Last week a Republican-backed resolution to prevent the NLRB from implementing its new election rules was defeated in a U.S. Senate vote, by a margin of 45 to 54, largely along party lines. Sixty votes were needed to bring the resolution to the Senate floor. In December the NLRB issued a final rule that will dramatically expedite union elections. The final rule can be found at www.federalregister.gov/articles/2011/12/22/2011-32642/representation-case-procedures.
As a result, the Board’s amended election rules take effect today, April 30, and will limit the scope of pre-election hearings to determining whether a question concerning union representation exists within the meaning of the NLRA. The NLRB’s final rules do not mandate elections within 7 days of a petition, unlike the initial version of the rules, but the final version allows the time for elections to be 20-25 days after the petition is filed, a 50% reduction in the time that management has to communicate a lawful election campaign message to its employees. Other issues that would also traditionally be resolved before an election, including the eligibility of individual employees to vote, will be resolved only in post-election review proceedings.
With efforts in Congress to reverse the Board’s action now over, the remaining challenge to the election rules is in the courts. The U.S. Chamber of Commerce has challenged the election rules in federal district court in Chamber of Commerce v. NLRB. Motions for summary judgment are pending before the court. Oral argument has not yet been scheduled.
When was the last time you had your public sector collective negotiations agreement reviewed to determine whether your contract contains non-negotiable items? Too often contractual provisions that were negotiated years ago survive contract after contract without this basic question even being considered. This basic question should be regularly raised concerning every Article of your collective negotiations agreement to ensure you are not negotiating away managerial prerogatives nor providing greater benefits than need to be provided.
It is likely your collective negotiations agreement contains a provision that is not negotiable. That means it is a topic that the public employer has complete discretion on and cannot be subject to a grievance. There are various examples, but take for instance, work schedules and shift changes. Work schedules and hours that individuals work are generally a negotiable issue. However, the hours and days in which services are to be provided are non-negotiable issues. Such nuances in public sector labor law occur with many topics from health insurance to sick leave to promotional practices and procedures, etc. Knowledge of the negotiable and non-negotiable aspects of these items is vital in ensuring your collective negotiations agreement is not giving away any of these important managerial prerogatives.
Decisions as to negotiability of issues are constantly being rendered by the Public Employment Relations Commission. These decisions may have changed a provision in your collective negotiations agreement that was previously negotiable to be a non-negotiable subject. Or, you simply may have been operating with a collective negotiations agreement that contains non-negotiable items and simply haven’t noticed. These items do not need to be bargained out of the collective negotiations agreement. Rather, they may be removed through a process called a Petition for a Scope of Negotiations Determination. This is an effective tool which should be utilized when necessary to remove such non-negotiable issues from a collective negotiations agreement. However, a discussion with the applicable unions explaining that the issue is not negotiable, may obviate the need for resorting to the filing of a scope of negotiations petition.
The first step in the process though is to know what should and should not be in your collective negotiations agreement. When was the last time you undertook this review?
For further information or advice on this topic, please contact Joseph M. Hannon, Esq., firstname.lastname@example.org, in the Public Sector Labor Law Practice Group.