PERB Stakeholder Meeting on February 6, 2020

Just a reminder that PERB is hosting a stakeholder meeting this Thursday, February 6, 2020. The purpose of the meeting is to discuss the Case Processing Efficiency Initiative Recommendations related to the expedited case process and related to pro per information and training.

The meeting will be held at the PERB headquarters at 1031 18th Street, First Floor, Room 103, Sacramento CA. The meeting will begin at the conclusion of the regular Board meeting which is estimated to be around 10:30 a.m. 

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How Accurate are BLS Statistics on Union Membership?

Earlier this week I did a post on the 2019 union membership statistics from the Bureau of Labor Statistics (BLS). According to the BLS, in 2019, 35.37% of all state and local employees were members of a union, while 38.68% of all state and local employees were represented by a union. If you do the math, that means the union membership rate is 91.4%. That seems really high to me. I would have guessed the average union membership rate at between 60%-80%.

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New Labor Statistics Suggest Negligible Janus Effect

The Bureau of Labor Statistics (BLS) just released 2019 statistics for union representation and membership. In 2019, overall union membership in the United States stood at 10.3%, down a little from 10.5% in 2018. In the public sector, which includes federal, state, and local employees, union membership in 2019 was 33.6%, compared to 33.9% in 2018. The percentage of public sector employees represented by a union (including both members and non-members) held steady in 2019 at 37.2%

2019 v 2018 State & Local Union Membership/Representation

The key question for me is whether these statistics show any effect from the Supreme Court’s Janus decision. To better evaluate that, I recalculated the BLS statistics without the federal employees, who were not subject to fair share fees and thus were not affected by Janus. (Even better would be to recalculate the statistics using only those 21 states affected by Janus; but the BLS did not provide data at that level).

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NLRB Overrules Banner Health

On December 16, 2019, the National Labor Relations Board (NLRB) overruled its prior decision in Banner Health System, 362 NLRB 1108 (2015), which held that a “blanket” instruction to employees to maintain confidentiality during a workplace investigation violated Section 7 of the National Labor Relations Act.  In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the NLRB held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. According to a press release, the NLRB found that Banner Health “improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent.”  The NLRB held that the new standard set forth in Apogee “better aligned with other federal guidance, including EEOC enforcement guidance.”

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New Regulations Effective April 1st

The Office of Administrative Law has approved PERB’s proposed regulations implementing the Public Employees Communication Chapter (PECC) (Gov. Code, sec. 3555 et seq.), the Prohibition on Public Employers Deterring or Discouraging Union Membership chapter (PEDD) (Gov. Code, sec. 3550 et seq.), and making changes to the Board’s existing regulation concerning the designation of precedential decisions. The regulations are effective April 1, 2020.

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