Subject: Don’t Say the U Word: LRI INK

October 10, 2024

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Don’t Say the U Word

by Phil Wilson


"When is the right time to talk to our employees or supervisors about unions?"

 

Once a week, I’m asked some version of this question. The questioner then reveals their concern. They don’t want to unnecessarily stir excitement or interest in unions. Can bringing up the “U word” trigger organizing where it wasn’t happening before?

 

My answer is always the same: There is no right time to say the "U word" because you shouldn’t avoid talking about unions in the first place. When you regularly promote your company culture (you are regularly promoting your culture, right?), you should occasionally contrast how your culture differs from other companies, including unionized ones. This educates your team and reinforces your company's unique culture.

 

You're missing the boat if you only bring up unions when organizing is evident. Waiting until then to educate your team about unions is a considerable risk. Avoiding the topic is like not talking to your kid about drugs. Do you think they'll never hear about it if you don’t mention it?

 

In today’s workplace, pretending that unions aren't being discussed among your employees is naive. And the idea that avoiding the subject will prevent interest is misguided. Just as with parenting, discussing tough subjects is crucial. You can participate in the conversation that’s already happening rather than avoiding it.

 

Whether they admit it or not, employees are curious about what you think about unions, especially if you have a strong, positive workplace culture. They want to understand how a union might impact that culture.

 

Unfortunately, today’s media is biased in favor of unions. They are one of the first things trotted out as the solution to any workplace problem. However, the reality is that less than 6% of private-sector workers are unionized, and those workers are less engaged than non-union peers.

 

Because of this bias, employees rarely get accurate, unbiased information about unions. Most of what they hear comes from paid promoters, union officials, or politicians backed by unions. This is why the employer’s voice is vital. It’s management malpractice to avoid discussing the potential impacts of unions on your workplace culture.

 

Don’t misunderstand; I’m not saying you should constantly talk about unions. However, it would be best if you regularly promoted your workplace culture, how problems are solved, and how suggestions are handled. During these conversations, occasionally contrast your culture with unionized ones.

 

Employees look to unions to solve problems at work. Share your perspective and experience on how unions would impact your culture. For example, you might contrast how issues are resolved directly in your workplace, versus the union process of negotiations and bureaucratic grievance procedures that can slow things down and create adversarial relationships.

 

There are several natural places to bring up the topic of unions with employees. One obvious place is during new-hire orientation, where you should contrast your problem resolution and employee input opportunities with unionized companies. It is a good idea to revisit these same topics with incumbent employees once a year or so.

 

Many supervisors are afraid they’ll say something wrong when unions come up and will avoid the subject. And younger supervisors are living in the same pro-union social media environment we all are. They often support unions with little to no information about them. Therefore, training your supervisors is another practical approach to handling union discussions. Supervisors should receive annual training on how to discuss culture and answer questions about unions. New supervisors should get this training as soon as they assume their roles.

 

Avoiding the subject is the worst approach; instead, engage in thoughtful conversations about the perceived benefits of unions. Counter the common misunderstandings of what unions do with facts and experiences. Contrast the realities of unionized companies with your company’s culture and examples of how you successfully resolve issues together. Regular conversations help normalize a topic many people avoid, making it easier to address issues early.

 

When is the right time to discuss the "U word?" There’s no wrong time, and you shouldn’t avoid the subject. But make sure to discuss unions in the context of your company’s culture and values. This ensures that your employees are well-informed and that you are active in any conversation about unions.

Is The NLRB Unconstitutional? Untangling Where Efforts Currently Stand

by Kimberly Ricci

It’s been a minute since we discussed the companies that are challenging the NLRB’s constitutionality. Naturally, unions aren’t taking kindly to this stance, but they shouldn’t be too surprised after the Biden administration stacked the deck against employers by fast-tracking union elections. These constitutional challenges have also intensified after the Supreme Court bid farewell to Chevron deference over the summer.


As a result of that SCOTUS decision, courts can get more involved with interpreting administrative law, so we are seeing more employers take on agency decisions and regulations. Companies are now following suit after SpaceX took the lead in questioning the NLRB’s structure and powers.

Let’s catch up on where current efforts stand.


Spoiler alert: there is plenty of action in the Fifth Circuit Court of Appeals, which has a business-friendly reputation. Currently, three judges in that circuit have ruled that the NLRB’s structure is “likely” unconstitutional.


SpaceX: Earlier this year, the rocket manufacturer filed suit against the NLRB’s use of in-house judges and the Board’s authority to enforce administrative law rulings – essentially acting as legislative, judicial, and executive branches in a one-stop shop. SpaceX further alleged that the Board’s judges are insulated against presidential removal in violation of the U.S. Constitution’s Appointments Clause.


Several employers, including grocery chain Trader Joe’s, Chicago-based restaurant chain Portillo’s, and pipeline operator Energy Transfer, have echoed SpaceX’s arguments with the National Audubon Society reportedly also moving in the same direction.


The latest updates on SpaceX’s position include a Fifth Circuit Appeals judge blocking the NLRB’s request for a stay on the structural challenges. The Elon Musk-owned company will also continue its legal pursuit against the Board’s administrative proceedings over SpaceX allegedly firing workers who criticized Musk. 


Starbucks: Ditto on the above SpaceX arguments against the legality of the Board’s structure. Additionally, an NLRB judge answered a Starbucks challenge by declining to weigh in on his own agency’s constitutionality and calling this “a matter for the federal courts to decide." In the Fifth Circuit, perhaps? The coffeehouse giant has already been there on other NLRB-associated issues, so it’s not unfamiliar territory.


Amazon: The online retailer has been lodging constitutional challenges against the NLRB in federal courts and with the NLRB itself.


The company requested for a federal court to block the NLRB from forcing it to bargain with the Amazon Labor Union over the JFK8 warehouse while challenges on the NLRB’s structure are ongoing. When that judge delayed action, Amazon appealed to the Fifth Circuit, which granted Amazon an emergency injunction against the NLRB. 


Yet, on a later-breaking note, a U.S. district judge ruled that Amazon cannot have its challenges to the NLRB’s structure heard in a Texas court and must do so in D.C., which is the preferred NLRB venue.


Additionally, Amazon went directly to the NLRB to challenge the agency’s constitutionality, and of course, the NLRB ruled in its own favor. Sigh.


With all that said, don’t be shocked if these challenges to the NLRB’s constitutionality move past the Fifth Circuit and onto the Supreme Court for a final reckoning.

Stay-or-Pay Agreements: Why Employers Aren't the Villains Here

by Michael VanDervort

Let's explore the latest labor news: stay-or-pay provisions. NLRB General Counsel Jennifer Abruzzo has recently focused on these agreements, suggesting they might limit employees' job mobility and right to collective action. But before we cast employers as the bad guys, let's unpack what's really going on.


The Lowdown on Stay-or-Pay

Picture this: An employer wants to attract top-notch talent in a fiercely competitive market. To sweeten the deal, they offer enticing perks—think tuition reimbursement, generous sign-on bonuses, specialized training programs, you name it. These aren't just shiny add-ons; they're substantial investments to boost an employee's career and, by extension, the company's success.

But here's the rub: What if an employee takes these benefits and bolts shortly after? The employer is left holding the bag on significant expenses without reaping the anticipated returns. Enter stay-or-pay agreements. These provisions aren't some sinister plots to shackle employees; they're a practical way for employers to recoup the value they've poured into their workforce when an early departure happens.


Abruzzo's Memo: A Call for Scrutiny

On October 7, 2024, Abruzzo issued a memo advising employers to take a hard look at their stay-or-pay provisions by December 6. Her concern? That overly broad agreements might deter employees from exercising their rights under the National Labor Relations Act (NLRA), like organizing or seeking greener pastures.


But let's be honest—when structured thoughtfully, these agreements can protect both parties. It's about striking a balance where employers safeguard their investments without infringing employee rights.


Why Employers Aren't the Bad Guys

Let's flip the narrative. Employers offering these perks are essentially investing in their employees' futures. Tuition reimbursement helps workers advance their education without the looming cloud of debt. Sign-on bonuses can ease the financial stress of transitioning to a new role or city. Specialized training enhances skill sets that make employees more valuable in the job market.

These benefits aren't obligatory; they're goodwill gestures that exceed standard compensation. So, is it unreasonable for employers to seek a form of commitment in return? Stay-or-pay agreements ensure that if an employee decides to leave early, there's a fair mechanism for the employer to recover some of those upfront costs.


Action Items for Employers

  • Review and Refine Agreements: Now's the time for employers to revisit their stay-or-pay provisions. Are they fair? Are they transparent? Do they reflect the actual costs incurred? Ensuring these agreements are narrowly tailored can prevent them from being seen as punitive.

  • Legal Check-In: With the NLRB's heightened focus, consulting legal counsel can help navigate the complexities and keep everything above board.

  • Clear Communication: Open dialogue is key. When employees understand the "why" behind these provisions, it fosters trust and can alleviate concerns about being unfairly bound.

The Bigger Picture

When done right, stay-or-pay agreements aren't about trapping employees—they're about fairness and mutual respect. Employers get peace of mind that their investments aren't for naught, and employees gain access to opportunities that might have been out of reach otherwise.

So, before we jump to conclusions, let's acknowledge that these provisions can be a win-win. Employers can continue to offer standout benefits, and employees can grow their careers, all while knowing there's a reasonable structure in place should plans change.


Ultimately, it's not about villainizing one side or the other. It's about understanding the practicalities of running a business and the realities of career development. With thoughtful implementation, stay-or-pay agreements can bridge the two, ensuring everyone's interests are served.

 The Semi-Resolved Longshoreman Strike: The Punted Automation Aftermath To Come

by Kimberly Ricci

The International Longshoremen's Association (ILA) strike put much at stake, with union President Harold Daggett setting out to “cripple” the economy and the United States Maritime Alliance (USMX). Naturally, things got political. Florida Gov. Ron DeSantis accused the feds of inaction and deployed the National Guard into ports to move supplies for the Hurricane Helene recovery effort. The White House then claimed that their Zoom calls pushed the two sides together for a deal. In other words, chaos.

 

Not for long, though. The walkout lasted three days before the union suspended the strike and closed ports went back into operation. 

 

Via a joint statement, ILA and USMX reached an agreement to raise the top-end hourly wage rates from $39 to $63. That’s a 61% boost as opposed to the 77% demanded by Daggett, but it’s significant. One wonders how shipping companies will afford that boost—hold that thought.

 

Negotiations for a new six-year contract will continue with the current ILA contract remaining in effect until Jan. 15, 2025. The biggest issue left to settle also stokes tension in the food service, logistics, and auto manufacturing industries. 

 

You guessed it: automation. It’s both a nuanced issue and a sticking point. Daggett had refused to waver, demanding “airtight language that there will be no automation or semi-automation.” 

 

How difficult will this be to resolve? Ex-U.S. Deputy Secretary Of Labor Seth Harris, who served under Obama, told Bloomberg TV that the resolution on wages is a promising indication that automation talks could go more smoothly than the wage talks. This sounds, to be frank, unrealistic.

 

“A job killer”: That’s how unions refer to automation, and they want none of it. Yet it’s naive for unions to believe that massive wage hikes wouldn’t accelerate automation because when labor prices dramatically rise, money must be saved somewhere, and increasing company productivity through automation will only help that cause. 

 

A reality check: As labor economist Lila Palagashvili has eloquently discussed, technological advances are unavoidable in most industries, and jobs will likely be lost short term, but other jobs will be created with overall productivity improving. 

 

The current dissent: Unsurprisingly, far-left voices are calling the strike suspension a “sellout” and a betrayal by not resolving the automation issue. They compared the situation to Stellantis job cuts, which are due to market conditions, and UPS layoffs and closures of some facilities after Teamsters contract negotiations boosted full-time drivers to $170,000 salaries. One outlet even claimed that “UPS CEO Carol Tomé confirmed the company would be automating ‘everything’” during a CNBC discussion.

 

Well, that is not what Tomé actually said. She merely detailed how the inside of some facilities would become fully automated to scan packages and load them into trucks, but this automation would create opportunities elsewhere in the company, i.e., these workers could “move off the floor of the building and go into the control room."

Food for thought: It’s worth noting that the UPS CEO’s choice of words in messaging – prior to her mention of jobs being created to replace jobs lost – could have left the window open for a union to stoke panic. Additionally,

companies should stay mindful of helping workers to level up their skills to qualify for new roles. These points of union vulnerability can be prevented long before a company’s automation plans become cable news fodder.

Stories You May Have Missed:


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If You Can’t Stand the Heat, Work to Change the Kitchen

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2,700 University of Michigan Health workers plan 1-day strike

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A National Movement to Organize Amazon Takes Off 

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Stellantis files 8 new suits against United Auto Workers union

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About Labor Relations INK

Labor Relations INK is published weekly and is edited by LRI Consulting Services, Inc. Feel free to pass this newsletter on to anyone you think might enjoy it. New subscribers can sign up by visiting here.


If you use content from this newsletter, please attribute it to Labor Relations Institute and include our website: http://www.LRIonline.com 


Contributing editors for this issue: Greg Kittinger, Michael VanDervort, and Kimberly Ricci.


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About Labor Relations Institute

LRI exists to help our clients thrive and become extraordinary workplaces. We improve the lives of working people by strengthening relationships with their leaders and each other. For over 41 years, LRI has led the labor and employee relations industry, driven by our core values and our proven process, the LRI Way.

 

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