Labor Relations INK January 2022

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Subject: Labor Relations INK January 2022

January 27, 2022

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The Year of Big Labor that Wasn’t

Labor Relations Insight by Phil Wilson

The union membership numbers are out, and for Big Labor they’re awful. Total union membership dropped to 10.3%, tying a record low . And private sector membership fell to 6.1% which sets a new record low.

You may be asking how is this possible? After all the pixels spilled last year about the huge resurgence of unions and employee activism how did membership drop? Here’s how former NLRB Chair Wilma Liebman put it in the Bloomberg piece:

“There’s no denying that there has been an upsurge in worker activism over the last few years, and it’s obvious that large numbers of workers are fed up, and the conditions of the pandemic just aggravated it. But it’s not translating into increased numbers for unions.”

This is obviously correct, but the bigger question is why isn’t it translating? Liebman and others will quickly point to anti-union activities of management. Even when employees file a petition with the NLRB they are forced into “captive audience” meetings (a.k.a. an employee meeting, just like the ones you are asked to attend many times each week at wherever you work, union or non-union).

Rest assured that this will be the repeated narrative over the next few years. Any company who has the audacity to speak to employees about how unions work or employee rights under the Act, will be branded a union-buster. And God forbid you hire a law firm or consulting firm who actually knows this arcane area of law and can explain it.

This narrative is so easily disproven. Take a look at these two charts from LRIrightnow.

Last year unions won 75% of all elections held, tying the top win rate since we’ve been tracking. In 1995 unions won only 49% of elections. Management campaign activities are supposedly so out of hand that a free and fair election is impossible – yet unions keep increasing their win percentage year after year. How can those two things be true at the same time? The answer is obvious, they can’t.

Instead, the problem is the same problem it’s been for decades: unions just don’t deliver what they promise. And once employees understand that they just aren’t interested in organizing. The BLS explains part of the problem in its press release on the new numbers:

“Union membership data for 2021 continue to reflect the impact on the labor market of the coronavirus (COVID-19) pandemic. Comparisons with union membership measures for 2020, including metrics such as the union membership rate and median usual weekly earnings, should be interpreted with caution. The onset of the pandemic in 2020 led to an increase in the unionization rate due to a disproportionately large decline in the number of nonunion workers compared with the decline in the number of union members. The decrease in the rate in 2021 reflects a large gain in the number of nonunion workers and a decrease in the number of union workers.”

Basically, the release is saying that during the great resignation of 2021, a lot of union members chose to move out of union jobs and into non-union ones.

Hold on, you might ask, don’t union members make a lot more money than non-union workers? The BLS release suggests union members make nearly $200 per week more than non-union ones. But even BLS explains its number must be taken with a grain of salt. They don’t account for differences in industry or geography, for example.

A better way to look at these numbers is using census data from the Current Population Survey and the best place to see that is at Barry Hirsch and David Macpherson’s Unionstats.com. Here you can drill down to wage differences by industry, for example. Look at manufacturing and retail, for example. The 2020 numbers show that non-union retail workers make $1.97 per hour more than union members. And that is before dues. If you figure dues at 1.5% of pay (they can be less or more, but that’s a good average) the wage gap grows to $2.27 per hour, or more than $4,700 per year.

Non-union manufacturing workers make $3.52 per hour more than union members. If you deduct union dues the manufacturing union represented wage gap grows to $3.95 per hour, or more than $8,200 per year!

And as BLS states, this isn’t accounting for factors like unionized workers are more likely to live in high cost of living areas (the highest union densities are in places like New York, California, and Hawaii). This skews the union wages higher than they would be if you are comparing similarly situated workers.

The bottom line is that unions don’t deliver what they promise. And while worker leverage has never been higher, using that leverage has never required a union. It looks like today’s workers understand that. While they like the idea of a union, once they get into the actual mechanics of turning over their voice and power to one, it seems pretty antiquated. It seems that way because it is.

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Vaccine Requirements Land In Employers’ Hands

The year 2022 kicked off with a muddled mess on the Covid-19 front for workplace regulations. The bad news is that Omicron is still with us, but there’s some newfound clarity on Biden’s sweeping vaccine mandate. That unprecedented move already saw challenges from at least a dozen states, the Senate, and federal courts. Here’s where the issue now stands:

The Supreme Court blocked Biden’s mandate, which had instructed large employers to require workers to be vaccinated or regularly tested. However, healthcare facilities that receive federal dollars must still require the jab.
OSHA (through which Biden previously drew emergency authority) followed suit this week by announcing the withdrawal of the mandate. The agency will refocus resources from the business mandate to creating rules for protecting healthcare workers.
National Nurses United responded to OSHA’s move with a request for a federal court to push emergency rules into place. This followed healthcare-worker unions asking the Biden administration to go further than requiring vaccination with additional safety requirements and more paid leave for healthcare workers. Although those requests appear to be on hold for now, it’s difficult to imagine how this industry on the brink could find any extra wiggle room as the pandemic continues.
Outside of healthcare, businesses offered mixed reactions to the Supreme Court’s decision. Many celebrated the ruling that companies can make the call on how to balance vaccination rules and business needs. Other companies lamented the pivot from hardline rules for protecting public-facing workers.

In other words, we’re over two years into this pandemic, and it’s all coming down to employers making the call on what’s best for their workplaces while issuing their own rules as they see fit under existing U.S. law.

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Airlines Turbulence Fueled By Unions

The rough ride for airlines persists, months after United Airlines became the first U.S.-based airline to require worker vaccination with several other airlines following suit. As with other industries, staffing issues contribute to the friction, but the media sure does highlight labor issues that lead to flight cancellations (with thousands of angry passengers) much more than, say, reduced restaurant hours that impact fewer customers.

Unions continue to contribute to the staffing issues while drawing lines in the sand on vaccines and masking. At Southwest Airlines, the flight attendants’ union (Transport Workers Union Local 556) takes issue with enforcing passenger mask requirements while the pilots (represented by the Southwest Airline Pilots Association) skirt those same rules while on the clock.

Another point of contention: isolation periods. The Association of Flight Attendants received a cease-and-desist letter from Delta Air Lines after the union’s president “place[d] Delta in a highly negative light by suggesting Delta was asking employees to work while they were ill.” This dust-up followed the CDC’s updated recommendations that shorten isolation times for two groups: (1) Covid-positive people whose symptoms cease or are asymptomatic; (2) People who come into contact with a Covid-positive person.

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“Emotional Harm?” Business Leaders Are Probably Experiencing It!

The NLRB and the Wage & Hour division of the Department of Labor announced a memorandum of understanding, creating a mechanism to share information and refer charges. It appears the main emphasis is to focus on employee misclassification - meaning another attack on the joint employer standard.

Although the NLRB Democrats are failing to budge on calls for NLRB members Gwynne Wilcox and David Prouty to recuse themselves from the joint employee discussion due to their former direct ties to the SEIU, from the other side of their mouth they are considering vacating several decisions due to Republican board member’s tenuous ties to CVS and ExxonMobile.

The NLRB signaled it is intending to shift once again on the standards around facially neutral work rules. LA Specialty Produce (2019) divided work rules challenges into three separate categories, expanding on the balancing test created by Boeing (2017). Now the board is looking at tightening the constraints, making it possible that most employers will likely find their employee handbooks in violation of the revised rules. Briefs may be filed with the Board on or before March 7th.

It appears that the NLRB is actively pursuing confidentiality and non-disparagement agreements attached to severance packages in Merger and Acquisition cases. The board has filed ULP charges in several cases asserting that such agreements are not lawful.

In a related case, the board has asked for briefs in an apparent effort to restrict the use of confidentiality agreements related to arbitration proceedings. The U.S. Supreme Court in the 2018 case Epic Systems Corp v. Lewis said requiring arbitration of legal claims as a condition of employment does not violate the National Labor Relations Act.

The high court did not address the validity of confidentiality clauses, which the Trump-era NLRB subsequently said were legal. The board has asked whether it should reject those rulings and find that those provisions could improperly discourage workers from filing unfair labor practice charges with the NLRB.

NLRB General Counsel Jennifer Abruzzo is admonishing the board to include “emotional harm” in factoring make-whole remedies for unlawful terminations or other unfair labor practice rulings.

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Keep An Eye on CWA and CODE

Who qualifies as a tech worker? The definition grew ever more fuzzy towards the end of 2021 when unions increasingly set their sights on warehouse workers, coders, and retail workers alike. And the Communication Workers of America (CWA) embarked upon an aggressive mission to unionize tech workers of many stripes through its CODE-CWA (Coalition to Organize Digital Employees) initiative. To that end, Google Fiber workers petitioned to launch a union vote for representation by Alphabet Workers Union.

CWA also closed in on Vodeo Games (maker of Beast Breaker), which became the first unionized North American games studio after workers (including staffers and independent contractors, all of whom work remotely) unanimously voted for union representation. Vodeo Games did recognize the union, and the two sides will soon meet at the bargaining table.

The CWA also set its sights upon the comic book industry with workers at Image Comics voting to certify CWA representation (also recognized by the company) and becoming the first unionized comic book publisher in the United States. And over at the New York Times, tech workers will hold a mail-in election (beginning on January 24) as the News Guild (a CWA affiliate) aims to represent what would be their largest group of tech workers in the United States.

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Score Board

Who are the winners (and losers) of the labor movement? Don't guess, just check the LRI Scoreboard

View this month's scoreboard (archives also located here).

Download a PDF of this month's scoreboard

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Manufacturing Oversights

The stalled-out nature of the Build Back Better legislation (which, as we noted, contains increased NLRB employer penalties and tax incentives for unionized automakers) isn’t seeing renewed life yet. However, President Biden plans to meet with CEOs of GM, Ford, and Microsoft to make a renewed push for the bill. Likewise, the United Mine Workers of America International (which clearly has a vested interest in the legislation’s planned financial penalties for employers who oppose unionization) is pressuring Joe Manchin (one of only two Democratic senators to vote no on the legislation) despite his continued opposition to the bill.

Back in November, Exxon’s Texas refinery workers began voting to potentially decertify the United Steelworkers (USW) union following a months-long lockout at the Beaumont plant. At the time, the NLRB suggested that it might suspend these proceedings. The board has now forged ahead with impounding ballots and postponing a count while investigating unfair labor charges, which source from both workers who wish to decertify the union and the USW itself.

Automakers find themselves facing off with unions at Corvette and Honda plants. For the former, a UAW local near Bowling Green, Kentucky is pushing several outstanding issues (some of which should remain the purview of management), and include the following:

The exclusive employment of UAW members for contracted gigs currently filled by outside companies;
The promise that this plant will remain the sole location for building Corvettes, even in the event that an electric Corvette materializes in the future;
Increased pay rates for those workers in certain classifications that require specialized knowledge and skill.

Meanwhile, the Biden-appointed members of the NLRB voted to review a Nissan regional official’s decision to block less than 100 workers (of the 4,300 workers at a Tennessee plant) from voting to form a unionized subgroup of employees as part of an International Association of Machinists and Aerospace Workers campaign.

Up in Seattle, Washington, the Teamsters keep waging a concrete strike for 300 drivers after (according to the union) a “failure” of mediation. The months-long battle continues to slow construction projects for six companies and has, counterproductively, produced hundreds of worker layoffs during a local building boom.

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The Gig Economy Seeks Expansion

“Joint employer” status is under review again, months after the NLRB rescinded the Trump-era rule that made the status difficult to establish. In the process, the board asked a federal appeals court to keep the McDonald’s joint-employer settlement intact.

Ultimately, the NLRB is looking to overhaul existing business-friendly criteria and potentially reinstate the Obama-era standard that makes it easier for workers to prove that they’re not independent contractors but employees, who can organize in pursuit of higher pay and benefits. In the process of this review, the NLRB invited amicus briefs (due by February 10) on whether the existing independent contractor standard should stand (in accordance with a 2019 case involving SuperShuttle DFW, Inc. workers) or make way for a return to the 2014 standard (due to a case involving FedEx drivers).

Amid the joint-employer showdown at the NLRB, General Counsel Jennifer Abruzzo claimed to Bloomberg Businessweek that many gig workers are “misclassified as independent contractors.” And as gig-economy battleground fights heat up in Massachusetts, California, and at the Supreme Court, business models of companies like Uber stand on precarious ground. Uber, Lyft and all gig-economy companies could face a strong headwind if the NLRB succeeds in changing guidelines on the classification of workers.

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Minimum Rising Into 2022

The ever-tightening labor market keeps seeing private employers boost wages in order to stay competitive for the best workers of what T-Mobile CEO Mike Sievert acknowledges as a “job seekers’ market.” T-Mobile is one of many employers, including Costco, Hobby Lobby, and Bank of America, which all pledged $18 and above per hour in 2022 and beyond. This isn’t a short-lived trend, either, given that Amazon’s been paying $15+ per hour for years; and in 2021, private employers boosted restaurant and grocery store workers to average wages of over $15 per hour for the first time.

Notably, this change surpasses the over 50% of states raising minimum wage this year, and in fact, private employers chose to outpace the Fight-For-15 laws, which were funded by unions.

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Small Footprint Retailers are Getting Nervous

To follow up on our coverage of Starbucks ending their seemingly invulnerable streak with dozens of the company’s 8,000+ cafes seeing increased organizing activity, the coffeehouse giant is now facing off against at least two dozen petition filings across the United States. Although this shift only springs from a small percentage of total Starbucks locations, other small-footprint retailers should take note. In Milwaukee, Wisconsin, for example, the International Brotherhood of Electrical Workers began asking Colectivo Coffee to put an end to company attempts to appeal a vote in favor of union representation.

Meanwhile, workers at a Manhattan REI store petitioned for a union election for approximately 115 employees. For this retailer that specializes in outdoor recreation services, this would mark the first store (out of 170) to formally seek representation for collective bargaining.

Interestingly, immediately after the first rash of Starbucks petitions were filed, and after the REI petition dropped, two different retailers called us, concerned about their exposure being located near these locations. In one case it was a similar business, but in another, the only similarity was that it was another small footprint retailer located near the petitioned store. In response to their requests, we created a new union activity alert service. See the next article for details.

In Washington, D.C., Politics & Prose became the first organized bookstore in the city with United Food and Commercial Workers Local 400 now representing half of the store’s 100+ employees. Likewise, two-thirds of the Democratic National Committee’s own workers voted in favor of representation by the Service Employees International Union.

Elsewhere, an Alabama Amazon warehouse will vote for a second time on unionization (following organizing efforts by the Retail, Wholesale and Department Store Union), and in New York City, the Jewish Museum’s workers voted to join the UAW, following the lead of workers at art institutes in Chicago and Washington, D.C.

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Could Union Activity Alerts Save Your Bacon?

How quickly will you know when one of your locations, or a similar business near you, is under attack by a union? Does that thought make you nervous?

In organizations with locations scattered over a region, or perhaps across the country, it can be difficult for critical information to simmer up the chain of command to everyone who should be in the know.

We’ve created an alert service that notifies you of this activity in almost real-time. You can select your own company as the trigger, and if any petition or unfair labor practice is filed against one of your locations, you’ll receive an email with the details. Or, if there are a few competitors or other businesses that are often located near your locations, you could add their company names as triggers too.

The rules are changing to make it easier and faster for unions to blindside your company. Knowing these alerts are always on can help you rest a little easier.

For details, contact Erin at elormer@lrionline.com, or call us at 800-888-9115.

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About Labor Relations INK

Labor Relations INK is published weekly and is edited by Labor Relations Institute, 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: Phillip Wilson, Greg Kittinger, 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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Subject: Labor Relations INK January 2022