By Associate Professor Alexia Kulwiec, School for Workers
September 17, 2018
United States Supreme Court
As most union members know by now, on June 27, 2018, the U.S. Supreme Court ruled in Janus v. AFSCME Council 31 that union members and employers can no longer agree that public sector employees must pay their fair share towards union representation. Please note that this decision is not as damaging as Wisconsin’s Act 10: public sector employees in many states can still continue to organize, enter into collective bargaining agreements, and allow for dues deductions.
On May 21, 2018, the Supreme Court ruled in Epic v. Lewis that employers can enforce arbitration agreements that waive employees’ ability to file claims as class actions. This has already affected class action wage claims, such as one pending against Chipoltle by a number of workers asked to work “off the clock.” Collective bargaining agreements can of course, specifically permit group grievances.
A particularly important issue has arisen for unions in the construction industry: in a case called LoShaw Thermal Technology, the National Labor Relations Board has announced that it is accepting briefs on the question of whether contract language that the employer reviewed evidence of employees’ union support can convert a construction industry 8(f) agreement (permissible without employee majority support) to a 9(a) agreement (which requires employee support). Permitting contract language to convert the collective bargaining agreement has been settled law since at least 1993, which the current invitation for briefs threatens to change. Briefs on this issue are due by October 26, 2018. We will address this issue in the November Building Trades Essentials Class.
The NLRA is also accepting briefs on the issue of whether employees can be disciplined for using the employer’s email system for union business, which under current law is protected activity. The NLRB will accept briefs on this issue until October 5, 2018, in Ceasar’s Entertainment, in which it is reconsidering the previous Purple Communications holding.
The NLRB has proposed a new rule to establish the standard for determining whether two employers are “joint employers,” requiring both to meet the requirements of the National Labor Relations Act. Like many issues determined by NLRB cases, this standard has changed over the years, and the NLRB is proposing a rule that only an employer who exercises control over terms and conditions of employment will be considered a “Joint Employer.” The NLRB is taking public comments on the proposed rule, which are due November 13, 2018.
Any good news?
To end on a high note, In August 2018, voters in Missouri rejected a potential so-called Right to Work law in that state. Accordingly, in the private sector, Missouri remains to operate free from so called Right to Work rules, and union members and employers can agree that non members be required to pay their fair share towards union representation.