04/30/2024: A Rare WH Case. A Close Duty of Fair Representation Case.
The NLRB also administers part of the Fair Labor Standards Act.
Livingston County Board of Commissioners, 07-WH-334783 (Unpublished Board Decision)
Section 7(a) of the Fair Labor Standards Act (FLSA) contains the rule that employers must pay workers 1.5 times their ordinary wages (i.e. overtime pay) for any hours worked beyond 40 hours in a week. Section 7(b) then provides two narrow exception to this rule for individuals covered by a collective bargaining agreement entered into “by representatives of employees certified as bona fide by the National Labor Relations Board.”
To get certified in this way, a union must file a WH petition (WH for “Wage and Hour”) at the NLRB. This Board decision simply acknowledges the petition and certifies that the union is the bona fide representative of the covered employees.
This is ultimately quite boring, but WH petitions are rare and so it’s fun to see one come across.
Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC, GC 24-01 (Revised) (GC Memo)
This GC memo provides a nice summary of the recent Cemex decision, which changed the ways that unions can achieve recognition as the representative of a bargaining unit. After Cemex, a union seeking recognition has the following options:
After collecting signatures from at least 30 percent of the workers in the potential bargaining unit, a union can file an RC petition and the NLRB will administer an election to determine whether the union has majority support.
After collecting signatures from at least 51 percent of the workers in the potential bargaining unit, a union can submit a demand to the employer that it be recognized as the bargaining representative. Once this demand is made, the employer has the following options:
The employer may voluntarily agree to recognize the union.
The employer may file an RM petition within two weeks of receiving the demand and have the NLRB administer an election to determine whether the union has majority support.
If the employer neither recognizes the union nor files an RM petition within two weeks of the demand, and there is no RC petition being processed, the union may file a Section 8(a)(5) unfair labor practice charge against the employer and be certified as the representative that way.
After collecting signatures from at least 51 percent of workers and submitting an RC petition to the NLRB or a demand for recognition to the employer, a union may file unfair labor practice charges against the employer for any subsequent illegal conduct that the employer engages in. If the employer’s illegal conduct is bad enough, the NLRB will order the employer to recognize the union without running an election.
Jay Peak Pacific LLC, 03-CA-318747 (Unpublished Board Decision)
An individual alleged that the employer engaged in a variety of retaliatory conduct in response to union and protected activity. The regional director found merit in the allegation and issued a complaint. The employer filed a motion to dismiss the complaint directly to the Board. The Board rejected the motion in two sentences.
Wilton Rancheria d/b/a Sky River Casino, 20-CA-331192 (Unpublished Board Decision)
The employer was ordered to submit documents pursuant to a subpoena. The employer filed a petition to revoke the subpoena to the Board. The Board rejected the petition in three sentences, stating that “the subpoena seeks information relevant to the matters under investigation and describes with sufficient particularity the evidence sought, as required by Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules and Regulations.”
Amalgamated Transit Union, Local 689 a/w Amalgamated Transit Union AFL-CIO, CLC, 373 NLRB No. 49, 05-CB-286354 (Published Board Decision)
In the underlying case, the charging party, Thomas McLamb, is a worker who alleges that the union committed two unfair labor practices (ULPs). Specifically, he alleges that:
The union violated Section 8(b)(1)(A) when union steward Tiyaka Boone slapped him in the context of a union officer election where McLamb was critical of the incumbent slate of officers who were supported by Boone.
The union violated Section 8(b)(2) when union steward Alma Williams said, in a disciplinary meeting with the employer, that, if Boone was fired, then McLamb should also be fired.
The Board dismissed both charges:
The Board found that the slap in question was in response to personal insults made by McLamb to Boone that included “disparaging her for keeping Virginia license plates on her vehicle and not being able to afford her deceased husband’s funeral expenses” and “telling her to watch her children, which suggested that she was responsible for the stabbing that her son had suffered.” Because reasonable employees would understand the slap as retaliation for these personal remarks, and not for dissident union activity, there is no violation of Section 8(b)(1)(A).
The Board found that the statement made by Alma Williams did not amount to an effort to get McLamb fired. The statement was a conditional statement that if the employer was going to fire Boone, then it should also fire McLamb. But the point of this statement was that the employer should fire neither and the union processed a grievance over McLamb’s 10-day suspension all the way to arbitration. Thus, there is no violation of the duty of fair representation (Section 8(b)(2)).
Although the Board found that the union did not, as a matter of fact, attempt to get McLamb fired, it acknowledges, as is well-settled law, that when a union attempts to get one of their members fired, that is presumptively unlawful (Graphic Communications Conference). This presumption can be rebutted if the union shows that its actions were "done in good faith, based on rational considerations, and were linked in some way to its need effectively to represent its constituency as a whole." (Operating Engineers Local 18).
In the media world, there have occasionally been accusations that “woke” unions have attempted to get their own members fired or terminated for doing something unwoke. While this is probably somewhat overblown, I don’t doubt that it is probably true to some extent. When this happens, an employee could file an unfair labor practice charge against the union alleging a violation of Section 8(b)(2).