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LABOR & CONSTRUCTION LAW UPDATES


These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented.  Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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MAY 2019


Inside This Issue


1.    NLRB General Counsel Issues Memorandum on Dues Check-Off Revocations

       and Employees Rights as to Dues and Fees Paid to Unions


2.    Monitoring Off-Duty Conduct of Employees can be Risky 


3.    Family Medical Leave Act (“FMLA”) Leave for Chronic Illness


4.    Employment Contracts


5.    Govern Pritzker signs Collective Bargaining Freedom Act


6.    Inflatable Rat use can be limited by Towns



NLRB General Counsel Issues Memorandum on Dues Check-Off Revocations and Employees Rights as to Dues and Fees Paid to Unions


A.       Dues Check-Off Revocation

The Labor Management Relations Act (“LMRA”) demands that employees must have an opportunity to revoke their authorizations at least once per a year and upon expiration of the applicable union agreement.

Any dues authorization clause with a pre-expiration window period (must be revoked 60-90 days before contract expiration) is unlawful.

However, window periods associated with employee’s anniversary date on which he/she signed the dues authorization continue to be permissible and lawful. 

The General Counsel cautioned an employer that continues the dues check-off of employee’s dues following receipt of the employee’s written revocation request made at or following expiration of the union agreement does so without authorization and commits an unfair labor practice.  If the union accepts dues in this situation it also commits an unfair labor practice.  Each can be liable to the employee for the unlawfully withheld dues.

Any certified mail requirement is a restriction on the right to resign.  This would also apply to any requirement that the union must sign for certified mail.

Many times employees do not understand the exact date or dates when the dues check-off revocation request can be submitted.  Often this results in employees filing multiple untimely revocation requests that are summarily denied.  To remedy this situation the union must either inform the employee of the specific next period where revocation can be effectuated or inform the employee that the request will be honored at the next available revocation period.  This places the burden on the union to determine the correct window period to deny the revocation request. 

B.       Fees Paid to Union

Employees subject to compulsory dues payment under the Act have rights to be informed of their ability to be less than full union members (called “core” or “financial core” member), object to paying for union activities not germane to unions’ representational duties, to revoke dues checkoff authorizations at certain times; and to receive the information necessary to make those choices. Consequently, the courts have required unions to take certain actions. The General Counsel Memorandum details policy positions concerning unions’ duties to: (1) properly notify represented employees, at the time of the first dues collection attempt, of their General Motors[1] right to be non-members and Beck[2] right to be objectors, including by providing employees with the reduced amount of dues and fees in the initial Beck notice so that an employee can make an informed decision as to whether to become a Beck objector.


The Supreme Court held in General Motors and Beck, respectively, that employees subject to a union-security clause (require membership at the end of 7 days) have the right to be non-members, and that a union has a corresponding duty of fair representation that extends to not spending an objecting non-member’s dues and fees on non-representational activities.  When a union initially seeks to collect dues and fees under a union-security clause, it must first inform employees of their right to be or remain non-members.  It must also inform them of their Beck rights, namely, that non-members have the rights to: (1) object to paying for union activities not germane to the union’s representational duties and to obtain a reduction in fees for such activities; (2) be given sufficient information to intelligently decide whether to object; and (3) be apprised of any internal union procedures for filing objections.  These notices must be provided to an employee concurrently with the union’s first attempt to collect dues from the employee and not, for instance, in a periodic publication.  Additionally, a union’s separate obligation to provide an annual notice to represented employees of their General Motors/Beck rights must be reasonably prominent and not “hidden in a lengthy publication.”   Under current law[3], the union need only apprise employees of the percentage of the Beck reduction if they decide to become Beck objectors.


[1] NLRB v. Gen. Motors Corp., 373 U.S. 734 (1963).

[2] CWA v. Beck, 487 U.S. 735 (1988).

[3] In Kroger the NLRB noted that employees need information directly relevant to the exercise of their rights and that the percentage of

     nonrepresentational expenses may affect an employee’s decision to object, nothing more.



Monitoring Off-Duty Conduct of Employees can be Risky​


There is a balancing act between an employer’s interests in having a good company image as compared to employee privacy during off-duty conduct.  Laws can be violated, for example, under the National Labor Relations Board (“NLRB”) it is illegal for and employer to monitor any employee union activities including off the job meetings, or even if no union is involved, so long as employees are discussing terms and conditions of employment.  Off-duty misconduct must be related to orderly, efficient, and safe operation of employer’s business.  An employer must demonstrate a connection between the conduct and potential or actual damage to the company’s reputation or problems of interrelationship with other employees.

Consider if you can establish one of the following: the misconduct makes it very difficult or impossible for co-workers or customers to deal with the employee; the misconduct is a threat to supervisors, co-workers, customers or potential customers; does the misconduct seriously damage the employer’s public image; or the employee makes off-duty public attacks on employer, supervisors, or employer’s product (would not apply in a strike or other concerted activity context).Employers should consider drafting policies that strike a balance between an employer’s interest and employee’s rights to privacy.  The policy should cover that there is no expectation of privacy while using company computers, email and cellphones.



Family Medical Leave Act (“FMLA”) Leave for Chronic Illness


Employers can avoid employee abuse of intermittent leave for a chronic illness under the FMLA.  When medically necessary FMLA leave must be granted on a part-time or intermittent basis.  It is the employee’s obligation to make reasonable efforts to schedule treatment so it does not cause undue disruption of the employer’s business. 


The regulations provide that to be considered a chronic condition the employee must require treatment by a healthcare provider at least twice per a year and continue over an extended period of time.  The condition must cause episodic periods of incapacity, must be certifiable and the employee must have visited a healthcare provider twice in the year leading to the certification.  Without such a certification FMLA leave can be denied. 

The key form is WH-380-E called DOL Certification of Healthcare Provider for Employees Serious Healthcare Condition.  Employers should analyze the response in terms of essential job functions as well as tasks employee is unable to perform.  An employer can seek new certification if there is a significant change in frequency, duration of flare ups or incapacity. 

The regulations permit leave for a chronic illness even if the employee does not receive treatment during the absences.  Employers can temporarily transfer employee to a position with equivalent pay and benefits that better accommodate reoccurring periods of leave.  Only time actually taken as intermittent leave can be charged against FMLA leave. 

Employees also have an obligation to respond to employer requests for call-ins, inquiries as to length of leave, employee visits to doctors and any change in a serious health condition.  This would include changes to a return date and possible recertifications.

If employers question the certification they may require a second or third medical opinion at the employer’s expense.  The third healthcare provider opinion is final and must be used by the employer.  There are special rules for recertification for absences every six months but an employer may request recertification not more often than every 30 days but only in connection with an absence by an employee.  The 30-day rule applies for an employee request for an extension, significant change in circumstances, or employer doubt as to the employee’s reason for the absence is invalid.



Employment Contracts


In Axion RMS an Illinois appellate court ruled on March 29, 2019 that an employment contract with its former president for an alleged breach of a non-compete clause must be dismissed since the only consideration given to the former president was his continued employment.  An employer can offer a current employee an enforceable non-compete agreement by paying the employee a one-time substantial bonus.

 The employer moved to file a proposed amended complaint which was inconsistent with the previously made judicial admissions in the verified complaint.  A verified complaint is made under oath and cannot be casually changed to circumvent a motion to dismiss.



Govern Pritzker signs Collective Bargaining Freedom Act

​​

The new Act bars local governments from enacting “right to work” zones.  Generally right to work laws allow employees to choose if they want to join a union or pay union dues.  The Act further allows only state government to enact rules or laws as to collective bargaining.  The law became effective upon signing.



​​Inflatable Rat use can be limited by Towns


We have all seen the inflatable rat which symbolizes a union/employer dispute as well an inflatable side kick the fat cat which symbolizes wealthy capitalists.


The Wisconsin town of Grand Shute had an amended ordinance regarding signage which purpose appeared to be ensuring motorists’ sight lines which cannot be impleaded by signage.  The Seventh Circuit Court of Appeals decided the amended ordinance was constitutional because the union could not demonstrate selective enforcement and the town had removed approximately 150 signs for violating the repealed ordinance.  The only items that were given a pass under the repealed ordinance were inflatables such as santa claus and frosty the snowman.  The court noted that the union’s complaints about the amended ordinance were too speculative to create a dispute and while enforcement was not perfect it did not allow for unbridled discretion.


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Law Offices of Stanley E. Niew, P.C.