“It was the best of times; it was the worst of times.”
Charles Dickens, “A Tale of Two Cities” (1842)
The famous opening line from Charles Dickens’ fictional account of the French Revolution, “A Tale of Two Cities,” tells it all when it comes to the trials, travails, tribulations and turmoil of labor unions as the country sets aside Monday, Sept. 4, as the 130th official anniversary of Labor Day.
A number of court rulings by federal and state appellate courts in Minnesota over the past several months have established a pattern of peaks and valleys for the organizations that represent the declining number of hard-toiling working men and women who belong to unions.
Labor Day’s approach provides an opportune time to look at a sextet of them, three from the 8th U.S. Circuit Court of Appeals and a trio from the Minnesota appellate courts, and the mixed results they yielded for labor unions.
Unions won a major victory five weeks ago when the 8th Circuit affirmed a decision of U.S. District Court Judge Donovan Frank in St. Paul, fending off a challenge to the automatic paycheck deductions of union dues by the Burnsville School District in Burns v. School Services Employee Union Local 284, 75 F.4th 857 (8th Cir. July 28, 2023). The case was an offspring of the ruling by the U.S. Supreme Court five years ago in Janus v. AFSCME, 138 S.Ct. 2448 (2018) in which the high court, reversing a 49-year precedent, held that under the First Amendment, non-members can refuse to pay union dues.
But this case concerned union members who had authorized deduction of dues from their paychecks before they left the union after its annual termination deadline. The panel, which included Judge James Loken of Minnesota, held they could not halt the deductions, noting that case law “consistently” recognized the absence of a First Amendment right to refuse to pay union dues. The Janus ruling permitting non-members to decline to pay union dues did not apply to these claimants because, as Judge Frank reasoned, they had signed agreements “to voluntarily join the union.” This distinguished the case from Janus, where the objecting members were non-member employees.
They could, however, refuse to have their dues deducted during the next termination period, and they then could, as “non-members” of union, exercise their Janas right to refuse the deduction of dues.
But unions lost a trio of state court lawsuits concerning the scope of collective bargaining units, one late last year, and two others in Anoka County this spring.
The claim under a collective bargaining agreement seeking contributions to a union benefits fund was limited to construction highway workers, rather than all employees of companies regardless of the type of work they performed, the 8th Circuit ruled in Greater St. Louis Construction Laborers Welfare Fund v. Roadsafe Traffic Systems, Inc., 55 F.4th 609 (8th Cir. Dec. 9, 2022). The trial court granted the bargaining agreement signatory companies summary judgment because the requirement to pay into the contractually established fund for benefits for union employees was limited by the terms of the agreement.
The 8th Circuit affirmed, holding that the union agreement “unambiguously” provided for contribution only for “building construction” and “highway/heavy work,” which does not extend to contributions for other type of work performed by other employees that were not specifically listed in the bargaining agreement.
The panel, which again included Judge Loken, relied upon the plain language of the bargaining agreement, which limited the employer’s contribution obligations to “Building Construction” and “Highway/Heavy” categories of work. The agreement “does not require [the employer] to make contributions” for categories of work not specifically referenced in the agreement.
A bargaining unit for employees of the Anoka County Sheriff’s Department was properly expanded, as sought by the county, to include countywide clerical and technical personnel, overcoming an objection by the union that the bargaining unit should be limited to clerical personnel only in the sheriff’s department in Anoka County v. Law Enforcement Labor Services, 2023 WL 4564408 (Minn. Ct. App. March 20, 2023)(unpublished). Upholding a decision of the Bureau of Mediation Services (BMS), which certifies labor unions, the Minnesota Court of Appeals accepted the broader group proposed by the county to represent those employees for collective bargaining purposes, rejecting the union’s proposed lesser certification of only clerical and technical employees within the sheriff’s office, excluding supervisory and confidential employees, which encompassed some 16 positions. Instead, it accepted the BMS certification of the larger proffered unit consisting of 120 countywide clerical and technical employees. The appellate court reasoned that the county’s aversion to “over fragmentation” was viable given that 16 separate bargaining units already existed in the county. The union’s smaller unit proposal was unacceptable because it “increases the risk of disruption” due to balkanization of various unions.
Anoka County also prevailed in its effort for a broader collective bargaining unit for library employees in Anoka County v. American Federation of State, County & Municipal Employees, Council 5, 2023 WL 2639586 (Minn. Ct. App. March 27, 2023)(unpublished).
The union’s proposal that the unit be limited to technical and clerical personnel who have a “community of interest” was rejected in favor of a unit promulgated by the county comprising “all librarians, except confidential and supervisory personnel.” The BMS followed appropriate procedure, as in the sheriff’s case, and policies, including avoidance of “over-fragmentation” in reaching the certification decision under its “established standard.”
These cases are significant because they reflect need for clarity in negotiating and drafting collective bargaining agreements, particularly with respect to the scope and employees that are covered by them, which may vary for different purposes under the terms of the arrangements.
A pair of decisions, one by the Minnesota Supreme Court and the other by the 8th Circuit, dealt with union arbitration matters.
In Hennepin County Healthcare Systems, Inc. v. AFSCME, Minnesota Council 5, 990 N.W.2d 454 (Minn. May 17, 2023), the State Supreme Court reversed a ruling of the Court of Appeals that had set aside an arbitrator’s decision in connection with staffing decisions that affected labor unions representing two units of clerical and general health care employees in Hennepin County.
While the appellate court found that the arbitrator exceeded his powers in making the decision, the Supreme Court disagreed, reasoning that the decision “drew its essence” from the collective bargaining agreement, which warranted upholding it under the Minnesota Uniform Arbitration Act, Minn. Stat. § 572.01, et seq.
The case turned on whether the employer had violated the collective bargaining agreement by using temporary staffing agency workers for more than six months, the maximum amount allowed under the collective bargaining agreement. The union’s challenge was upheld by an arbitrator before being reversed by the Court of Appeals and then reinstated by the Supreme Court, which invoked the narrow standard of review of decisions of arbitrators, who are clothed with broad discretion as the “final judges of both law and fact.”
Therefore, the employer’s contention that the arbitrator erred by essentially modifying the terms of the agreement was rejected and the underlying arbitration award of a violation of the bargaining agreement was reinstated.
Arbitration was also given a boost, at the expense of a union member’s discrimination claims by the 8th Circuit in Avina v. Union Pacific Railroad Co., 72 F.4th 839 (8th Cir. July 3, 2023).
The case was brought by a long-term union employee of a railroad company who claimed that she had been wrongfully bypassed for a promotion because of her age and race, constituting a claim of discrimination covered by the collective bargaining agreement.
The 8th Circuit, affirming a lower court ruling, held that the employee’s discrimination lawsuit was not actionable as a judicial matter. The decision, written by Judge David Stras of Minnesota, held that the employee’s claim was subject to arbitration under the Railway Labor Act, 45 U.S.C. § 181, et seq. because determining the merits of the issue required “interpretation of the collective bargaining agreement” based upon a change in how the employer was processing applications for vacancies for open positions, which was the crux of the case.
Under well-established case law, the necessity to construe the bargaining agreement to determine whether the union had complied with the employer’s new requirements for processing a request for promotion made the case not justiciable and subject to arbitration under the claimant’s collective bargaining agreement.
These cases reflect the ways the courts have treated a variety of issues affecting unions and their members as they celebrate Labor Day this Monday. In addition to declining union membership from some 20% of the workforce two decades ago to about 10% these days, unions are having a dickens of a time encountering the various court rulings that often impair their ability to represent their members here in Minnesota and elsewhere.
Labor Union Membership of Workplaces In Upper Midwest States
North Dakota: 6.4%
South Dakota: 3.1%.
Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
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