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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PERB Issues 2018-19 Annual Report

PERB has released its annual report for fiscal year 2018-2019. (The report is available here.)  Here is my annual summary of the statistics in the report:

Unfair Practice Charges

691 unfair practice charges (UPCs) were filed in fiscal year 2018-19. This is almost identical to the 690 UPCs filed in fiscal year 2017-18, and below the 20-year annual average of 754 UPCs.

Interestingly, the number of UPCs under each act was also remarkably similar. The MMBA saw a slight decrease from 296 to 289 UPCs. EERA went from 277 to 279 UPCs. The Dills Act went from 32 to 31 UPCs. HEERA stayed the same at 73 UPCs. The Trial Court Act saw the largest change going from 9 UPCs in 2017-28 to 1 in 2018-19. The Trial Court Interpreter Act stayed the same at 1 UPC. Finally, the Public Employee Communications Chapter went from 2 UPCs to 1 this past fiscal year.

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PERB Awards Attorneys’ Fees Against School District

Bellflower Unified School District (2019) PERB Decision No. A475-Ea (Issued on November 12, 2019)

In this case the Bellflower Unified School District sought reconsideration of an administrative decision. The Board wasted no time in holding that, “even the most cursory review of Board precedent would have revealed that our Regulations do not permit reconsideration of decisions resolving administrative appeals.” Indeed, I wrote a blog post in 2018 discussing the Board’s decision in Lake Elsinore USD (2018) PERB Dec. No. A446-Ea, in which the Board emphasized that reconsideration is not available for decisions involving an administrative appeal.

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