January 2012

We previously reported that David Berry, the NLRB inspector general, confirmed that his office was aware of allegations concerning possible enticements offered to Member Brian Hayes to resign.

Berry has issued a report finding that Hayes was not offered enticements to resign last year.  The Hill has the full story, which can be found here. 

The Detroit News is reporting that union membership grew slightly in 2011. According to the article, union membership grew 50,000 (to just under 14.8 million). The Detroit News article can be accessed here.

The Screen Actors Guild's National Board has approved its merger agreement with the AFTRA, the American Federation of Radio and Television Artists.  If approved by AFTRA's Board and the membership of both unions, the new union will be known as SAG-AFTRA.

Merger of these two unions with overlapping jurisdictions has been attempted several times in the past without success -- most recently in 2003.  However, this attempt has fed off a significant rank and file sentiment to address two key concerns: 1. Having to pay dues to two unions; and 2. Split benefit contributions.  However, the proposed merger addresses neither of these issues.

The proposed merger agreement does nothing to streamline the staff of the newly merged union.  As a result, the expenses of the two unions will remain largely unchanged.  Even if some cost savings could be found, SAG's shaky financial condition means that a dues reduction for members is highly unlikely.  Jonathan Handel reported in the Hollywood Reporter that for some members dues actually will increase according to his confidential sources.  That the two unions are not touting how this merger will mean reduced dues for all their members likely means this goal was not achieved.

The benefit contribution issue arises from the fact that although the two unions have overlapping jurisdictions, and indeed bargain several of their contracts jointly, they have never unified their benefit funds.  As a result, performers who split their work throughout the year between jobs under the SAG contract and jobs under an AFTRA contract may fail to meet the earnings thresholds under either contract to qualify for benefits. SAG and AFTRA chose not to attempt to address this issue before entering merger talks and as a result, the two unions could not solve this problem through their merger agreement. Instead, they must now bargain with the various employers with whom they contract such as the Alliance of Motion Picture Producers and the Joint Policy Committee of advertisers and manufacturers. 

However, agreeing to merger without solving the benefit plan issues is like putting the cart before the horse.  If the merger goes through, in order to appease the members who have agreed to this combined entity, the union will have to achieve a solution to the split benefit issues.  However, the SAG and AFTRA pension plans each have deficits hundreds of millions of dollars in magnitude.  Making changes to either plan will be prohibitively expensive.  The employers are going to resist having to cough up hundreds of millions of dollars to solve the new Union's problem.  That is why if the merger does get approved, there are going to be many unhappy members down the line. 

UPDATE: Late Saturday afternoon the AFTRA Board also approved the merger. The members of both unions will vote beginning next month.

NLRB Acting General Counsel Lafe Solomon released a second operations management memorandum yesterday addressing the use of social media by employees and when such use constitutes protected activity under the NLRA. The memo summarized more than a dozen recent social media cases decided by the General Counsel’s office and followed a similar report by Solomon in August 2011, which had provided summaries of 14 prior cases reviewed by the General Counsel’s office. 

There are no real surprises in the cases highlighted in Solomon’s most recent memo. Instead, they confirm the two main situations that tend to trip employers up:

(1.)   Overbroad social media policies that can be read to prohibit discussions of wages or working conditions; and

(2.)   A termination or other discipline based on an employee’s social media post  discussing or planning group action about wages or working conditions.  (However, these cases do confirm that mere gripes or posts that do not involve issues of group concern for employees should not be seen as protected activity.)

 

This is an issue that affects unionized and non-unionized employers and it continues to be carefully scrutinized by the Board. (Solomon himself called it a "hot topic" in his memo.)  The ubiquitous nature of these cases should be a caution for all employers to ensure they carefully review their social media policies and consider the potential that an offending social media post may be considered protected activity before disciplining an employee.

The NLRB’s press release on Solomon’s memo is available online here.

Our previous coverage of this issue is here.

Indiana moved one step closer Wednesday to becoming the 23rd Right to Work state in the U.S.  The Indiana House of Representatives Wednesday afternoon passed the Right to Work bill on s 54-44 vote.  After stalling the bill for several weeks, the Indiana Democrats returned to the Statehouse chamber and the bill was put to a vote. 

The Indiana Senate had previously passed an identical version of the Right to Work Act by a 28-22 vote.  The House Bill will now be referred to the Senate for consideration. The typical process is for the bill to be assigned to a committee where additional public input can be considered prior to a vote by the committee. The bill will then move to the the full Senate for further consideration including the opportunity to offer amendments and vote on its final passage. However, the Senate also has the option of suspending its rule and expediting the process so they can get the bill to Governor Mitch Daniels for signing.

Both the Senate and House passed bills have effective dates of March 14, 2012 and would apply to all collective bargaining agreements signed on and after that date. Agreements in place on that date would not be abrogated by the bill.  The bill prohibits employers from entering into agreements which would require an employee to become a member of a labor organization or to pay dues, fees, assessments or other charges of any kind to a labor organization.

See more in the NPR.com article, "Indiana House Approves Right-To-Work Bill."

The Indiana House Democrats continued to stall passage of the contentious right to work bill yesterday by again boycotting the chamber and preventing the House from coming into session due to a lack of quorum.  (See our previous coverage of the right to work bill here.)

Some progress had been made on the bill after Democrats participated in legislative debate on Monday, but Republican House Speaker Brian Bosma’s order to close the bill for amendments at the end of the session Monday upset Democrats who claimed that they had additional amendments to offer and weren’t given time to do so. This led to another walkout by the Democrats who have since refused to return to the chamber. Speaker Bosma has imposed $1,000 fines for each session missed by the House Democrats, but so far, the Democrats appear to be willing to pay the fine (totaling $4,000 per representative so far) rather than allow the bill to come to a vote.

Meanwhile, the Indiana Senate passed its version of the right to work bill on Monday, with a 28-22 vote. It remains to be seen how long the Democrats in the House can hold out.

See also:

“More fines for Indiana House Democrats as they extend ‘right to work’ boycott” (The Indianapolis Star)

“Finally! (Some) Action on Right-to-Work” (Indiana Chamber of Commerce)

Reports are coming out that the Indiana Senate will debate the Act this afternoon and that the House Democrats will return to the House Floor Monday to propose an amendment to the Act to allow for a public referendum on whether Indiana becomes the 23rd state to pass a Right to Work Act.

According to the Indiana Chamber of Commerce, the amendment would push the effective date of a right-to-work law back to November 5, and sunsets it on November 7 unless approved in the November 6 statewide election.

Section 302 of the Labor Management Relations Act makes it unlawful for an employer to give a union any "thing of value" with only some exceptions.  That provision has not been applied to union neutrality agreements in the handful of Circuit opinions on the issue.  However, the 11th Circuit Court of Appeals ruled yesterday an employer providing organizing assistance to a union pursuant to a neutrality agreement can be a "thing of value" in violation of Sect. 302.   

A greyhound track in Florida signed a neutrality agreement with Unite Here where the company promised to (1) provide union representatives access to non-public work premises to organize employees during non-work hours; (2) provide the union a list of employees, their job classifications, departments, and addresses; and (3) remain neutral to the unionization of employees. In return, Unite promised to lend financial support to a ballot initiative regarding casino gaming and refrain from strikes or other economic action against the track.

While the Court declined to find all neutrality and cooperation agreements unlawful, it attempted to draw the line as follows:  "Employers and unions may set ground rules for an organizing campaign, even if the employer and union benefit from the agreement. But innocuous ground rules can become illegal payments if used as valuable consideration in a scheme to corrupt a union or to extort a benefit from an employer."

The full opinion can be found here.

The National Labor Relations Board's (NLRB) weekly summary of decisions for last week, January 9-13, 2012, is now available on the Board's website. You can access the report by clicking here.