NLRB issues significant decision on bargaining obligations

In Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012) (free download from the NLRB site) the Board has issued a significant decision expanding an employer's obligation to bargain over the imposition of discretionary discipline before imposing discipline on a bargaining unit employee. This obligation is met in the situation where a collective bargaining agreement which has a grievance and arbitration procedure in effect. The significance of this decision is the effect it will have on the period between a union becoming the bargaining representative, but before the union and employer have agreed to a first contract containing a grievance and arbitration mechanism.

Discretionary discipline which has "a material, substantial, and significant impact on the employees’ terms and conditions of employment" may not be imposed without first providing the union with notice and the opportunity to bargain in good faith. Money quote:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material, substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 (2004) (emphasis added). This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today. Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

This is a big deal. The case conveys upon represented employees a palpable benefit of unionization even before a contract can be negotiated. Employees immediately receive the benefit of brakes being provided to a suspension or termination of employment. An employer's existing policy, which is subject to employer's discretion, may not be continued unilaterally once the union achieves representative status.

NLRB makes barring off duty employee access to company property exceedingly difficult

The NLRB has issued an interesting decision concerning an employer's ability to limit employee access to employer's facility when the employee is off duty. In Marriott International, 359 NLRB No. 8 (free download at the NLRB web site). The Board's opinion does a good job of explaining the Board's current position on access and use rules. Essentially it appears any rule which does not affirmatively and extensively advise employees of their right to engage in Section 7 activity in the otherwise restricted area of the facility either chills employee rights or intimidates employees from engaging in such rights at all. Also, any discretion reserved to management to permit off duty employees to return for company business invalidates the rule by virtue of creating an exception, subject to managment discretion.

Because the Board defines these infringements by reference to its imaginary "objective employee's" perception of the effect of the rule, the Board can freely find a violation. A rule that does not expressly, accurately and completely advise employees of their rights will be found to chill those rights even where it has never been enforced against an employee in violation of Section 7. Employers limiting access have a daunting task to craft rules which the Board would find acceptable.

Because Section 7 affords rights to all employees, not only those in a unionized employment environments, all employers should seek advice concerning any rules denying employee access to company property.

Michigan repercussions

Looks like Michigan's right to work push is ripe for push back. Gov. Snyder's popularity has plummeted since the right to work legislation was fast tracked. The polling numbers also indicate right to work is overwhelmingly unpopular in the state.

Employers dropping employee health coverage?

Despite all the uproar and anecdotal evidence of employers reacting to the Affordable Care Act by eliminating health insurance coverage for employees, a recent study suggests otherwise.

Michigan and politics

More on the politics of the surprising Michigan right to work campaign from Political Wire.

Right to work in Michigan

Right to work legislation passes Michigan's Republican controlled state legislature. If, as expected Michigan's republican governor signs the bill, Michigan will become the nation's 24th right to work state. This move definitely disadvantages unions by allowing workers to refuse to belong and pay dues to a union, despite the fact the union is obligated to represent those workers. While the current battle advantages opponents of labor (and not all employers fall into that group), it may give serious impetus to reforms advantageous to labor. Big labor should seriously reconsider the existing compulsory union model in favor of federal legislative reform permitting micro unions and voluntary unionism. Micro unions would permit small groups of employees to unionize, irrespective of the desires of a majority of employees in the entire enterprise. Voluntary unionism would permit dissenters to opt out of not only obligations to fund a union, but also representation by the union. Those dissenters would be free to bargain directly with their employer.

November jobs report brings more good news

The November jobs report released today by the Bureau of Labor Statistics (BLS) indicates the economy added 146,000 jobs. Unemployment dropped to 7.7%.

Michigan and right to work

Will Michigan become the nation's 24th right to work state? Maybe so.

Who took the big hit?

It does not take a study to prove the overwhelming brunt of the losses from the 2007-2010 "Great Recession" affected the middle class more profoundly than the wealthy or, for that matter the poor. But here is one that does. Simple take aways:

1. Middle class wealth has "collapsed" to a 40 year low.
2. Wealth is more concentrated in this country than income, because many people expend all of their income on living expenses, but those fortunate enough to have "a bit extra" benefit from  government policy favoring investment income over earned income.
3. The major asset for the middle 60% of households  is the family home, which constitutes 2/3rds of the wealth of that group of Americans.
4. For the top 1%, the family home represents less than 10%, and for the next 19%, about 30% of their wealth.
5. Debt, a lot of debt exacerbated the problem.