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Wednesday, October 7, 2015

Fair Share Fees

On June 30, 2015 the Supreme Court announced that it will review the decision in Friedrichs v. California Teachers Association, a Ninth Circuit Case challenging the constitutionality of charging public sector workers a “fair share fee” when they have opted out of union membership.

When a union is elected as a certified representative for a bargaining unit, they must represent all workers that fall within that classification regardless of their union status.  This means that the rights and benefits afforded under the union contract are received by all members of the bargaining unit, not just the union members.  It also means that if a non-union member in the bargaining unit faces discipline the union has a duty to represent that individual.  Since non-union members do not have to pay union dues, this creates the problem of the “free rider.”  A free rider is someone that receives the benefits of union membership (wages, representation, etc.), but does not pay for it.

To eliminate the free-rider problem unions charge non-union bargaining unit members a fair share fee.  This fee is calculated as the portion of union dues that the union expends on administering the contract.  The fee does not include the portion of dues that Unions spend on political activity or other non-representation matters.  This practice by public sector unions, adopted from the private sector, was upheld as constitutional in Abood v. Detroit Board of Education, in 1977.  The plaintiffs in Friedrichs object to paying the fair share fee as a violation of their first amendment rights and assert that Aboud was decided wrongly.

Friedrichs follows on a case heard last year, Harris v. Quinn, where the Supreme Court ruled that Chicago home health care providers could that did not want to join a union did not have to pay a fair share fee.  Although decided on different grounds, Justice Alito, in his majority opinion, questioned the constitutional foundation that the legality of fair share fees had been based on.  Now, with Friedrichs, Alito will have the chance to rule on that very subject.

The importance of Union fair share fees cannot be understated.  Without it, the free-rider problem can cripple or even bankrupt a union.  For instance, when Indiana eliminated the fair share fee from state law, public sector unions lost 91% of its membership.  Likewise, when Wisconsin eliminated the fair share fee AFSCME lost over 50% of its membership.  This loss of income used to administer the contract weakens the Unions ability to participate in negotiations, enforce contract provisions, and defend workers that have been wrongfully disciplined by their employers.

Friedrichs represents yet another attack on Unions by the far right.   Rather than work with the unions and ensure that all workers receive basic protections and rights, these people have chosen to try and “kill the unions.”   In the face of this solidarity among union workers, union rights activist and pro-union politicians is imperative.

Although we hope that Supreme Court makes the right decision and upholds the right to collect a fair share fee, the attorneys at Allotta | Farley will be prepared to implement effective strategies to maintain union membership numbers if the right-wing judges on the Court have their way.  Pay attention to this space for more news on Friedrichs as it develops.  Allotta | Farley is here to aid non-union and union employees alike in employment matters.  If you have questions about your rights or are facing adverse employment action, please do not hesitate to contact us.


Tuesday, February 18, 2014

Supreme Court Hears Challenge to Public Sector Unions

On January 12, the Supreme Court heard a case which could have major ramifications for Public Sector Unions.  The Case, Harris v. Quinn, involves home-care workers in Illinois that, because they receive funds from Medicaid to provide services to their patients or family members, were declared public workers.  As public workers, Service Employees International Union (SEIU) organized these workers into a union.  A vote was taken, and the majority of workers voted to have SEIU be their exclusive representative.  Eight bargaining unit members opposed to joining SEIU or helping to pay for the cost of representation filed suit.  At both the district and appeals court, the courts found in favor of SEIU and the State.  Petition was then made to the Supreme Court who agreed to hear the case.

Much like the private sector, when a public sector union is formed the union must represent all employees in the bargaining unit in contract negotiations, grievance hearings, and any other representational matters regardless of their union membership.  To offset the cost of representing non-union bargaining unit members, unions may charge a “fair share” fee that is the portion of union dues expended on representation that does not include the amount a union charges members to cover the union’s political or ideological activity.  Although, anti-union activist have attacked fair share fees before, the Supreme Court upheld the right of public sector unions to collect fair share fees in its 1977 decision Abood v. Detroit Board of Education. Subsequently, a whole body of case law has evolved affirming the right of public sector unions to collect fair share fees relying on Abood.  Now this right is being challenged again with a more conservative court to decide its outcome.

Although Harris v. Quinn was initially brought to question whether the health-care workers were, in fact, public sector workers, the case has since evolved into a ploy to overturn Abood on first amendment grounds.  Led by the conservative National Right to Work Legal Foundation, the plaintiffs have argued that the forced payment of fair share fees infringes on their right to speak and free association.

Although the Court has, in the past, reaffirmed the decision in Abood, two years ago Justice Alito wrote an opinion joined by the other four conservative justices that questioned whether the collection of fair share fees was constitutional.  During oral arguments for Harris, Alito once again questioned whether fair share fees forced public sector members to support public policy that they find objectionable.  Alito’s concerns were further echoed by Justice Kennedy.

With Alito, Kennedy, and presumably Thomas, appearing ready to strike down Abood, the outcome of the case could hinge on Chief Justice Roberts, who focused his questioning on the question of whether or not these workers are, in fact, public sector workers, and Justice Scalia who seemed doubtful that the public employee union activity was more about shaping public policy than about the traditional role of improving the working conditions of bargaining unit members.

It the Supreme Court would rule to overrule Abood, the effect could be widespread, turning all public sector employees in the nation into so called “right to work” employees.  This would exacerbate the free rider problem allowing bargaining unit members to enjoy all the rights and benefits of representation without having to share in any of the costs.  Although the case may be decided on narrower grounds (a path that Chief Justice Roberts seemed to favor) the potential exists for the Supreme Court to throw away almost 30 years of precedent and deal a major blow to unions representing public sector unions.  A decision on the case is expected in late May or June.  Allotta | Farley will be following this closely and will update you once a decision is handed down.


Thursday, January 23, 2014

The NLRB in 2013

After years of Senate confirmation battles and operating the National Labor Relations Board with less than its full complement of five board members, 2013 finally saw the Board fully staffed with the appointment of Chairman Mark Gaston Pearce and members Nancy J. Shiffer and Kent Y. Hirozawa.  With these appointments, decisions issued by the NLRB should no longer be challenged in the courts because of questionable quorums and recess appointments.  The senate also confirmed President Obama’s choice for NLRB General Council, Richard F. Griffin, Jr..  With the NLRB now “running on all cylinders,” as AFL-CIO President Richard Trumka put it, the board has begun to make strides in fulfilling the promise of the National Labor Relations Act.

Under the direction of Mr. Griffin, the NLRB recently filed several unfair labor practice charges against Wal-Mart for actions and statements they made about some of their employees who participated in Black Friday protests.  The Board also ruled in favor of the UFCW’s practice of giving gift cards to protestors, finding it was not, as Wal-Mart claimed, coercive behavior.

In addition to these developments, the Board has promised to give further guidance on so-called “micro-unions,” a development that allows individual departments to unionize even if the larger shop wishes to remain non-union.  These guidelines could help unions make inroads into more workplaces and further effectuate the purpose of the Act.

While 2013 ended on a positive note for the NLRB, with a fully staffed Board and strong leadership from its new General Counsel 2014 promises to offer even greater strides in returning workplace balance from the hands of corporate American back to the workers.


Tuesday, December 10, 2013

Informational Pickets by Public Sector Workers: Supreme Court says to SERB, “No strike, no notice.”

Recently, the Ohio Supreme Court ruled R.C. 4117.11(B)(8), requiring public sector union workers to give ten days advance notice to the employer prior to picketing, does not apply to informational picketing.  The case, Mahoning Education Association of Developmental Disabilities v. State Employees Relations Board, arose after the union representing the employees of the Mahoning County Board of Developmental Disabilities (MCBDD) peacefully picketed outside a MCBDD board meeting carrying signs urging MCBDD to reach a settlement with the Union over the terms of a new Collective Bargaining Agreement.  The union did not give any notice to the State Employment Relations Board (SERB) or MCBDD that it intended to picket the meeting, and the picket did not involve any work stoppages or strike activity.

In response to the picket, MCBDD filed an unfair labor practice with SERB alleging the union violated R.C. 4117.11(B)(8) when it failed to give notice to MCBDD of its intent to picket the board meeting.  4117.11(B)(8) states that it is an unfair labor practice to “engage in any picketing striking or other concerted refusal to work without giving written notice to the public employer and to the state employment relations board not less than ten days prior to the action.”  After a hearing, SERB determined that the Union had committed an unfair labor practice by failing to give notice of the picket.

The Union appealed SERB’s determination and eventually the case made its way to the Ohio Supreme Court.  There, the high court noted that there are two different types of picketing.  One type of picketing is the type of picketing that is associated with protests during a strike or work stoppage.  The other type is informational picketing,  This type of picketing involves activity  that expresses “ a grievance not associated with a strike or work stoppage.” The Court went on to determine that in enacting R.C. 4117, the legislature only meant for the notice requirement to apply to picketing associated with a work stoppage or strike and not informational picketing.  Accordingly, the Court determined that no unfair labor practice had occurred.

With no advance notice needed for informational pickets, this Union tool becomes a more useful and fluid way for public sector employees to engage and win support from the public.  Public Sector employees may use the removal of this restriction to their advantage during contentious negotiations and/or grievance settlements.


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