Month: August 2019

How to Get Rid of a Union

Published by Brett Holubeck on August 28, 2019

Image of sheet of post-it notes that are being pulled off a wall — Photo by Kelly Sikkema on Unsplash

In an earlier post we discussed how to respond to an unfair labor practice charge and how to respond to union organizing. However, many employees work in unionized work environments and feel that they would be better off without the union.

Some examples are listed here:

In the Friedrichs v. California Teachers Ass’n decision in 2014 (which resulted in a tie at the Supreme Court), Friedrichs, a California teacher, felt that as a member of a union she was forced to pay dues to the union who used that money to advocate for issues that she did not agree with. Specifically, the union used dues to argue against more parental choice regarding where parents send their kids for school, and the union often spent money to support political causes that she did not agree with.
Mark Janus, of the Janus v. AFSCME case that went before the Supreme Court, said that he cannot say “No, I don’t want to pay this. I either pay the union fee or I lose my job.”
Some unionized workers at Kroger have said “I’ve read online about having an initiation fee for the Union but $21 a week for a part-time minimum wage worker seems excessive.”

These are just a few examples of people who feel the union they are associated with does not represent their actual or best interests.

So, what happens if there is already a union in a workplace and the employees no longer want one? There are a couple of ways that employees can get rid of a union if they no longer wish to be represented by the union.

Decertification Election

The most common way that employees choose to no longer be represented by a union is a decertification election.

The decertification process begins when an employee hands the employer a decertification petition that is signed by at least 30% of the employees like this one available through Union Facts.

As stated by the NLRB, decertification petitions cannot be filed in a couple of circumstances:

These petitions cannot be filed within the first year after a union wins an NLRB sponsored election.
Plus, if an employer and union reach a collective-bargaining agreement, an employee cannot request “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 before the agreement expires 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, “employees may request an election to decertify the union or to vote in another union at any time.

Under the National Labor Relations Act, employers cannot provide more than ministerial aid to employees in gathering signatures for a decertification petition. This means that employers cannot give employees aid in circulating the petition or getting employees to sign it. If an employee approaches the employer and asks about getting rid of the union, then the employer can give employees some limited information on how to get rid of the union.

Once a decertification petition is filed, then the employer can actively campaign to get rid of the union, which can include a number of things:

An employer may hold meetings to deliver its message. That message must be truthful and must avoid promises of what will happen if the union leaves or threats.
- There are time limits on when these meetings can be held and typically there is a limit on meetings in the last 24 hours before a vote.
- Employers will often discuss the advantages and disadvantages of a union during these meetings and may compare wages and benefits.
- Employers can state that they want employees to vote against a union.
It can post flyers with information for employees.
Supervisors can discuss their experience with the union if they are asked for their opinion.
Companies can enforce policies about soliciting and distribution of literature during non-working time and in non-working areas (most unionized workplaces will not have such a policy. If that is the case, then both sides may be passing out literature and discussing the union while they are working).

Employers must remember to follow the TIPS protocol (employers cannot threaten, interrogate, promise, or spy) and to avoid other violations of labor law. You can review my earlier article on responding to an unfair labor practice with a breakdown of TIPS and other matters.

NLRB Proposed Rule on Blocking Charges

Unfortunately for many employers and employees, most unions and other employees will file blocking charges to delay a decertification election or to suspend it entirely. Essentially, an employee or the union may file an unfair labor practice charge (alleging that the employer violated the National Labor Relations Act) during a decertification petition and a request to block an election until the unfair labor practice is resolved. This means that unions can continue to represent employees while the charge is being resolved and can sometimes result in an indefinite suspension of the election.

The NLRB has proposed “replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.”

This would be a major step that would allow employees to freely decide whether they want to have a union or not. It would also eliminate a common way that unions prevent employees from choosing to leave a union (unions file many charges that prevent an election from ever taking place).

Withdrawal of Recognition

The blocking charge issue can also be avoided by withdrawing recognition from the union. An employer has the option to unilaterally withdraw recognition from a union that has lost support of a majority of the employees in the bargaining unit as held in the Supreme Court’s decision in Allentown Mack Sales & Service v. NLRB. The evidence is usually in the form of a petition signed by a majority of employees that asks for the employer to immediately withdraw recognition from the union. The withdrawal of recognition usually occurs right before the expiration of a collective bargaining agreement or after an agreement has expired.

Typically, collective bargaining agreements have an extension clause whereby the agreement continues unless either party (the union or employer) notifies the other that it intends to terminate or modify the agreement within a certain period of days (typically 60 days) before the agreement expires. It is important that employers send this notice to the union within the required time frame so that the agreement does not continue after it expires.

Unlawful conduct by the employer can result in the union again becoming the bargaining agent for the employees. The typical violations that would prevent the withdraw of recognition are a refusal to bargain with the union before the expiration of the contract, any unlawful (i.e. more than ministerial) assistance in gathering signatures on the petition, or any conduct that unlawfully undermines the union’s majority status.

Withdrawing recognition is usually best for employees and the employer when properly done because it avoids a decertification election, which usually never occurs because unions frequently file unfair labor practice charges that prevent the election from ever taking place. However, due to the complicated nature of union issues, employers are well served by seeking experienced attorneys that can help with this process as an unfair labor practice is almost always filed by the union after an employer withdraws recognition.

Right to Work Laws

Right to work laws do not get rid of the union. They allow individual members to opt out of paying union dues. Essentially, they guarantee that a person cannot be forced, a condition of employment, to join a union or pay union dues. The Janus Supreme Court decision made all government employees in every state subject to this principle. No government employee can be required to join a union as a condition of employment or be required to pay union dues. These employees also cannot be required to pay an agency fee for the union to represent them in the collective bargaining process.

The Janus decision does not apply to private sector employees. A total of 27 states have passed right to work laws that give private employees the right to refuse to join a union or to pay fees for the union to represent them in collective bargaining (agency fees).

Again, the reason why many employees do not want to pay these fees is because the worker may be required to pay for the union to take positions that they oppose. The clearest example of this is new teachers that may be required to pay fees to the union when the union advocates for increased pay raises that result in layoffs of new teachers. See this article and this one this one discussing layoffs that occurred for young teachers as a result of a pay raise and budget shortfall in certain school districts.

Unions still exist in right to work states. A union in these states is still expected to bargain on behalf of all employees including those that are not members of the union. Right to work laws simply allow employees to refuse to pay union dues or agency fees.

Conclusion

Employees that wish to get rid of a union have several options. The best advice for any employee that is looking to leave their union or get rid of a union in their workplace is to look for a petition to get rid of the union (like the one available here) and to speak with their fellow workers that they know would be interested in getting rid of the union. Employees must make sure to do this without violating workplace rules (such as doing it during working time), and they must be careful to avoid speaking with employees that support the union (and the union steward) or having conversations nearby those individuals.

Employees can also approach the company management to let the company know that they (the employee) are trying to get other employees to sign a decertification petition. It is almost always a good idea for the employee to do this so that the employer can alert or find a labor and employment lawyer to help them prepare to respond to any unfair labor practice charge that the union files, to examine the signed petition showing that a majority of employees do not support the union, and to help in any other lawful way that they can.

It is best to act quickly once an employee circulates a petition to get rid of a union. The longer that an employee spends gathering signatures, the more likely it is that the union or union supporters will seek to file an unfair labor practice to block employees that no longer want the union.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

The Basics of Layoffs and the WARN Act

Published by Brett Holubeck on August 13, 2019

A window with the words "closed down" written on it to show what happens when layoffs occur and to serve as a reminder to follow the WARN Act. — Photo by Marco Bianchetti on Unsplash

Layoffs are terrible! A lot of employees are caught unaware that a company is not doing well while others cannot understand why they rather than someone else were let go.

Why are we talking about layoffs and reductions in force when unemployment is 3.7%?

Let me give you a couple of reasons.

Store closures may top 12,000 in 2019 as 7,062 store closures have already been announced this year compared to an all-time high of 8,139 in 2017. The retail apocalypse may be accelerating.
The ongoing trade war which many believe will result in a recession within a year or so.
Profitability of oil and gas (at least in Texas). There is some speculation that the shale oil boom may be over.

What to Consider When Layoffs Approach

There are a couple of things that all employers must remember when conducting layoffs. Employers must consider the legal elements of a layoff, and to conduct the layoffs in a way that allows the business to stay open and does not make the other employees angry. Of course, the best option, if possible, is to follow in the footsteps of Nintendo when the Wii U failed. In that case, the CEO took a 50% pay cut, and members of the board took a 20-30% pay cut.

He said:

If we reduce the number of employees for better short-term financial results, employee morale will decrease. I sincerely doubt employees who fear that they may be laid off will be able to develop software titles that could impress people around the world. Keeping employees can often be better than letting employees go if a company believes that the employees will be needed later.

Legal Aspects of Layoffs

Employers that layoff employees may have obligations to alert their employees.

As the Department of Labor explains:

The Worker Adjustment and Retraining Notification (WARN) generally covers employers with 100 or more employees, not counting those who have worked less than six months in the last 12 months and those who work less than 20 hours per week, or those employers with 100 or more employees, including part-time workers, who in the aggregate work at least 4,000 hours per week, exclusive of overtime.
WARN protects workers, their families, and communities by requiring employers to provide notification 60 calendar days in advance of plant closings and mass layoffs. Advance notice gives workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain other jobs and, if necessary, to enter skill training or retraining that will allow these workers to compete successfully in the job market. WARN also provides for notice to state dislocated worker units so that they can promptly offer dislocated worker assistance.
A covered plant closing occurs when the permanent or temporary closure of a single site of employment or of one or more facilities or operating units within a single site of employment results in an employment loss as defined by WARN regulations. A covered mass layoff occurs when 50 to 499 employees are affected during any 30-day period at a single employment site (or for certain multiple related layoffs, during a 90-day period), if these employees represent at least 33 percent of the employer’s workforce where the layoff will occur, and the layoff results in an employment loss for more than six months. If the layoff affects 500 or more workers, the 33 percent rule does not apply.

Many states have their own mini-WARN Acts, so you need to review your state law as well to comply with the law. Texas does not have its own WARN Act.

There are 3 important exceptions to providing 60 days notice as required by the WARN Act:

Faltering Company Exception (applies to closing but not mass layoffs) which requires that the employer 1) sought capital or business at the time that the 60 days’ notice would have been required, 2) there was a realistic opportunity to obtain finance or business, 3) it would have been sufficient to avoid the shutdown (the employer must objectively show this), and 4) the employer must have reasonably and in good faith believed that the required notice would have precluded the employer from obtaining the business or capital.
Unforeseeable Business Circumstances Exception, which applies when business circumstances were not reasonably foreseeable at the time that 60 days’ notice would have been required. The circumstance must be a dramatic change outside of the employer’s control like losing a major contract or a dramatic economic downturn.
The Natural Disaster Exception only applies if a plant closed or mass layoffs ensued because of a natural disaster.

As noted above, another exception (or at least a situation where the law does not apply) is when a mass layoff will last less than six months. For example, suppose you send 400 out of your 500 workers home for 2 weeks while you conduct necessary maintenance at your plant. The WARN Act would not be triggered in that case because the layoff is temporary.

When conducting a layoff, it is also important to ensure that it is done in a way that does not discriminate against individuals because of their age, race or other protected characteristic. Essentially, layoffs should be conducted in a way that it does not have a disparate impact on any protected class.

Who Receives Notice of a Layoff or Plant Closing?

As detailed by the Department of Labor:

The employer must give written notice to the chief elected officer of the exclusive representative(s) or bargaining agency(s) of affected employees and to unrepresented individual workers who may reasonably be expected to experience an employment loss. This includes employees who may lose their employment due to “bumping,” or displacement by other workers, to the extent that the employer can identify those employees when notice is given. If an employer cannot identify employees who may lose their jobs through bumping procedures, the employer must provide notice to the incumbents in the jobs which are being eliminated. Employees who have worked less than 6 months in the last 12 months and employees who work an average of less than 20 hours a week are due notice, even though they are not counted when determining the trigger levels. The employer must also provide notice to the State dislocated worker unit and to the chief elected official of the unit of local government in which the employment site is located.

What the Notices Must Contain

There are different items that must be in the notice for any union that represents employees, the employees, and the State Dislocated Worker Unit and chief officials of the local government entities. You can view that information here or in the regulations.

If employees are represented by a union, then the notice must contain the following information:

The name and address of the company that will have a plant closing or mass layoff and a person and telephone number from the company that can be contacted for more information.
whether the closing is permanent or temporary and whether the whole facility will be closed.
The expected date when the first employees will be laid off and the schedule for laying off the rest of the employees.
The job titles of any positions that will have people laid off and the names of those workers that hold each affected job title.

As stated by the DOL, notices to individual employees (if they are not represented by a union) must contain the following information:

whether the closing is permanent or temporary and whether the whole facility will be closed.
the “expected date when the plant closing or mass layoff will begin and the date that the individual employee will be” laid off.
whether any bumping rights exist (employees with more seniority will be able to take the positions of people with less seniority in the layoff, which means that the most senior people that qualify for any position in the company, even if it is not their current position, will be kept or at least will be the last people to be laid off).
“The name and telephone number of a company official to contact for further information.”

Companies must also provide notice to the State Dislocated Worker Units and the chief elected official of the local governments. This notice must be provided separately and should contain:

The name and address of the company that will have a plant closing or mass layoff and the name of a company official and telephone number that can be contacted for more information about the layoff or plant closing.
whether the closing is permanent or temporary and whether the whole facility will be closed.
The expected date when the first employees will be laid off and the schedule for laying off the rest of the employees.
Job titles of the positions that will be laid off and the number of employees in each position.
Whether any bumping rights exist
The name of any union(s) that represent the employees and the “name and address of the chief elected officer of each union”

Notices must be carefully drafted especially if the layoff is intended to be temporary. Any mistakes in drafting the notice can result in penalties. Employers can be liable for backpay and benefits for each employee for every day of the violation. Penalties are capped at 60 days of backpay and benefits for each employee, civil penalties of up to $500 per day, and reasonable attorney’s fees.

Maintaining Morale in a Layoff

Don’t be like Michael Scott in the Office announcing that the branch is closing (especially when it turned out that the branch was not closing after all).

Employers need to prevent a panic when laying off employees. You need to meet with the employees that are remaining quickly (within 30 minutes or so) to let them know what is going on. You need to give employees a reason that the layoff occurred. Was it to eliminate a portion of the business that was not profitable? That is a different conversation than laying off journalists in the news industry. Journalists are one of the main components of the news business. Many of them may be wondering whether their job is next.

Companies must acknowledge the emotions of the employees that are staying. Some of them will have lost close friends and colleagues that they have worked with for years.

Employees need to understand that there is a plan to move forward. Companies need to communicate about the business’s future. How is the work going to be redistributed now that there are not as many people working for the company? Is there a way for employees to privately ask questions? What is the long-term plan?

Managers need special training to ensure that they can address the concerns of employees that are staying. They need to make everyone as productive as possible and support the employees that remain with the company. Managers essentially need to rebuild the culture of the company. A bad manager can make a layoff worse by driving people away, being unresponsive to questions, or not showing any understanding to what employees are experiencing.

Productivity will fall after the layoff occurs. However, after employees see that the company is moving forward, and their jobs are secure, these employees will settle back into their jobs and will again become more productive. Eventually, work will return to normal, but until it does, all supervisors and members of senior management need to help with this transition to ensure a productive, profitable and secure future for the business.

Conclusion

Layoffs are awful, but not following the correct protocol in the event of a layoff is detrimental to the company and its employees. Keeping in mind the specific legal elements of a layoff, along with the cultural implications within the company, will allow employers and their employees to make the best of a bad situation.

The information provided is my own and does not reflect the opinion of my firm or anyone else.