Labor Relations INK January 2023

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Subject: Labor Relations INK January 2023

January 27, 2023

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2022: A Good Year Or Bad Year For Unions?

The Bureau of Labor Statistics just released its union membership numbers for 2022. Was it good news or bad news for unions? It depends on who you ask.

Unions are pointing to the good news. There was an increase of 273,000 union represented workers in 2022 compared to 2021. AFL-CIO President Liz Schuler stated, “The momentum of the moment we are in is clear. Organizing victories are happening in every industry, public and private, and every sector of our economy all across the country. The wave of organizing will continue to gather steam in 2023 and beyond despite broken labor laws that rig the system against workers.”

There is no question that union organizing saw a resurgence in 2022, rebounding after several years impacted by the pandemic. Unions filed more petitions for recognition than they have since 2015, and union approval is near an all-time high according to Gallup.

That’s the glass half-full version of the story. But here are a few additional points to keep in mind.

First, union density reached its lowest level in 2022, at 10.1% overall and only 6% in the private sector. While union-represented positions increased, the vast majority of jobs created last year were non-union.

You may wonder how that’s possible, given the rosy picture painted by the AFL-CIO. In 2021 the total number of union-represented workers dropped by over 240,000. That means unions netted only about 30,000 workers during a year that the economy created over 5 million new jobs.

Also note that out of the 273,000 represented workers, only about 200,000 of them are union members. Nearly 1/3 of these newly represented workers are choosing NOT to become members of unions—instead they are required to be represented by a union.

It is also worth noting that most of these newly represented workers were NOT newly organized by unions. Last year successful union elections only had about 50,000 eligible voters. That’s a big increase over the 25,000 workers organized in 2021, but it highlights the fact that even in what most considered a banner year for organizing, newly organized workers barely make a blip in the overall density statistics.

And while organizing petitions increased dramatically over 2021, when you look at the numbers over the last 20 years it’s clear that this “historic” year of organizing was nothing of the sort.

What does all this mean for 2023? Unlike Schuler, I’m skeptical that 2023 is going to build much on 2022. The 2022 numbers are dramatically inflated by the Starbucks campaign. That campaign is without a doubt historic. But the 2022 number includes 374 Starbucks petitions. Here’s what that campaign looked like last year:

The Starbucks campaign has clearly lost steam. To keep pace with 2022 unions will need to replace nearly 20% of last year’s petition activity. It is possible that 2023 will outpace 2022, but it’s difficult to imagine where all those petitions are going to come from.

The media hype will continue to wildly exaggerate the actual results on the ground. But I also expect a hangover from the organizing of 2022. There are so many myths about how unions work and what they can deliver, and these myths are repeated ad-nauseum by the media, workers with zero experience, and of course unions themselves. This year those myths and empty promises will be exposed.

Take Starbucks as one example. The SEIU now has over 300 new contracts to bargain and (they hope) administer. They must do this with small bargaining units of workers who mostly thought they would quickly get a contract once they won their election.

Even the most ardent union supporters will realize that the rosy picture they promised their coworkers isn’t at all how it works. They will look to the organizers, union officials, and consultants (yes, unions use consultants too) for answers, and will be disappointed in what they hear.

They’ll blame our “broken” labor laws (the same laws in place when nearly 1/3 of US workers were represented in the 1950’s, and the same laws that allow unions to win over 70% of union elections today). They will blame the evil employers (and their lawyers and consultants) who don’t immediately roll over and invite in a union to take money from their own employees, based on dubious promises and half-truths. They will blame capitalism.

There is one group they won’t blame: themselves. Union officials know their marketing pitch is very far from the reality of collective bargaining and day-to-day representation in a union shop. And when this reality starts to sink in, there is going to be a lot of buyer’s remorse, especially among young idealistic workers.

I do expect NLRB petition activity to increase in one area in 2023. You’re going to see an increase in RD and RM petitions, where employees seek to remove a union after they realize that the bet ain’t worth the hand.

Blog Post

Double Standard To Finally Be Eradicated?

by Greg Kittinger

The NLRB and the Department of Homeland Security (DHS) are teaming up to provide illegal immigrants more government protection from deportation. Euphemistically stylized as a way to “support labor law enforcement operations to empower workers and improve workplace conditions,” the DHS announced an expedited process to protect immigrant witnesses when reporting suspected labor law violations.

The “deferred action” process has been available for some time, but at the request of NLRB General Counsel Jennifer Abruzzo, the DHS streamlined the process and is promoting it on the NLRB website.

In a late December decision, the NLRB expanded an employer’s obligation to bargain with a union in the aftermath of emergency circumstances. In Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., the board declared that the duty to bargain in exigenct circumstances is only delayed, not extinguished. It may be prudent to add to your bargaining strategy to consider including provisions in collective bargaining agreements addressing the rights and obligations of the parties in the event of such circumstances.

Early this month a U.S. Appeals Court reversed a couple of Trump-era rules related to the timing of union elections. In a 2-1 split decision, the court claimed one of the key aspects of the rule requiring election ballots to be impounded while related unfair labor practice claims are pending violates federal labor law.

Recent efforts on two sides of the continent are taking different approaches to labor law and agricultural workers. The 4th Circuit Court of Appeals upheld a provision in a North Carolina law that bars farms from voluntarily recognizing unions as their workers' bargaining representatives as part of settlements in employment-related litigation.

In California meanwhile, it seems Governor Newsom and his cronies at the United Farm Workers and California Labor Federation are having a hard time playing nice with the Agricultural Labor Relations Board. The recent legislation promoted by the Board (AB 2183) contained a contraversial provision to sign on to a Labor Peace Compact, but along with Newsom’s signature on the bill, Newsom announced an agreement with the two labor organizations eliminating the Labor Peace Compact and mail-in voting option. In response the ALRB announced that Newsom’s agreement is not the law, and that it will enforce AB 2183 as passed.

Coming to a college gridiron new you, the Board has opened the door for student athletes to join a union. Back in 2014, the National College Players Association (NCPA) had attempted to organize football players at Northwestern University but couldn’t get the NLRB to rule on whether athletes should be considered employees. In this new gambit, the filing of an unfair labor practice has opened the door for NLRB General Counsel Abruzze to exclaim that the ULPs “have merit… based on a determination that USC, the Pac-12 Conference, and the NCAA, as joint employers, have maintained unlawful rules and unlawfully misclassified scholarship basketball and football players as mere ‘student-athletes’ rather than employees entitled to protections under our law.”

Protection of employer property privacy took a hit when the NLRB limited the ability of an employer to stop workers employed by contractors from protesting on the owner’s property. The ruling reverts to the 2011 status requiring employers to show significant interference with the use of the property or some independent reason for removing protesting contractor employees.

For decades, one of the most egregious aspects of labor law in the United States has been the double standard that allows unions and unionized employees to get away with violence and property destruction that would put any other citizen in jail. A case before the Supreme Court could potentially amend this immoral loophole. In Glacier Northwest v. International Brotherhood of Teamsters, at issue is whether employers can sue unions and employees accused of destroying property as a part of a labor dispute.

Blog Post

Union Corruption Heads To The Supreme Court

by Kimberly Ricci

Rarely a month passes without reminders that union officers can’t keep their hands out of the cookie jar. The first story here takes the fight to the Supreme Court:

SCOTUS will soon hear a racketeering case brought by General Motors against Stellantis (previously Fiat Chrysler Automobiles). At issue are claims that FCA, in lockstep with ex-CEO Sergio Marchionne, tried to engineer a merger of FCA and GM by corrupting the UAW bargaining process to the detriment of GM. As recent history tells us, the merger attempt wasn’t successful, but Marchionne allegedly made sure to stick GM with $1 billion in extra labor costs.

An appeals court dismissed the case, which was originally brought by GM in November 2019, and although the subject is linked to the long-running UAW corruption scandal, the UAW is not a party in this Supreme Court case.

We previously told you about an SEIU California local that tried to unseat President Richard Louis Brown and even secured a restraining order when he entered headquarters without permission and removed confidential documents.

An investigative report follows up with findings that Brown routinely intimidated union members and leaders, helmed chaotic meetings, and irresponsibly handled sensitive records. Brown has denied wrongdoing and also sued the union for “mental suffering.” This month, the union finally booted himfrom office.

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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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The Coffeehouse Wars Perk Back Up Again

by Kimberly Ricci

The NLRB clearly wants to make an example out of Starbucks. The Board’s strongarm tactics still show no signs of slowing as the coffeehouse giant’s unionized baristas continue to inspire workers elsewhere.

The NLRB has now determined that Starbucks illegally forced out Jaz Brisack, one of the workers credited with launching the organizing movement that spread across the company. Brisack, a Rhodes Scholar, previously admitted to pursuing employment at Starbucks with the goal of organizing workers. Six months ago, she resigned from the company’s first organized location, now one of 270+ current unionized stores.

Another source of Starbucks union angst: the company added a credit-card tipping option to non-unionized locations. Given that this has been one of the key requests from unionized Starbucks locations, more frustration abounds while union members see non-unionized stores enjoy other exclusive perks on the job.

At a Starbucks location in Arizona, operations came to a halt when workers went on strike while expressing disappointment over unproductive contract negotiations. Those complaints haven’t discouraged copycat organizing drives at other companies:

Peet’s Coffee: A batch of baristas voted “yes” at the chain’s first unionized location, and although workers at another location withdrew their NLRB petition, organizing efforts at other locations are expected to move forward.
Sunergos Coffee: Workers at five Kentucky locations joined the National Conference of Firemen & Oilers, and as unlikely as that choice of union sounds, this would be the same union that scooped up a reported seventeen wins at Heine Brothers’ Coffee locations in 2022.
Blank Street Coffee: This venture-backed upstart largely operates on an automated basis, including 60 locations in New York City, Boston, and Washington, D.C. Still, the company does employ a limited number of workers, who have now begun efforts to join the UFCW at a handful of locations.

Blog Post

Retailers On The Defensive Against Unions And The NLRB
by Kimberly Ricci

Apple: The tech giant continues to absorb a slow trickle organizing activity within its ranks. Only 2 out of 270 Apple retail stores have successfully organized thus far. Yet the tech giant did agree, at the behest of investors, to conduct an audit of its own labor practices in light of workers’ collective bargaining rights. As well, bargaining officially began at the company’s first unionized store in Maryland.
New Seasons: The NLRB charged the Portland-headquartered grocery store chain on multiple alleged unfair labor practices during an election, in which a majority of workers voted against joining the UFCW. An April hearing has been set by the Board, and a do-over election could follow.
Trader Joe’s: Part-time employees are denouncing what they call an anti-union policy that requires minimum three-day workweeks. The workers made this claim amid ongoing organizing efforts, in which 2 out of 500 locations have unionized.
Amazon: The NLRB upheld the vote that resulted in the company’s first unionized location at the JFK8 warehouse. Further Amazon Labor Union efforts have failed after workers at another Staten Island location voted not to unionize, as did Amazon workers at an Albany warehouse.
Chicago Field Museum: 300 workers will vote on whether to join the American Federation of State, County and Municipal Employees.
Lake Michigan Credit Union: 13 full-and-part-time tellers and customer service representatives voted to join the CWA.

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Media And Tech Workers Go Public With Their Discontent

by Kimberly Ricci

VFX workers in Hollywood are rubbing elbows with the IATSE while publicizing their frustrations as they begin to organize. In the process, a Disney/Marvel Studios-employed special effects technician aired his grievances about heavy work loads, difficult deadlines, and what he feels are low pay rates. Given that streaming TV shows resulted in the number of VFX workers paling in comparison to open positions, one can expect this fight to heat up, and fast.
Nickelodeon Animation Studios workers saw 177 production workers join the IATSE under the Animation Guild label. The workers seek significant raises in order to afford the high cost of living in Los Angeles.
HarperCollins workers reached the two-month mark in their UAW strike while claiming that they have neither seen nor heard any response from the publishing house. In mid-January, the workers took their rally into full public view outside the company’s Manhattan headquarters.

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Unions Throw The Book At Higher Ed With Mixed Results

by Kimberly Ricci

The pro-union training ground of university campuses continues to be fertile territory for unions to harvest academic workers. The United Auto Workers union, of course, drew plenty of attention for branching out into this newer frontier. Yet the much-publicized recent University of California six-week strike, which included 48,000 graduate student workers across several campuses, apparently didn’t end well for union members.

Some grad student workers feel betrayed by how the union, which claimed “historic” victory, agreed to a deal for smaller raises than members sought. Over 7,000 of the 20,000 graduate student union members had voted no on the deal. Some members accused the union of voter suppression, which may be a chief cause of the astoundingly low voter turnout at multiple UC campuses. Workers also complain that their grievances other than pay were largely ignored, and a potential appeal is in the works.

Despite the UC strike apparently leading nowhere good for union members, the longest higher education strike in history has inspired grad student workers to follow suit elsewhere. In other words, higher ed continues to be a major target of unions:

Syracuse University: Approximately 1000 teaching assistants and researchers are organizing with the intent of joining the SEIU.
Northwestern University: More than 2800 graduate workers followed up what they say is a six-year effort with an “overwhelming” vote to join the UAW.
University of Illinois at Chicago: A reported 1,500 faculty members went on a one-week strike for pay raises after nine months of failed contract negotiations.
Yale University: Over 3,000 graduate student workers will join Unite Here after about 2,000 votes, most of which were in favor of unionizing.
Boston University: Around 3000 graduate workers joined the SEIU, which now represents over 20,000 educators/human service workers in Massachusetts.
New School/Parsons School Of Design: 1,300+ adjunct faculty members concluded their month-long strike with a tentative UAW deal that claims to include backdated raises for Fall 2022 semester.

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A Quick Healthcare Temperature Check

by Kimberly Ricci

We recently discussed the vicious healthcare strike cycle that compounds workers’ underlying reasons that lead them to strike. This field’s already unsustainable case loads are increased when unions push more workers onto the picket lines, and that trend has become a pattern throughout the United States.

We’ll keep an eye on upcoming nursing home strikes from the SEIU. This includes

a walkout by St. Louis workers at two St. Louis facilities and a potential strike from 1,000 workers in Michigan. The SEIU is also making noises about putting University of Iowa nurses on the picket lines if pay raise demands don’t materialize.

Also of interest: potential legislation favored by the Massachusetts Nurses Association labor union, which seeks official nurse-to-patient ratios throughout the state.

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Teamsters Playing Hardball With Strikes

by Kimberly Ricci

Last year, incoming Teamsters International President Sean O’Brien made no secret of his self-described “militant” outlook, which includes his willingness to launch sizable strikes. O’Brien wasn’t joking about following through with his aggressive stance:

Aramark Uniform Services workers could go on strike in several states, including Iowa, Illinois, Minnesota, Wisconsin, and South Dakota. In Iowa, the Teamsters Local 238 chair accused the company of not bargaining in good faith.
O’Brien has been vocal about his intent to send 360,000 UPS drivers and warehouse workers to the picket lines if the Teamsters and company don’t agree on a new contract by July 2023. Workers have voiced their displeasure against how the union handled their existing 2019 contract, which only passed on a technicality due to low turnout, so O’Brien can’t count on an easy win in 2023. Still, he insists that the union is prepared to strike in August.
The Teamsters allege that Energizer is preparing to close two Wisconsin plants over the next two years, a move that could export hundreds of jobs.

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The UAW's Mega-Strike Fund And Ongoing Leadership Battle

by Kimberly Ricci

Like the Teamsters, the United Auto Workers union has numerous strike goals in the air. The union also scored a notable victory in their quest to organize EV factories: workers at Ultium Cells LLC, a joint General Motors-LG Energy battery cell factory, overwhelmingly voted to join the UAW.

However, whether the union can keep that momentum going at factories in southern states remains an open-ended question. Those are factories that UAW desperately wants, since they want to keep building their strike fund that reportedly sits at $800 million, which they’re currently putting to use in multiple arenas:

A strike at a Maryland Sherwin-Williams plant passed the three-month mark while the UAW continued to demand higher pay and greater benefits than offered by the company during ongoing negotiations.
At an Ohio casino, a last minute deal averted a planned strike during the holiday season rush. That conflict, no doubt, gathered ammunition from the UAW’s recent increase in weekly strike pay, from $275 to $400 per week.
An eight-month strike came to an end at CNH Industrial, where Wisconsin and Iowa workers rejected another offer in late January. A week later, the company and the union reached a new contract, putting 1,000+ members back to work.

Against this conflict-filled backdrop, current UAW President Curry aims to stay in office:

Curry will soon face a runoff election against challenger Shawn Fain, who holds experience in representing Stellantis Department members of the union. Both candidates, interestingly enough, accused the other of being out of touch with the reality faced by rank-and-file union members within a tiered wage system. Fain brought up the oft-mentioned claims about Curry wheeling and dealing with automakers and against the members who he claims to represent.
Only 11% of those union members voted last year in the UAW’s first direct election of leaders. That’s why the runoff battle is still not sitting well with Will Lehmen, the former candidate and tiered Mack Trucks worker who accused the UAW of a sham election fueled by voter suppression. Autoworkers, including a GM Flint rank-and-file group, have voiced ongoing support for Lehman.

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Gig Drivers Organizing With The NLRB's Blessing

by Kimberly Ricci

The union-friendly goals of Biden’s NLRB don’t take into account the economic damage that could result from allowing rideshare drivers to organize. To that end, the Board tossed out a relevant 2019 appeals court ruling, thereby restoring contractors’ abilities to organize and picket upon private property where they do gig work.

As expected, app-based drivers for Uber and Doordash noticed this development. These gig workers rallied in Boston for bargaining rights while demanding that companies allow drivers to keep more profits from each ride, especially in a time of higher gas prices, which will surely also lead to higher rates for customers.

The SEIU and International Association of Machinists are encouraging the Independent Drivers Guild to continue this fight. More support comes from Massachusetts Governor Maura Healey, who brought a 2020 lawsuit against Uber and Lyft with the goal of transforming app-based drivers from independent contractors into full-blown employees with benefits, higher pay, and the right to bargain.

The Uber-focused debate also came to New York, where drivers went on strike after Uber sued New York City Taxi and Limousine Commission to block significant raises across the app-driving board. Those raises would have led to “typical” drivers instantly making $1,000 more per month due to various adjustments to their driving rates.

In D.C., the NLRB’s quest to overturn the 2020 joint-employer rule came under fire by Senators Marco Rubio and Mike Brain. The GOP lawmakers urged Chairman

Lauren McFerran to consider detrimental effects upon franchises, which could be forced to shoulder $33 billionin costs if contractors are allowed to claim more than one employer. The lawmakers point out that, in turn, this would transform into job losses.

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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.

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Contributing editors for this issue: Phillip Wilson, Greg Kittinger, and Kimberly Ricci

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Subject: Labor Relations INK January 2023