labor practice in connection with the negotiations in New York. On the contrary, it affirmatively appears that the respondent was negotiating with the authorized representatives of the union. Nor was it an unfair labor practice to replace the striking employees with others in an effort to carry on the business. Although section 13 of the act, 29 U.S.C.A. 163, provides, ‘Nothing in this Act (chapter) shall be construed so as to interfere with or impede or diminish in any way the right to strike,’ it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them.⁷ The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice, nor was it such to reinstate only so many of the strikers as there were vacant places to be filled. But the claim put forward is that the unfair labor practice indulged by the respondent was discrimination in reinstating striking employees by keeping out certain of them for the sole reason that they had been active in the union. As we have said, the strikers retained, under the act, the status of employees. Any such discrimination in putting them back to work is, therefore, prohibiting by section 8. …

… As we have said, the respondent was not bound to displace men hired to take the strikers’ places in order to provide positions for them.

[400] Webpage: “The Right to Strike.” National Labor Relations Board. Accessed October 25, 2017 at <www.nlrb.gov>

Economic Strikers Defined. If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement.

Unfair Labor Practice Strikers Defined. Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged.

If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers backpay starting at the time they should have been reinstated.

[401] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

“Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this subchapter in any election conducted within twelve months after the commencement of the strike.”

[402] Decision: Spurlino Materials, LLC. By Jeffrey D. Wedekind (Administrative Law Judge). National Labor Relations Board, March 15, 2011. <apps.nlrb.gov>

However, the law is clear that striking employees do not lose their protection from permanent replacement simply because only one of their goals is to reverse their employer’s unfair labor practices, even if it is not their primary goal. See, e.g., Northern Wire v. NLRB [National Labor Relations Board] , 887 F.2d 1313, 1319–1321 (7th Cir. 1989) (“A strike that is caused in whole or in part by an employer’s unfair labor practices is an unfair labor practice strike”); NLRB v. Moore Business Forms, 574 F.2d 835, 840 (5th Cir. 1978) (“The employer’s unfair labor practice need not be the sole or even the major cause or aggravating factor of the strike; it need only be a contributing factor”); General Drivers and Helpers Union, Local 662 v. NLRB, 302 F.2d 908, 911 (D.C. Cir. 1962) (“if an unfair labor practice had anything to do with causing the strike, it was an unfair labor practice strike”), cert. denied 83 S.Ct. 48 (1962).

[403] Webpage: “Frequently Asked Questions (FAQ).” International Brotherhood of Teamsters. Accessed October 9, 2019 at <teamster.org>

Most strikes are called for economic reasons—to improve wages, health benefits, retirement benefits, etc. …

Strikes can be called at any time if extremely unsafe working conditions occur or if the company has participated in an “unfair labor practice.” But these types of noneconomic strikes are very rare.

[404] Article: “Kim Moody Interview: The Superpower’s Shopfloor.” By Martin Smith. International Socialism, July 2, 2007. <isj.org.uk>

“I was one of the co-founders of Labor Notes in 1979. It is an independent national monthly magazine that goes out to trade union activists.”

[405] Article: “Making Sure a Strike Centers On Unfair Labor Practices.” By Robert M. Schwartz. Labor Notes, August 8, 2012. <www.labornotes.org>

Positioning a walkout as an unfair labor practice strike is one of the key tasks for any union on the verge of a labor battle. Under the rules of the National Labor Relations Act, and the laws of many states that permit public employee strikes, ULP strikers cannot be permanently replaced. …

Employers often argue that strikes should be classified as economic because union officials took purposeful steps to make them look like ULP strikes. The NLRB often rejects such claims.

[406] Webpage: “The Right to Strike.” National Labor Relations Board. Accessed October 27, 2014 at <www.nlrb.gov>

“If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers backpay starting at the time they should have been reinstated.”

[407] “2013 Performance and Accountability Report.” National Labor Relations Board, December 2, 2013. <www.nlrb.gov>

Page 38:

• Acting on the results of professional staff investigations, which produced a reasonable cause to believe unfair labor practices had been committed, Regional Offices of the NLRB [National Labor Relations Board] issued 1,272 complaints, setting the cases for hearing

• A 92.8 percent settlement rate was achieved in the Regional Offices in meritorious ULP [unfair labor practice] cases

• The Regional Offices won 85.7 percent of Board and ALJ [administrative law judge] ULP and Compliance decisions in whole or part in FY 2013

• A total of $16,245,665 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines with 1,352 employees offered reinstatement

[408] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 11: “Likewise the right to picket is subject to limitations and qualifications. As with the right to strike, picketing can be prohibited because of its object or its timing, or misconduct on the picket line. In addition, Section 8(b)(7) declares it to be an unfair labor practice for a union to picket for certain objects whether the picketing accompanies a strike or not.”

[409] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

[410] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(b) Unfair Labor Practices by Labor Organization

(B) (ii) (4) … “[N]othing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing…” …

(g) Notification of Intention to Strike or Picket at Any Health Care Institution

[411] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

“(b) Unfair Labor Practices by Labor Organization

(B) (ii) (4) … ‘[N]othing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing…’ ”

[412] Decision: United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, Inc. National Labor Relations Board, August 27, 2010. Decided 3–2. Majority: Liebman, Becker, Pearce. Dissent: Schaumber, Hayes. <apps.nlrb.gov>

Page 6:

The core conduct that renders picketing coercive under Section 8(b)(4)(ii)(B) is not simply the holding of signs (in contrast to the distribution of handbills), but the combination of carrying of picket signs and persistent patrolling of the picketers back and forth in front of an entrance to a work site, creating a physical or, at least, a symbolic confrontation between the picketers and those entering the worksite. … A year later, in Alden Press, Inc., 151 NLRB [National Labor Relations Board] 1666, 1668 (1965), the Board adopted the Second Circuit’s view in Furniture Workers that “ ‘[o]ne of the necessary conditions of ‘picketing’ is a confrontation in some form between union members and employees, customers, or suppliers who are trying to enter the employer’s premises.’ ” (Quoting 337 F.2d at 940). See also Sheet Metal Workers’ Local 15 v. NLRB, 491 F.3d 429, 438 (D.C. Cir. 2007) (“mock funeral” procession outside a hospital did not constitute picketing, because the participants did not “physically or verbally interfere with or confront Hospital patrons” or create a “symbolic barrier”). To fall within the prohibition of Section 8(b)(4)(ii)(B), picketing must entail an element of confrontation.

Pages 7–8:

We acknowledge that prior Board decisions have used broader language to define picketing. In Lumber & Sawmill Workers Local 2797 (Stoltze Land & Lumber Co.), 156 NLRB 388, 394 (1965), cited prominently by the dissent, the Trial Examiner, in a decision affirmed by the Board, stated, “The important feature of picketing appears to be the posting by a labor organization … of individuals at the approach to a place of business to accomplish a purpose which advances the cause of the union, such as keeping employees away from work or keeping customers away from the employer’s business.”

[413] Decision: United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, Inc. National Labor Relations Board, August 27, 2010. Decided 3–2. Majority: Liebman, Becker, Pearce. Dissent: Schaumber, Hayes. <apps.nlrb.gov>

Minority opinion:

The National Labor Relations Act protects the right of employees to invoke economic weaponry, including strikes and picketing, to bring pressure to bear on employers with whom they have a primary labor dispute. …

Indeed, the Supreme Court has endorsed the Board’s broader and flexible view of picketing in a line of cases dating back many decades. See Tree Fruits, supra, 377 U.S. at 76 (Black, J., concurring)(emphasis added) (“ ‘Picketing,’ in common parlance and in § 8(b)(4)(ii)(B),” includes the concept of “patrolling, that is, standing or marching back and forth or round and round on the streets, sidewalks, private property, or elsewhere, generally adjacent to someone else’s premises[.]”); Thornhill v. State of Alabama, 310 U.S. 88, 101 fn. 18 (1940) (picketing includes merely observing workers or customers, persuading “employees or customers not to engage in relations with the employer. . . through the use of banners . . .” and may include threatening employees or customers . . . . by the mere presence of the picketer” which “may be a threat of, (i) physical violence, [or] (ii) social ostracism, being branded in the community as a ‘scab’ ”) (emphasis added). There is no indication that the DeBartolo II Court thought it was overturning these principles, and there is no justification for the majority to do so now.³³

[414] Photo: “Protesters Picket for Higher Wages Outside a McDonalds Restaurant in Detroit on Thursday, May 15, 2014.” By Paul Sancya/Associated Press. Used under license.

“Calling for higher pay and the right to form a union without retaliation, fast-food chain workers protested Thursday as part of a wave of strikes and protests in 150 cities across the U.S. and 33 additional countries on six continents.”

[415] Decision: United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, Inc. National Labor Relations Board, August 27, 2010. Decided 3–2. Majority: Liebman, Becker, Pearce. Dissent: Schaumber, Hayes. <apps.nlrb.gov>

Pages 5–6:

Moreover, the consequences of categorizing peaceful expressive activity as proscribed picketing are severe. The activity is stripped of protection and employees participating in it can be fired. See, e.g., Motor Freight Drivers Local 707 (Claremont Polychem. Corp.), 196 NLRB [National Labor Relations Board] 613, 614 (1972) (strikers who picketed in violation of Sec. 8(b)(7)(B) not entitled to reinstatement); Hardee’s Food Systems, Inc., 294 NLRB 642, 646 (1989)(“Actions that violate Section 8(b) are not protected by the Act even if those actions would otherwise be protected by Sections 7 and 8(a).”), review denied sub nom. Laborers Local 204 v. NLRB, 904 F.2d 715 (D.C. Cir. 1990). The activity becomes an unfair labor practice and the Board is required, upon a finding of “reasonable cause” to believe such activity has occurred, to go into federal district court and seek a prior restraint against the continuation of the activity. See 29 U.S.C. §10(l). And, finally, a labor organization engaged in such activity is subject to suit in Federal court where damages can be awarded. See 29 U.S.C. §187. For each of these reasons, we must take care not to define the category of proscribed picketing more broadly than clearly intended by Congress.¹⁸

[416] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 26:

Examples of restraint or coercion that violate Section 8(b)(1)(A) when done by a union or its agents include the following:

• Mass picketing in such numbers that nonstriking employees are physically barred from entering the plant.

• Acts of force or violence on the picket line, or in connection with a strike.

[417] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed July 7, 2014 at <www.nlrb.gov>

“Examples of Labor Organization Conduct That Violates the Law … Striking over issues unrelated to employment terms and conditions or coercively enmeshing neutrals into a labor dispute.”

[418] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Pages 29–31:

Section 8(b)(4)—Prohibited Strikes and Boycotts. Section 8(b)(4) prohibits a labor organization from engaging in strikes or boycotts or taking other specified actions to accomplish certain purposes or “objects” as they are called in the Act. The proscribed action is listed in clauses (i) and (ii), the objects are described in subparagraphs (A) through (D). A union commits an unfair labor practice if it takes any of the kinds of action listed in clauses (i) and (ii) as a means of accomplishing any of the objects listed in the four subparagraphs.

Proscribed action: Inducing or encouraging a strike work stoppage or boycott. Clause (i) forbids a union to engage in a strike, or to induce or encourage a strike, work stoppage, or a refusal to perform services by “any individual employed by any person engaged in commerce or in an industry affecting commerce” for one of the objects listed in subparagraphs (A) through (D). The words “induce and encourage” are considered by the U. S. Supreme Court to be broad enough to include every form of influence or persuasion. For example, it has been held by the NLRB [National Labor Relations Board] that a work stoppage on a picketed construction project was “induced” by a union through its business agents who, when they learned about the picketing, told the job stewards that they (the business agents) would not work behind the picket line. It was considered that this advice not only induced the stewards to leave the job, but caused them to pass the information on to their fellow employees, and that such conduct informed the other employees that they were expected not to work behind the picket line. The world “person” is defined in Section 2(1) as including “one or more individuals, labor organizations, partnerships, associations, corporations,” and other legal persons. As so defined, the word “person” is broader than the word “employer.” For example, a railroad company, although covered by the Railway Labor Act, is excluded from the definition of “employer” in the National Labor Relations Act and, therefore, neither the railroad company nor its employees are covered by the National Labor Relations Act. But a railroad company is a “person engaged in commerce” as defined above and, therefore, a labor organization is forbidden to “induce or encourage” individuals employed by a railroad company to engage in a strike, work stoppage, or boycott for any of the objects in subparagraphs (A) through (D).

Proscribed action: Threats, coercion, and restraint. Clause (ii) makes it an unfair labor practice for a union to “threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce” for any of the proscribed objects. Even though no direct threat is voiced by the union, there may nevertheless be coercion and restraint that violates this clause. For example, when a union picketed a construction job to bring about the removal of a nonunion subcontractor in violation of Section 8(b)(4)(B), the picketing induced employees of several other subcontractors to stop work. When the general contractor asked what could be done to stop the picketing, the union’s business agent replied that the picketing would stop only if the nonunion subcontractor were removed from the job. The NLRB held this to be “coercion and restraint” within the meaning of clause (ii).

Subparagraph (A)—Prohibited object: Compelling membership in an employer or labor organization or compelling a hot cargo agreement. Section 8(b)(4)(A) prohibits unions from engaging in clause (i) or (ii) action to compel an employer or self-employed person to join any labor or employer organization or to force an employer to enter a hot cargo agreement prohibited by Section 8(e). Examples of violations of this section are: Examples of violations of Section 8(b)(4)(A).

• In an attempt to compel a beer distributor to join a union, the union prevents the distributor from obtaining beer at a brewery by inducing the brewery’s employees to refuse to fill the distributor’s orders.

• In an attempt to secure for its members certain stevedoring work required at an employer’s unloading operation, the union pickets to force the employer to join an employer association with which the union has a contract.

• A union pickets an employer (one not in the construction and garment industries), or threatens to picket it, to compel that employer to enter into an agreement whereby the employer will only do business with persons who have an agreement with a union.

Subparagraph (B)—Prohibited object: Compelling recognition of an uncertified union. Section 8(b)(4)(B) contains the Act’s secondary boycott provision. A secondary boycott occurs if a union has a dispute with Company A and, in furtherance of that dispute, causes the employees of Company B to stop handling the products of Company A, or otherwise forces Company B to stop doing business with Company A. The dispute is with Company A, called the “primary” employer, the union’s action is against Company B, called the “secondary” employer, hence the term “secondary boycott.” In many cases the secondary employer is a customer or supplier of the primary employer with whom the union has the dispute. In general, the Act prohibits both the secondary boycott and the threat of it. Examples of prohibited secondary boycotts are:

Examples of violations of Section 8(b)(4)(B).

• Picketing an employer to force it to stop doing business with another employer who has refused to recognize the union.

• Asking the employees of a plumbing contractor not to work on connecting up air-conditioning equipment manufactured by a nonunion employer whom the union is attempting to organize.

• Urging employees of a building contractor not to install doors that were made by a manufacturer that is nonunion or that employs members of a rival union.

• Telling an employer that its plant will be picketed if that employer continues to do business with an employer the union has designated as “unfair.”

The prohibitions of Section 8(b)(4)(B) do not protect a secondary employer from the incidental effects of union action that is taken directly against the primary employer. Thus, it is lawful for a union to urge employees of a secondary supplier at the primary employer’s plant not to cross a picket line there. Section 8(b)(4)(B) also does not proscribe union action to prevent an employer from contracting out work customarily performed by its employees, even though an incidental effect of such conduct might be to compel that employer to cease doing business with the subcontractor. …

Subparagraph (C)—Prohibited object: Compelling recognition of a union if another union has been certified. Section 8(b)(4)(C) forbids a labor organization from using clause (i) or (ii) conduct to force an employer to recognize or bargain with a labor organization other than the one that is currently certified as the representative of its employees. Section 8(b)(4)(C) has been held not to apply when the picketing union is merely protesting working conditions that are substandard for the area.

Subparagraph (D)—Prohibited object: Compelling assignment of certain work to certain employees. Section 8(b)(4)(D) forbids a labor organization from engaging in action described in clauses (i) and (ii) for the purpose of forcing any employer to assign certain work to “employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class.” The Act sets up a special procedure for handling disputes over work assignments that will be discussed later in this material (see p. 38).

[419] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

It shall be an unfair labor practice for a labor organization or its agents—…

(4)

(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or

(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—

(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e);

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

(C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 159 of this title;

(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work:

Provided, That nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution; …

(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:

(A) where the employer has lawfully recognized in accordance with this subchapter any other labor organization and a question concerning representation may not appropriately be raised under section 159 (c) of this title,

(B) where within the preceding twelve months a valid election under section 159 (c) of this title has been conducted, or

(C) where such picketing has been conducted without a petition under section 159 (c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 159 (c)(1) of this title or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.

Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this subsection.

(e) Enforceability of Contract or Agreement to Boycott Any Other Employer; Exception

It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable¹ and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection and subsection (b)(4)(B) the terms “any employer”, “any person engaged in commerce or an industry affecting commerce”, and “any person” when used in relation to the terms “any other producer, processor, or manufacturer”, “any other employer”, or “any other person” shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this subchapter shall prohibit the enforcement of any agreement which is within the foregoing exception.

[420] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 31:

Publicity such as handbilling allowed by Section 8(b)(4). The final provision in Section 8(b)(4) provides that nothing in Section 8(b)(4) shall be construed “to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer.” Such publicity is not protected if it has “an effect of inducing any individual employed by any persons other than the primary employer” to refuse to handle any goods or not to perform services. The Supreme Court has held that this provision permitted a union to distribute handbills at the stores of neutral food chains asking the public not to buy certain items distributed by a wholesaler with whom the union had a primary dispute. Moreover, it has also held that peaceful picketing at the stores of a neutral food chain to persuade customers not to buy the products of a struck employer when they traded in these stores was not prohibited by Section 8(b)(4).

[421] Report: “Unfair Labor Practice Case Law Outline.” Federal Labor Relations Authority, Office Of The General Counsel, November 2018. <www.flra.gov>

Pages 86–87:

Strike, Work Stoppage or Slowdown

Section 7116(b)(7) of the Statute states that it is an unfair labor practice for a union:

(A) To call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency’s operations, or (B) To condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity …

When Is Picketing a Violation of Section 7116(B)(7)?

• When it interferes with an agency’s operations. This is decided by looking at factors such as the government interest involved, the sensitivity of the agency’s function and its purpose, where the picketed agency is located, how long the picketing lasts, and the number and actions of the picketers.

[422] Report: “Unfair Labor Practice Case Law Outline.” Federal Labor Relations Authority, Office Of The General Counsel, November 2018. <www.flra.gov>

Page 84:

Unlawful Discipline of Members

Section 7116(b)(3) of the Statute makes it an unfair labor practice for a union: To coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member’s work performance or productivity as an employee or the discharge of the member’s duties as an employee …

What Is the Purpose of Section 7116(B)(3)?

• Congress included this section to try to protect union members from union actions that interfere with union members’ job duties. Congress wanted to ensure that: (1) employees will be able to perform their duties, even if the union takes an action against one of its members; and (2) the government will be able to effectively and efficiently conduct its business without interference from union actions against their members. AFGE, Local 1738, 29 FLRA [Federal Labor Relations Authority] 178 (1987).

Pages 86–87:

Strike, Work Stoppage or Slowdown

Section 7116(b)(7) of the Statute states that it is an unfair labor practice for a union:

[423] Encyclopedia of U.S. Labor and Working-Class History (Volume 1, A-F). Edited by Eric Arnesen. Routledge, 2007.

Page 1476:

In August 1981, 13,000 members of the Professional Air Traffic Controllers’ Organization (PATCO) at the nation’s airports went on strike in defiance of a 1955 law making such strikes illegal. Two days later President Ronald Reagan fired the 11,359 controllers who had failed to return to their jobs. The strike was broken, with public opinion showing popular support for the president’s actions. Seventeen months later PATCO called off the strike in complete defeat.

[424] Report: “Unfair Labor Practice Case Law Outline.” Federal Labor Relations Authority, Office Of The General Counsel, November 2018. <www.flra.gov>

Page 87: “The Professional Air Traffic Controller’s Organization (PATCO) called, participated in, and supported a strike at FAA facilities. As a result, PATCO lost, by definition, its status as a labor organization under Section 7103(a)(4) of the Statute. The remedy included decertification. Prof’l Air Traffic Controller’s Org., 7 FLRA [Federal Labor Relations Authority] 34 (1981).”

[425] Book: Human Resources Management for Public and Nonprofit Organizations: A Strategic Approach (4th edition). By Joan E. Pynes. John Wiley & Sons, 2013.

However, there is little consistency across the states in which employees are covered and the conditions that permit them to strike.

Among states that permit strikes by public employees, a clear delineation is made between employees who are permitted to strike and those prohibited from striking. Most states limit permission to employees who are not responsible for the public’s welfare. …

In most states that permit public employee strikes, a set of stipulations must be adhered to before a strike is considered allowable. …

Even where strikes are permitted, many state statutes grant courts the authority to issue injunctions or restraining orders if the strike presents a danger to public health or safety.

[426] Paper: “Compulsory Arbitration: The Scope of Judicial Review.” By Victor Cohen. St. John’s Law Review, Spring 1977. Pages 604–631. <scholarship.law.stjohns.edu>

Page 606: “[S]ome states now grant public employees a limited right to strike….”

[427] Paper: “Binding Interest Arbitration in the Public Sector: Is It Constitutional?” William & Mary Law Review, 1977. Pages 787–821. <scholarship.law.wm.edu>

Page 787:

Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont permit some public employees to strike under specified circumstances. ALASKA STAT. § 23.40.200 (1972); HAWAII REV. STAT. § 89-12 (Supp. 1975); MINN. STAT. ANN. § 179.64 (West Cum. Supp. 1976); MONT. REV. CODES ANN. § 41-2209 (Cum. Supp. 1975); ORE. REV. STAT. § 243.726 (1975); PA. STAT. ANN. tit. 43, § 1101.1003 (Purdon Cum. Supp. 1976–1977); VT. STAT. ANN. tit. 21, § 1730 (Cum. Supp. 1976).

[428] Handbook on Human Service Administration. Edited by Jack Rabin and Marcia B. Steinhauer. CRC Press, 1988. Chapter 7: “Personnel Management.” By Donald E. Klingner.

Pages 318–319:

As in the laws governing federal employees, often there are very severe penalties in state laws for striking workers and labor organizations, but these penalties often are not imposed.

[429] Paper: “Binding Interest Arbitration in the Public Sector: Is It Constitutional?” William & Mary Law Review, 1977. Pages 787–821. <scholarship.law.wm.edu>

Pages 787–788:

Strikes by firemen, policemen, and other public employees in New York State in 1975 increased 100 percent in one year; the number of public employees involved in these work stoppages swelled 1800 percent.¹ Similar illegal² behavior, resulting in disruption of public services, is increasing rapidly throughout the United States.³ In an effort to reverse the trend of work stoppages following deadlocked negotiations,⁴ at least thirty-four states⁵ and a number of local governments⁶ have enacted binding interest arbitration statutes, giving a neutral arbitrator power to settle unresolved public sector labor disputes arising during the negotiation of the terms of a collective bargaining agreement. An arbitrator’s decision is final and binding on both the public employer and the public employee. In theory, public employees will be pacified by turning disputed matters, such as wages, over to an impartial arbitrator, who can make a more rational finding than can an intractable public employer, cautious about spending the taxpayer’s money.⁷local governments⁶ have enacted binding interest arbitration statutes, giving a neutral arbitrator power to settle unresolved public sector labor disputes arising during the negotiation of the terms of a collective bargaining agreement. An arbitrator’s decision is final and binding on both the public employer and the public employee. In theory, public employees will be pacified by turning disputed matters, such as wages, over to an impartial arbitrator, who can make a more rational finding than can an intractable public employer, cautious about spending the taxpayer’s money.⁷ In reality, however, public employee unrest continues.⁸

³ (1976) GOV’T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).

⁴ McAvoy, Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector, 72 COLUM. L. REV. 1192, 1192 (1972).

⁵ The following 34 states have enacted 50 binding interest arbitration statutes covering some or all public employees: Alabama, Alaska, Connecticut, Delaware, Hawaii, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. 1971 ALA. ACTS ch. 993, § 21(b) (mass transit); ALASKA STAT. § 23.40.200 (1972) (policemen, firemen, jail and correctional institution employees, and hospital employees); CONN. GEN. STAT. ANN. § 7-473 (West 1958 & Cum. Supp. 1976) (local); DEL. CODE tit. 2, § 1613 (1974) (mass transit); HAWAII REV. STAT. § 89-11 (Supp. 1975) (state and local); IND. CODE ANN. § 22-6-4-12 (Burns Cum. Supp. 1976) (state and local); IOWA CODE ANN. § 90.15 (West 1972) (firemen); LA. REV. STAT. ANN. § 23:890 (West Cum. Supp. 1976) (mass transit); ME. REv. STAT. tit. 26, § 965(4) (Cum. Supp. 1976–1977) (local); ME. REV. STAT., tit. 26, § 979-D(4) (1964) (state); ME. REV. STAT. tit. 26, § 1026(4) (Cum. Supp. 1976–-1977) (university employees); MASS. GEN. LAWS ANN. ch. 150E, § 9 (West Cum. Supp. 1976–1977) (state and local); MICH. CoMP. LAWS ANN. §§ 423.231-.240 (Cum. Supp. 1976–1977) (police and firemen); MINN. STAT. ANN. § 179.38 (West Cum. Supp. 1976) (hospital employees); MINN. STAT. ANN. § 179.72 (West Cum. Supp. 1976) (essential employees); MONT. REv. CODES ANN. § 59-1614(9) (Cum. Supp. 1975) (state and local); NEB. REV. STAT. § 48-810 to 819 (Supp. 1974) (state and local); NEV. REv. STAT. § 288.200 (1973) (local); N.H. REv. STAT. ANN. § 273-A:12 (Supp. 1975) (state and local); N.J. STAT. ANN. § 34:13A-7 (West 1965) (state and local); N.J. STAT. ANN. § 40:37A-96 (West Cum. Supp. 1976–1977) (mass transit); N.M. STAT. ANN. § 14-53-15 (1976) (mass transit); N.Y. CIv. SERV. LAW § 205.3 (McKinney Cum. Supp. 1975–1976) (police and firemen); OHIO REv. CODE ANN. § 306.12 (Page Supp. 1975) (mass transit); OKLA. STAT. ANN. tit. 11, § 548.1 (West Supp. 1976–1977) (police and firemen); ORE. REv. STAT. § 243.712(2)(c) (1975) (state and local); ORE. REv. STAT. § 243.742 (1975) (police, firemen, guards at mental and correctional institutions); PA. STAT. ANN. tit. 43, §§ 1101.804-.805 (Purdon Cum. Supp. 1976–1977) (state and local); PA. STAT. ANN. tit. 43, § 217.4 (Purdon Cum. Supp. 1976–1977) (police and firemen); PA. STAT. ANN. tit. 53, § 39951 (Purdon Cum. Supp. 1976–1977) (mass transit); PA. STAT. ANN. tit. 55, § 563.2 (Purdon 1964) (port authority); R.I. GEN. LAWS § 28-9.1–7 (1968) (firemen); R.I. GEN. LAws § 28-9.2–7 (1968) (police); R.I. GEN. LAWS § 28-9.3–9 (1968) (teachers); R.I. GEN. LAWS § 28-9.4–10 (1968) (municipal employees); R.I. GEN. LAWS § 28-9.5–9 (Supp. 1976), reprinted in [1976 Reference File - 124] GOV’T EMPL. REL. REP. (BNA) 51:4817 (school administrators); R.I. GEN. LAWS § 36-11-9 (Supp. 1975) (state); R.I. GEN. LAWS § 39-18-17 (1969) (mass transit); S.D. COMPILED LAWS ANN. § 9-14A (Cum. Supp. 1975) (police and firemen); TENN. CODE ANN. § 6-3802 (Supp. 1976) (mass transit); TEx. REV. CIv. STAT. ANN. art. 5154c-9 to -15 (Vernon Cum. Supp. 1976–1977) (police and firemen); UTAH CODE ANN. § 34-20a-7 (Supp. 1975) (firemen); VT. STAT. ANN. tit. 3, § 925 (Cum. Supp. 1976) (state); VT. STAT. ANN. tit. 21, § 1733 (Cum. Supp. 1976) (local); VA. CODE ANN. § 15.1-1357.2 (Cum. Supp. 1976) (mass transit); WASH. REV. CODE ANN. § 41.56.450 (Supp. 1975) (police and firemen); WASH. REV. CODE ANN. § 53.18.030 (Supp. 1975) (port authority); W. VA. CODE § 8-27-21 (1976) (mass transit); Wis. STAT. ANN. § 111.70 (West 1974) (Milwaukee police); Wis. STAT. ANN. § 111.77 (West 1974) (police and firemen); Wyo. STAT. § 27-269 (1967) (firemen).

⁷ See Barnum, From Private to Public: Labor Relations in Urban Transit, 25 INDus. & LAB. REL. REV. 95, 111 (1971).

⁸ See (1976) GOV’T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).

[430] Report: “Unfair Labor Practice Case Law Outline.” Federal Labor Relations Authority, Office Of The General Counsel, November 2018. <www.flra.gov>

Pages 82–83:

Are There Any Situations in Which Unions Can Treat Non-Members Differently Than Members?

• Yes. A union may limit participation in its meetings to members, NFFE [National Federation of Federal Employees], Local 1827, 49 FLRA [Federal Labor Relations Authority] 738, 741 (1994), and has the right to choose its own representatives, AFSCME [American Federation of State County & Municipal Employees], Local 2910, 23 FLRA 352 (1986). All unit employees are entitled to vote in an election to determine whether there will be union representation. But once a union is chosen as the exclusive representative, the union then acts for, and negotiates collective-bargaining agreements covering, all employees. Its members ratify and approve such agreements in the manner provided by the labor organization’s governing requirements. AFGE, Local 2000, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations], 14 FLRA 617 (1984).

[431] Book: Human Resource and Contract Management in the Public School: A Legal Perspective. By Bernadette Marczely and David W. Marczely. Scarecrow Press, 2002.

Page 30:

[432] Webpage: “If We Decide to Strike: Q&A for University Members.” SEIU [Service Employees International Union] Local 503 Sublocal 085: University of Oregon, July 30, 2013. <local085.seiu503.org>

Who decides to conduct a strike?

Who can vote?

All members in good standing. Fair share payers must first sign up as members to become eligible to vote.

[433] Paper: “Two Faces of Union Voice in the Public Sector.” By Morley Gunderson. Journal of Labor Research, Summer 2005. Pages 393–413. <link.springer.com>

Page 405:

The economic case for and against unions to a large degree depends on the extent to which markets (in the private sector) and organizations (in the public sector) operate efficiently or cost effectively. In the private sector, the increased number of “sellers” arising from trade liberalization, global competition, and deregulation as well as greater consumer choice arising from improvements in information and reductions in transactions costs have helped meet the assumptions required for private sector markets to be efficient, invariably moving them in the direction of greater efficiency. The accompanying decline in private sector unions suggest that any positive voice function was insufficient to offset the monopoly face of unionization in the private sector.

In the public sector, there is no clear benchmark or “competitive norm” from which to develop a scorecard for evaluating the pros and cons of public sector unions. There is certainly more potential for organizational slack and hence a positive shock effect from voice—but this also means more potential for muscle forms of voice for purposes of rent seeking. There is also less rationale for unions to “protect the underdog” in the public sector given the already existing public sector rents and the pressure for public sector employers to be model employers, but this also means that unions may use muscle to protect those rents.

[434] Article: “Labor Movement.” Contributor: Daniel Quinn Mills, Ph.D., Professor of Business Administration, Harvard University. World Book Encyclopedia, 2007 Deluxe Edition.

“Apprenticeship is a formal system of training young people for skilled trades, such as bricklaying and printing. Unions in these trades conduct apprenticeship programs in cooperation with employers and vocational high schools. The training combines on-the-job experience with individual or classroom instruction.”

[435] Paper: “The Economic Effects of Labor Unions Revisited.” By Richard Vedder and Lowell Gallaway. Journal of Labor Research, Winter 2002. Pages 105–130. <link.springer.com>

“On the other hand, proponents of the concept of efficiency wages and others might argue that the positive effect of unionization on worker morale might raise productivity and possibly economic growth (Krueger and Summers, 1988; Katz, 1986; Altenburg and Straub, 1998).”

[436] Paper: “Two Faces of Union Voice in the Public Sector.” By Morley Gunderson. Journal of Labor Research, Summer 2005. Pages 393–413. <link.springer.com>

Page 404: “[Union] voice can also be used more positively by articulating preferences and trade-offs, improving communications, and involving employees and enhancing their commitment to the organization.”

[437] Article: “Found to Have Misbehaved with Pupils, but Still Teaching.” By David W. Chen and Patrick Mcgeehan. New York Times, April 5, 2012. <www.nytimes.com>

“But to union officials, the right to an impartial hearing is sacrosanct, to protect teachers from losing their livelihoods because a principal or a student might have an ax to grind.”

[438] Public Law 74-198: “National Labor Relations Act of 1935” (a.k.a. “Wagner Act”). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. <www.nlrb.gov>

The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by (a) impairing the efficiency, safety, or operation of the instrumentalities of commerce; (b) occurring in the current of commerce; (c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce, or the prices of such materials or goods in commerce; or (d) causing diminution of employment and wages in such volume as substantially to impair or disrupt the market for goods flowing from or into the channels of commerce.

The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.

Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

[439] Book: Managing for the Future. By Peter F. Drucker. Routledge, 2013.

Pages 114–115:

In all the hundreds of books, articles, and speeches on American competitiveness—or the lack thereof—work rules and job restrictions are rarely mentioned. Such rules forbid a foreman to do any production work, whether taking the place of a worker who goes to a restroom, repairing a tool, or helping when the work falls behind. They forbid electricians to straighten a stud when installing a fuse box. They forbid workers moving from one job to another, thus restricting them to narrow repetitive tasks, e.g., spray-painting the door panel of a car. …

The best evidence for the effect of work rules and job restrictions is found in America’s building industry. It alone of all major industries anywhere has—working side by side—union shops with tight restrictions and nonunion shops without them. Both shops are often owned by the same company—it’s called ‘double-breasting’ in the industry—with the same people running them. The time it takes to do an individual job, e.g. connecting a drainpipe, is exactly the same in both. Yet the crew working under work rules and job restrictions needs two-thirds more people to do the same job in the same time.

A ‘double-breasted’ contractor recently ran a study on two nearly identical projects done by his company, one by a union crew, and the other by a nonunion crew. The nonunion crew worked an average of 50 minutes out of every hour. The union crew worked 35; the rest of the time it was forced to wait—for someone to come back from the restroom or for a journeyman to become available to do work an apprentice could easily have done but was not allowed to touch. The unionized crew also had to work short-handed for 40 minutes until a man qualified to drive a truck had come back from the shop with a replacement part. When that happened on the nonunion project, the foreman ran the errand and the work continued.

The result: the unionized crew required a crew of eight, the nonunion jobs was done by five workers.

[440] Book: The Transformation of American Industrial Relations. By Thomas A. Kochan, Harry C. Katz, and Robert B. McKersie. Cornell University Press, 1994.

Pages 107–108:

Summary

Although this chapter has drawn on a wide variety of different samples and studies, the evidence can be pieced together to form a consistent pattern. First, there are clear differences in the ways the generic functions of workplace industrial relations are carried out in traditional union systems and newer nonunion systems. The design of new nonunion systems offers greater flexibility in the management and allocation of human resources. Second, nonunion systems, on average, have lower labor costs and appear to retain their wage and fringe-benefit costs advantage over time. While union plants may have some offsetting productivity advantages that our research has failed to identify, the magnitude of observed cost differentials appears to be large enough to make the union plants less profitable. Furthermore, the investment behavior of corporate executives appears to be consistent with this interpretation.

[441] Book: Beyond Unions and Collective Bargaining. By Leo Troy. M.E. Sharpe, 1999.

Page 80:

Other studies also confirm the anticipated and actual experience of the greater flexibility in work assignments (restricted by union work rules), unit labor costs, and their effects on profits in nonunion compared to unionized firms. …

Employers who have dealt with union work rules and their impact on productivity declare that union work rules and their effects on efficiency are neither opaque nor ambiguous: unions reduce efficiency. Indeed, when informed that some academics contend either that unions enhance productivity or that their statistical results are ambiguous, these employers are incredulous. If the academics’ findings were reliable, they say, employers would petition unions to organize their employees.

[442] Paper: “The Economic Effects of Labor Unions Revisited.” By Richard Vedder and Lowell Gallaway. Journal of Labor Research, Winter 2002. Pages 105–130. <link.springer.com>

The upshot of the unionization [of the steel industry] was a dramatic increase in the wages of workers and an equally dramatic decline in employment. From the last quarter of 1936 (the last quarter before U.S. Steel signed a collective bargain agreement) to the second quarter of 1938 (about eight months after the end of the Little Steel strikes), money wages per hour rose more than 21 percent (amidst double-digit national unemployment!), and manhours worked in steel mills fell by more than 51 percent, reversing employment gains that had occurred during 1936 when money wages were relatively stable and real unit labor costs were actually falling because of rising productivity (Vedder and Gallaway, 1997, p. 136).

[443] Textbook: Economics: Private and Public Choice (15th edition). By James D. Gwartney and others. Cengage Learning, 2015.

Page 675:

[W]hen there are good substitutes for union labor, employers will turn to the substitutes and cut back on their use of union labor as it becomes more expensive. Under these circumstances, higher union wages will price the union workers out of the market and lead to a sharp reduction in their employment.

Some employers may be able to automate various production operations—in effect substituting machines for union workers if their wages increase. …

Within a given plant, a union will negotiate wages and employment conditions for all workers, both union and nonunion. However, as union wages rise, it may be economical for unionized firms to contract with nonunionized firms to handle specific operations or to supply various components used in production. … They [large employers] may be able to substitute nonunion for union labor by shifting more and more of their production to their nonunion plants, including those located overseas or in right-to-work states, in which unions are generally weaker.

[444] Paper: “Outsourcing And Union Power.” By Charles R. Perry. Journal of Labor Research, Fall 1997. Pages 521–534. <link.springer.com>

The redistribution of membership within a union as a result of outsourcing is likely to have little immediate impact on union power. However, as even the best case scenario presented above suggests, it may have significant long-run deleterious effects on union bargaining power by taking labor out of a sheltered market and putting it into potentially competitive market. …

The most obvious threat to union power comes from outsourcing that diminishes union membership overall by transferring jobs from union to nonunion employers. …

… The effect of outsourcing, whatever its rationale or scenario, appears to be to put union labor back into competition. Thus, outsourcing constitutes yet another challenge to the labor movement in its ongoing and seemingly increasingly unsuccessful battle to take and keep U.S. union labor out of competition by proving itself able and willing to organize to the extent of the market and standardizing wages in that market.

[445] Ruling: J.I. Case Co. v. National Labor Relations Board. U.S. Supreme Court, February 28, 1944. Decided 8–1. Majority: Stone, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge. Dissenting: Roberts. <supreme.justia.com>

The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his preexisting contract of employment.

[446] Article: “Found to Have Misbehaved With Pupils, but Still Teaching.” By David W. Chen and Patrick Mcgeehan. New York Times, April 5, 2012. <www.nytimes.com>

The New York City Education Department wanted to fire these teachers. But in these and 13 other cases in recent years in which teachers were accused of inappropriate behavior with students, the city was overruled by an arbitrator who, despite finding wrongdoing, opted for a milder penalty like a fine, a suspension or a formal reprimand. …

As a result, 14 of those 16 teachers are still teaching and in contact with students, on either a daily or occasional basis. The other two were removed from their positions within the last month when new allegations of misbehavior surfaced against them, according to the Education Department. …

But to union officials, the right to an impartial hearing is sacrosanct, to protect teachers from losing their livelihoods because a principal or a student might have an ax to grind.

[447] Article: “N.Y.C. Has About 700 Teachers on Paid Leave in ‘Rubber Rooms’.” Associated Press, July 14, 2009. <www.nj.com>

Hundreds of public school teachers in New York accused of offenses ranging from insubordination to sexual misconduct, have been banished to adult detention centers known as rubber rooms, where the city can keep an eye on them, paying them their full salaries of $70,000 or $80,000 a year to essentially do nothing. …

Because their union contract makes it extremely difficult to fire them, the teachers have been banished by the school system to its “rubber rooms”—off-campus office space where they wait months, even years, for their disciplinary hearings.

[448] Article: “How Florida’s Rogue Officers Remain on the Job.” By Anthony Cormier & Matthew Doig. Herald-Tribune, December 4, 2011. <www.heraldtribune.com>

Thousands of Florida officers remain on the job despite arrests or evidence implicating them in crimes that could have landed them in prison, a Herald-Tribune investigation has found.

Even those officers with multiple offenses have been given chance after chance through a disciplinary system that has been reshaped in their favor by the state’s politically influential police unions.

[449] Textbook: The American Experiment: A History of the United States, Volume 2: Since 1865 (3rd edition). By Steven M. Gillon and Cathy D. Matson. Wadsworth, Cengage Learning, 2013.

Pages 729–730:

Perhaps no group benefitted more from the New Deal than organized labor, which made tremendous gains during the depression decade. Union membership jumped from 3.6 million in 1930 to nearly 10.5 million in 1941. … The number of workers involved in walkouts rose from 324,201 in 1932 to 1.6 million in 1933. In 1934, working-class militancy reached new heights as violent industrial conflicts paralyzed cities in Ohio, California, and Minnesota. The strikes spurred increases in membership. …

… The New Deal’s inclusions of Section 7(a) in the National Labor Recovery Act and the 1935 Wagner Act opened the doorway to union membership by guaranteeing workers the right to organize. …

… In 1937 a total of 4.7 million workers were involved in 4,740 strikes that affected all of the nation’s key industries—steel, coal, auto, rubber, and electricity.

[450] Paper: “Binding Interest Arbitration in the Public Sector: Is It Constitutional?” William & Mary Law Review, 1977. Pages 787–821. <scholarship.law.wm.edu>

Pages 787–788:

In reality, however, public employee unrest continues.⁸

² Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont permit some public employees to strike under specified circumstances. …

³ (1976) GOV’T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).

⁴McAvoy, Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector, 72 COLUM. L. REV. 1192, 1192 (1972).

⁵The following 34 states have enacted 50 binding interest arbitration statutes covering some or all public employees: …

⁷ See Barnum, From Private to Public: Labor Relations in Urban Transit, 25 INDus. & LAB. REL. REV. 95, 111 (1971).

⁸See (1976) GOV’T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).

[451] News release: “Union Members Summary.” U.S. Department of Labor, Bureau of Labor Statistics, January 24, 2014. January 24, 2014

Page 1: “Public-sector workers had a union membership rate (35.3 percent) more than five times higher than that of private-sector workers (6.7 percent).”

[452] Report: “Selected Characteristics of Private and Public Sector Workers.” By Gerald Mayer. Congressional Research Service, March 21, 2014. <fas.org>

Page 2 (of PDF):

Among workers ages 18 to 64 who work full-time, differences in characteristics that may affect the relative pay and benefits of private and public sector workers include the following:

• Age. Reflecting the aging of the U.S. labor force, workers in both the private and public sectors have become older. Nevertheless, employees in the public sector are older than private sector workers. In 2013, 51.7% of public sector workers were between the ages of 45 and 64, compared to 42.4% of full-time private sector workers. Federal workers are older than employees of state and local governments. In 2013, 56.7% of federal workers were between the ages of 45 and 64, compared to 49.7% of state employees and 52.1% of employees of local governments. Workers who have more years of work experience generally earn more than workers with less experience.

• Gender. Reflecting the increased participation of women in the labor force, the share of jobs held by women has increased in both the private and public sectors. In 2013, women held almost three-fifths (57.7%) of full-time jobs in state and local governments. By contrast, women held approximately two-fifths of fulltime jobs in the federal government and in the private sector (42.2% and 41.7%, respectively).

• Education. On average, public sector employees have more years of education than private sector workers. In 2013, 53.6% of workers in the public sector had a bachelor’s, advanced, or professional degree, compared to 34.9% of private sector workers. Generally, workers with more years of education earn more than workers with less years of education.

• Occupation. A larger share of public sector than private sector workers are employed in “management, professional, and related occupations.” In 2013, 56.2% of public sector workers and 37.8% of private sector workers were employed in these occupations. In part, more public sector workers were employed in these occupations because 25.7% of all public sector workers were employed in “education, training, and library” occupations, compared to 2.3% of all private sector workers. Workers in management and professional occupations generally earn more than workers in other occupations. However, comparisons of the compensation of private and public sector workers that use broad occupational categories may miss differences between detailed occupations. Many detailed occupations are concentrated in either the private or public sectors. Nevertheless, many detailed occupations may require similar skills.

• Union coverage. Although the number of workers covered by a collective bargaining agreement is greater in the private sector than in the public sector, the percentage of workers covered by a collective bargaining agreement is greater in the public sector than in the private sector.

• Metropolitan area. Private sector workers are more likely than federal workers to live in major metropolitan areas (i.e., areas with 5 million or more people).

[453] Paper: “What Effect Do Unions Have on Wages Now and Would Freeman and Medoff Be Surprised?” By David G. Blanchflower and Alex Bryson. Journal of Labor Research, Summer 2004. Pages 383–414. <www.dartmouth.edu>

Page 383: “Richard Freeman and James Medoff’s (F&M) pathbreaking 1984 book What Do Unions Do? has had an enormous impact. … It received rave reviews at the time it was written and unlike most books has withstood the test of time. It is certainly the most famous book in labor economics and industrial relations.”

Page 407:

There Is Big Variation in Industry-Level Union Wage Premia. F&M also found wide variation in industry-level premiums and might have expected this to persist because unions’ ability to push for a premium, and employers’ ability to pay, is determined by industry-specific factors (such as union organization and the availability of nonunion labor, regulatory regimes, bargaining, and product market rents).

[454] Paper: “Wage Effects of Increased Union Coverage: Methodological Considerations and New Evidence.” By Dale L. Belman and Paula B. Voos. Industrial and Labor Relations Review, January 1993. Pages 368–380. <www.msu.edu>

Page 368:

The empirical literature on the union coverage effect has been subjected, however, to well-considered criticism, grounded in a charge of omitted variable bias. In brief, it is suspected that workers are more likely to organize in industries in which the potential gains of unionization are relatively large, and that most studies do not adequately control for across-industry differences in labor demand. Thus, the finding that more heavily unionized industries have higher union wages could in part reflect organizing incentives rather than the effects of union coverage per se. This argument is supported by the observation that inter-occupational and inter-area studies typically have yielded weaker evidence of a relationship between coverage and wages than have inter-industry studies. The authors of this study argue, however, that the weakness of the relationship found in some empirical research is due to the use of data sets mixing local market industries, characterized by local bargaining, with national market industries, characterized by national bargaining. An empirical analysis supports this hypothesis: wages are positively correlated with the extent of unionization in a local market industry (supermarkets), but not in a national market industry (aerospace).

Pages 375–376:

The criticism that has been advanced regarding the earlier empirical literature on the effects of union coverage cannot be dismissed out of hand. Most earlier studies have focused on inter-industry wage differences. The typically positive and significant coefficient on the union coverage variable in such studies may indeed reflect characteristics of industries (such as product demand elasticities) that might be correlated with both union wages and unionization. The effect of labor organization itself is not isolated in such studies.

[455] Paper: “Wage Effects of Increased Union Coverage: Methodological Considerations and New Evidence.” By Dale L. Belman and Paula B. Voos. Industrial and Labor Relations Review, January 1993. Pages 368–380. <www.msu.edu>

Page 368:

Although many studies show a positive relationship between extent of unionization and union members’ wages, some analysts suggest that this relationship could reflect a concentration of labor organization in industries with potentially high wage gains, rather than unions’ efficacy in raising wages. Consistent with that speculation, studies across occupations or geographic areas generally show a much weaker relationship between unionization and wages than do studies across industries.

Page 372: “There are also substantial regional differences in supermarket wages, as well as a 7% wage premium for employees living in cities with populations of two and one-half million or more.”

[456] Paper: “Economic Impacts of New Unionization on Private Sector Employers: 1984–2001.” By John Dinardo And David S. Lee. Quarterly Journal of Economics, November 2004. Pages 1383–1441. <www-personal.umich.edu>

Page 1385:

At least two important challenges hinder credible measurement of the causal impacts of unionization on employers. … A second important concern is the fact that unionization is nonrandom. Depending on the correlation between factors associated with unionization and those associated with employment, output, and productivity, the observed correlation between union status and employer outcomes may overstate or understate the true effects of unions. Two competing phenomena may induce opposite selectivity biases. On the one hand, unions may tend to organize at highly successful enterprises that are more likely to survive and grow. On the other, a union organizing drive may be more likely to succeed when a firm is poorly managed, or has faced recent difficulties.

[457] Paper: “New Estimates of Union Wage Effects in the U.S.” By Maury Gittleman and Brooks Pierce. Economics Letters, May 2007, Pages 198–202. <www.sciencedirect.com>

Page 198: “We find the union wage premium to be smaller at higher skill levels, consistent with the view that unions work to decrease skill differentials.”

[458] Report: “Differences Between Union and Nonunion Compensation, 2001–2011.” By George I. Long. Monthly Labor Review (published by the U.S. Bureau of Labor Statistics, April 2013. Pages 16–23. <www.bls.gov>

Page 22: “Differences in union and nonunion pay and benefits may reflect factors other than a union presence. The occupational mix within categories; the mix of part-time and full-time workers; and the size, industry, and geographic location of the employing establishment are among other factors that can affect these results.”

[459] Paper: “Wage Effects of Increased Union Coverage: Methodological Considerations and New Evidence.” By Dale L. Belman and Paula B. Voos. Industrial and Labor Relations Review, January 1993. Pages 368–380. <www.msu.edu>

Page 372:

Occupational differentials are notably different. For example, sales workers in aerospace earn a 38.7% premium over laborers, whereas sales workers in supermarkets earn only 8.6% more; and the earnings premium for professionals in aerospace is 31.8%, compared to only 11.2% in supermarkets. Such differences in occupational premiums, which probably are related to substantive differences in employees’ skills and in the nature of the work they do in these broad occupational classifications, indicates additional limitations of inter-industry wage equations.

[460] Paper: “Wage Effects of Increased Union Coverage: Methodological Considerations and New Evidence.” By Dale L. Belman and Paula B. Voos. Industrial and Labor Relations Review, January 1993. Pages 368–380. <www.msu.edu>

Page 371:

The basic specification of equations used to measure the effect of union density on wages using individual data is well established in the literature and was adopted for our study. Our vector of controls, a conventional specification, included experience, experience squared, years of education completed, and 0–1 variables for race, gender, occupation, part-time employment status, student status, region, year of observation, location in a city with a population of between one million and 2.49 million, and location in a city with 2.5 million persons or more.⁶ We were also interested in controlling for differences in cost of living between cities, but we found that there is no suitable comparative price index for the set of cities in our sample. We experimented with using the average real weekly earnings of all families living in a metropolitan area to control for both prices and other local influences on labor demand. Estimated coefficients were similar in sign and significance to those obtained without this variable.⁷

[461] Book: Introductory Econometrics: Using Monte Carlo Simulation with Microsoft Excel. By Humberto Barreto and Frank M. Howland. Cambridge University Press, 2006.

Page 491:

Omitted variable bias is a crucial topic because almost every study in econometrics is an observational study as opposed to a controlled experiment. Very often, economists would like to be able to interpret the comparisons they make as if they were the outcomes of controlled experiments. In a properly conducted controlled experiment, the only systematic difference between groups results from the treatment under investigation; all other variation stems from chance. In an observational study, because the participants self-select into groups, it is always possible that varying average outcomes between groups result from systematic difference between groups other than the treatment. We can attempt to control for these systematic differences by explicitly incorporating variables in a regression. Unfortunately, if not all of those differences have been controlled for in the analysis, we are vulnerable to the devastating effects of omitted variable bias.

[462] Book: Theory-Based Data Analysis for the Social Sciences (2nd edition). By Carol S. Aneshensel. SAGE Publication, 2013.

Page 90:

The numerous variables that are omitted from any model are routinely assumed to be uncorrelated with the error term, a requirement for obtaining unbiased parameter estimates from regression models. However, the possibility that unmeasured variables are correlated with variables that are in the model obviously cannot be eliminated on empirical grounds. Thus, omitted variable bias cannot be ruled out entirely as a counterargument for the empirical association between the focal independent and dependent variables in observational studies.

[463] Book: Applied Statistics for Economists. By Margaret Lewis. Routledge, 2012.

Page 413: “In economics, our primary concern is to identify and then include all relevant independent variables as indicated by economic theory.⁹ Omitting such variables will cause the regression model to be underspecified, with the partial regression coefficients that are affected by the omitted variable(s) will not equal the true population parameters.”

[464] Paper: “Wage Effects of Increased Union Coverage: Methodological Considerations and New Evidence.” By Dale L. Belman and Paula B. Voos. Industrial and Labor Relations Review, January 1993. Pages 368–380. <www.msu.edu>

Page 368:

Pages 375–376:

[465] Book: Union Relative Wage Effects: A Survey. By H. Gregg Lewis. University of Chicago Press, 1985.

“I am not convinced that the wage effects picked up by the estimated [a.sub.y] coefficients are mostly effects of unionism rather than mostly effects of omitted variables.”

[466] Webpage: “Panel Data.” Princeton University Library, Data and Statistical Services, 2007. <dss.princeton.edu>

Panel data, also called longitudinal data or cross-sectional time series data, are data where multiple cases (people, firms, countries etc.) were observed at two or more time periods. An example is the National Longitudinal Survey of Youth, where a nationally representative sample of young people were each surveyed repeatedly over multiple years. …

With panel data, it is possible to control for some types of omitted variables even without observing them, by observing changes in the dependent variable over time. This controls for omitted variables that differ between cases but are constant over time. It is also possible to use panel data to control for omitted variables that vary over time but are constant between cases.

[467] Paper: “Unions and Democracy: When Do Nonmembers Have Voting Rights?” Journal of Business & Technology Law, 2014. Pages 213–228. <digitalcommons.law.umaryland.edu>

Page 223: “Summarizing these studies, the only papers that found a substantial union premium were papers that utilized cross-section rather than panel data. At least in this case, there is no reason to prefer a technique which utilizes less rather than more information (panel data include data over time as well as for different faculty; cross-section data represent different faculty but are for only one point in time).”

[468] Paper: “The Effect of Merger on Deposit Money Banks Performance in the Nigerian Banking Industry.” By Ochei Ailemen Ikpefan and Bayo Liafeez Oyero Kazeem. European Journal of Accounting Auditing and Finance Research, March 2013. Pages 32–49. <www.eajournals.org>

Page 41:

This study will make use of a panel regression model as discussed earlier. While it is possible to use ordinary multiple regression techniques on panel data, they may not be optimal. The estimates of coefficients derived from regression may be subject to omitted variable bias—a problem that arises when there is some unknown variable or variables that cannot be controlled for that affect the dependent variable. Despite their substantial advantages, panel data pose several estimation and inference problems. Since such data involve both cross-section and time dimensions, problems that plague cross-sectional data (e.g., heteroscedasticity) and time series data (e.g., autocorrelation) need to be addressed (Gujarati 2004). There are several estimation techniques that have been developed to address these problems, though the most prominent of them are the Fixed Effects Model (FEM) and the Random Effects Model (REM). Fixed effects regression is the model to use when you want to control for omitted variables that differ between cases but are constant over time. This model allows for each cross sectional unit to differ in the model in recognition of the fact that each cross sectional unit may have peculiar characteristics of their own. It lets you use the changes in the variables over time to estimate the effects of the independent variables on your dependent variable, and is the main technique used for analysis of panel data. The random effects model will be suitable if you have reason to believe that some omitted variables may be constant over time but vary between cases, and others may be fixed between cases but vary over time as the random effects model can include both types.

[469] Paper: “Economic Impacts of New Unionization on Private Sector Employers: 1984–2001.” By John Dinardo And David S. Lee. Quarterly Journal of Economics, November 2004. Pages 1383–1441. <www-personal.umich.edu>

Pages 1384–1385:

At least two important challenges hinder credible measurement of the causal impacts of unionization on employers. One limiting factor is the absence of large, representative data sets that track establishments over time that also provide information on union status.⁷

⁷ This has led researchers to use creative data collection methods to examine these questions. For example, Freeman and Kleiner (1990) conducted on-site interviews of 364 establishments that experienced representation elections in the Boston and Kansas City NLRB [National Labor Relations Board] districts. Bronars and Deere (1993) construct a data set of NLRB elections to COMPUSTAT data to construct a panel of 85 firms over a twenty-year period. Freeman and Kleiner (1999) also use COMPUSTAT to construct a sample of 319 firms. LaLonde, Marschke, and Troske (1996) match NLRB representation elections to a subset of manufacturing establishments that are continuously operating in the LRD [Census Bureau’s Longitudinal Research Database] to create samples with 500 to about 1100 observations.

[470] Calculated with the dataset: “Median Weekly Earnings of Full-Time Wage and Salary Workers by Union Affiliation and Selected Characteristics.” U.S. Department of Labor, Bureau of Labor Statistics. Last updated January 18, 2019. <www.bls.gov>

NOTES:

An Excel file containing the data and calculations is available upon request.
This data is collected via government surveys, and low-income households substantially underreport their income on such surveys.

[471] Report: “Statistical Abstract of the United States: 2012.” U.S. Census Bureau. Section 12: “Labor Force, Employment, and Earnings.” <www.census.gov>

Page 374:

Hours and earnings—Average hourly earnings, based on establishment data, are gross earnings (i.e., earnings before payroll deductions) and include overtime premiums; they exclude irregular bonuses and value of payments in kind. Hours are those for which pay was received. Annual wages and salaries from the CPS [Current Population Survey] consist of total monies received for work performed by an employee during the income year. It includes wages, salaries, commissions, tips, piece-rate payments, and cash bonuses earned before deductions were made for taxes, bonds, union dues, etc. Persons who worked 35 hours or more are classified as working full-time.

[472] Report: “Employer Costs for Employee Compensation–June 2019.” U.S. Department of Labor, Bureau of Labor Statistics, 2019. <www.bls.gov>

Page 3:

Employer Costs for Employee Compensation (ECEC), a product of the National Compensation Survey, provides the average cost to employers for wages and salaries as well as benefits per employee hour worked.

The ECEC covers the civilian economy, which includes data from both private industry and state and local government. Excluded from private industry are the self-employed, agricultural workers, and private household workers. Federal government workers are excluded from the public sector.

All workers are included in the benefit cost estimates including those that do not have plan access or do not participate. Costs are also affected by other factors such as cost sharing between employers and employees, plan features, and plan generosity.

Pages 9–10: “Employer Costs for Employee Compensation for private industry workers by bargaining and work status [June 2019] … Total Benefits … Cost ($) … Union … All workers … [=] $19.39 …. Nonunion … All workers [=] … 9.43”

[473] Paper: “Compensation for State and Local Government Workers.” By Maury Gittleman (US Department of Labor) and Pierce Brooks (US Department of Labor). Journal of Economic Perspectives, Winter 2012. Pages 217–242. <pubs.aeaweb.org>

Appendix (<www.aeaweb.org>): “Note that the ECEC [Employer Costs for Employee Compensation] by design excludes retiree health plan costs. Also, the ECEC data do capture payments by State government to fund local government workers’ benefits plans in local government plan costs.”

[474] Paper: “Wage Effects of Increased Union Coverage: Methodological Considerations and New Evidence.” By Dale L. Belman and Paula B. Voos. Industrial and Labor Relations Review, January 1993. Pages 368–380. <www.msu.edu>

Page 368:

Most studies comparing wages across industries, areas, or occupations, as well as most inter-metropolitan and interstate comparisons of wages within a given industry, report a positive relationship between the extent of union coverage and the wages of union members. Such a relationship would be expected under either a labor demand model of union wage determination, in which labor demand elasticity declines as coverage rises—presumably because consumers have fewer opportunities to substitute non-union products for union goods or services-or a bargaining power model of union wage determination.

[475] Paper: “What Effect Do Unions Have on Wages Now and Would Freeman and Medoff Be Surprised?” By David G. Blanchflower and Alex Bryson. Journal of Labor Research, Summer 2004. Pages 383–414. <www.dartmouth.edu>

Page 392:

Table 4, which is taken from Blanchflower and Bryson (2003),¹⁵ reports adjusted estimates of the wage gap using separate log hourly earnings equations for each of the years from 1973 to 1981 using the National Bureau of Economic Research’s (NBER) May Earnings Supplements to the CPS [Current Population Survey] (CPS)¹⁶ and for the years since then using data from the NBER’s (MORG) files of the CPS.¹⁷ The MORG [Matched Outgoing Rotation Group] data for the years 1983–1995 were previously used in Blanchflower (1999).¹⁸ For both the May and the MORG files a broadly similar, but not identical, list of control variables is used, including a union status dummy, age and its square, a gender dummy, education, race, and hours controls plus state and industry dummies.¹⁹

Page 395:

The results reported in Table 4 are broadly comparable to the estimates obtained by Lewis (1986) in his Table 9.7, which summarized the findings of 165 studies for the period 1967–1979. Lewis concluded that during this period the U.S. mean wage gap was approximately 15 percent. … It appears that the unweighted average for this first period, 1967–1972, of 14 percent is slightly below the 16 percent for the second interval, 1973–1979. The estimates for the later period are very similar to those shown in Table 4—which also averaged 16 percent—and have the same time-series pattern. In part, Lewis’s low number for 1979 is explained by the fact that the 1979 May CPS file included allocated earners and hence the estimates were not adjusted for the downward bias caused by the imputation of the earnings data.

[476] Paper: “The Antitrust Laws and Labor.” Fordham Law Review, January 1962. Pages 759–775. <ir.lawnet.fordham.edu>

Page 760:

[477] Book: The Labor Relations Process (9th edition). By William H. Holley, Jr., Kenneth M. Jennings, and Roger S. Wolters. South-Western Cengage Learning, 2008.

[478] Paper: “Labor’s Love Lost? Changes in the U.S. Environment and Declining Private Sector Unionism.” By Edward E. Potter. Journal of Labor Research, Spring 2001. Pages 321–334. <link.springer.com>

[479] For more detail, see the section on compulsory representation.

[480] Paper: “What Effect Do Unions Have on Wages Now and Would Freeman and Medoff Be Surprised?” By David G. Blanchflower and Alex Bryson. Journal of Labor Research, Summer 2004. Pages 383–414. <www.dartmouth.edu>

Page 396:

Commenting on the growth of the union wage premium during the 1970s, F&M (1984, p. 54) suggested that “at least in several major sectors the union/nonunion differential reached levels inconsistent with the survival of many union jobs.” They were right. In the 1970s and early 1980s, the wage gap in the private sector rose while union density fell, as predicted in the standard textbook model of how employment responds to wages where the union has monopoly power over labor supply. In the classic monopoly model, demand for labor is given, so a rise in the union premium results in a decline in union membership since the premium hits employment. The fact that unions pushed for, and got, an increasing wage premium over this period, implies that they were willing to sustain membership losses to maintain real wages, or that unions were simply unaware of the consequences of their actions.

Page 409:

The evidence that unions have a substantial negative impact on employment growth suggests that the social cost of unions may be larger than F&M calculated. If the premium reduces the competitiveness of union firms, they will lose employees and, as a consequence, union organizing will get tougher for unions. This is exactly what has happened. On the other hand, if unions do not command a premium, they lose their best selling point for prospective customers. It’s Catch–22.

[481] Paper: “Economic Impacts of New Unionization on Private Sector Employers: 1984–2001.” By John Dinardo And David S. Lee. Quarterly Journal of Economics, November 2004. Pages 1383–1441. <www-personal.umich.edu>

Pages 1383–1384:

It is widely understood that unions impose costs on employers: the most important way is by raising members’ wages.¹ They can also impose other costs on employers—by limiting discretion in hiring and firing, for example, and altering the structure of pay across skill groups. These constraints can lead employers to reduce employment, output, or most dramatically, to cease operation all together.² Indeed, these effects are often directly acknowledged by employers and employees alike. During union organizing drives, for example, firms routinely threaten to close a plant if the union drive is successful [Bronfenbrenner 1994], and employees seem to take these threats seriously: the risk of plant closure is cited as the leading cause of union withdrawal from organizing attempts.

[482] Article: “Unemployment.” By Lawrence H. Summers.† The Concise Encyclopedia of Economics (2nd edition). Edited by David Henderson. Liberty Fund, 2008. <www.econlib.org>

Another cause of long-term unemployment is unionization. High union wages that exceed the competitive market rate are likely to cause job losses in the unionized sector of the economy. Also, those who lose high-wage union jobs are often reluctant to accept alternative low-wage employment. Between 1970 and 1985, for example, a state with a 20 percent unionization rate, approximately the average for the fifty states and the District of Columbia, experienced an unemployment rate that was 1.2 percentage points higher than that of a hypothetical state that had no unions. To put this in perspective, 1.2 percentage points is about 60 percent of the increase in normal unemployment between 1970 and 1985.

NOTE: † “Former Treasury Secretary Lawrence H. Summers is one of America’s leading economists. In addition to serving as 71st Secretary of the Treasury in the Clinton Administration, Dr. Summers served as Director of the White House National Economic Council in the Obama Administration, as President of Harvard University, and as the Chief Economist of the World Bank.” [Webpage: “Biography.” Larry Summers. Accessed December 11, 2017 at <larrysummers.com>]

[483] Paper: “The Economic Effects of Labor Unions Revisited.” By Richard Vedder and Lowell Gallaway. Journal of Labor Research, Winter 2002. Pages 105–130. <link.springer.com>

“As unions increase wage rates through the use of their monopoly power, job opportunities in the unionized industries and occupations decrease, increasing the supply of labor in the nonunion sector.”

[484] Article: “The Pressure is On: Organizing Without the NLRB [National Labor Relations Board].” By Joe Crump (Secretary-Treasurer of United Food and Commercial Workers Local 951, Grand Rapids, Michigan). Labor Research Review, 1991. <digitalcommons.ilr.cornell.edu>

Pages 37–38:

[485] Article: “A Move to Put the Union Label on Solar Power Plants.” By Todd Woody. New York Times, June 19, 2009. <www.nytimes.com>

[486] For numerous examples of how unions attempt to harm non-union employers unless they unionize, see the section on corporate campaigns.

[487] Ruling: J.I. Case Co. v. National Labor Relations Board. U.S. Supreme Court, February 28, 1944. Decided 8–1. Majority: Stone, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge. Dissenting: Roberts. <supreme.justia.com>

[488] Report: “Major Collective Bargaining Agreements: Union Security and Dues Checkoff Provisions.” By Mary Ann Andrews. U.S. Department of Labor, Bureau of Labor Statistics, May 1982. <fraser.stlouisfed.org>

Page 4: “[S]eniority systems introduced by unions may actually limit the upward mobility of newer workers with superior ability.”

[489] Ruling: Giant Eagle Inc. v. United Food & Commercial Workers Union, Local 23. By Judge Arthur J. Schwab, United States District Court for the Western District of Pennsylvania, November 26, 2012. <cases.justia.com>

This case centers around a grievance filed against Plaintiff Giant Eagle, Inc. (“Giant Eagle”) by Defendant United Food & Commercial Workers Union, Local 23 (“Local 23” or “Union”). Local 23 filed a grievance against Giant Eagle because of raises that were given to certain employees that the Union contends were done in violation of the parties’ Collective Bargaining Agreement. On July 13, 2012, Giant Eagle filed a Complaint in this Court seeking a stay of a July 4, 2012 Arbitration Award which ordered Giant Eagle to rescind raises that had been given to employees. …

In early 2011, Giant Eagle gave wage increases and higher starting wages to twenty-five (25) employees of the Edinboro store. … The grievance was that the “company failed to notify Union in regards to granting higher rates of pay for less senior members.” …

The Court finds that the Arbitrator was within the scope of his duties to determine whether Article 14 required notification and Union consent based upon the Union’s submitted issue and his reading of Article 14. Therefore, the Arbitrator’s decision will not be vacated on this ground. …

The Court understands that the net result of the Union’s dispute is that some of its members will have their raises rescinded—in other words, the action of the Union in the arbitration will have the effect of taking away raises of certain members, thereby causing harm to its own members.

[490] Article: “Seniority System Cuts Fresh MPS [Milwaukee Public Schools] Teachers Amid Budget Crunch.” By Erin Richards and Amy Hetzner. Milwaukee Journal Sentinel, June 14, 2010. <www.jsonline.com>

“[S]ome teachers expressed frustration at losing their jobs because of experience, not performance. Others said they were disappointed the teachers union had not solicited input from those with the least amount of seniority.”

[491] Article: “Walker Brings Unwanted Attention to Local Teacher.” By Erin Richards. Milwaukee Journal Sentinel, March 10, 2011. <www.jsonline.com>

“In 2010, Megan Sampson was named an Outstanding First Year Teacher in Wisconsin,” Walker writes. “A week later, she got a layoff notice from Milwaukee Public Schools. Why would one of the best new teachers in the state be one of the first let go? Because her collective-bargaining contract requires staffing decisions to be made based on seniority.”

Sampson’s experience in Milwaukee Public Schools was the result of the “last hired, first fired” policy of the teachers union, in which seniority decides who gets cut in times of layoffs, no matter how great the skill of younger members.

[492] Ruling: Communications Workers v. Beck. U.S. Supreme Court, June 29, 1988. Decided 5–3. Majority: Brennan, Rehnquist, White, Marshall, Stevens. Dissenting in part: Blackmun, O’Connor, Scalia. <caselaw.findlaw.com>

Majority decision:

[U]nder the Wagner Act of 1935, all forms of compulsory unionism, including the closed shop, were permitted.

[493] Public Law 74-198: “National Labor Relations Act of 1935” (a.k.a. “Wagner Act”). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. <www.nlrb.gov>

Sec. 8. (3) [N]othing in this Act, or in the National Industrial Recovery Act (U.S.C., Supp. VII, title 15, secs. 701–712), as amended from time to time, or in any code or agreement approved or prescribed thereunder, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective bargaining unit covered by such agreement when made. …

[494] Ruling: Communications Workers v. Beck. U.S. Supreme Court, June 29, 1988. Decided 5–3. Majority: Brennan, Rehnquist, White, Marshall, Stevens. Dissenting in part: Blackmun, O’Connor, Scalia. <caselaw.findlaw.com>

Minority opinion:

The legislative debates surrounding the adoption of 8 (a)(3) in [the] 1947 [Taft-Hartley Act], show that in crafting the proviso to 8(a)(3), Congress was attempting “only to ‘remedy the most serious abuses of compulsory union membership….’’’’ … The particular “abuses” Congress identified and attempted to correct were two: the closed shop, which “deprives management of any real choice of the men it hires” and gives union leaders “a method of depriving employees of their jobs, and in some cases [of] a means of securing a livelihood in their trade or calling, for purely capricious reasons,” … and those union shops in which the union sought to obtain indirectly the same result as that obtained through a closed shop by negotiating a union-shop agreement and maintaining a “closed” union where it was free to deny membership to an individual arbitrarily or discriminatorily and then compel the discharge of that person because of his nonmembership….

[495] Report: “Legislative History of the Labor Management Relations Act, 1947 (Volume I).” National Labor Relations Board, 1948.

Pages 412–413:

We have felt that on the record before us the abuses of the system have become too serious and numerous to justify permitting present law to remain unchanged. It is clear that the closed shop which requires preexisting union membership as a condition of obtaining employment creates too great a barrier to free employment to be longer tolerated. In the maritime industry and to a large extent in the construction industry union hiring halls now provide the only method of securing employment. This not only permits unions holding such monopolies over jobs to exact excessive fees but it deprives management of any real choice of the men it hires. Extension of this principle to licensed deck and engine officers has created the greatest problems in connection with the safety of American vessels et sea. (See testimony of Almon E. Roth, id., vol. 2, p. 612.) Numerous examples were presented to the committee of the way union leaders have used closed-shop devices as a method of depriving employees of their jobs, and in some cases a means of securing a livelihood in their trade or calling, for purely capricious reasons.

[496] Report: “Legislative History of the Labor Management Relations Act, 1947 (Volume I).” National Labor Relations Board, 1948.

Pages 412–413:

Numerous examples were presented to the committee of the way union leaders have used closed-shop devices as a method of depriving employees of their jobs, and in some cases a means of securing a livelihood in their trade or calling, for purely capricious reasons. In one instance a union member was subpoenaed to appear in court, having witnessed an assault upon his foreman by a fellow employee. Because he told the truth upon the witness stand, the union leadership brought about his expulsion with a consequent loss of his job since his employer was subject to a closed-shop contract. (See testimony of William L. McGrath, id., vol. 4. p. 1982).

Numerous examples of equally glaring disregard for the rights of “minority members” of unions are contained in the exhibits received in evidence by the committee. (See testimony of Cecil B. DeMille, id., vol. 2, p. 797; see also, id., vol. 4, pp. 2063–2071). If trade-unions were purely fraternal or social organizations, such instances would not be a matter of congressional concern, but since, membership in such organizations in many trades or callings is essential to earning a living, Congress cannot ignore the existence of such power.

[497] Report: “Legislative History of the Labor Management Relations Act, 1947 (Volume II).” National Labor Relations Board, 1948.

Pages 1061–1062:

Mr. [Allen J.] ELLENDER [D-LA] …

Several of the witnesses who appeared before the committee gave a number of examples of the abuses which were engaged in by unions who had a closed shop. One of the cases was that of Cecil B. DeMille. who, as we know, is a producer of motion pictures on the west coast. He is also a radio commentator. Mr. DeMille was forced to join a union in order to be able to appear on the radio. Soon after he joined the union he was asked to make a contribution to a cause in which he did not believe.

He refused to make such a contribution. Then what happened? The union kicked him out: it said, “We do not want you as a member any more.” Up to this moment, Mr. President, Mr. DeMille has not been able to make any further broadcasts on the radio, simply because he violated the rules of the union to which he belonged. Now here was a man called upon to put up a contribution to fight a cause in which he did not believe and because he refused to pay the assessment made on him he was kicked around and is now unable to pursue his work. Such a situation is intolerable and must be corrected. The pending measure, as I will show better corrects such an evil.

Let us consider the McGrath case, in which a union member was called into court to testify in regard to a fight which occurred between a union member and a foreman. Because Mr. McGrath went to court, in response to a court summons, and testified to the truth, he was kicked out of the union, which meant the loss of his job. Consider the Edmonson case. When Mr. Edmonson said he would be a candidate against John L. Lewis for the presidency of the United Mine Workers Organization, and when he made an attempt to run against John L. Lewis, he was kicked out of the union and was forbidden to have any employment in any coal mine in which the UMW [United Mine Workers] had a contract.

[498] Book: Against Racism: Unpublished Essays, Papers, Addresses, 1887–1961. By W. E. B. Du Bois. University of Massachusetts Press, 1936.

Pages 103, 126:

1936

The Negro and Social Reconstruction …

Most Negro union members are in the Hod-Carrier’s Union, the carpenters, the bricklayers and masons, the plasterers, the longshoremen, the international seamen, the United Mine Workers and the Ladies’ Garment Workers. Reid reports 3,523 Negro members in American trade unions in 1890; 32,769 in 1900; 57,662 in 1910; 61,032 in 1926–1928. To this last numbers, if we add independent Negro unions and organized Negro workers, the total would be 81,658. Reid says: “Today 24 national unions exclude us from their ranks and proscribe us from employment.”

[499] Book: The Negro in the Making of America (3rd edition). By Benjamin Quarles. Touchstone, 1987.

Pages 248–249: “By 1940 there were 210,00 Negroes in the C.I.O. … The Negro would still face special problems in the mixed unions, and the major craft unions still barred him from membership.”

[500] Ruling: Communications Workers v. Beck. U.S. Supreme Court, June 29, 1988. Decided 5–3. Majority: Brennan, Rehnquist, White, Marshall, Stevens. Dissenting in part: Blackmun, O’Connor, Scalia. <caselaw.findlaw.com>

Majority decision:

Prior to the enactment of the Taft-Hartley Act of 1947, 61 Stat. 140, 8(3) of the Wagner Act of 1935 (NLRA) [National Labor Relations Act] permitted majority unions to negotiate “closed shop” agreements requiring employers to hire only persons who were already union members. [487 U.S. 735, 748] See Algoma Plywood Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 307–311 (1949). By 1947, such agreements had come under increasing attack, and after extensive hearings Congress determined that the closed shop and the abuses associated with it “create[d] too great a barrier to free employment to be longer tolerated.” S. Rep. No. 105, 80th Cong., 1st Sess., 6 (1947) (S. Rep.), Legislative History of Labor Management Relations Act, 1947 (Committee Print compiled for the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), p. 412 (1974) (Leg. Hist.).

Minority opinion:

Congress’ solution [in the 1947 Taft-Hartley Act] was to ban the closed shop and to permit the enforcement of union-shop agreements as long as union membership is available “on the same terms and conditions” to all employees, and mandatory discharge is required only for “nonpayment of regular dues and initiation fees.” S. Rep., at 7, 20, Leg. Hist. 413, 426. Congress was of the view, that, as Senator Taft stated, “[t]he fact that the employee will have to pay dues to the union seems … to be much less important. The important thing is that the man will have the job.” 93 Cong. Rec. 4886 (1947), Leg. Hist. 1422. “[A] man can get a job with an employer and can continue in that job if, in effect, he joins the union and pays the union dues.

[501] Public Law 80-101: “Labor Management Relations Act of 1947” (a.k.a “Taft-Hartley Act”). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. <uscode.house.gov>

8 (a) (3) … [N]o employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership….

[502] Ruling: Pattern Makers’ League of North America v. National Labor Relations Board. U.S. Supreme Court, June 27, 1985. Decided 6–3. Majority: Powell, Burger, White, Rehnquist, O’Connor. Concurring: Blackmun. Dissenting: Brennan, Marshall, Stevens. <caselaw.findlaw.com>

[503] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) (3) … [N]o employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership….

[504] Paper: “Representation Law and Procedures.” American Bar Association. Last modified May 21, 2007. Accessed October 9, 2019 at <www.americanbar.org>

Page 18:

Section 8(f) of the NLRA [National Labor Relations Act] Permits construction contractors and labor unions to enter into a form of collective bargaining agreement “without regard to the union’s majority status.” Employers in the construction industry, in recognition of the relatively short-term duration of projects and mobility of work forces, are permitted by Section 8(f) of the Act to execute bargaining agreements with Unions prior to the actual employment of Employees, without running afoul of prohibitions against Employers giving unlawful support and assistance to minority Unions. Such bargaining agreements may not be repudiated during the life of the Agreement; yet, upon expiration of the pre-hire agreement, the signatory Union does not enjoy a presumption of majority status, and either party may repudiate the bargaining relationship at that time.¹¹⁵ Of course, the contractor must comply with the notice provisions specified in the contract and with the withdrawal provisions of any Multi-Employer agreement to which it is a party. …

[505] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(f) Agreement Covering Employees in the Building and Construction Industry

(1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement, or

[506] Webpage: “Hiring Halls.” National Labor Relations Board. Accessed October 12, 2014 at <www.nlrb.gov>

In some industries, most jobs are filled through referrals from union hiring halls.

Employers in the construction and maritime industries often choose to hire exclusively through referrals from union hiring halls. Unions that operate exclusive hiring halls must notify workers how the referral system works (and of any changes in that system) and maintain non-discriminatory standards and procedures in making job referrals from the hiring hall. You don’t have to be a union member to use a hiring hall and a union may not discriminate in making referrals based on whether or not you are a union member. It may, however, charge nonmembers a reasonable fee to use the hiring hall’s services.

[507] Book: Labor Relations in the Public Sector (3rd edition). By Richard C. Kearney and Patrice M. Mareschal. CRC Press, 2014.

Pages 77–78: “The closed shop approach is illegal in both public and private sectors under the Taft-Hartley amendments but continues to exist de facto in a few settings, principally though “hiring halls” that vet job applicants.”

[508] Report: “Major Collective Bargaining Agreements: Union Security and Dues Checkoff Provisions.” By Mary Ann Andrews. U.S. Department of Labor, Bureau of Labor Statistics, May 1982. <fraser.stlouisfed.org>

Page 4: “Although the closed shop was prohibited [by the Taft-Hartley Act], nondiscriminatory union hiring halls, which sometimes in practice approximate closed shops, remained legal. Unions also were still permitted to negotiate union shop provisions.”

[509] Paper: “The Antitrust Laws and Labor.” Fordham Law Review, January 1962. Pages 759–775. <ir.lawnet.fordham.edu>

Page 760:

[510] Book: The Labor Relations Process (9th edition). By William H. Holley, Jr., Kenneth M. Jennings, and Roger S. Wolters. South-Western Cengage Learning, 2008.

[511] Paper: “Labor’s Love Lost? Changes in the U.S. Environment and Declining Private Sector Unionism.” By Edward E. Potter. Journal of Labor Research, Spring 2001. Pages 321–334. <link.springer.com>

[512] Book: Antitrust Law (2nd edition). By Richard A. Posner. University of Chicago Press, 2001.

Pages 12–13:

The optimum monopoly price may be much higher than the competitive price, depending on the intensity of consumer preference for the monopolized product—how much of it they continue to buy at successively higher prices-in relation to its cost. And the monopoly output will be smaller.³

So we now know that output is smaller under monopoly⁴ than under competition but not that the reduction in output imposes a loss on society. After all, the reduction in output in the monopolized market frees up resources that can and will be put to use in other markets. There is a loss in value, however. The increase in the price of the monopolized product above its cost induces the consumer to substitute products that must cost more (adjusting for any quality difference) to produce (or else the consumer would have substituted them before the price increase), although now they are relatively less expensive, assuming they are priced at a competitive level, that is, at the economically correct measure of cost. Monopoly pricing confronts the consumer with false alternatives: the product that he chooses because it seems cheaper actually requires more of society’s scarce resources to produce. Under monopoly, consumer demands are satisfied at a higher cost than necessary.

This analysis identifies the cost of monopoly with the output that the monopolist does not produce, and that a competitive industry would. I have said nothing about the higher prices paid by those consumers who continue to purchase the product at the monopoly price. Those higher prices are the focus of the layperson’s concern about monopoly—an example of the often sharp divergence between lay economic intuition and economic analysis. Antitrust economists used to treat the transfer of wealth from consumer to monopoly producer as completely costless to society, on the theory that the loss to the consumer was exactly offset by the gain to the producer.⁶ The only cost of monopoly in that analysis was the loss in value resulting from substitution for the monopolized product, since the loss to the substituting consumers is not recouped by the monopolist or anyone else and is thus a net loss, rather than merely a transfer payment and therefore a mere bookkeeping entry on the social books. But the traditional analysis was shortsighted.⁷ It ignored the fact that an opportunity to obtain a lucrative transfer payment in the form of monopoly profits will attract real resources into efforts by sellers to monopolize and by consumers to avoid being charged monopoly prices (other than by switching to other products, the source of the cost of monopoly on which the conventional economic analysis of monopoly focused). The costs of the resources consumed in these endeavors are costs of monopoly just as much as the costs resulting from the substitution of products that cost society more to produce than the monopolized product, though we’ll see that there may sometimes be offsetting benefits in this competition to become or fend off a monopolist.

[513] Textbook: Economics: Private and Public Choice. By James D. Gwartney and others. South-Western Cengage Learning, 2009.

Page 338:

As Adam Smith stressed long ago, when competition is present, even self-interested individuals will tend to promote the general welfare. Conversely, when competition is weakened, business firms will have more leeway to raise prices and pursue their own objectives and less incentive to innovate and develop better ways of doing things.

Competition is a disciplining force for both buyers and sellers. In a competitive environment, producers must provide goods at a low cost and serve the interests of consumers; if they don’t, other suppliers will. Firms that develop improved products and figure out how to produce them at low cost will succeed. Sellers that are unwilling or unable to provide consumers with quality goods at competitive prices will be driven from the market. This process leads to improved products and production methods and directs resources toward projects that create more value. It is a powerful stimulus for economic progress.

[514] Textbook: Business Process Modeling, Simulation and Design. By Manuel Laguna and Johan Marklund. Pearson, 2011.

Page 55:

Each market segment where goods and services are sold establishes the basis for competition. The same product, for example, may be sold in different markets by emphasizing price in one, quality in another, functionality (attributes) in yet another, and reliability or service elsewhere. Free trade agreements among countries, such as the North Atlantic Free Trade Agreement (NAFTA), or within the European Union (EU) compound the complexity and the intensity of competition because governments are less willing to implement policies designed to protect the local industry. The good news for consumers is that this intense competition tends to drive quality up and prices down. The challenge for companies is that the level of efficiency in their operations must increase (to various degrees, depending upon the status quo), because companies must be able to compete with the world’s best.

[515] Book: Quality Concepts for the Process Industry (2nd edition). By Michael Speegle. Delmar Cengare Learning, 2010.

Page 134:

Government Regulation of Competition

Because consumers benefit from competition, the United States government has traditionally sought to maintain a competitive environment for business by promulgating laws or regulations intended to prevent abuses in specific areas. Many government regulations also deal with product standards, environmental impacts, and other matters not directly related to competition. Without competition, prices of goods and services tend to be higher than they would be with competition, plus manufacturing output is lower. See Figure 11.2 and follow the x-axis from left to right. On the left is a monopoly with low or nonexistent innovation and high prices. As competition is introduced across the x-axis, innovation increases and prices come down.

When competition is low, producers can be inefficient without being penalized, and manpower and other resources can be wasted. A lack of competition and rank inefficiency was typical of the manufacturing climate of the former Soviet Union, where workers showed up for work if they felt like it, production lines shut down because parts did not arrive on time, and raw materials and energy were wasted because there was no need to be efficient. No one was penalized because the manufacturer had no competition.

[516] Textbook: Marketing (Student edition). By Charles Lamb, Joe Hair, and Carl McDaniel. South-Western Cengage Learning, 2011.

Page 122: “Rising incomes don’t necessarily mean a higher standard of living. Increased standards of living are a function of purchasing power. Purchasing power is measured by comparing income to the relative cost of a set standard of good and services in different geographical areas, usually referred to as the cost of living.”

[517] Report: “Middle Class in America.” Prepared by the U. S. Department Of Commerce

Economics and Statistics Administration for the Office of the Vice President of the United States, January 2010. <www.commerce.gov>

“Principal Finding … Areas with high housing costs can make even higher-income families feel pinched. … It is more difficult now than in the past for many people to achieve middle class status because prices for certain key goods—health care, college and housing—have gone up faster than income.”

[518] Textbook: Survey of Economics (8th edition). By Irvin B. Tucker. South-Western Cengage Learning, 2013.

Page 278:

Inflation tends to reduce your standard of living through declines in the purchasing power of money. The greater the rate of inflation, the greater the decline in the quantity of goods and services we can purchase with a given nominal income or money income. …

Nominal income does not measure your real purchasing power. Finding out whether you are better or worse off over time requires converting nominal income to real income. … Real income measures the amount of goods and services that can be purchased with one’s nominal income.

[519] Calculated with data from:

a) Webpage: “Right To Work States Timeline.” National Right to Work Committee. Accessed October 11, 2019 at <nrtwc.org>

b) Dataset: “2017 Average Family Income by State.” U.S. Census Bureau. Accessed October 11, 2019 at <www.census.gov>

c) Report: “Real Personal Income for States and Metropolitan Areas, 2017.” U.S. Bureau of Economic Analysis, May 16, 2019. <www.bea.gov>

Page 6:

Regional price parities (RPPs) are regional price levels expressed as a percentage of the overall national price level for a given year. The price level is determined by the average prices paid by consumers for the mix of goods and services consumed in each region.

Detailed CPI [consumer price index] price data are adjusted to obtain average price levels for BLS [Bureau of Labor Statistics]-defined areas⁵. These are allocated to counties in combination with direct price and expenditure data on housing rents from the ACS [Census Bureau’s American Community Survey].

County data are then aggregated to states and metropolitan areas.

⁵ The CPI represents about 93 percent of the total U.S. population, including almost all residents of urban or metropolitan areas. In the Northeast region, rural area prices (exclusive of rents) are assumed to be the same as those in the small metropolitan areas of the CPI; in the Midwest, South, and West regions, they are assumed to be the same as those in the nonmetropolitan urban areas of the CPI.

Page 8 (of PDF): “Table 1. Real Personal Income and Implicit Regional Price Deflators by State, 2016 and 2017”

NOTES:

An Excel file containing the data and calculations is available upon request.
Like all Census Bureau measures of “money” income, this dataset doesn’t include noncash benefits like subsidized housing, food stamps, charitable services, and government or employer-provided health benefits. Also, the data is collected via government surveys, and low-income households substantially underreport their income on such surveys.

[520] Report: “Income and Poverty in the United States: 2017.” By Kayla Fontenot, Jessica Semega, and Melissa Kollar. U.S. Census Bureau, September 2018. <www.census.gov>

Page 21: “The income and poverty estimates shown in this report are based solely on money income before taxes and do not include the value of noncash benefits, such as those provided by the Supplemental Nutrition Assistance Program (SNAP), Medicare, Medicaid, public housing, or employer-provided fringe benefits.”

Page 25:

For each person 15 years and older in the sample, the Annual Social and Economic Supplement (ASEC) asks questions on the amount of money income received in the preceding calendar year from each of the following sources:

1. Earnings

2. Unemployment compensation

3. Workers’ compensation

4. Social security

5. Supplemental security income

6. Public assistance

7. Veterans’ payments

8. Survivor benefits

9. Disability benefits

10. Pension or retirement income

11. Interest

12. Dividends

13. Rents, royalties, and estates and trusts

14. Educational assistance

15. Alimony

16. Child support

17. Financial assistance from outside of the household

18. Other income

It should be noted that although the income statistics refer to receipts during the preceding calendar year, the demographic characteristics, such as age, labor force status, and household composition, are as of the survey date. The income of the household does not include amounts received by people who were members during all or part of the previous year if these people no longer resided in the household at the time of the interview. The ASEC collects income data for people who are current residents but did not reside in the household during the previous year.

Data on income collected in the ASEC by the Census Bureau cover money income received (exclusive of certain money receipts such as capital gains) before payments for personal income taxes, social security, union dues, Medicare deductions, etc. Therefore, money income does not reflect the fact that some families receive noncash benefits, such as Supplemental Nutrition Assistance/food stamps, health benefits, and subsidized housing. In addition, money income does not reflect the fact that noncash benefits often take the form of the use of business transportation and facilities, full or partial payments by business for retirement programs, medical and educational expenses, etc. Data users should consider these elements when comparing income levels. Moreover, readers should be aware that for many different reasons there is a tendency in household surveys for respondents to underreport their income. Based on an analysis of independently derived income estimates, the Census Bureau determined that respondents report income earned from wages or salaries more accurately than other sources of income, and that the reported wage and salary income is nearly equal to independent estimates of aggregate income.

[521] Paper: “Wage Effects of Increased Union Coverage: Methodological Considerations and New Evidence.” By Dale L. Belman and Paula B. Voos. Industrial and Labor Relations Review, January 1993. Pages 368–380. <www.msu.edu>

Page 368:

Most studies comparing wages across industries, areas, or occupations, as well as most inter-metropolitan and interstate comparisons of wages within a given industry, report a positive relationship between the extent of union coverage and the wages of union members. Such a relationship would be expected under either a labor demand model of union wage determination, in which labor demand elasticity declines as coverage rises—presumably because consumers have fewer opportunities to substitute non-union products for union goods or services—or a bargaining power model of union wage determination.

[522] Calculated with data from:

a) Dataset: “Table 6.2D. Compensation of Employees by Industry [Millions of Dollars].” United States Department of Commerce, Bureau of Economic Analysis. Last revised September 30, 2022. <apps.bea.gov>

Line item 86: “Government … 2021 [=] 2,210,905”

b) Dataset: “Average Number of People per Household, by Race and Hispanic Origin, Marital Status, Age, and Education of Householder: 2021.” U.S. Census Bureau, November 2021. <www2.census.gov>

“All … Total households (in thousands) … [=] 129,931”

CALCULATION: $2,210,905,000,000 government employee compensation / 129,931,000 households = $17,016 per household

NOTE: As documented in the next five footnotes, this data on government employee compensation:

accounts for defined benefit pensions benefits “as employees earn them, rather than when employers actually make cash payments to pension plans.”
does not include the unfunded liabilities of retirement non-pension benefits (like health insurance). It does, however, include such spending for current retirees.

[523] Webpage: “What Changes Were Made to Pensions During the 2013 Comprehensive Revision, and How Have the Changes Affected Private, Federal, and State and Local Compensation?” U.S. Bureau of Economic Analysis, July 31, 2013. <www.bea.gov>

BEA [U.S. Bureau of Economic Analysis] changed its method for recording the transactions of defined benefit pension plans from a cash accounting basis to an accrual accounting basis as part of the comprehensive revision of the national income and product accounts (NIPAs) released on July 31, 2013. This improvement reflects the most recent international guidelines for the compilation of national accounts—the System of National Accounts 2008 (2008 SNA), which recommends an accrual-based treatment of defined benefit pension plans.

Defined benefit plans provide benefits during retirement based on a formula that typically depends on an employee’s length of service and average pay among other factors. The promised benefit entitlements tend to grow in a relatively smooth manner, whereas employers’ cash contributions may be volatile or sporadic. Accrual accounting is preferred over cash accounting for compiling national accounts because it aligns production with the incomes earned from that production and records both in the same period; cash accounting, on the other hand, reflects incomes when paid, regardless of when they were earned. Thus, the accrual accounting method better reflects the relatively smooth manner in which benefits are earned by employees each period as a result of the work they perform.

The new treatment applies to all defined benefit pension plans—private, federal government, and state and local government—and this change resulted in revisions to BEA’s estimates of private, federal, and state and local compensation.

[524] Article: “Changes to How the U.S. Economy is Measured Roll Out July 31.” U.S. Bureau of Economic Analysis, July 23, 2013. <www.bea.gov>

“On July 31, we will switch from a cash accounting method to an accrual accounting method to measure the transactions of defined benefit pension plans. That means we will count the benefits as employees earn them, rather than when employers actually make cash payments to pension plans.”

[525] Report: “Preview of the 2013 Comprehensive Revision of the National Income and Product Accounts: Changes in Definitions and Presentations: Changes in Definitions and Presentations.” By Shelly Smith and others. U.S. Bureau of Economic Analysis, March 2013. <apps.bea.gov>

Page 25: “With this comprehensive revision, estimates of wages and salaries that are a component of personal income will be presented on an accrual basis back to 1929.”

[526] Email from the U.S. Bureau of Economic Analysis to Just Facts, March 19, 2015.

“Retiree health care benefits (which are separate from pensions) are treated on a cash basis and are effectively included in the compensation of current workers.”

[527] Webpage: “What Is Included in Federal Government Employee Compensation?” U.S. Bureau of Economic Analysis. Accessed March 1, 2023 at <www.bea.gov>

“The contributions for employee health insurance consist of the federal share of premium payments to private health insurance plans for current employees and retirees.¹”

[528] Calculated with the dataset: “Table 3. Union Affiliation of Employed Wage and Salary Workers by Occupation and Industry (Numbers in Thousands), 2018.” U.S. Department of Labor, Bureau of Labor Statistics. Accessed October 9, 2019 at <www.bls.gov>

NOTE: An Excel file containing the data and calculations is available upon request.

[529] Webpage: “Limitations of the Data.” U.S. Census Bureau. Accessed December 9, 2017 at <www.census.gov>

While the Current Population Survey (CPS) completely excludes military personnel from being interviewed for the main questionnaire, the CPS Annual Social and Economic Supplement (ASEC) sample universe includes military personnel who live in households with at least one other civilian adult. In addition, the August 2008 CPS Migration Supplement also collected limited information on Armed Forces members deployed in the last year.

[530] News release: “Union Members—2018.” U.S. Bureau of Labor Statistics, January 18, 2019. <www.bls.gov>

Page 1:

The data on union membership are collected as part of the Current Population Survey (CPS), a monthly sample survey of about 60,000 eligible households that obtains information on employment and unemployment among the nation’s civilian noninstitutional population age 16 and over. …

The union membership rate of public-sector workers (33.9 percent) continued to be more than five times higher than that of private-sector workers (6.4 percent).

[531] Paper: “Two Faces of Union Voice in the Public Sector.” By Morley Gunderson. Journal of Labor Research, Summer 2005. <link.springer.com>

Page 398: “The lower resistance to unionization on the part of public sector managers reflects the fact that the survival of public sector organizations is not jeopardized by unions flexing their muscle. This is in contrast to private sector firms—and increasingly so under global competition.”

Page 399: “The degree of unionization in the public sector is simply not disciplined the same as in the private sector by such forces as the threat of bankruptcy or plant closing or moving offshore, or by competitive pressures to contain costs to be profitable, or by the need for managerial flexibility.”

Page 404:

In the private sector, however, the negative monopoly face of unions has been increasingly constrained by competitive market forces such as globalization and trade liberalization as well as by the industrial restructuring to services and the information economy. Rents are obviously harder to obtain when there are fewer rents on the bargaining table. There is little survival value to pricing yourself out of the market now that market forces are more prominent. In such a private sector environment, unions have generally declined, strikes have dissipated, and managerial prerogatives have been enhanced.

[532] Paper: “Card-Check Laws and Public-Sector Union Membership in the States.” By Timothy D. Chandler and Rafael Gely. Labor Studies Journal, December 2011. Pages 445–459. <lsj.sagepub.com>

Page 456: “This concern about employer hostility has been traditionally associated with private-sector employers, as the conventional wisdom has been that public-sector employees face a more favorable organizing environment, largely due to the lack of competitive pressures, a profit motive, or threat of bankruptcy for public-sector employers (Gunderson 2005).”

[533] Entry: “inelastic.” American Heritage Dictionary of the English Language (5th edition). Houghton Mifflin Harcourt Publishing Company, 2011. <www.thefreedictionary.com>

“2. Economics Of, relating to, or being a good for which changes in price have little effect on the quantity demanded or supplied: the inelastic demand for cigarettes.”

[534] Ruling: Abood v. Detroit Board of Education. U.S. Supreme Court, May 23, 1977. Decided 9–0 (with three separate concurrences from four Justices, who sometimes expressed opposing views to the Court’s opinion). <www.law.cornell.edu>

NOTE: This portion of the ruling was not disputed by any of the Justices.

The appellants’ second argument is that in any event collective bargaining in the public sector is inherently “political” and thus requires a different result under the First and Fourteenth Amendments. This contention rests upon the important and often-noted differences in the nature of collective bargaining in the public and private sectors.²⁴ A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and where they are they tend to be regarded as in some sense “essential” and therefore are often price-inelastic. Although a public employer, like a private one, will wish to keep costs down, he lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases. A public-sector union is correspondingly less concerned that high prices due to costly wage demands will decrease output and hence employment.

The government officials making decisions as the public “employer” are less likely to act as a cohesive unit than are managers in private industry, in part because different levels of public authority department managers, budgetary officials, and legislative bodies are involved, and in part because each official may respond to a distinctive political constituency. And the ease of negotiating a final agreement with the union may be severely limited by statutory restrictions, by the need for the approval of a higher executive authority or a legislative body, or by the commitment of budgetary decisions of critical importance to others.

Finally, decision making by a public employer is above all a political process. The officials who represent the public employer are ultimately responsible to the electorate, which for this purpose can be viewed as comprising three overlapping classes of voters taxpayers, users of particular government services, and government employees. Through exercise of their political influence as part of the electorate, the employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table. Whether these representatives accede to a union’s demands will depend upon a blend of political ingredients, including community sentiment about unionism generally and the involved union in particular, the degree of taxpayer resistance, and the views of voters as to the importance of the service involved and the relation between the demands and the quality of service. It is surely arguable, however, that permitting public employees to unionize and a union to bargain as their exclusive representative gives the employees more influence in the decision making process than is possessed by employees similarly organized in the private sector. …

²⁴ See, e. g., K. Hanslowe, The Emerging Law of Labor Relations in Public Employment (1967); H. Wellington & R. Winter, Jr., The Unions and the Cities (1971); Hildebrand, The Public Sector, in J. Dunlop and N. Chamberlain (eds.), Frontiers of Collective Bargaining 125–154 (1967); Rehmus, Constraints on Local Governments in Public Employee Bargaining, 67 Mich.L.Rev. 919 (1969); Shaw & Clark, The Practical Differences Between Public and Private Sector Collective Bargaining, 19 U.C.L.A.L.Rev. 867 (1972); Smith, State and Local Advisory Reports on Public Employment Labor Legislation: A Comparative Analysis, 67 Mich.L.Rev. 891 (1969); Summers, Public Employee Bargaining: A Political Perspective, 83 Yale L.J. 1156 (1974); Project, Collective Bargaining and Politics in Public Employment, 19 U.C.L.A.L.Rev. 887 (1972). The general description in the text of the differences between private- and public-sector collective bargaining is drawn from these sources.

[535] Paper: “Two Faces of Union Voice in the Public Sector.” By Morley Gunderson. Journal of Labor Research, Summer 2005. <link.springer.com>

Pages 404–405:

Public services, in contrast, are less subject to the pressures of globalization and trade liberalization, but they are not immune. Countries, and political jurisdictions within countries, are increasingly competing for business investment and the jobs associated with that investment,³⁰ creating stronger incentives to provide public services and infrastructures more cost effectively. Physical capital, financial capital, and human capital are increasingly mobile and footloose—able to escape jurisdictions that have excessive taxes and costs for public services and infrastructures. They can increasingly vote with their feet, moving to jurisdictions that provide the Tiebout-type tax and public expenditure package that suits their needs and preferences compelling governments to face a harder rather than softer budget constraint. Government may not go out of business, but they may not survive the next election.

[536] Paper: “Binding Interest Arbitration in the Public Sector: Is It Constitutional?” William & Mary Law Review, 1977. Pages 787–821. <scholarship.law.wm.edu>

Page 790: “Overburdened taxpayers, on the other hand, also have been harmed by higher costs of living. They surrender a material portion of their paychecks to the government and expect quality public services at reasonable rates. Public officials, in an effort to appease constituents, attempt to maximize the productivity of public employees as much as possible while holding public spending to a minimum.”

[537] Form 10-K: “Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, Fiscal Year Ended September 30, 2014.” United States Postal Service, December 5, 2014. <about.usps.com>

Page 3:

At September 30, 2014, we had approximately 488,000 career employees and 130,000 non-career employees, substantially all of whom reside in the U.S.

Approximately 89% of career employees are covered by collective bargaining agreements. These agreements include provisions for mandatory cost of living adjustments (“COLAs”), which are linked to the Consumer Price Index—Urban Wage Earners and Clerical Workers (“CPI-W”), as well as provisions that limit our ability to reduce the size of the labor force. Our labor force is primarily represented by the National Postal Mail Handlers Union (“NPMHU”), National Association of Letter Carriers (“NALC”), National Rural Letter Carriers’ Association (“NRLCA”) and American Postal Workers Union (“APWU”).

[538] Dataset: “Table 3. Union Affiliation of Employed Wage and Salary Workers by Occupation and Industry (Numbers in Thousands), 2014.” U.S. Department of Labor, Bureau of Labor Statistics. Accessed October 20, 2017 at <www.bls.gov>

“Private sector … Represented by Unions … Percent of employed [=] 7.4”

[539] Paper: “Postal Service Compensation and the Comparability Standard.” By Barry T. Hirsch, Michael L. Wachter, and James W. Gillula. Research in Labor Economics, Volume 18 (2000). Pages 243–279. <www.emeraldinsight.com>

Page 247: “Our principal analysis focuses on ‘bargaining unit’ postal employees, defined as the 78.5 percent of our postal sample coded as union members. Excluded from the bargaining unit are nonunion postal employees, a group including a mix of management, white-collar workers, and nonbargaining casual (temporary) workers.”

Page 254:

In this section, we provide longitudinal postal premium estimates based on wage changes among postal entrants and leavers. This approach controls for individual fixed effects, in particular unmeasured worker skills. Such an approach creates a natural comparison group, each postal worker’s wage being compared to that same worker’s wage on the prior or subsequent non-postal job. Longitudinal analysis, which can provide a good approximation of opportunity cost employment, has been recommended as a method for measuring wage premiums for public sector workers (see, for example, Krueger, 1988; Venti, 1986). Examining simple mean wage changes rather than use of regression analysis is reasonable, given that most worker and location characteristics do not change.¹⁶ Wage change for postal entrants can be compared to wage change among a control group of private sector workers voluntarily changing industry and occupation as they move from full-time private sector jobs to alternative non-postal jobs.

Page 264:

We do not have a data set that measures the dollar value of individual postal and non-postal worker fringe benefits and worker characteristics. … Inclusion of fringes yields a postal total compensation premium that is about 8 percentage points higher than the wage premium. Although a total compensation premium for “equivalent levels of work” cannot be estimated precisely, it is clear that our measures of the postal wage premium understate what is an even more substantial compensation premium.

An additional way in which wage premium estimates understate the compensation premium is that they fail to take into account the high degree of job security in the postal service.

Page 267:

The New Hire Survey reveals wage gains of new postal employees in 1994 of 39 percent. Using matched panels of CPS [Current Population Survey] workers for 1983–93, we find wage gains of 32 percent among postal entrants and losses of 25 percent among postal leavers (or 33 percent using the private sector wage base). Using the six Displaced Worker Surveys for 1984–94, which provide a measure of exogenous switching, we find real wage gains of 29 percent among postal entrants displaced from their previous job; the gain is 43 percent when measured relative to what are wage losses among displaced workers not taking postal jobs.

[540] Report: “Comparing the Compensation of Federal and Private-Sector Employees, 2011 to 2015.” U.S. Congressional Budget Office, April 2017. <www.cbo.gov>

Page 1: “Specifically, in its analysis, CBO [U.S. Congressional Budget Office] sought to account for differences in individuals’ level of education, years of work experience, occupation, size of employer, geographic location (region of the country and urban or rural location), veteran status, and various demographic characteristics (age, sex, race, ethnicity, marital status, immigration status, and citizenship).”

Page 3: “Overall, the federal government paid 17 percent more in total compensation than it would have if average compensation had been comparable with that in the private

sector, after accounting for certain observable characteristics of workers.”

Page 4: “CBO’s results apply to the cost of employing full-time, full-year workers. The analysis focuses on those workers—who accounted for about 94 percent of the total hours worked by federal employees from 2011 through 2015—because more-accurate data are available for them than for other workers.”

Page 5: “This analysis does not include military personnel or employees of self-financing government enterprises such as the Postal Service; federal contractors are included as private-sector workers.”

Page 11: “Table 2. Federal and Private-Sector Wages, by Level of Educational Attainment … Average Wages (2015 dollars per hour) … Percentage Difference Between Averages”

Page 14: “Table 3. Federal and Private-Sector Benefits, by Level of Educational Attainment … Average Wages (2015 dollars per hour) … Percentage Difference Between Averages”

Page 16: “Table 4. Federal and Private-Sector Total Compensation, by Level of Educational Attainment … Average Wages (2015 dollars per hour) … Percentage Difference Between Averages”

[541] Report: “Comparing the Compensation of Federal and Private-Sector Employees, 2011 to 2015.” U.S. Congressional Budget Office, April 2017. <www.cbo.gov>

Pages 9–11:

If CBO [U.S. Congressional Budget Office] had not structured this analysis to compare workers with similar observable traits, the difference in average wages between the two sectors would have been much larger. Comparing federal and private-sector employees with similar educational attainment was the most important element, for two reasons: Highly educated workers tend to earn much higher wages than less educated workers, and federal employees have more education, on average, than employees in the private sector. Accounting for differences in some of the other characteristics was also important because federal employees tend to work in higher-paying occupations and to have more years of work experience, which also tend to be associated with higher wages. Finally, employees of large firms tend to earn more per hour than employees of small firms, and federal employees are more than twice as likely as private-sector employees to work for entities that employ at least 1,000 people. Besides accounting for differences in those characteristics, CBO compared federal workers with private-sector workers who had similar demographic traits, but that adjustment did not have much effect on the difference between average federal and private-sector wages.

The large size of federal agencies does not necessarily imply that federal workers would receive the higher wages typical at large firms if they moved to the private sector. On the one hand, jobs are likely to be more specialized in the federal government and at large private firms than they are at smaller firms, so large private-sector employers might value the specialized skills of federal workers. That possibility suggests that accounting for the size of the employer leads to a more meaningful comparison of wages. On the other hand, the higher wages paid by large private firms may not reflect pay for skills that are transferable between the federal and private sectors, so adjusting for the employer’s size could understate the difference between average federal and private-sector wages for workers with similar traits. If adjustments for the employer’s size are not made, the difference between average federal and private-sector wages for all workers rises from 3 percent to 10 percent, and similar changes occur in the differences for workers at each level of education.

Differences between the average wages of federal and private-sector employees with the same measured traits could reflect the effects of personal characteristics that cannot be measured, differences in the way that the federal government and the private sector determine pay, or a combination of those factors. The data do not allow CBO to gauge the degree to which each of those factors affects differences in average wages between the sectors.

[542] Calculated with data from the report: “National Compensation Survey: Occupational Earnings in the United States, 2010.” U.S. Bureau of Labor Statistics, May 2011. <www.bls.gov>

Page 8: “Survey data were collected over a 13-month period for the 87 larger areas; for the 140 smaller areas, data were collected over a 4-month period. For each establishment in the survey, the data reflect the establishment’s most recent information at the time of collection. The data for the National bulletin were compiled from locality data collected between December 2009 and January 2011. The average reference period is July 2010.”

Page 9:

For hourly workers, scheduled hours worked per day and per week, exclusive of overtime, are recorded. For salaried workers, field economists record the typical number of hours actually worked because those exempt from overtime provisions often work beyond the assigned work schedule.

The number of weeks worked annually is determined as well. Because salaried workers who are exempt from overtime provisions often work beyond the assigned work schedule, the typical number of hours they actually worked is collected.

Page 49: “Table 4. Full-time private industry workers: Mean and median hourly, weekly, and annual earnings and mean weekly and annual hours … All workers … Annual … Mean hours [=] 2,045”

Page 85: “Table 5 Full-time1 State and local government workers: Mean and median hourly, weekly, and annual earnings and mean weekly and annual hours … All workers … Annual … Mean hours [=] 1,823”

CALCULATION: (2,045 hours – 1,823 hours) / 1,823 hours = 12%

[543] Paper: “Compensation for State and Local Government Workers.” By Maury Gittleman (US Department of Labor) and Pierce Brooks (US Department of Labor). Journal of Economic Perspectives, Winter 2012. Pages 217–242. <pubs.aeaweb.org>

[544] Report: “Differences Between Union and Nonunion Compensation, 2001–2011.” By George I. Long. Monthly Labor Review (published by the U.S. Bureau of Labor Statistics, April 2013. Pages 16–23. <www.bls.gov>

Page 16: “The National Compensation Survey (NCS) measures compensation levels and benefit provisions for many worker and industry characteristics. This article uses NCS data to examine some of the similarities and differences between union and nonunion compensation during the period from 2001 to 2011.”

Page 18: “Table 2. Employer costs per hour worked, by occupational group and collective bargaining status, December 2011”

[545] Report: “Work Schedules in the National Compensation Survey.” By Richard Schumann. Bureau of Labor Statistics, July 28, 2008. <www.bls.gov>

Page 1:

Work schedules in the United States are generally viewed as consisting of an 8-hour day and a 40-hour week. But the National Compensation Survey (NCS) covers many occupations that have different types of work schedules: fire fighters, for example, who often work 24 straight hours followed by 48 hours off; truck drivers, many of whom spend days at a time on the road; waiters and waitresses, whose schedules may vary every week; and school teachers, who tend to work many hours at home. Fitting all of these different schedules into a common form for data publication can be challenging.

The National Compensation Survey (NCS) produces data on occupational earnings, compensation cost trends—the Employment Cost Index (ECI) and the Employer Cost for Employee Compensation (ECEC) series—and benefits. The wage and benefit data collected from NCS respondents come in several time frames: hourly, weekly, biweekly, monthly, or annually. Converting the raw data into a common format requires accurate work schedules. This article explains how the NCS calculates these work schedules and the role that they play in the calculation of the published data series.

Definition Of The Work Schedule

The NCS work schedule is defined as, “The number of daily hours, weekly hours, and annual weeks that employees in an occupation are scheduled and do work.” The work schedule is the standard schedule for the occupation; short-term fluctuations and one-time events are not considered unless the change becomes permanent. For example, paid or unpaid time off due to a snowstorm would not result in the adjustment of the work schedule because this would not represent a permanent change. Paid lunch periods are included in the work schedule, as is incidental time off, such as coffee breaks, or wash-up time. Vacation, holidays, sick leave, and other kinds of leave hours are included in the work schedule, but they are subtracted when calculating the number of hours worked in a year.

Page 2:

Benefit costs. The ECI and ECEC publish data for a wide variety of benefits. The costs for these benefits may take different forms, such as monthly premiums, percent of gross earnings, or days of paid leave. These costs must be converted to a common cost form to allow for the calculation of individual benefit and total benefit costs across occupations, industries, and other publication categories in the survey. The NCS uses a cost-per-hour-worked concept as the common cost form. To convert all costs to a per-hour-worked basis, the cost of each benefit is converted to an annual cost and then divided by the number of annual hours worked.

Page 4:

Additional requirements of the job. Professional and managerial employees often work beyond the established work schedule of the employer due to the requirements of their jobs. Because such workers are exempt from the overtime provisions of the Fair Labor Standards Act, employers are not required to compensate them for the additional hours. If the hours worked are not compensated for, then they usually are not recorded. Collection of the actual hours normally worked would be the preferred way of determining the work schedule, but records of hours worked by exempt employees are usually not available. In most cases, the NCS collects the employer’s best estimate of the hours normally worked by exempt employees. If the respondent is unwilling or unable to estimate the hours, then the normal work hours of other employees in the establishment are used.

The actual hours worked by elementary and secondary school teachers (who are exempt) are often not available. Time spent in lesson preparation, test construction and grading, providing additional help to students, and other nonclassroom activities are not available and therefore not recorded. The NCS uses contract hours for teachers in determining the work schedule.¹² Contracts usually specify the length of the school day, the number of teaching and required nonteaching days, and the amount of time, if any, teachers are required to be in the school before and after school hours. These hours are used to construct the work schedule. For example, it is common for teacher contracts to specify that teachers will work 185 days per year. In these cases, the daily work schedule would be the length of the school day plus any time teachers are required to be in school before or after the school day, and the weekly work schedule would be the daily schedule multiplied by 5 days (Monday through Friday). The number of weeks would be 37 (185 days ÷ 5 days per week). The time not worked during summer, Christmas break, and spring break would be excluded from the work schedule and would not be considered vacation or holiday. Jobs in schools are not considered to be seasonal.

[546] Paper: “Wages, Pensions, and Public-Private Sector Compensation Differentials for Older Workers.” By Philipp Bewerunge and Harvey S. Rosen. Public Administration Research, October 30, 2013. <www.ccsenet.org>

Page 233: “We use a sample of full-time workers over 50 years of age from the 2004 and 2006 waves of the Health and Retirement Study (HRS) to investigate whether workers in federal, state, and local government receive more generous wage and pension compensation than private sector workers, ceteris paribus [if all other relevant factors are the same].”

Page 234: “Compensation packages, of course, have other components, including employment security, paid vacation, health insurance benefits, and so on.¹ Our analysis focuses on wages and pension benefits because they are of major importance and micro data are relatively accessible.”

Page 235: “Our analysis sample comes from the 2006 wave of the Health and Retirement Study, a longitudinal study of Americans aged 50 and over, who are interviewed every two years by the Institute for Social Research at the University of Michigan.⁷ Because the HRS is primarily based on older workers, our results might not apply to employees throughout the age distribution.”

Pages 237:

In this context, an important question is whether our analysis sample is plausibly nationally representative…. This is an empirical issue, and a sensible way to approach it is to apply to a nationally representative data set the same screens that we use to generate our HRS analysis sample, and compare summary statistics of the key variables that are available in both samples. … . The results, available upon request, indicate that the summary statistics for the two samples are quite close.

Page 239:

To begin, we estimate regressions of the log of hourly pay … on worker characteristics and dichotomous variables for sector of employment. Specifically, we regress the logarithm of the hourly wage on a set of indicators for sector of employment (with the private sector as the excluded category) as well as educational attainment, gender, race, marital status, and a quadratic in age.^{17, 18} In effect, this specification constrains all the coefficients, except those on the sectoral variables, to be the same across sectors

Page 243:

Toward a comprehensive measure of compensation differentials. …

[U]sing information from several sources, a back-of-the-envelope estimate is possible. The steps in this calculation are as follows:

First, obtain an estimate of the average hourly amount of DC [defined-contribution] contributions made by employers and employees in each sector. …

Second, obtain an estimate of the hourly amount of DB [defined-benefit] contributions made by employers and employees. …

Third, multiply our respective estimated hourly pension wealth differentials by the ratio of the sum of the employer DC and DB contributions to the sum of employer and employee DC and DB contributions. This yields a set of differentials due to employer contributions.

The last step is to add these figures to the wage differentials from column (2) of Table 3. … This yields total compensation differentials of 34.2 percent for federal employees,²⁹ 7.49 percent for state employees, and 8.29 percent for local employees.

[547] Beyond failing to account for the education, occupation, or work experience, a number of studies examined by Just Facts don’t account for all fringe benefits. Other studies fail to include certain groups of employees who make significantly more in the public sector than the private-sector (such as teachers).

[548] Article: “Port Authority Overtime: $90.5M This Year, Payroll Figures Show.” By Ted Sherman. Star-Ledger, December 10, 2011. <www.nj.com>

Records released Friday by the agency showed Port Authority police took home $41.4 million in overtime, with two officers making far more in overtime than the $107,900 they earn in base pay. Both were paid more than $256,000 this year. …

The comptroller’s office said “overtime flows like water at the Port Authority and management has no clear strategy to achieve its own benchmarks and goals for curbing costs.” It noted overtime pay is factored into New York state retirement benefits, inflating the pensions Port Authority police officers and other employees receive.

[549] Article: “Lifeguards’ High Pay Riles Calif. Beach City.” By Reed Saxon. Associated Press, May 21, 2011. <www.cbs8.com>

NEWPORT BEACH, Calif. (AP) …

Yet Toussaint, was shocked to learn that most of the fulltime lifeguards in this city earn well over $100,000 in total compensation a year—including salary, overtime and benefits—more than Toussaint made in her previous life as a nurse….

With overtime only added in, more than half of the 13 cleared $100,000 and the rest made between $59,500 and $98,500. Adding in pension contributions, medical benefits, life insurance and other pay, two battalion chiefs earned more than $200,000 in 2010, while the lowest-paid officer made more than $98,000. …

Newport Beach’s lifeguards can retire at 50 with 90 percent of their salary with 30 years of service, according to state data.

[550] Article: “Legislator’s Father Collected Turnpike Overtime.” By Anthony Flint. Boston Globe, May 28, 2004. <archive.boston.com>

Richard Petrucelli, of East Boston, was paid a total of $288,562 in 2003 for his work as an electrician, part of an unusually high outlay of overtime pay that year for turnpike employees, including electricians and toll collectors.

Turnpike spokesman Douglas Hanchett said that the elder Petrucelli has worked for the authority since 1994 and that his son was elected to the House of Representatives in 1999. He denied there was any political basis for awarding the overtime.

“Overtime is assigned based on seniority,” Hanchett said. Employees are approached based on their length of service and asked whether they would like to work additional hours, he said.

[551] Article: “Padded Pensions Add to New York Fiscal Woes.” By Mary Williams Walsh and Amy Schoenfeld. New York Times, May 20, 2010. <www.nytimes.com>

In Yonkers, more than 100 retired police officers and firefighters are collecting pensions greater than their pay when they were working. One of the youngest, Hugo Tassone, retired at 44 with a base pay of about $74,000 a year. His pension is now $101,333 a year. …

According to pension data collected by The New York Times from the city and state, about 3,700 retired public workers in New York are now getting pensions of more than $100,000 a year, exempt from state and local taxes. The data belie official reports that the average state pension is a modest $18,000, or $38,000 for retired police officers and firefighters.

[552] Article: “Audit: NJ Turnpike Wasted Millions On Perks.” By Luke Funk. Fox 5 New York, October 20, 2010. <www.myfoxny.com>

“Auditors say the New Jersey Turnpike Authority wasted $43 million on unneeded perks and bonuses. In one case, an employee with a base salary of $73,469 earned $321,985 when all payouts and bonuses were included.”

[553] Article: “Audit of N.J. Turnpike Authority Finds $43M in Waste During Tough Economy.” By Mike Frassinelli, Star-Ledger, October 20, 2010. <www.nj.com>

“It’s just stunning that some of these perks were actually built into labor contracts negotiated by the prior administration,” Drewniak said. “Well, those contracts—all 10 of them—are up in 2011, and it’s safe to say that they will not include built-in abuses like these. I mean, who in the private work world gets anything like a bonus for working on their birthday?”

Franceline Ehret, a toll collector for 25 years and president of the International Federation of Professional and Technical Engineers Local No. 194, which represents Turnpike toll collectors, said some of the bonuses are not what they might seem.

[554] Article: “Voters End Binding Arbitration for Palo Alto Police, Firefighters.” By Jessica Parks, Ray Braun and Marcella De Laurentiis. Peninsula Press, November 8, 2011. <peninsulapress.com>

[555] Article: “Nurse Making $269,810 Demonstrates California’s Overtime Binge.” By Michael B. Marois. Bloomberg, October 26, 2011. <www.bloomberg.com>

Jean Keller earned $269,810 last year working as a nurse at a men’s prison on California’s central coast by tripling her regular pay with overtime hours.

Keller got more overtime in 2010 than any other state employee. In all, California’s public workers collected $1.7 billion of extra pay last year, more than half of it in overtime, state payroll data show. The rest was for unused vacation and union-negotiated benefits such as uniform allowances, physical-fitness incentives and special compensation in recognition of a “complex work load.”

[556] Article: “Madison Metro Driver Highest Paid City Employee.” By Dean Mosiman. Wisconsin State Journal, February 7, 2010. <host.madison.com>

Madison‘s highest paid city government employee last year wasn’t the mayor. It wasn‘t the police chief. It wasn’t even the head of Metro Transit.

It was bus driver John E. Nelson.

Nelson earned $159,258 in 2009, including $109,892 in overtime and other pay.

[557] Article: “One-Day Rehiring Nets Former Chicago Labor Leader a $158,000 City Pension.” By Jason Grotto, Chicago Tribune, September 21, 2011. <www.chicagotribune.com>

In fact, his pension is so high that it exceeds federal limits and required the city pension fund to file special paperwork with the Internal Revenue Service to give it to him.

Gannon's inflated pension is a prime example of how government officials and labor leaders have manipulated city pension funds at the expense of union workers and taxpayers. Like other labor leaders, he was able to take a long leave from a city job to work for a union and then receive a city pension based on a high union salary.

[558] Article: “Tax-Funded Cosmetic Surgery Raises Eyebrows.” By Andrew Z. Galarneau. Buffalo News, June 2, 2002. <www.buffalonews.com>

“Over the last three years, Niagara County taxpayers paid more than $1.25 million for face peels, breast implants, liposuction and other elective cosmetic surgery for county employees.”

[559] Constructed with data from:

a) Union Sourcebook: Membership, Structure, Finance, Directory. By Leo Troy (Ph.D.) and Neil Sheflin (Ph.D.). IRDIS (Industrial Relations Data and Information Services), 1985.

Page A-1: “Appendix A … Historical Statistics … 1897–1983 … Density [Non-Agricultural Employment] … Private”

Page 3-1: “ ‘Total membership’ refers to all members of U.S. unions includ[ing] Canadian members of the organizations, while ‘U.S. membership’ refers to membership solely in the U.S.).”

Page 3-2: “The membership figures in the Sourcebook represent the average annual, dues-paying, full-time equivalent membership of every known private and public-sector labor organization in existence during the period from 1897–1983, with partial and preliminary coverage from 1984.”

b) Dataset: “Table 1. Union Affiliation of Employed Wage and Salary Workers by Selected Characteristics (Numbers in Thousands), 1983–2018.” U.S. Department of Labor, Bureau of Labor Statistics. Accessed October 12, 2019 at <www.bls.gov>

“Series Id: LUU0204899600 … Percent of employed, Members of unions … 16 years and over … Wage and salary workers, excluding incorporated self-employed”

NOTE: An Excel file containing the data is available upon request.

[560] Graph constructed with data from:

a) Union Sourcebook: Membership, Structure, Finance, Directory. By Leo Troy (Ph.D.) and Neil Sheflin (Ph.D.). IRDIS (Industrial Relations Data and Information Services), 1985.

Page A-1: “Appendix A … Historical Statistics … 1897–1983 … Density [Non-Agricultural Employment] … Government”

Page 3-1: “ ‘Total membership’ refers to all members of U.S. unions includ[ing] Canadian members of the organizations, while ‘U.S. membership’ refers to membership solely in the U.S.).”

b) Dataset: “Table 3. Union Affiliation of Employed Wage and Salary Workers by Occupation and Industry (Numbers in Thousands), 1983–2018.” U.S. Department of Labor, Bureau of Labor Statistics. Accessed October 12, 2019 at <www.bls.gov>

“Series Id: LUU0204906600 … Percent of employed, Private wage and salary workers, Members of unions … 16 years and over … excluding incorporated self-employed … 1983–99 estimates exclude agricultural workers; as a result, 1983–99 private and government estimates will not sum to total.”

NOTE: An Excel file containing the data is available upon request.

[561] Graph constructed with data from:

a) Union Sourcebook: Membership, Structure, Finance, Directory. By Leo Troy (Ph.D.) and Neil Sheflin (Ph.D.). IRDIS (Industrial Relations Data and Information Services), 1985.

Page A-1: “Appendix A … Historical Statistics … 1897–1983 … Density [Non-Agricultural Employment]”

Page 3-1: “ ‘Total membership’ refers to all members of U.S. unions includ[ing] Canadian members of the organizations, while ‘U.S. membership’ refers to membership solely in the U.S.).”

“Series Id: LUU0204922700 … Percent of employed, Government wage and salary workers, Members of unions … 16 years and over”

NOTE: An Excel file containing the data is available upon request.

[562] Dataset: “Table 3. Union Affiliation of Employed Wage and Salary Workers by Occupation and Industry (Numbers in Thousands), 2018.” U.S. Department of Labor, Bureau of Labor Statistics. Accessed October 9, 2019 at <www.bls.gov>

NOTE: An Excel file containing the data is available upon request.

[563] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: “Definitions; Application.” Accessed October 9, 2019 at <www.law.cornell.edu>

(a) For the purpose of this chapter—

(2) “employee” means an individual—

(A) employed in an agency …

(B) … but does not include—

(i) an alien or noncitizen of the United States who occupies a position outside the United States;

(ii) a member of the uniformed services;

(iii) a supervisor or a management official;

(v) any person who participates in a strike in violation of section 7311 of this title;

(3) “agency” means an Executive agency (including a nonappropriated fund instrumentality described in section 2105 (c) of this title and the Veterans’ Canteen Service, Department of Veterans Affairs), the Library of Congress, the Government Publishing Office, and the Smithsonian Institution¹ but does not include—

(A) the Government Accountability Office;

(B) the Federal Bureau of Investigation;

(D) the National Security Agency;

(E) the Tennessee Valley Authority;

(F) the Federal Labor Relations Authority;

(G) the Federal Service Impasses Panel; or

(H) the United States Secret Service and the United States Secret Service Uniformed Division.

[564] U.S. Code Title 37, Chapter 1, Section 101: “Pay and Allowances of the Uniformed Services, Definitions.” Accessed October 9, 2019 at <www.law.cornell.edu>

(3) The term “uniformed services” means the Army, Navy, Air Force, Marine Corps, Coast Guard, National Oceanic and Atmospheric Administration, and Public Health Service.

(4) The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.

[565] Calculated with: “Fiscal Year 2017 Performance and Accountability Report.” U.S. Federal Labor Relations Authority, November 15, 2017. <www.flra.gov>

Page 3: “The U.S. Federal Labor Relations Authority (FLRA) is responsible for establishing policies and guidance regarding the labor-management-relations program for 2.1 million non-Postal, federal employees worldwide, approximately 1.2 million of whom are represented in 2,200 bargaining units.”

CALCULATION: 1.2 / 2.1 = 57%

[566] Form 10-K: “Annual Report Pursuant to Section 13 or 15(D) of the Securities Exchange Act of 1934, Fiscal Year Ended September 30, 2018.” United States Postal Service, November 14, 2018. <about.usps.com>

Page 4:

At September 30, 2018, we employed approximately 497,000 career employees and approximately 137,000 non-career employees, substantially all of whom reside in the U.S.

Approximately 92% of employees are covered by collective bargaining agreements. These agreements include provisions governing work rules and provide for general wage increases, step increases and cost of living adjustments (“COLA”), which are linked to the Consumer Price Index – Urban Wage Earners and Clerical Workers (“CPI-W”), as well as provisions that limit our ability to reduce the size of the labor force and restrict the number of non-career employees. Our labor force is primarily represented by the American Postal Workers Union, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations] (“APWU”); the National Association of Letter Carriers, AFL–CIO (“NALC”); the National Postal Mail Handlers Union, AFL–CIO (“NPMHU”) and the National Rural Letter Carriers Association (“NRLCA”).

[567] Calculated with the dataset: “Table 3. Union Affiliation of Employed Wage and Salary Workers by Occupation and Industry (Numbers in Thousands), 2018.” U.S. Department of Labor, Bureau of Labor Statistics. Accessed October 9, 2019 at <www.bls.gov>

NOTE: An Excel file containing the data and calculations is available upon request.

[568] Constructed with data from:

a) Webpage: “Hedge Funds: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

b) Webpage: “Lawyers / Law Firms: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

c) Webpage: “Gun Rights: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

d) Webpage: “Labor: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

e) Webpage: “Pro-Abortion Rights: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

f) Webpage: “Defense: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

g) Webpage: “Health: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

h) Webpage: “Books, Magazines & Newspapers: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

NOTE: For all of the sources above, the data:

is for the election cycles 1990–2020.
is “based on contributions from donors (individuals as well as corporations and unions that give directly from their treasuries) to outside groups and from PACs (including super PACs) and individuals giving more than $200 to candidates and party committees.
was “released by the Federal Election Commission on Saturday, September 21, 2019.

[569] Webpage: “Labor: Long-Term Contribution Trends.” Center for Responsive Politics. Accessed October 12, 2019 at <www.opensecrets.org>

Election Cycle(s) [=] 1990–2020 … Total Contributions [=] $1,452,631,652 … % to Dems [=] 91% … % to Repubs [=] 9% …

The numbers on this page are based on contributions from donors (individuals as well as corporations and unions that give directly from their treasuries) to outside groups and from PACs (including super PACs) and individuals giving more than $200 to candidates and party committees. …

Data for the current election cycle were released by the Federal Election Commission on Thursday, June 10, 2019.

[570] Article: “Unions Don’t Cite Political Funds.” By John Solomon. Associated Press, August 7, 2001.

Eager to help Democrats, unions have spent millions on TV ads and voter guides portraying the party favorably, and worked neighborhoods to get voters to the polls. But they routinely report zero political expenses to the IRS, a review of union documents shows.

IRS officials told The Associated Press that it appeared the unions were obliged to disclose at least some of the activities on their tax forms. Failure to report taxable political expenses can result in back taxes and fines for tax-exempt organizations like unions. …

Labor officials—including those at the AFL–CIO [American Federation of Labor and Congress of Industrial Organizations], which spent $35 million on activities during the 1996 election campaign but reported no political expenses to the IRS—said they believe they have properly filled out their tax forms. …

Union leaders said they don’t believe their activities met the IRS requirement for reporting political expenditures. …

The Internal Revenue Service code requires unions to list any direct or indirect expense “intended to influence the selection, nomination, election or appointment of anyone to a federal, state or local public office.’’

Gold said one activity that unions considered possibly political—voter guide ads—was paid for out of a segregated fund that did not require reporting to the IRS. Everything else was not reportable, he said, in part because many activities were aimed at union members. The ads portrayed Democrats favorably and Republicans negatively.

[571] Article: “Political Spending by Unions Far Exceeds Direct Donations.” By Tom McGinty and Brody Mullins. Wall Street Journal, July 10, 2012. <www.wsj.com>

Organized labor spends about four times as much on politics and lobbying as generally thought, according to a Wall Street Journal analysis, a finding that shines a light on an aspect of labor’s political activity that has often been overlooked.

But much of unions’ spending on this effort—involving internal communication with members—doesn’t have to be reported to the FEC [Federal Election Commission]. It does, however, have to be reported to the Labor Department.

NOTE: To substantiate this article, the Wall Street Journal listed the total political expenditures based on Labor Department filings for the “200 unions that spent the most on politics and lobbying from 2005 to 2011.”

[572] Article: “Labor Movement.” Contributor: Daniel Quinn Mills, Ph.D., Professor of Business Administration, Harvard University. World Book Encyclopedia, 2007 Deluxe Edition.

Political activities are also an important part of the labor movement. Union officials urge workers and their families to vote for candidates who are sympathetic to union goals. Because of the ability of union leaders to influence votes, most elected officials listen carefully to what labor leaders want. In this way, organized labor influences the city, state, and federal government.

[573] Article: “Unplugged: The SEIU Chief on the Labor Movement and the Card Check.” By Michael Mishak. Las Vegas Sun, May 10, 2009. <www.lasvegassun.com>

In Andy Stern’s world view, bigger is better.

And better still if the center of that world is his 2-million-member Service Employees International Union. …

The following is a condensed version of his remarks, edited for clarity and space. …

As for SEIU [Service Employees International Union], every four years, two things happen: our union’s convention and our country’s presidential election. For four years we save our money and then on the fourth year we spend it all. If we were trying to be a bank and not an advocate for our members’ interests, our members would be really disappointed. We are not a savings institution.

We spent a fortune to elect Barack Obama—$60.7 million to be exact—and we’re proud of it.

[574] Webpage: “Top Organization Contributors (2008 Election Cycle).” Center for Responsive Politics. Accessed September 21, 2015 at <www.opensecrets.org>

Totals on this page reflect donations from employees of the organization, its PAC [political action committee] and in some cases its own treasury. These totals include all campaign contributions to federal candidates, parties, political action committees (including super PACs), federal 527 organizations, and Carey committees. The totals do not include contributions to 501(c) organizations, whose political spending has increased markedly in recent cycles. Unlike other political organizations, they are not required to disclose the corporate and individual donors that make their spending possible. Only contributions to Democrats and Republicans or liberal and conservative outside groups are included in calculating the percentages the donor has given to either party.

Election cycle 2008

Rank 1

Service Employees International Union

Total Contributions $40,106,431

To Dems & Liberals $39,779,659

To Repubs & Conservs $328,522

Pct to Dems & Liberals 99%

Pct to Repubs & Conservs 1%

Based on data released by the FEC on March 11, 2013.

CALCULATION: $40,106,431 / $60,700,000 = 66%

[575] Webpage: “FAQ.” United Food and Commercial Workers Union Local 23. Accessed October 12, 2019. <www.ufcw23.org>

Q. What happens to the dues money that is paid to the Union?

A. A small part of the dues money goes to pay the wages of your Union officials, organizers, business representatives and office staff. Another part goes to the International Union to pay their administrative and staffing costs. The largest part goes to the Local Union to pay for offices, equipment, postage, legal fees, arbitration fees, office supplies, printing costs and transportation. The members have to approve every dollar spent and the Union is required by law to account for all income and expenditures.

[576] Calculated with data from the webpage: “United Food & Commercial Workers Union, Total Contributions by Party of Recipient.” Center for Responsive Politics. Accessed October 14, 2019 at <www.opensecrets.org>

Total [1990–2020] … Democrats [=] $36,327,543 … Republicans [=] $341,950 …

The numbers on this page are based on contributions of $200 or more from PACs [political action committees] and individuals to federal candidates and from PAC, individual and soft money donors to political parties, as reported to the Federal Election Commission. While election cycles are shown in charts as 1996, 1998, 2000 etc. they actually represent two-year periods. For example, the 2002 election cycle runs from January 1, 2001 to December 31, 2002.

NOTE: Soft money contributions were not publicly disclosed until the 1991–92 election cycle. Soft money donations to parties were banned after the 2002 cycle.

Data for the current election cycle was released by the Federal Election Commission on September 21, 2019.

CALCULATIONS:

$36,327,543 + $341,950 = $36,669,493
$36,327,543 / $36,669,493= 99%

[577] Webpage: “Eliseo Medina.” Service Employees International Union. Accessed January 10, 2015 at <www.seiu.org>

Eliseo Medina is described by the Los Angeles Times as “one of the most successful labor organizers in the country” and was named one of the “Top 50 Most Powerful Latino Leaders” in Poder Magazine. The International Secretary-Treasurer of the Service Employees International Union (SEIU), Medina also leads the union’s efforts to achieve comprehensive immigration reform that rebuilds the nation’s economy, secures equal labor- and civil-rights protections for workers to improve their wages and work conditions and provides legal channels and a path to citizenship. Medina’s work to help grow Latino voting strength in the 2012 elections is widely recognized as a key factor in propelling the 2013 debate in Congress over commonsense immigration reform. …

In 1996, Medina was elected to serve as international executive vice president of SEIU. He made history by becoming the first Mexican American elected to a top post at the 2 million-member SEIU.

His work helped grow SEIU on the West Coast and make it the largest union in California. Since 1996, more than 1.2 million workers across the country have united with SEIU, the nation’s largest union of healthcare workers and the union with the largest membership of immigrant workers. …

In 2010, Medina was unanimously elected to serve as International Secretary-Treasurer of the 2 million-member union.

[578] Speech by Eliseo Medina at the “America’s Future Now!” Conference in Washington, DC. Campaign for America’s Future, June 2, 2009. <www.youtube.com>

Transcript of Medina’s remarks:

We in the last election had the largest turnout of Latino voters in our history. And everything tells us these voters fully intend to become engaged into elections in the future.

They have tasted what it is like to participate and win, and they are not going to go away, because their involvement is basically because they feel that they are being taken advantage of, they are being singled out, and they are being scapegoated.

Now when they voted in November, they voted overwhelmingly for progressive candidates. Barack Obama got two out of every three voters that showed up.

So I think there’s two things, very quickly, that matter for the progressive community.

Number one, if we are to expand this electorate to win, the progressive community needs to solidly be on the side of immigrants. That will expand and solidify the progressive coalition for the future. And let me tell you, when you are in the middle of a fight for your life. you will remember who was there with you, and immigrants count on progressives to be able to do that.

Number two. We reform the immigration laws, it puts 12 million people on the path to citizenship and eventually voters. Can you imagine if we have, even the same ratio, two out of three, if we have eight million new voters that care about our issues and will be voting, we will be creating a governing coalition for the long term, not just for an election cycle.

NOTE: Credit for bringing this to the attention of Just Facts belongs to Matthew Boyle of Breitbart News. <www.breitbart.com>

[579] Webpage: “The Executive Branch.” White House. Accessed October 12, 2019 at <www.whitehouse.gov>

Department of Homeland Security …

DHS [Department of Homeland Security] employs 216,000 people in its mission to patrol borders, protect travelers and our transportation infrastructure, enforce immigration laws, and respond to disasters and emergencies.

[580] Letter: “Vote of No Confidence in ICE Director John Morton and ICE ODPP [Office of Detention Policy and Planning] Assistant Director Phyllis Cove.” By Chris Crane. National Council 118—Immigration and Customs Enforcement American Federation of Government Employees (AFL–CIO) [American Federation of Labor and Congress of Industrial Organizations], June 25, 2010. <www.aila.org>

On June 11, 2010, the National Immigration and Customs Enforcement Council and its constituent local representatives from around the nation, acting on behalf of approximately 7,000 ICE officers and employees from the ICE Office of Enforcement and Removal Operations (ERO), cast a unanimous “Vote of No Confidence” in the Director of Immigration and Customs Enforcement (ICE), John Morton, and the Assistant Director of the ICE [Immigration and Customs Enforcement] Office of Detention Policy and Planning (ODPP), Phyllis Coven.

This action reflects the growing dissatisfaction and concern among ICE employees and Union leaders that Director John Morton and Assistant Director Phyllis Coven have abandoned the Agency’s core mission of enforcing United States Immigration Laws and providing for public safety, and have instead directed their attention to campaigning for programs and policies related to amnesty and the creation of a special detention system for foreign nationals that exceeds the care and services provided to most United States citizens similarly incarcerated.

It is the desire of our union within ICE and our employees to publicly separate ourselves from the actions of Director Morton and Assistant Director Coven and publicly state that ICE officers and employees do not support Morton or Coven, or their misguided and reckless initiatives, which could ultimately put many in America at risk.

This “Vote of No Confidence” is in response to the policies and actions of Director Morton and Assistant Director Coven, some of which are listed and briefly discussed below. …

[581] Article: “Public-Employee Unions Have Handily Outspent Business-Backed Foes in the Campaign Over Two Tax-Raising Measures on Tuesday’s Ballot.” By Brent Walth and Jeff Mapes. The Oregonian, January 21, 2010. <www.oregonlive.com>

Public-employee unions have handily outspent business-backed foes in the campaign over two tax-raising measures on Tuesday’s ballot. …

FOR

Oregon Education Association $2,058,559

SEIU [Service Employees International Union] $1,513,340

AFSCME [American Federation of State County & Municipal Employees] $1,149,009

American Federation of Teachers $400,000 …

Measure 66 would raise the personal income tax rate for individuals with $125,000 annual income or more and households with $250,000 income. Measure 67 would raise corporate taxes.

[582] Webpage: “Who We Are.” Montana Education Association–Montana Federation of Teachers. Accessed January 12, 2015 at <www.mea-mft.org>

MEA-MFT [Montana Education Association–Montana Federation of Teachers] is Montana’s largest labor union. Our 18,000 members work all across the state, serving the people of Montana. We are:

• State, county, & municipal employees

• Public K–12 school teachers and support staff

• Higher education faculty

• Health care employees

• Head Start teachers and staff

• Retired members

• Student members (college students who plan to become teachers)

[583] Article: “Our Point of View.” By MEA-MFT [Montana Education Association–Montana Federation of Teachers] President Eric Feaver. Montana Education Association-Montana Federation of Teachers, Jan-Feb 2010. <www.mea-mft.org>

“Were it not for us almost any one of the virulent anti-government, anti-public school, anti-tax and spend ballot issues proposed in the last 25 years would have passed.”

[584] Article: “$1 Million From Teachers Union to Oppose Prop. 8.” By Evelyn Larrubia. Los Angeles Times, October 17, 2008. <articles.latimes.com>

“The California Teachers Assn. donated $1 million this week to defeat a ballot initiative seeking to ban same-sex marriage in California, joining the ranks of wealthy gay rights activists and Hollywood politicos as one of the major donors to the campaign.”

[585] Press release: “SEIU, Change to Win, AFL–CIO and NEA [National Education Association] File Amicus Briefs in Historic Marriage Equality Cases.” Service Employees International Union, February 28, 2013. <www.prnewswire.com>

Earlier today, SEIU [Service Employees International Union], as part of the Change to Win coalition, joined the AFL–CIO [American Federation of Labor and Congress of Industrial Organizations] to file an amicus brief supporting the respondents in the challenge to the constitutionality of Proposition 8, a case to be argued in front of the Supreme Court later next month. The brief argues that not only does Proposition 8 codify discrimination; it ensures that workers with same-sex spouses earn less, pay higher taxes and have fewer workplace protections. Tomorrow, the same coalition, together with the National Education Association, will file a similar amicus brief in the case challenging the constitutionality of the Defense of Marriage Act (DOMA), also to be argued in front of the Court next month.

[586] Fact sheet: “AFSCME [American Federation of State County & Municipal Employees] Members and the Affordable Care Act (ACA): What Does the ACA Mean for You?” American Federation of State, County and Municipal Employees, AFL–CIO [American Federation of Labor and Congress of Industrial Organizations]. Accessed January 12, 2015 at <www.afscme.org>

Page 1: “We’ve fought to improve our health care system for decades—now we’ve won, and the Affordable Care Act (ACA) is being implemented.”

[587] Search: “Planned Parenthood.” U.S. Department of Labor, Office of Labor-Management Standards, Online Public Disclosure Room. Accessed January 12, 2015 at <olms.dol-esa.gov>

Fiscal Year	Union	Name	Total
2013	Service Employees National Headquarters	Planned Parenthood Action Fund	$15,000
2013	Service Employees National Headquarters	Planned Parenthood Action Fund	$25,000
2013	State County & Muni Empls AFL–CIO [American Federation of Labor and Congress of Industrial Organizations] National Headquarters	Planned Parenthood Action Fund	$20,000
2013	Service Employees National Headquarters	Planned Parenthood Federation of America	$25,000
2013	State County & Muni Empls AFL–CIO National Headquarters	Planned Parenthood Federation of America	$5,000
2013	Food & Commercial Wkrs National Headquarters	Planned Parenthood Federation	$10,000
2013	Auto Workers AFL–CIO Leadership Council	Planned Parenthood Federation of America	$20,000

[588] Webpage: “About Us.” Planned Parenthood Action Fund. Accessed May 23, 2017 at <www.plannedparenthoodaction.org>

The Planned Parenthood Action Fund [PPAF] is a nonprofit, non-partisan group. We are backed by more than 10 million activists, donors, and other supporters all working to advance access to sexual health care and defend reproductive rights. While PPAF works at the national level, local Planned Parenthood advocacy and political organizations are fighting to defend reproductive rights in states across the country.

[589] “Annual Report, 2012–2013.” Planned Parenthood, December 5, 2013. <www.plannedparenthood.org>

Page 15: “2012 … Abortion Procedures [=] 327,166”

[590] Book: An Injury to All: The Decline of American Unionism. By Kim Moody. Verso, 1988.

[591] Article: “Kim Moody Interview: The Superpower’s Shopfloor.” By Martin Smith. International Socialism, July 2, 2007. <isj.org.uk>

“I was one of the co-founders of Labor Notes in 1979. It is an independent national monthly magazine that goes out to trade union activists.”

[592] Webpage: “About.” Labor Notes. Accessed January 12, 2015 at <www.labornotes.org>

Labor Notes is a media and organizing project that has been the voice of union activists who want to put the movement back in the labor movement since 1979.

Through our magazine, website, books, conferences and workshops, we promote organizing, aggressive strategies to fight concessions, alliances with workers’ centers, and unions that are run by their members. …

Labor Notes is best known for our monthly magazine of the same name. We report news about workers that the mainstream media doesn’t find worth printing—from workers’ point of view. We explore the trends that are keeping workers on the defensive and analyze labor’s responses: what’s working and what’s not? And as an independent publication, we’re free to include the voices who say we could be doing better—and tell how.

In Labor Notes, you’ll find reports on inventive organizing tactics and contract campaigns. You’ll read coverage of the people who are working to kick some life into their unions and put their fellow workers in the driver’s seat. You’ll read sometimes shocking stories of workers’ struggles abroad, and inspiring stories of solidarity.

[593] Article: “Kim Moody Interview: The Superpower’s Shopfloor.” By Martin Smith. International Socialism, July 2, 2007. <isj.org.uk>

I was one of the co-founders of Labor Notes in 1979. It is an independent national monthly magazine that goes out to trade union activists. …

The organisation was set up in the wake of the 1978 miners’ strike in the US. …

… Most of us started with the International Socialists at that time, but the idea was that it would not be controlled by the organisation and that it would be independent, which is what by and large has happened, although the staff tend to be socialist for the most part. …

The layer of militants in the US is not that different from those in Britain or anywhere else, except in the important sense that socialism as a political idea has not been on a large scale an important part of the labour movement in the US for half a century. That is not to say there are not a lot of socialists. You can go to a lot of, say, these auto workers’ demonstrations and pick out somebody who’s not in a group and you wouldn’t think of as socialist, and you talk to them a little while and you find they are. And you get this other phenomenon I come across all the time. It’s a sort of little identity piece—to have an Industrial Workers of the World (IWW) card. You can come across ordinary union people who are attracted to this idea of radical unionism, revolutionary unionism. The IWW as it exists today is really just a political sect. But the idea of it, the history of it, is something that appeals to a certain number of militants. I’m always surprised when someone pulls me aside and says, “I’ve got a red card.”

[594] Report: “Federal Labor Relations Statutes: An Overview.” By Alexandra Hegji. Congressional Research Service, November 26, 2012. <fas.org>

[595] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7102: “Employees’ Rights.” Accessed October 9, 2019 at <www.law.cornell.edu>

[596] Ruling: Abood v. Detroit Board of Education. U.S. Supreme Court, May 23, 1977. Decided 9–0 (with three separate concurrences from four Justices who wrote that the Court did not go far enough in protecting workers from being forced to subsidized union political activities—see next footnote). <www.law.cornell.edu>

Majority decision:

Our province is not to judge the wisdom of Michigan’s decision to authorize the agency shop in public employment.²⁰ Rather, it is to adjudicate the constitutionality of that decision. The same important government interests recognized in the Hanson and Street cases presumptively support the impingement upon associational freedom created by the agency shop here at issue. Thus, insofar as the service charge is used to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance adjustment, those two decisions of this Court appear to require validation of the agency-shop agreement before us. …

The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. … For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State. …

These principles prohibit a State from compelling any individual to affirm his belief in God … or to associate with a political party … as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.

We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.³² Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.

[597] Ruling: Abood v. Detroit Board of Education. U.S. Supreme Court, May 23, 1977. <www.law.cornell.edu>

Powell and Blackmun concurring:

Majority decision:

[598] Ruling: Harris v. Quinn. U.S. Supreme Court, June 30, 2014. Decided 5–4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenting: Kagan, Ginsburg, Breyer, Sotomayor. <www.law.cornell.edu>

Majority decision:

Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either “chargeable” (in Abood’s terms, expenditures for “collective-bargaining, contract administration, and grievance-adjustment purposes,” id., at 232) or noncharge-able (i.e., expenditures for political or ideological purposes, id., at 236). …

Abood likewise did not foresee the practical problems that would face objecting nonmembers. Employees who suspect that a union has improperly put certain expenses in the “germane” category must bear a heavy burden if they wish to challenge the union’s actions. “[T]he onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion,” Knox, 567 U. S., at ___ (slip op., at 19) (citing Lehnert, supra, at 513), and litigating such cases is expensive. Because of the open-ended nature of the Lehnert test, classifying particular categories of expenses may not be straightforward.

[599] Ruling: Janus v. American Federation of State, County, and Municipal Employees. U.S. Supreme Court, June 27, 2018. Decided 5–4. Majority: Alito, Thomas, Roberts, Gorsuch, Kennedy. Dissenting: Sotomayor, Kagan, Breyer, Ginsburg. <caselaw.findlaw.com>

Majority opinion:

Held:

(a) Abood’s holding is inconsistent with standard First Amendment principles. …

Dissenting opinion:

[600] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: “Representatives and Elections.” Accessed October 8, 2019 at <www.law.cornell.edu>

NOTE: See next footnote for section 158 (a)(3).

[601] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: “Unfair Labor Practices.” Accessed October 8, 2019 at <www.law.cornell.edu>

(a) Unfair Labor Practices by Employer

It shall be an unfair labor practice for an employer—…

[602] Public Law 80-101: “Labor Management Relations Act of 1947” (a.k.a “Taft-Hartley Act”). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. <uscode.house.gov>

Rights of Employees

[603] Ruling: National Labor Relations Board v. General Motors Corporation. U.S. Supreme Court, June 3, 1963. Decided 8–0: White, Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart. <www.law.cornell.edu>

Moreover, the 1947 amendments [of the Taft-Hartley Act] not only abolished the closed shop but also made significant alterations in the meaning of “membership” for the purposes of union-security contracts. Under the second proviso to § 8(a)(3), the burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues. It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. “Membership” as a condition of employment is whittled down to its financial core. This Court has said as much before in Radio Officers’ Union v. Labor Board, 347 U.S. 17, 41, 74 S.Ct. 323, 336, 98 L.Ed. 455:

“This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions’ concern about ‘free riders,’ i.e., employees who receive the benefits of union representation but are unwilling to contribute their fair share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason.”

[604] Book: Labor and Employment Law: Text & Cases (15th edition). By David Twomey. South-Western Cengage Learning, 2007.

Page 167: “The union shop agreement permitted by Section(a)(3) does not require full union membership, but only dues-paying membership.”

[605] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 9:

[606] Ruling: Pattern Makers’ League of North America v. National Labor Relations Board. U.S. Supreme Court, June 27, 1985. Decided 6–3. Majority: Powell, Burger, White, Rehnquist, O’Connor. Concurring: Blackmun. Dissenting: Brennan, Marshall, Stevens. <caselaw.findlaw.com>

Closed shop agreements, legalized by the Wagner Act in 1935,¹⁵ became quite common in the early 1940’s. Under these agreements, employers could hire and retain in their employ only union members in good standing. R. Gorman, Labor Law, ch. 28, 1, p. 639 (1976). Full union membership was thus compulsory in a closed shop in order to keep their jobs, employees were required to attend union meetings, support union leaders, and otherwise adhere to union rules. Because of mounting objections to the closed shop, in 1947—after hearings and full consideration—Congress enacted the Taft-Hartley Act. Section 8(a)(3) of that Act effectively eliminated compulsory union membership by outlawing the closed shop. The union security agreements permitted by 8(a)(3) require employees to pay dues, but an employee cannot be discharged for failing to abide by union rules or policies with which he disagrees.¹⁶

[607] Ruling: Communications Workers v. Beck. U.S. Supreme Court, June 29, 1988. Decided 5–3. Majority: Brennan, Rehnquist, White, Marshall, Stevens. Dissenting in part: Blackmun, O’Connor, Scalia. <caselaw.findlaw.com>

[A] majority of the employees of American Telephone and Telegraph Company and several of its subsidiaries selected petitioner Communications Workers of America (CWA) as their exclusive bargaining representative. As such, the union is empowered to bargain collectively with the employer on behalf of all employees in the bargaining unit over wages, hours, and other terms and conditions of employment….

In June 1976, respondents, 20 employees who chose not to become union members, initiated this suit challenging CWA’s use of their agency fees for purposes other than collective bargaining, contract administration, or grievance adjustment… Specifically, respondents alleged that the union’s expenditure of their fees on activities such as organizing the employees of other employers, lobbying for labor legislation, and participating in social, charitable, and political events violated petitioners’ duty of fair representation, 8(a)(3) of the NLRA [National Labor Relations Act], the First Amendment, and various common-law fiduciary duties. In addition to declaratory relief, respondents sought an injunction barring petitioners from exacting fees above those necessary to finance collective-bargaining activities, as well as damages for the past collection of such excess fees.

Taken as a whole, 8(a)(3) permits an employer and a union² to enter into an agreement requiring all employees to become union members as a condition of continued employment, but the “membership” that may be so required has been “whittled down to its financial core.” … The statutory question presented in this case, then, is whether this “financial core” includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not.

Although we have never before delineated the precise limits 8(a)(3) places on the negotiation and enforcement of union-security agreements, the question the parties proffer is not an entirely new one. Over a quarter century ago we held that [Section] 2, Eleventh of the RLA [Railway Labor Act] does not permit a union, over the objections of nonmembers, to expend compelled agency fees on political causes. Machinists v. Street, 367 U.S. 740 (1961). Because the NLRA and RLA differ in certain crucial respects, we have frequently warned that decisions construing the latter often provide only the roughest of guidance when interpreting the former. … Our decision in Street, however, is far more than merely instructive here: we believe it is controlling, for 8(a)(3) and 2, Eleventh are in all material respects identical.³Indeed, we have previously described the two provisions as “statutory equivalent[s]” … and with good reason, because their nearly identical language reflects the fact that in both Congress authorized compulsory unionism only to the extent necessary to ensure that those who enjoy union-negotiated benefits contribute to their cost. … In these circumstances, we think it clear that Congress intended the same language to have the same meaning in both statutes. …

In Street we concluded “that [Section] 2, Eleventh contemplated compulsory unionism to force employees to share the costs of negotiating and administering collective agreements, and the costs of the adjustment and settlement of disputes,” but that Congress did not intend “to provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose.” … In the face of such statutory congruity, only the most compelling evidence could persuade us that Congress intended the nearly identical language of these two provisions to have different meanings. Petitioners have not proffered such evidence here.

[608] Ruling: Communications Workers v. Beck. U.S. Supreme Court, June 29, 1988. Decided 5–3. Majority: Brennan, Rehnquist, White, Marshall, Stevens. Dissenting in part: Blackmun, O’Connor, Scalia. <caselaw.findlaw.com>

JUSTICE BLACKMUN, with whom JUSTICE O’CONNOR and JUSTICE SCALIA join, concurring in part and dissenting in part. …

In sum, I conclude that, in enacting 8(a)(3) of the NLRA [National Labor Relations Act], Congress did not intend to prohibit union-security agreements that require the tender of full union dues and standard union initiation fees from nonmember employees, without regard to how the union expends the funds so collected.

[609] “Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board.” National Labor Relations Board, Office of the General Counsel, 1997. <www.nlrb.gov>

Page 9:

[610] Webpage: “Employer/Union Rights and Obligations.” National Labor Relations Board. Accessed July 7, 2014 at <www.nlrb.gov>

The NLRA [National Labor Relations Act] allows employers and unions to enter into union-security agreements, which require all employees in a bargaining unit to become union members and begin paying union dues and fees within 30 days of being hired.

Even under a security agreement, employees who object to full union membership may continue as ‘core’ members and pay only that share of dues used directly for representation, such as collective bargaining and contract administration. Known as objectors, they are no longer full members but are still protected by the union contract. Unions are obligated to tell all covered employees about this option, which was created by a Supreme Court ruling and is known as the Beck right.

[611] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>

Pages 1181–1185 (footnotes removed):

[612] Ruling: Abrams v. Communications Workers. United States Court of Appeals, District of Columbia Circuit, United States Court of Appeals, District of Columbia Circuit, July 21, 1995. <caselaw.findlaw.com>

Finally, the employees argue that CWA’s [Communications Workers of America] objection procedure violates its duty of fair representation by requiring them to object within a limited “window period” each year and to renew their objections annually. As did the district court and other courts considering similar union procedures,¹¹ we find neither procedure unduly burdensome. Regarding the window period, “[t]he union, as well as the employees, have an interest in the prompt resolution of obligations and disputes. The … window facilitates prompt resolution and leaves no doubt as to the timing of the requirement for making an objection.” Kidwell v. Transportation Communications Int’l Union, 731 F.Supp. 192, 205 (D.Md.1990), aff’d in part and rev’d in part on other grounds, 946 F.2d 283 (4th Cir.1991), cert. denied, 503 U.S. 1005, 112 S.Ct. 1760, 118 L.Ed.2d 423 (1992).¹² Similarly, the annual renewal requirement is permissible in light of the Supreme Court’s instruction that “dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee.” Street, 367 U.S. at 774, 81 S.Ct. at 1803. “[W]e do not consider unreasonable the [policy] provision that each member be required to object each year so long as the union continues to disclose what it must before objections are required to be made.” Tierney v. City of Toledo, 824 F.2d 1497, 1506 (6th Cir.1987).

[613] Decision: California Saw and Knife Works. National Labor Relations Board, December 20, 1995. <apps.nlrb.gov>

Pages 224–225:

In Communications Workers v. Beck, 487 U.S. 735 (1988), the Supreme Court held that Section 8(a)(3) of the National Labor Relations Act (the Act or NLRA) does not permit a collective-bargaining representative, over the objection of dues-paying nonmember employees, to expend funds collected under a union-security agreement on activities unrelated to collective bargaining, contract administration, or grievance adjustment. … We review today the voluntary Beck program set up by the International Association of Machinists and Aerospace Workers (IAM, Respondent Union, or the Union).

Page 235:

The [National Labor Relations Board] General Counsel further alleges that the IAM [International Association of Machinists and Aerospace Workers] Beck policy places certain unlawful restrictions on nonmember employees’ ability to register a Beck objection. The General Counsel first makes a limited attack on the requirement of the IAM policy that all objections be filed during the month of January—the so-called “window period.” …

The General Counsel rather makes the limited allegation that the window period is violative of Section 8(b)(1)(A) of the Act solely as applied to employees who resign their membership following the expiration of the January window period. The General Counsel reasons that a union member who resigns after the January window period has passed is compelled to wait until the following January to register a Beck objection.⁶³ The General Counsel accordingly asserts that the window period impermissibly burdens the resignation rights of those individuals who resign their union membership following the window period.

On careful consideration, we agree with the judge that the January window period, as applied solely to individuals who resign their union membership after the expiration of the window period, effectively operates as an arbitrary restriction on the right to be free to resign from union membership. … A unit employee may exercise Beck rights only when he or she is not a member of the union. An employee who resigns union membership outside the window period is thereafter effectively compelled to continue to pay full dues even though no longer a union member, and the window period in this circumstance operates as an arbitrary restriction on the right to refrain from union membership and from supporting nonrepresentational expenditures. In light of our duty to uphold the fundamental labor policy of “voluntary unionism” emphasized by the Court in Pattern Makers, supra, we agree with the judge that the January window period, as applied solely to employees who resign their union membership after the expiration of the window period, constitutes arbitrary conduct violative of the IAM’s duty of fair representation.

[614] Decision: United Auto Workers Local 376. National Labor Relations Board, May 27, 2011. Decided 2–1. Majority: Liebman, Pearce. Dissenting: Hayes. <apps.nlrb.gov>

Majority decision:

The issue in this case is whether, in the context of their Beck procedures¹ as a whole, the Respondent Unions’ rule requiring potential objectors to renew their objections on an annual basis violates the duty of fair representation.

We recently addressed this aspect of our Beck jurisprudence in Machinists Local Lodge 2777 (L-3 Communications), 355 NLRB [National Labor Relations Board] No. 174 (2010), where we found an annual renewal rule unlawful. We emphasized, however, that we would evaluate such requirements on a case-by-case basis to determine “whether the union has demonstrated a legitimate justification for an annual renewal requirement or otherwise minimized the burden it imposes on potential objectors.” …

In this case, for the reasons explained below, we find that the burden imposed on potential objectors under the Unions’ Beck procedures is so minimal that the annual renewal rule here cannot be held to violate the duty of fair representation.³ …

When a Beck objection is received, the UAW [United Auto Workers] acknowledges receipt by letter. The letter states the reduced percentage of dues the objector must pay for the year, encloses the most recent annual financial report on how the reduction for the current year was calculated, and confirms that the objector’s dues will be reduced by the appropriate amount. The letter also informs the objector that his objection will expire after 1 year (specifying the expiration date prominently at the head of the letter), but that the objection will be open to renewal in writing during the 30-day period before expiration. …

As we explained in L-3, supra, the Board applies the duty-of-fair representation standard in Beck cases. … “A union breaches its duty of fair representation if its actions affecting employees whom it represents are arbitrary, discriminatory, or in bad faith.”… An action is arbitrary, in turn, “only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be irrational.” …

In L-3, the Board began its analysis of the annual renewal requirement at issue there by examining the burden it imposed on potential objectors. We concluded that the burden was “modest,” consisting of three elements:

(1) the task of writing and mailing a written statement of continued objection each year;

(2) the need to remember to write and mail the statement in time for delivery during the 1-month window period specified in the respondent unions’ procedures; and

(3) “of more import,” the consequence of failing to file a timely renewal, namely the “loss of the opportunity to object for 11 months (until the renewal period recurs)” and thus the obligation to pay full dues during that period. …

After determining that this burden was not “de minimis”—although some Federal courts had regarded it that way—the Board examined the rationales proffered by the union for the annual renewal requirement and concluded that they were not sufficient to justify the burden imposed on potential objectors. …

Here, we conclude that the burden imposed by the annual renewal requirement, in the context of the Unions’ Beck procedures, is, indeed, de minimis. Accordingly, we need not reach the weight to be given to the Unions’ proffered justifications for the requirement.⁹

In contrast to the procedure at issue in L-3, the UAW provides much more extensive notice of the annual renewal requirement to objectors than only once a year in its magazine. As described above, each UAW objector received at least four notices of the requirement over the course of a year.¹⁰ And an objector who fails to renew on time promptly receives a reminder of the need to act in order to regain objector status.

Equally important, notwithstanding the annual renewal requirement, an objection may be filed at any time under the UAW’s system. The absence of a fixed window period for objections greatly reduces the consequences of failing to renew: an employee in that situation can regain objector status—and resume paying reduced dues—by filing a new objection immediately upon being made aware of the omission.¹¹ An objector who acts promptly, then, may be required to pay full dues for only a very brief period. Although the record does not permit a calculation of the unavoidable financial cost of failing to satisfy the annual renewal requirement, it would appear to be very small. The contrast with the L-3 system, in which a tardy objector was required to pay full dues for another 11 months, is clear.¹²

In sum, the aggregate burden of the annual renewal requirement on a UAW objector is significantly less than even the “modest” burden we found to exist under the Beck system at issue in L-3. On the facts here, we conclude that the Unions’ procedures comport with the duty of fair representation.¹³

[615] Decision: United Auto Workers Local 376. National Labor Relations Board, May 27, 2011. Decided 2–1. Majority: Liebman, Pearce. Dissenting: Hayes. <apps.nlrb.gov>

Hayes dissenting:

The majority finds that, because the Unions provide Beck objectors with several notices and reminders to renew their objection each year, and because unit employees can submit an objection at any time throughout the year, the burden on objectors is de minimis and the Board need not consider the Unions’ justifications for the requirement. I cannot agree. Like the objectors in L-3 Communications, Beck objectors here still must undertake the affirmative task of writing and mailing a written statement of continued objection each year; they must remember to do so before their 1-year objector term expires; and, if they fail to timely renew their objection, they will automatically incur the obligation of paying a full agency fee, including funds for expenditures by the Unions for nonrepresentational purposes, for some period of time. Regardless of the number of reminder notices given to objectors or the open time frame for renewing a lapsed objection, the burden imposed on objectors is still at least what the L-3 Communications majority characterized as “modest.” I would find such a burden “substantial,” rather than modest. Adjectival differences aside, the burden plainly is not de minimis. Consequently, the L-3 Communications analysis requires asking “whether the Unions have articulated a legitimate justification for the imposition of the burden.”³ The Unions have offered none, as my colleagues effectively conceded in L-3 Communications when addressing the same justifications offered here.⁴ The Unions’ annual renewal requirement is therefore an arbitrary breach of the duty of representation, and a violation of the Act. …

Section 7 grants employees a fundamental right to join or assist a union, or to refrain from doing so. In cases too numerous to list, the Board has held that an employer violates this Section 7 right by asking an employee to declare whether or not that employee supports a union. By contrast, under Beck, a union may require an employee to declare whether the employee wishes to provide financial support for nonrepresentational activities. That one-time intrusion on Section 7 rights is a necessary adjunct to the union’s administration of a collectively bargained union-security provision. Once the declaration has been made, however, there is no more warrant for requiring its annual renewal than there is for permitting an employer to inquire about union sympathies of unit employees every year after a union’s certification. To hold otherwise is to sanction what amounts to coercive interrogation by a union in derogation of the Section 7 right to refrain. Unions may then repeatedly require Beck objectors openly to assert that right or be compelled to pay for activities they have not previously supported. That is coercion. …

In Pattern Makers v. NLRB [National Labor Relations Board] , 473 U.S. 95 (1985), the Supreme Court upheld the Board’s ruling that employees have a fundamental right under Section 7 to resign from a union at any time, and that Section 8(b)(1)(A) prohibits unions from placing any limitations on that right. Under a union-security provision, employees may exercise their Section 7 right to refrain from assisting a union by objecting to paying for union activities beyond those germane to collective bargaining. In my view, the Supreme Court’s holding in Pattern Makers applies directly to employees’ right to refrain from supporting nonrepresentational union activities. A union’s restrictions on employees’ exercise of Beck rights, like a union’s restrictions on the right to resign, are “inconsistent with the policy of voluntary unionism implicit in Section 8(a)(3).”

[616] Decision: California Saw and Knife Works. National Labor Relations Board, December 20, 1995. <apps.nlrb.gov>

Pages 224–225:

Pages 233–235:

For these reasons, we find that a union acts arbitrarily and in bad faith—in breach of its duty of fair representation—when it fails to inform newly hired nonmembers of their Beck rights at the time the union first seeks to obligate these newly hired nonmember employees to pay dues. For the same reasons, to the extent that there are bargaining unit employees who were not informed of their Beck rights when they were hired, the union has an obligation to inform them of those rights if it is obligating or seeking to obligate them to pay dues. Because this obligation is based on our conclusion that it is a violation of the duty of fair representation for a union to fail to provide such notice before it seeks to obligate an employee to pay dues, we stress that the union meets that obligation as long as it has taken reasonable steps to insure that all employees whom the union seeks to obligate to pay dues are given notice of their rights.

Thus, we find that when or before a union seeks to obligate an employee to pay fees and dues under a union-security clause, the union should inform the employee that he has the right to be or remain a nonmember and that nonmembers have the right (1) to object to paying for union activities not germane to the union’s duties as bargaining agent and to obtain a reduction in fees for such activities; (2) to be given sufficient information to enable the employee to intelligently decide whether to object; and (3) to be apprised of any internal union procedures for filing objections. If the employee chooses to object, he must be apprised of the percentage of the reduction, the basis for the calculation, and the right to challenge these figures.⁵¹ …

The record establishes that the IAM provides notice all currently employed nonmembers of their Beck rights, as well as a description of its Beck policy, each year in the December issue of the Machinist newsletter, which is mailed to the last known address of all member and nonmember bargaining unit employees. The General Counsel does not allege that the content of the IAM’s Beck notice is unlawful or otherwise deficient, and further concedes that the notice published since December 1989 “contains all the information required by [the] General Counsel.”⁵³ Nor does the General Counsel challenge as unlawful the dissemination of the IAM notice via annual publication. Rather, the General Counsel alleges solely that the IAM’s Beck notice is unlawful because it appears in a publication that does not on its cover specifically alert recipients that the policy is contained within. The General Counsel asserts that because the IAM has in the past highlighted other information on the cover, its failure to alert nonmembers to the inclusion of the Beck notice is “more than inadvertence and neglect, but a conscious effort to withhold such information from nonmembers.” The General Counsel also would have us infer that because only 900 nonmember employees filed objections during January 1990, out of an estimated 12,000 nonmember employees, a substantial number of nonmember employees are unaware of their rights.

We cannot agree with the General Counsel that the IAM acted arbitrarily, in bad faith, or in a discriminatory manner, and thereby violated its duty of fair representation, by failing specifically to note its Beck policy on the cover of its publication.⁵⁴ Our review of the publication notice provided by the IAM does not support the General Counsel’s essential premise that the failure to have a cover notation demonstrates that the notice is “buried” in the newsletter for purposes of obfuscation. There can be no dispute that the IAM’s Beck policy is well marked; it is highlighted in color and is accordingly distinct from other text and further set apart from other text by being placed in a long horizontal format with a highlighted outline, with the word “Notice” is in bold print at the top. Of further significance is that the December 1989 newsletter is only 12 pages in length in a newspaper format, with the notice thus apparent from even a cursory review of the brief newsletter. This is not a case where a union’s publication notice of its Beck policy is hidden in a lengthy publication such that, without a cover notation, a nonmember employee making any reasonable perusal of the publication would likely not be alerted to the Beck policy.⁵⁵Nor is there any basis for deeming the IAM’s publication notice discriminatory; the same notices are sent to all represented employees regardless of membership. We are compelled to conclude that the IAM’s method of publication notice here falls permissibly within the wide range of reasonableness afforded a union in satisfying its duty of fair representation, and cannot be construed to have been undertaken arbitrarily, discriminatorily, or in bad faith. We accordingly find that the form and content of the IAM’s publication notice is sufficient to satisfy the union’s obligation under the duty of fair representation to notify nonmembers of their rights under Beck.

[617] Ruling: International Association of Machinists & Aerospace Workers v. NLRB. United States Court of Appeals, Seventh Circuit, January 14, 1998. <caselaw.findlaw.com>

Upon the complaint of a number of nonunion members of bargaining units represented by the 800,000-strong machinists’ union, the Labor Board in the 125-page opinion that we review today attempted to answer some of the questions left open by Beck. California Saw & Knife Works, 320 N.L.R.B. [National Labor Relations Board] 224, 1995 WL 791959 (1995). The nonunion machinists—we’ll call them the “dissenters”—ask us to set aside several provisions of the Board’s order and the union asks us to set aside one. …

The dissenters’ last challenge is to the Board’s ruling that while new hires must receive a letter informing them of their Beck rights, it is enough so far as existing employees are concerned to include a notice of the rights in the December issue of The Machinist. This is a monthly newsletter published by the union and mailed to all workers, union and nonunion alike, employed in units represented by the machinists’ union or one of its locals. …

In the December 1991 issue, which we take to be representative, the right-hand column on the sixth page of the eight-page newsletter is occupied by a notice that explains in considerable detail that a worker who doesn’t want to belong to the union can pay an agency fee in lieu of union dues upon request made by the end of the next month (January 1992). The first page of the newsletter is largely occupied by an article about Democratic Presidential hopefuls vying for union support and there are a number of other political articles in the issue, all with a strong Democratic bias. The dissenters argue that “burying” the notice inside this Democratic rag is hardly calculated to inform workers who disagree with the union’s politics and ideology of their right to opt out of the union and union dues.

This may be right, but once again we cannot say that the Board acted unreasonably in finding to the contrary, especially in the absence of evidence that the notice in the December issue of The Machinist is ineffectual. The Board could reasonably—we do not say correctly; that is not the issue for us—find that since the newsletter contains articles of interest to all machinists, whether or not they have any interest in politics or for that matter in the union, it is quite likely to be read by them. The notice of Beck rights is not buried; it occupies almost half of one page in a newsletter that is only eight pages long, making it hard to miss. And the machinists undoubtedly have other sources of information about their Beck rights besides the union newsletter. The adequacy of the unions’ compliance with Beck has been a hot political issue for years, and the National Right to Work Foundation has been active in encouraging workers to assert their Beck rights.

… Even so, we do not hold that this form of notice is adequate in fact. That is not the question for us. The question for us is whether the Board can be said to have been acting unreasonably in finding that this form of notice was adequate in the circumstances, and our answer is “no.” The Board knows more about the flow of information in labor markets than judges do. And were we to reject the Board’s finding, we would entangle ourselves in excessively particularistic inquiries into the details of the notification process.

[618] Decision: United Nurses and Allied Professionals. National Labor Relations Board, December 14, 2012. Decided 3–1. Majority: Pearce, Griffin, Block. Dissenting: Hayes. <apps.nlrb.gov>

Majority decision:

This case presents several novel issues arising from the Supreme Court’s decision in Communications Workers v. Beck.¹ The first issue is whether the Respondent Union violated the Act by failing to provide Charging Party Jeanette Geary, a nonmember objector, with an audit verification letter. …

The Acting General Counsel alleged that the Union violated Section 8(b)(1)(A) by “fail[ing] to provide Geary and other similarly situated employees with evidence beyond a mere assertion that the financial data [enclosed with the letter] was based on an independently verified audit.” …

The Ninth Circuit, in its 2003 decision in Cummings, supra, held that a public-sector union was required to provide objectors with an independent verification that an audit had been performed. There, the union provided objectors with a breakdown of its major categories of expenditures, and informed them that the figures were taken from an independent audit that had been prepared by a certified public accounting firm.¹¹ Applying Chicago Teachers Union Local 1 v. Hudson,¹² another public-sector employee case, the court held that the information provided was not adequate to assure objectors that the expenditures cited had been independently verified.¹³ In so finding, the Cummings court observed that the union’s disclosure “essentially required the [objectors] either to accept that the expenditures were indeed audited or to go through the trouble of requesting a copy of the audit report to verify the Union’s summary.”¹⁴ Although the court did not require the union to provide objectors with a full copy of the underlying audit, it held that the union’s expenditure information should “include certification from the independent auditor that the summarized figures have indeed been audited and have been correctly reproduced from the audited report.”¹⁵

Contrary to the Acting General Counsel’s request, we decline to incorporate into Board law a requirement similar to the one imposed in Cummings. Unlike cases involving public-sector unions, such as Hudson and Cummings, in which unions’ conduct is evaluated under a heightened First Amendment standard, the Union’s conduct here is properly analyzed under the duty of fair representation.¹⁶ A union violates its duty of fair representation only if its actions are “arbitrary, discriminatory, or in bad faith,”¹⁷and its actions are considered arbitrary “only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be irrational.”¹⁸

Although not disputing the standard for evaluating the conduct of unions toward objectors, the Acting General Counsel and the Charging Party in essence assert that, without an audit verification letter, the objectors lacked an unequivocal assurance that the Union’s claimed expenses were incurred.¹⁹ But the Board has long endeavored in this area of the law to achieve a “careful balance between the competing interests involved,” rather than promote the unqualified interests of the individual or the union.²⁰ In our view, the Board’s current approach strikes the appropriate balance …

Finally, the Charging Party, in her exceptions brief, argues that requiring the Union to provide an audit verification letter would prevent the Union “from blurring the lines between chargeable and non-chargeable expenses.” This assertion confuses the issue. As the Board stated in KGW Radio, supra, “the function of the auditor is to verify that the expenditures that the union claims it made were in fact made for the purposes claimed, not to pass on the correctness of the union’s allocation of expenditures to the chargeable and nonchargeable categories.”²² The Charging Party’s assertion goes not to the veracity of the underlying expenditure figures, but to the Union’s chargeability designations, which are properly contested via the Union’s challenge procedure. An audit verification letter would not provide objectors with any new or useful information regarding chargeability.

Hayes dissenting:

Contrary to my colleagues, I find that the Respondent-Union should be required to provide Beck objectors verification that the financial information disclosed to them has been professionally audited by an independent accountant. Furthermore, I disagree with their overly broad test for determining the chargeability of lobbying expenses. I find that the Respondent-Union improperly charged the Beck objectors for lobbying expenses associated with all seven bills because those lobbying activities are not so related to the Union’s representational duties to employees in the objecting employees’ bargaining unit as to justify their compelled financial support of them.

The complaint alleged that the Union violated Section 8(b)(1)(A) by “fail[ing] to provide [the objecting] employees with evidence beyond a mere assertion that the financial data [enclosed with the letter] was based on an independently verified audit.” At the hearing, the Acting General Counsel clarified that the complaint allegation concerned only the Union’s failure to accompany the expense statements provided to the objectors with a copy of the accountant’s letter verifying that the audit actually occurred; it did not concern verification of the accuracy of the figures the Union provided to the objectors.¹

Although the Board has not expressly stated that a union must provide a copy of an independent accountant’s audit verification letter to the objectors, the Board has consistently held that a union must provide some form of verification of the information provided to nonmember objectors. Such a requirement is further consistent with the Board’s policy that objectors receive reliable information necessary to making informed decisions. I would therefore require the Union to provide the verification letter at issue.

In California Saw & Knife Works, 320 NLRB [National Labor Relations Board] 224 (1995) … the Board set out the information a union must provide potential and actual objectors at three stages. At stage 2, an employee who objects to paying dues for nonrepresentational activities under Beck must be apprised of the percentage of dues reduction, the basis for the calculation, and the right to challenge the union’s figures. … In setting the notice requirements, the Board specifically relied on Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986) finding that “basic considerations of fairness” dictate that potential objectors be given sufficient information to gauge the propriety of the union’s fee. … As to the scope of the union’s duty to verify its calculations, the Board stated that “Hudson requires only that the usual function of an auditor be performed, i.e. to determine that the expenses claimed were in fact made.” …

The Board further explained its verification requirement in Television Artists AFTRA (KGW Radio)… The Board held that California Saw “clearly envisioned some type of verification of the information provided to nonmember objectors is necessary for a union to fulfill its obligations under the duty of fair representation to provide sufficient information.” … In addition, under California Saw, verification meant “an audit within the generally accepted meaning of the term, in which the auditor independently verifies that the expenditures claimed were actually made” rather than merely accepted as correct.

In KGW Radio, the union provided the objector a compilation of chargeable and nonchargeable expenses in a report prepared by the union’s accountant. The accountant did not audit or verify the accuracy of the expenditures in the report and relied solely on representations by the union’s executive director in compiling his report. … The Board concluded that the report did not satisfy its requirements that an accountant independently confirm the reliability of the union’s financial figures in an audit consistent with standard accounting practices. … The Board confirmed that objecting nonmembers must be given a reliable basis for calculating the fees they must pay and determining whether to challenge the union’s dues-reduction calculations. … See also Ferriso v. NLRB, 125 F.3d 865, 869–870 (D.C. Cir. 1997) (“nonmembers cannot make a reliable decision as to whether to contest their agency fees without trustworthy information about the basis of the union’s fee calculation”).

In Food & Commercial Workers Local 4 (Safeway, Inc.),³ the Board again found that the expenditure information provided to the objector was insufficiently verified. After the objector complained that the Union’s initial statement was inadequate to explain how the agency fee was calculated, the union provided her with a copy of an “Independent Accountant’s Report.” The report stated that, although the accountant reviewed the expenditure statement, the information was based solely on the union’s representations, “that it was substantially less in scope than an audit,” and that the accountant expressed no opinion as to the financial statement as a whole. … As in KGW Radio, the Board found that the expenditure information provided by the Union had not been sufficiently verified. …

In Safeway and KGW Radio, the objectors received a report of the union’s expenditures prepared or reviewed by an independent accountant. The Board nevertheless found that the union violated its duty of fair representation because the expenditure information in the accountant’s report was not verified by an independent audit. Similarly, in this case, the objectors received a letter stating that the report was verified by a certified public accountant. That information, like the information in KGW Radio and Safeway, does not confirm that the accountant independently verified the Union’s figures. That specific verification is in the accountant’s letter.

The majority claims that the Acting General Counsel seeks a “verification of a verification.” I disagree. As the Board stated in Safeway, lawful verification requires “that an audit must be prepared . . . and the auditor must independently verify that the expenditures claimed were actually made rather than accept the representations of the union.” … Here, the Union has informed objectors that some sort of independent audit has occurred, but it did not provide the verification as described by the Board in Safeway.⁴

The Ninth Circuit, in Cummings v. Connell, 316 F.3d 886 (9th Cir. 2003), makes explicit what seems implicit in the Board’s decisions. The court held that a public sector union’s disclosure to objectors was insufficient because it did not include an independent verification that an audit had been performed. There, the union’s report provided to objectors broke down its annual expenditures into chargeable and nonchargeable categories. … As here, the union informed objectors that its figures were taken from an independent audit that had been prepared by a certified public accounting firm. … The court held that, under Hudson, the information provided was inadequate to assure objectors that the expenditures cited had been independently verified. It observed that the union’s document “essentially required the [objectors] either to accept that the expenditures were indeed audited or to go through the trouble of requesting a copy of the audit report to verify the Union’s summary.” … Although the court did not require the union to provide objectors with a full copy of the underlying audit, because the union contended that it lifted the relevant figures from an audited statement, the court ordered it to “include certification from the independent auditor that the summarized figures have indeed been audited and have been correctly reproduced from the audited report.” … I find the Ninth Circuit’s rationale in Cummings persuasive and consistent with the Board’s own precedent.

As the majority notes, the Board has long endeavored in this area to achieve “a careful balance of the competing interests involved.” … In my view, requiring the Union here to produce the auditor’s verification letter is consistent with maintaining that careful balance. Objectors would be assured of the accuracy of the Union’s nonchargeable expenses—as is their right—and the Union, which undisputedly possessed the letter, would incur no additional burden by providing that assurance.

[619] Decision: United Nurses and Allied Professionals. National Labor Relations Board, December 14, 2012. Decided 3–1. Majority: Pearce, Griffin, Block. Dissenting: Hayes. <apps.nlrb.gov>

Page 1:

In late September 2009, Jeannette Geary and several other unit employees resigned their membership in the Union and, citing Beck, objected to the assessment of dues and fees for activities unrelated to collective bargaining, contract administration, or grievance adjustment. …

The remaining issues concern whether the Union unlawfully charged the Charging Party for expenses the Union incurred while lobbying for bills pending in the Rhode Island and Vermont legislatures. We hold that, like all other union expenses, lobbying expenses are chargeable to objectors to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment.

Page 4:

In 2009, UNAP [United Nurses and Allied Professionals] used money from its general operating fund to subsidize lobbying efforts for various bills that were before the Rhode Island and Vermont State legislatures. Brooks testified that he spent approximately 33 hours lobbying for bills in Rhode Island. The Union also indicated that from July 1, 2008, through June 30, 2009, it spent $22,650 lobbying for bills in Vermont, $21,970 of which it deemed chargeable to objectors.

The Acting General Counsel alleged that the Union violated Section 8(b)(1)(A) by charging objectors dues that it used to fund lobbying, which the Acting General Counsel categorized as nonrepresentational activity. Specifically, he contested the chargeability of lobbying expenses related to the following seven bills:

(1) The Hospital Merger and Accountability Act (Rhode Island): This bill, among other things, would have empowered a state government council to monitor and regulate hospitals that own more than 50 percent of hospital beds in the state.

(2) Public Officers and Employees Retirement bill (Rhode Island): This bill would have raised the cap on post-retirement earnings that former state-employed registered nurses could earn without reducing their retirement benefits.

(3) Hospital Payments bill (Rhode Island): This bill, among other things, would have provided all acute care hospitals in Kent County (home of Kent Hospital) with $800,000 in funding.

(4) Center for Health Professions bill (Rhode Island): This bill would have created a center tasked with developing a sufficient, diverse, and well-trained healthcare workforce in the state.

(5) Safe Patient Handling bill (Vermont): This bill would have required hospitals to establish a safe patient handling program, which would entail, among other things, establishing rules to protect nurses and purchasing new equipment to improve patient-handling procedures.

(6) Mandatory Overtime bill (Vermont): This bill, among other things, would have prohibited hospitals from requiring any employee to work more than 40 hours a week.

(7) Mental Health Care Funding bill (Vermont): This bill would have provided additional funding for mental healthcare services at three facilities at which the Union has bargaining units.

Page 6:

First, consistent with Beck and existing Board precedent, we hold that lobbying expenses are chargeable to objectors if they are germane to collective bargaining, contract administration, or grievance adjustment. Thus, we will carry out a “case-by-case analysis”⁴⁰ to determine whether expenses incurred toward securing a specific legislative goal are sufficiently related to the union’s core representational functions.

Page 9:

For instance, proposed legislation may be so closely linked to the union’s representational functions that it would directly affect subjects of collective bargaining. Where the legislature has effectively pulled up a seat at the bargaining table, it is hard to see how the union’s effort to influence the legislature in such matters is not germane to collective bargaining. In those circumstances, we propose presuming that lobbying expenses are germane to the union’s representative functions and thus chargeable. To give concrete examples, lobbying for or against minimum wage legislation, professional licensing and certification legislation affecting employees represented by the union, and State supplements to the Worker Adjustment and Retraining Notification (WARN) Act might be types of lobbying expenses that would reasonably be treated as presumptively germane and thus chargeable.

Page 10: “IT IS FURTHER ORDERED that the complaint allegations pertaining to the chargeability of lobbying expenses to Beck objectors are severed from this case, and that the Board shall retain jurisdiction over those matters for further consideration.”

[620] Determined with these sources:

a) “2012 Performance and Accountability Report.” National Labor Relations Board. <www.nlrb.gov>

Page 12: “On January 4, 2012, President Obama recess appointed three new Board Members—Sharon Block, Terrance F. Flynn, and Richard F. Griffin, Jr., which gave the Board a full complement of members. All three were nominated on February 13, 2012.”

b) “2014 Performance and Accountability Report.” National Labor Relations Board, November 2, 2014. <www.nlrb.gov>

Page 18: “Below is information about the terms of the current Presidential appointees of the NLRB. … Mark Gaston Pearce (Chairman) … Sworn In … 4/7/2010”

c) Webpage: “Chronology of Swearing-In Events.” Joint Congressional Committee on Inaugural Ceremonies. Accessed August 23, 2013 at <www.inaugural.senate.gov>

“January 20, 2009 … Fifty-Sixth Inaugural Ceremonies … Barack H. Obama”

[621] Decision: United Nurses and Allied Professionals. National Labor Relations Board, December 14, 2012. Decided 3–1. Majority: Pearce, Griffin, Block. Dissenting: Hayes. <apps.nlrb.gov>

Page 6:

Finally, and contrary to our dissenting colleague’s contention, we emphasize that although RLA [Railway Labor Act] cases and public sector cases may provide limited guidance on what types of lobbying may be chargeable to objectors under the Act, neither category of cases is determinative. As the [National Labor Relations] Board explained at length in California Saw, public sector and RLA cases both implicate State action and are therefore subject to constitutional scrutiny.³⁷ In contrast, private sector union-security clauses pursuant to the Act do not involve State action implicating constitutional considerations.³⁸ Accordingly, the Board found the less stringent duty of fair representation applies to chargeability issues under the Act.³⁹ The RLA and public sector cases in effect establish a floor, rather than a ceiling, on chargeable expenses under the Act: any expense that is chargeable under the more stringent constitutional standard is chargeable under the less stringent duty of fair representation standard; however, not every expense that is nonchargeable under the more stringent standard is likewise nonchargeable under the less stringent standard.

Pages 5, 7–8:

The Acting General Counsel, citing the Supreme Court’s plurality opinion in Lehnert v. Ferris Faculty,²³ a public-sector employee case, contends that lobbying expenses are only chargeable if oriented toward the ratification or implementation of a collective-bargaining agreement.²⁴ …

The Acting General Counsel contends that the Board is bound by the Lehnert plurality’s conclusion that chargeable lobbying expenses must be limited to those made in support of “the ratification or implementation of a dissenter’s collective-bargaining agreement.”⁴⁹ We disagree. In setting out this standard, the Lehnert plurality stated expressly that its primary consideration was the protection of objectors’ First Amendment interests.⁵⁰ For the reasons set forth in California Saw and discussed above, such constitutional considerations are not relevant under the Board’s less stringent inquiry pursuant to the duty of fair representation.⁵¹ Thus, we do not read Lehnert as foreclosing our conclusion that a wider range of lobbying expenses may be chargeable.⁵² …

The Lehnert Court also based its holding on the fact that “worker and union cannot be said to speak with one voice.”⁵³ But an objector’s mere disagreement with a union’s decision to pursue its representational objectives via lobbying activity surely does not render the related expenses nonchargeable. Given the absence here of the First Amendment concerns that dominate in the public sector, an objection to the union engaging in lobbying is no different from disagreeing with the union over any strategic representational action, e.g., filing a lawsuit or taking a grievance to arbitration. The fact that the activity occurs within the political sphere does not change our core analysis. So long as lobbying is used to pursue goals that are germane to collective bargaining, contract administration, or grievance adjustment, it is chargeable to objectors.

[622] Ruling 487 U.S. 735: Communications Workers v. Beck. U.S. Supreme Court, June 29, 1988. Decided 5–3. Majority: Brennan, Rehnquist, White, Marshall, Stevens. Dissenting in part: Blackmun, O’Connor, Scalia. <caselaw.findlaw.com>

Majority decision:

Taken as a whole, [Section] 8(a)(3) [of the National Labor Relations Act] permits an employer and a union² to enter into an agreement requiring all employees to become union members as a condition of continued employment, but the “membership” that may be so required has been “whittled down to its financial core.” … The statutory question presented in this case, then, is whether this “financial core” includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not. …

Although we have never before delineated the precise limits 8(a)(3) places on the negotiation and enforcement of union-security agreements, the question the parties proffer is not an entirely new one. Over a quarter century ago we held that [Section] 2, Eleventh of the RLA [Railway Labor Act] does not permit a union, over the objections of nonmembers, to expend compelled agency fees on political causes. Machinists v. Street, 367 U.S. 740 (1961). Because the NLRA [National Labor Relations Act] and RLA differ in certain crucial respects, we have frequently warned that decisions construing the latter often provide only the roughest of guidance when interpreting the former. … Our decision in Street, however, is far more than merely instructive here: we believe it is controlling, for 8(a)(3) and 2, Eleventh are in all material respects identical.³Indeed, we have previously described the two provisions as “statutory equivalent[s]” … and with good reason, because their nearly identical language reflects the fact that in both Congress authorized compulsory unionism only to the extent necessary to ensure that those who enjoy union-negotiated benefits contribute to their cost. Thus, in amending the RLA in 1951, Congress expressly modeled 2, Eleventh on 8(a)(3), which it had added to the NLRA only four years earlier, and repeatedly emphasized that it was extending “to railroad labor the same rights and privileges of the union shop that are contained in the Taft-Hartley Act.” … In these circumstances, we think it clear that Congress intended the same language to have the same meaning in both statutes. …

In drafting what was to become 2, Eleventh, Congress did not look to 8(a)(3) merely for guidance. Rather, as Senator Taft argued in support of the legislation, the amendment “inserts in the railway mediation law almost the exact provisions, so far as they fit, of the Taft-Hartley law, so that the conditions regarding the union shop and the check-off are carried into the relations between railroad unions and the railroads.” … This was the universal understanding, among both supporters and opponents, of the purpose and effect of the amendment. …

In Street we concluded “that 2, Eleventh contemplated compulsory unionism to force employees to share the costs of negotiating and administering collective agreements, and the costs of the adjustment and settlement of disputes,” but that Congress did not intend “to provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose.” … In the face of such statutory congruity, only the most compelling evidence could persuade us that Congress intended the nearly identical language of these two provisions to have different meanings. Petitioners have not proffered such evidence here. …

We come then to petitioners’ final reason for distinguishing Street. Five years prior to our decision in that case, we ruled in Railway Employees v. Hanson, 351 U.S. 225 (1956), that because the RLA pre-empts all state laws banning union-security agreements, the negotiation and enforcement of such provisions in railroad industry contracts involves “governmental action” and is therefore subject to constitutional limitations. Accordingly, in Street we interpreted 2, Eleventh to avoid the serious constitutional question that would otherwise be raised by a construction permitting unions to expend governmentally compelled fees on political causes that nonmembers find objectionable. … No such constitutional questions lurk here, petitioners contend, for 14(b) of the NLRA expressly preserves the authority of States to outlaw union-security agreements. Thus, petitioners’ argument runs, the federal pre-emption essential to Hanson’s finding of governmental action is missing in the NLRA context, and we therefore need not strain to avoid the plain meaning of 8(a)(3) as we did with 2, Eleventh.

We need not decide whether the exercise of rights permitted, though not compelled, by 8(a)(3) involves state action. … Even assuming that it does not, and that the NLRA and RLA therefore differ in this respect, we do not believe that the absence of any constitutional concerns in this case would warrant reading the nearly identical language of 8(a)(3) and 2, Eleventh differently. It is, of course, true that federal statutes are to be construed so as to avoid serious doubts as to their constitutionality, and that when faced with such doubts the Court will first determine whether it is fairly possible to interpret the statute in a manner that renders it constitutionally valid. … But statutory construction may not be pressed “ ‘to the point of disingenuous evasion’ ” … and in avoiding constitutional questions the Court may not embrace a construction that “is plainly contrary to the intent of Congress.” … In Street, we concluded that our interpretation of 2, Eleventh was “not only ‘fairly possible’ but entirely reasonable” … and we have adhered to that interpretation since. We therefore decline to construe the language of 8(a)(3) differently from that of 2, Eleventh on the theory that our construction of the latter provision was merely constitutionally expedient. Congress enacted the two provisions for the same purpose, eliminating “free riders,” and that purpose dictates our construction of 8(a)(3) no less than it did that of 2, Eleventh, regardless of whether the negotiation of union-security agreements under the NLRA partakes of governmental action.

We conclude that 8(a)(3), like its statutory equivalent, 2, Eleventh of the RLA, authorizes the exaction of only those fees and dues necessary to “performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.”

[623] Decision: United Nurses and Allied Professionals. National Labor Relations Board, December 14, 2012. Decided 3–1. Majority: Pearce, Griffin, Block. Dissenting: Hayes. <apps.nlrb.gov>

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(3) Hospital Payments bill (Rhode Island): This bill, among other things, would have provided all acute care hospitals in Kent County (home of Kent Hospital) with $800,000 in funding.

(4) Center for Health Professions bill (Rhode Island): This bill would have created a center tasked with developing a sufficient, diverse, and well-trained healthcare workforce in the state.

(6) Mandatory Overtime bill (Vermont): This bill, among other things, would have prohibited hospitals from requiring any employee to work more than 40 hours a week.

(7) Mental Health Care Funding bill (Vermont): This bill would have provided additional funding for mental healthcare services at three facilities at which the Union has bargaining units.

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[624] Ruling: Miller v. Air Line Pilots Association. United States Court of Appeals, District of Columbia Circuit, March 14, 1997. <openjurist.org>

ALPA [Air Line Pilots Association] collected fees from appellants,¹⁵³ Delta pilots who have not joined the union (hereinafter the pilots), by following the procedures contained in its operating manual, Policies and Procedures Applicable to Agency Fees. The manual, in accordance with federal law, allows nonmembers to object to fees used for purposes not germane to collective bargaining. ALPA charged nonmembers fees approximately 8% less than union dues from January 1 through June 30, 1992. That figure, which was an estimate, was based on 1990 outlays. But for the latter half of 1992, the union discounted the pilots’ fees by about 17% because of newly available figures from 1991. ALPA sent each nonmember pilot a copy of its Policies and Procedures with both the 1990 and 1991 statements. When the actual figures for 1992 became available, the union determined that 19% of its expenses for the year were nongermane and gave objecting pilots an adjusted credit or rebate with interest. …

Appellants, still dissatisfied with the union’s calculations and procedures, protested. …

The arbitrator sustained most of the challenged union determinations as to which of its expenses were germane. …

The union, although it objects to appellants’ use of the term “lobbying,” does not dispute that a portion of its expenses involves its contacts with government agencies and Congress concerning the union’s views as to appropriate federal regulation of airline safety—which even includes intervention with the President and members of the Senate concerning appointments to the National Transportation Safety Board. ALPA contends, however, that its government relations activities are interconnected with those airline safety issues that animate much of its collective bargaining and therefore they should be regarded as germane to that bargaining.

There are major difficulties with the union’s position. If there is any union expense that, given the logic of Hudson and its progeny, must be considered furthest removed from “germane” activities, it is that involving a union’s political actions. After all, whether one considers the RLA’s [Railway Labor Act’s] limitation on the union’s use of nonmembers’ compelled agency fees to be constitutionally required or inspired, it is nonetheless nonmembers’ First Amendment-type interests that are protected. And it is hard to imagine those interests more clearly placed in jeopardy than when the union uses the dissidents’ money to pursue political objectives. The union would have us see its lobbying on safety-related issues as somehow nonpolitical because all pilots share a common concern with these activities. But we cannot possibly assume that to be true. All pilots are surely interested in airline safety, but it would certainly not be unexpected that pilots would have varying views as to the desirability of government regulation—including those regulations of airlines that pertain to safety. The benefits of any regulation include trade-offs, and certain pilots might be reluctant to pay the costs either directly or indirectly of increased regulations, just as others might oppose relaxed regulations that could expand work opportunities. Some, of course, might even object to such regulations on principle.

That the subject of safety is taken up in collective bargaining hardly renders the union’s government relations expenditures germane. Under that reasoning, union lobbying for increased minimum wage laws or heightened government regulation of pensions would also be germane. Indeed if the union’s argument were played out, virtually all of its political activities could be connected to collective bargaining; but the federal courts, including the Supreme Court, have been particularly chary of treating as germane union expenditures that touch the political world.