Labor Law Articles

Union Membership Declines Again

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          According to the U.S. Bureau of Labor Statistics union membership continued to decline in 2012. Last year 11.3% of wage and salary workers belonged to a union, down from 11.8% in 2011, and 20.1% in 1983. In looking at just the private sector, only 6.6% of workers are unionized. In comparison, some 35.9% of public employees are represented.

NLRB Reverses Decades Old Rules on Dues Check-offs and Witness Statements

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         Toward the end of 2012 the NLRB issued several startling opinions that in two instances overturned decades of precedent. As a result of these decisions, employers can no longer discontinue the union dues check-off upon the expiration of a collective bargaining agreement, and must now provide the union with witness statements in response to a pre-arbitration discovery request, unless the employer proves the existence of a “legitimate and substantial confidentiality interest” that outweighs the union’s need for the information.

NLRB Clarifies At-Will Requirements

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        In February 2012 a NLRB Administrative Law Judge ruled that an employer’s at-will language contained in its employee handbook violated the National Labor Relations Act (NLRA). The violative language stated, “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” American Red Cross, 28-CA-23443. The judge found the language restricted an employee’s section 7 rights to organize a union and bargain collectively.   The ruling left many employers concerned and uncertain whether, and to what extent, traditional at-will concepts still applied.

NLRB Increasingly Focused on Assisting Non-Union Employees

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            The National Labor Relations Board (NLRB) recently launched a separate webpage, Protected Concerted Activity, to educate non-union employees of their rights under the National Labor Relations Act (NLRA). In particular, the site discusses the right of employees to act together for their mutual aid and protection even if they are not unionized, and encourages non-union employees to contact the Board for help. Specifically, it states, in part: “[t]he law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme.”

Employers Disadvantaged by New NLRB Election Rules

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         Effective April 20, 2012, the National Labor Relations Board implemented a new set of union election rules that will limit the type of pre-election legal challenges available to employers.  With fewer permissible challenges, there will be fewer pre-election hearings and balloting will take place more rapidly.  Employers are concerned that faster elections will prevent them from adequately educating their workforce prior to the vote. 


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