Monday morning musings for workplace watchers.
NLRB Tackles Precedents|Michigan’s ‘Right to Work’ Law
Robert Iafolla: The National Labor Relations Board has a slew of cases teed up that challenge existing precedents, giving the Democratic majority ample opportunity to continue shifting labor law in a more worker- and union-friendly direction.
The NLRB general counsel’s office is targeting decisions from the Trump era in the cases awaiting board rulings, and calls for the toppling of even older precedents. In one case, it advocates retooling a legal framework first minted in 1950.
NLRB Chair Lauren McFerran recently defended the Democratic majority’s output of precedential rulings in an exclusive interview with Bloomberg Law, predicting a “robust production” of rulings in the coming year.
The board chiefly sets labor law policy via precedent-setting rulings in individual cases. General Counsel Jennifer Abruzzo acts as an advocate, prosecuting unfair labor practice cases and sometimes asking for changes in the law. Abruzzo set forth an ambitious agenda to remake labor law shortly after she took over the agency’s legal division.
The NLRB has announced its plans to possibly change the law by taking public comment on a trio of cases that could topple Trump-era rulings by changing the standard for employment classification, amending the framework for assessing the lawfulness of workplace rules and employer handbook provisions, and prohibiting confidentiality requirements in arbitration agreements.
In a potentially blockbuster case, the board is considering Abruzzo’s campaign to resurrect a legal doctrine from the 1949 ruling in Joy Silk Mills requiring employers to recognize and bargain with unions with a majority support from workers, unless they had a good faith reason to doubt that support.
Abruzzo’s bid to sharpen the NLRB’s teeth includes a case asking the board to strike down its 1970 ruling in Ex-Cell-O so it can broaden its remedies when employers illegally refuse to bargain.
The NLRB also has multiple pending cases in which the general counsel’s office asked for the end of the following precedents:
- General Motors (2020), which removed several situation-dependent standards for deciding the lawfulness of worker speech or conduct;
- MV Transportation (2019), which gave employers more leeway to make unilateral changes in unionized workplaces; and
- Tschiggfrie Properties (2019) and Electrolux Home Producuts (2019), which made it more difficult for the general counsel to prove anti-union discrimination.
In terms of older precedents potentially on the chopping block, a case involving more than a dozen hospitals and their management company gives the NLRB a chance to overturn its 2005 decision in Bath Iron Works. That ruling expanded employer latitude to change contract terms without union input.
The board also could strike down its 1964 decision in Hot Shoppes—which allows employers to permanently replace workers striking for economic reasons—in a case against a Detroit pipe company.
On remand from a federal appeals court in San Francisco, the NLRB is reconsidering whether janitors were legally fired for demonstrating against their employer outside another company’s building. The general counsel’s office has used that case to urge the board to change the standard—first set in the 1950 decision in Sailors Union of the Pacific (Moore Dry Dock)—for deciding the lawfulness of a union protest involving a neutral company.
The general counsel’s office went big in one pending case, asking the NLRB to overturn eight separate Trump-era precedents in a dispute involving a company that advocates for privatizing schools.
Chris Marr: Michigan’s state legislature could become the first in decades to repeal a ban on mandatory union membership or dues, as the statehouse’s new Democratic majority proposes ending the policy.
Although historically a union stronghold and hub for the US auto industry, Michigan adopted what supporters call a “right to work” law when Republicans controlled the state legislature in 2012. The state has since seen a decline in union membership. Democrats won back majorities in the state House and Senate in November’s elections, and have said pro-labor legislation will be part of their broad agenda this year.
Michigan lawmakers have introduced a trio of related bills—a House (HB 4004) and Senate bill (SB 5) authorizing mandatory dues in public-sector jobs and a separate House bill (HB 4005) allowing the same in the private sector.
The bills’ critics and supporters have acknowledged that the change in law likely couldn’t take effect immediately for public-sector union contracts, unless a future Supreme Court overturns the court’s 2018 decision in Janus v. AFSCME. In that case, the court said government employees have a constitutional right not to pay union dues or fees.
“Regardless of what happens at the federal level, we want to make sure that on the books in Michigan we have laws that protect workers’ rights,” said state Rep. Regina Weiss (D), who’s sponsoring the House bills.
Michigan is one of 27 states with “right to work” laws in effect, and no state legislature has voted to repeal such a measure since 1965 in Indiana—which later re-enacted its law in 2012. That’s not counting Missouri voters’ 2018 decision via ballot measure to overturn their state legislature’s passage of a “right to work” law a year earlier.
Business interests and conservative policymakers tend to support “right to work” laws, saying workers shouldn’t be forced to pay union dues, particularly when a portion of labor unions’ budget goes toward political spending. Labor advocates, on the other hand, say these laws suppress union membership and allow workers to freeload off their dues-paying coworkers whose contributions to the union lead to better pay, benefits, and working conditions for members and nonmembers alike.
Repealing a “right to work” law tends to be a heavy lift politically, as seen most recently in Virginia where Democrats held slim majorities in the statehouse and the governor’s office in 2020 and 2021. They passed a broad range of worker-friendly labor and employment laws but not a “right to work” repeal, as then-Gov.
Michigan could be a different story, given its much stronger union presence as compared to Virginia.
“Unions are still strong. They still have a lot of pull. It’s the No. 1 contributor to the Democratic Party in Michigan,” said Jarrett Skorup, a spokesman for the Mackinac Center for Public Policy, a right-leaning group that supports “right to work” laws.
But Michigan unions have lost tens of thousands of members since the state law took effect a decade ago.
“They’re not going to be very happy if you force them back,” Skorup said.
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