Labor Union System in California
Author: Yaxiong Zhao
Labor union refers to a union which has been recognized by the National Labor Relations Board (hereinafter referred to as NLRB), or other governmental agencies which have jurisdiction, as the bargaining agency for employees who are employed by a market in the California Food and Agricultural Code. There is no uniform labor union law in California, only the Labor Code and the National Labor Relations Act at the national level and its amendments.
1 Establishment of Local Labor Union
1.1 Certification of promoter
The National Labor Relations Act stipulates that employees shall have the right to self-organization, to form, join, or assist labor organizations. Although there is no restriction in the law, due to procedural requirements, NLRB will review and decide whether the new employees be incorporated into the original local labor union or to form a new local labor union.
1.2 Procedure to form a local labor union
The official website of the American Federation of Labor and Congress of Industrial Organizations (hereinafter referred to as AFL-CIO) has mentioned that, no matter what industry the employee was in, or the labor law that covers it, the process for forming a union was similar. Under the current law, employees generally have two means to obtain union representation.
(1) NLRB Election Process. If 30% of the workforce signs a petition or card, asking for union representation or an election, the NLRB will conduct an election. If a majority of those voting favor union representation, the NLRB certifies the union, and the employer must recognize and bargain with the union. This election process sets up the union.
(2) Voluntary recognition (card check or majority sign-up). If a majority of the workforce signs cards asking for union representation, the employer may recognize the union and begin bargaining. The employer, however, is not required to recognize a union when a majority signs cards. Instead, the employer may insist that the employees undergo the NLRB election process described above. Given the advantages afforded in that election process, many employers do insist on an election.
1.3 Employer's obligation and revocation rights
In accordance with the relevant laws, such as the State Labor Relations Act, the employer shall not intimidate or threaten, make false statements, publish inappropriate statements of a racial or religious nature, make any illegal promises or promote any undue interests.
When the employer has evidence that the local labor union loses the support of most union members, the employer can refuse to negotiate immediately. The NLRB held the opinion that the employer can revoke recognition of the local labor union after the employer is able to show that the Union has actually lost most of the Union's support, or the employer has a good faith in the status of the majority of the union in the case of Celanese Corp.95 N.L.R.B.664(1951).
2 Local Labor Union Funds
2.1 The sources of income to local labor union
The Uniform Local Union Constitution of the Laborers' International Union of North America stipulates that, the sources of income to a local labor union shall be from dues, initiation fees, readmission fees, assessments and income from other proper and lawful sources. Besides, other non-union members also need to pay the related expenses
The National Labor Relations Act stipulates the terms of trade union safeguards agreement. The local labor union could negotiate the labor contract for the employee in the bargaining unit as the agent of the employee. The local union charge membership fees and regular payments to unions members. Non-union members also enjoy the benefits brought by trade unions, should not be free riders, and should also pay regular fees.
In the revision procedure of Employee Free Choice Act, some senators offered an amendment which would have ensured that no employee can be forced to join a union or pay union dues or agency fees. This legislation was based on the National Right to Work Act. All Committee Democrats voted against this proposal.
In February 2018, the official website of the California Labor Federation and the official website of LIUNA reported the case of Janus v. AFSCME Local Council 31. The review mentioned that these laws, require workers covered by a union contract, who choose not to pay dues but who get all of the benefits of the contract, to at least pay their fair share for those benefits. If the Court rules against the unions, it would be overturning legal precedent that has protected workers for 40 years and siding with corporate interests who want to silence workers.
2.2 Disbursements of local labor unions
The funds of grass-roots local Labor unions should be applied to activities related to collective bargaining, contract execution and mediation.
In the case of California Saw & Knife Works, 320 N.L.R.B. 224(1995), enforced sub nom, the NLRB thought that the local Labor union shall perform its publicity and disclosure obligations to its members and non-union members charged with agency fees. The local Labor union shall inform non-union members that they are exempt from payments that are not related to negotiation agents, the right of objection and the procedure of objections.
Constitution of California Federation of Teachers stipulates that, the CFT Executive Council shall establish a dues schedule. Besides, in the Uniform Local Union Constitution of the Laborers' International Union of North America，the Executive Board shall have the authority to make commitments and disbursements in its discretion from the funds, assets and property of the Local Union for the regular, recurrent and incidental expenses of the Local Union and for organizing, strikes, collective bargaining, contract administration, awards, gifts, donations, charitable contributions, political purposes, education, public relations, employee benefit plans for Local Union personnel and officers, legal expenses, and such other expenses as it deems necessary or proper to carry out the objects and purposes of the Union.
2.3 The system of withholding union dues by the employer
The National Labor Relations Act stipulates that the employer could deduct membership dues from the wages of employees when the employer has received them from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner.
The system of withholding union dues by employers has also been questioned by employees in recent years. On August 10, 2017, the Michigan Court of Appeals finally delivered an opinion on the lawfulness of the so called "window periods" for revoking union dues obligations. The Employee must pay union dues if the employee fails to timely revoke dues checkoff agreement. The court completed its analysis noting that the unions can enforce such contractual dues obligations by whatever lawful means remain.
3 The legal risk of local labor union in going global
In recent years, more and more Chinese companies have invested in California. Although these Chinese parent companies have a high level of human resources management and compliance management, some of them also encounter labor and trade union legal risks in the United States. Such as BYD within California. Such as BYD faced pressure from LAANE when investing in California.
The news of strike held by the labor unions, leave negative impression on Chinese enterprises. On the other hand, trade union laws are various and without the uniform code, which increases the difficulty of cognition of Chinese enterprises. The enterprises who decide to go global need to know how to fully understand the labor union system in the United States and California, how to deal with the establishment of the local labor union, how to avoid employer’s illegal acts and how to exercise the rights of employers in accordance with local laws in advance.