Labor Relations Insight by Phil Wilson

Be careful what you wish for

Tomorrow the NLRB will officially flip to a Democrat majority, with former SEIU in-house counsel David Prouty replacing William Emanuel. The Republican majority was in place for just over four years, one of the shortest runs of Republican control in the history of the NLRB. The new Board majority appears ready to reverse most of what its predecessor Board accomplished, especially if new General Counsel Abruzzo has anything to say about it (and she does).

Labor unions have finally gotten nearly everything they’ve wished for (setting the PRO Act aside for a minute). In fact, General Counsel Jennifer Abruzzo recently issued the standard “submissions to advice” memo that every GC issues to regions upon their arrival to the job, outlining her own wish list.

The first section of the memo covers cases where the Trump-era Board overturned precedent (although much of that “precedent” had been set just a few years earlier by the Obama-era Board overturning longstanding precedents of its own). The key doctrine listed in this section include:

1. Employer handbook rules (they’ll argue to overturn Boeing and its progeny).
2. Confidentiality rules during investigations and separation agreements (bye, bye).
3. Protected “concerted” activity (basically any complaint is about to become protected).
4. Union access (there will be more of it).
5. Independent contractor status (there will be less of it).

Section two is where things get really interesting. The highlights of this section include:

1. Weingarten rights – I never understood how this didn’t change during the Obama board, but I fully expect this Board to reinstate the Epilepsy Foundation rule that gave employees a Weingarten right to a witness in non-union settings.
2. Reinstating the Joy Silk doctrine (essentially granting bargaining orders without an election – i.e., card check recognition – in cases where the employer cannot prove why it doubts majority status or where the employer has committed an unfair labor practice). I’ve got more to say about this below.
3. Overruling Ex-Cello and essentially adopting penalties (of course, they’re not called that since unless the PRO Act passes, those are illegal) in failure to bargain cases.

There is other stuff in the memo as well and every labor pro should read it. But the bottom line is something that should have been crystal clear by now – this General Counsel and this Board are arriving on a mission. I know many employers aren’t showing a lot of concern about the PRO Act because they know it doesn’t have nearly enough votes in the Senate and they don’t think the filibuster is going away. That all may be true. But the PRO Act is coming in spite of this. It’s coming in the form of agency decisions and actions.

Another era that recently began is Liz Shuler’s rein at the AFL-CIO, after Richard Trumka’s unexpected death earlier this month (may he rest in peace). Shuler has the unenviable job of continuing to navigate the union movement through a pandemic and a massive shift in the labor market, all while preparing her official run for the presidency next year.

Most observers believe Shuler will continue very much in the vein of Trumka, focusing heavily on policy and politics, although she bristles at the idea that the AFL-CIO can’t “walk and chew gum at the same time” by both organizing and pushing legislation. Since union membership has continued its free-fall during the Trumka-Shuler rule, there’s not much evidence the AFL-CIO can either walk or chew gum. But time will tell.

One of the things I’ve argued a long time is that organized labor’s problem is their model. The basic argument is they must shift away from a lodge model (organizing and bargaining shop by shop) and instead embrace an association model (think an AARP or NRA for working people). This is why I think all of the praise being heaped on stuff like the Joy Silk, Ex-Cell-O and even the PRO Act being the keys to saving the labor movement are really misplaced.

As much as unions bellyache about the unfairness of employer conduct in elections and bargaining, the truth is unions mostly do a terrible job of organizing (by promising to deliver things like dignity, respect, and even a voice that they flat out can’t and don’t deliver) and then do an even worse job servicing the members they do have.

Even Magner’s own article on Joy Silk includes a chart from Brian Petruska’s law review article that shows ULPs against employers have dropped by nearly half at the same time union petitions have dropped. This issue isn’t employer resistance. The issue is unions are selling a product nobody really wants, and then providing awful customer service after the sale. That’s why so many of their new customers get buyer’s remorse when they figure out the product wasn’t nearly as good as the sales pitch.

Making it easier for unions to organize through card check just moves the checkout line faster – if the purchase ultimately stinks it just makes the problem worse. Imposing penalties and even contracts on employers still doesn’t change the fundamental problem – unions by and large do a terrible job of servicing members in the lodge model. In most cases union leaders see members as a nuisance to deal with. And no amount of thumb-on-the-scale is going to fix that fundamental problem.

The ironic thing about all this is that what unions really are good at and what they’ve been successful with over the years is lobbying and politics, something they could deliver even more effectively under the association model. I conservatively think they could collect billions more than they do today and at the same time actually offer great services to working people. Now that is something they may want to add to their wish list. **********
Union Bailout Update

The Senate confirmed Jennifer Abruzzo as National Labor Relations Board General Counsel. Abruzzo will serve a four-year term, after passing a confirmation vote of 51-50, with VP Harris having to cast the deciding vote. Also securing Senate confirmation to the NLRB were David Prouty and Gwynne Wilcox. The Association of Builders and Contractors voiced the concerns of many in the business community:

“Throughout their careers, David Prouty and Gwynne Wilcox represented some of the largest union organizations in the country and their campaigns against employers and small businesses, raising serious concerns of conflicts of interest as members of the NLRB, as was evident during their Senate testimony,” said ABC Vice President of Legislative & Political Affairs Kristen Swearingen.

On August 12th, newly minted GC Abruzzo released a 10-page memo outlining her agenda for the newly pro-union NLRB, including:

• scrutiny of employee handbooks and policies
• employee use of employer email systems
• expansion of protected concerted activity
• confidentiality in workplace investigations and separation agreements
• expansion of Weingarten rights to non-union employees
• union access to employer property
• management rights clauses and employer flexibility to manage under labor agreements
• union dues following contract expiration
• NLRB jurisdiction over religious institutions
• deferral of ULP charges to arbitration
• injunctive relief against employers to remedy alleged violations
• permanent replacement of economic strikers
• independent contractors

The fate of “joint employer” status swings in the balance as the NLRB rescinded a Trump administration rule making it harder to establish joint employer status, while urging a federal appeals court to uphold the 2019 McDonald's joint employer settlement.

The Third Circuit Court of Appeals upheld a 2019 NLRB decision to eliminate an Obama-era post-arbitral deferral standards rule and return to the decade’s old standard, which the court held was rational and consistent with the National Labor Relations Act. For history and ramifications of the return to the Olin standard (and some insight in preparing for this standard to swing yet again under the Democrat controlled Board), read the full article.

Democrats are getting creative in finding ways to promote unionization. The attacks on businesses embodied in the PRO Act (and the myriad rule-making actions sure to come) are the obvious components. In a shrewd twist, Senate Majority Leader Chuck Schumer disclosed a tax credit for union dues, adding a carrot to the stick, in the $3.5 trillion budget package.

In a flagrant example of the weakness of mail ballot procedures to handle a union election, a re-run election had to be ordered in a decertification election when the Board agent, on a Zoom call, read the result of each ballot immediately after extracting it from both the interior and exterior envelopes, instead of following the prescribed protocol, revealing the employee name associated with each vote.

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Changing Of The Guard

The combative, longtime president of the AFL-CIO, Richard Trumka, died of a heart attack in August. After serving as the Secretary-Treasurer for 14 years, Trumka ascended to the presidency in 2009.

Trumka used his post at the helm of one of the largest labor organizations in the world to promote unionism to both blue and white collar workers, and promoted public policies such as infrastructure and healthcare reforms that would benefit the “working class.”

This characteristic statement succinctly sums up his philosophy of unionism, “We need to be a labor movement that stands by our friends, punishes its enemies and challenges those who, well, can’t seem to decide which side they’re on.”

Liz Shuler, elected as Secretary Treasurer of the AFL-CIO in 2009 as the first woman in that position and the youngest woman to ever serve on the organization's executive council, has succeeded Trumka as President. The executive officers’ terms run through June 2022, when the convention will elect new leaders to serve four-year terms.