The NLRB Should Stop Protecting Racial Hatred
The NLRB has a chance to take a stand against racism and racial hatred. I hope they make the right choice. I don’t think they will. But we will get to that in a minute.
First, a quick update on ambush elections. We now have a little over two months under our belt and the impact of the new rule is starting to emerge. There was a fair amount of concern last month about the big increase in NLRB petitions. It looks like after two months the number of petitions overall is starting to look more like it has over the last several years:
CHART (see online post)
There has been about a 10% increase in RC petitions, but that is a big drop from what initially looked like a 30-40% increase just a month ago. I think this is mostly explained by two factors. Some petitions were held back waiting for the rule going into effect. Also there were a couple of unusual situations in the security and construction industry that accounted for around 40 petitions in May. When you add in the decertification petitions (RD and RM) the total petition increase is very modest 4%.
I’ve said for a while – and as of now these statistics bear this out – that I don’t think the ambush rule is going to result in a lot more petitions. Unions are selling something that people aren’t buying. The fact that you get to make your purchase twice as fast as before doesn’t change the fact that nobody is in your store.
What has changed is the unit sizes. It looks like unions continue to focus primarily on very small (under 10 employee) bargaining units. If you look at this year compared to the last 4 years, petitions are basically flat in all unit sizes other than these very small units, where they’ve surged by 36%. Here’s what that looks like:
CHART (see online post)
We’ve noticed anecdotally that a number of petitions are getting filed in units where unions already have a presence. They are just picking up a few more members where they are already in place. That’s not a bad strategy, but it’s not a strategy for sustained long term growth either.
Election periods have shrunk around the country. In at least one Region (Region 28 in Phoenix) there are reports that the average period is 18 days from petition to election. Our experience is better, with the average election still happening in around 24 days. But whatever numbers you look at it is clear that election periods have been slashed by at least a third of where they were before the rule went into effect.
Are unions winning more of these ambush elections? No. In election campaigns were we have had consultants on the ground (we’ve had more than a dozen go to election since the rule went into effect) we still haven’t lost an ambush election. If you look at election results since May 1st (14 days or so after the rule went into effect) the union win rate remains exactly the same as it was in the same period a year prior. Again these are very early returns, but in the early going unions aren’t winning more ambush elections.
Now on to the protection of racist speech. This month Administrative Law Judge Thomas Randazzo ruled that
racist comments from a picketer shouted to workers crossing a picket line are protected concerted activity. He ordered Cooper Tire to reinstate Anthony Runion, the employee who shouted the racist comments. I’m not going to repeat those statements here, but I encourage you to
read the opinion.
There is no dispute about whether Runion made his comments. They were caught on video and both the Steelworkers union (who are fighting to protect their racist member – every African American voting in a Steelworkers election needs to read this opinion too) and the Company stipulated to this fact. Not only that, but an arbitrator had already heard all the evidence and decided that Cooper Tire had the right – under its company policies and its labor contract – to terminate Runion over his racist speech.
Randazzo overruled the arbitrator’s decision. That alone is troubling because it encourages parties to ignore arbitrator rulings and continue taking bites at the apple until they get their way. It won’t be long before the NLRB just eliminates arbitration as a viable dispute resolution process. Randazzo found that the speech was protected because it wasn’t threatening bodily harm.
We've covered the Cooper Tire lockout before. This case dealt with picket line misconduct. The bottom line on any case like that is that picketers get pretty wide latitude to say what they want on the picket line. Picket lines are highly emotional on both sides. Just about any non-violent speech is protected. It's not a place for the faint of heart. The question is how far should the government go to protect that speech? And if every utterance other than a direct threat of bodily harm is protected concerted activity, what rights (if any) do companies have to protect their employees from hate speech?
The NLRB must reverse ALJ Randazzo and take a stand against racist speech on the picket line or anywhere else. There was no allegation that this termination was a pretext to get rid of a union supporter. Lots of other horrible things were said and tolerated. This was simply about whether a company has a right to protect its employees from hostile racist speech. They are morally and legally required to do so – but this decision makes it illegal to do the right thing.
It is one thing to put your thumb on the scale of organized labor. But not
everything a union wants should be protected. This decision is an abomination. Racist speech has consequences and a company that wants to take a stand against such speech should have the right to do so. This decision came out before Dylann Roof went on his rampage in South Carolina, killing 9 innocent people while they worshiped in Church. I’m sure 21-year old Roof has no idea that the NLRB even exists, but I am sure he would applaud Randazzo’s decision. I hope the NLRB has the decency and the guts to correct Randazzo’s horrible mistake.
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Union Bailout Update
What qualifies as Section 7 rights and Protected Concerted Activity seems to be expanding with the momentum of a runaway freight train. In one recent case, the NLRB has in essence said that
any discussion about wages, benefits, job security (or anything remotely related) is protected, whether or not the conversation is intended to provoke “activity.” In another it determined that union supporters had the
right to wear buttons with vulgar or offensive language on them, even in the presence of customers. In yet a third example,
workplace rules that require English-only (usually in certain situations) are also coming under scrutiny, and may very well trend down this same path. Violence (
and now racism) by union supporters has been exempt from reasonable prosecution for years. Like I said - runaway freight train!
Side note: in the last couple of years, we have had growing requests to help train companies in how to investigate and discriminate between actionable violations of company policy and Protected Concerted Activity. With the landscape of what actually qualifies as PCA shifting like a desert mirage, it is important to focus on the principles behind the rules and recent NLRB interpretations. Let us know if we can help with this.
The board is also meddling in other areas of labor rules. In mid-May, the board granted the review of a 2012 decision related to the organizing of temporary employees. The case is also connected to the joint employer issue, but extends beyond franchise relationships. The review signals the
board’s desire/intent to change the rules, so if you employ temps, you’ll want to keep abreast of this development (the 2012 case is
Miller & Anderson Inc.).
In
another attack on employer policies intended to protect customers (in this case, patients and HIPAA enforcement), two employees fired for accessing a database that contained both personnel information and patient records were ordered reinstated. The two takeaways from the case: if you have sensitive records (patient or customer), you should keep them in separate systems from your personnel files, and if you have policies restricting access or use, they should be very clear so as not to be perceived as suppressing Section 7 rights.
Well-meaning congressmen are attempting to slow down the runaway freight train, but it is doubtful there will be much loss of momentum anytime soon. GOP members of the House have proposed an
appropriations bill to reduce or restrict funding of the NLRB and the DOL. Unfortunately, funding via appropriations bills has become a thing of the past, being replaced by continuing resolutions, so the measure won’t become
anything more than a discussion-starter.
Tackling labor issues on another front, Rep. Earl Carter (R-GA) is sponsoring legislation in Congress that would amend the National Labor Relations Act to ensure
union bosses are not exempt from state identity theft and stalking laws. Back in 1973 the Supreme Court exempted unions from the Hobbs Act (which make it a federal crime to use extortion or robbery to disrupt commerce). If H.R. 1431 and 1432 survive, at least some of the union thug weaponry will be removed from their arsenal of intimidation.
The Ambush Rule just
withstood its first court challenge when Judge Robert Pitman of the U.S. District Court for the Western District of Texas tossed out a lawsuit from business groups challenging the National Labor Relations Board’s (NLRB) union election rule. A federal case is still pending.
A move from the executive branch may create new headaches for employers, if Congress and business lobbies can’t fight it down. The move would
raise the current overtime threshold from $23,660 to as much as $52,000. Like any uptick in wages (such as a minimum wage increase) the change would impact employment levels and in many cases actually reduce income levels, as employers would have more incentive to restrict overtime.
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Tough Negotiations Ahead
The United Auto Workers will begin formal
negotiations with the biggest automakers in the U.S. next month. Though General Motors Co. and Fiat Chrysler Automotive will enter into negotiations first, July 13 and 14 respectively, the UAW hopes its negotiations with Ford, which begin July 23, will lead the way in setting the bar for wages and benefits. This tactic is also called “pattern bargaining.”
After agreeing to a two-tier wage system with Ford in 2011, UAW’s primary goal in these negotiations is to close that gap. Ford has stated, however, that the lower tier designed for entry-level employees has been critical to “its ability to hire more than 15,000 U.S. workers since 2011.” Though both sides believe the other is willing to compromise, it will be interesting to watch this play out. Rex Blackwell, former GM labor relations vice president, must agree based on his June 1 decision to
retire rather than serve as lead negotiator against UAW.
In other UAW news, former Local 2317 president Michael Bennett has been
accused of embezzling close to $85,000 from the local.
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Teamster Beat
Once upon a time, the Teamsters union had nothing better to do than protest Disney World’s mission to keep the magical essence of Disney intact.
Disney has always ingrained in its “performance employees” the importance of keeping their character identity a secret as paramount to the effort to create “real-life” fantasies for children. Recently Disney started requiring employees to consent to this commitment in an online disclosure. The disclosure simply states that members of the cast will not reveal the characters they play on social media or in print publications. Teamsters Local 385 believes this requirement to be outrageous – paralleling it to requirements imposed by the CIA. The union has filed an
unfair labor practice charge against the company.
In other Teamster news, IBT Local 509 just had its
third lawsuit filed against them in the past year-and-a-half. The lawsuit, filed by Durham School Services, accuses the local of engaging in a “systematic and continuing campaign aimed at undermining and interfering” with the school bus company’s services for the school district.
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Right-to-Work
Left-wing political economist Robert Riech (former Sec. of Labor under Clinton) has entered the Right-to-Work debate on the side of Big Labor. This
video supporting unions contains a section dedicated to the idea of a federal law banning state right-to-work laws.
Robert Reich video:
https://www.youtube.com/watch?v=xWtX3fHUJw4
Meanwhile, fed-up employees are taking advantage of newly minted right-to-work laws, and in non-right-to-work states, the deauthorization process, to prevent the union from pilfering from their paycheck.
In Michigan, the Michigan Employment Relations Commission upheld a ruling which declared the Michigan Education Association’s “August window” for withdrawal from the union illegal and permitted union-represented public employees to withdraw from their unions at any time. In Missouri, nurses at a St. Louis hospital are looking to
rescind the union security clause and eliminate mandatory dues. The deauthorization option is
one of the best-kept secrets of the National Labor Relations Act. In non-right-to-work states (and in case a federal law makes right-to-work laws illegal), it is the only option left that allows union members to hold unions accountable. Unlike decertification attempts, the deauthorization process can proceed at any time.
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SCORE BOARD
Who are the winners (and losers) of the labor movement? Don't guess, just check the LRI Scoreboard
http://www.lrionline.com/current-scoreboard
Download a PDF of this month's scoreboard
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Union “Representation”
John Lehman and Ryan Hastings, employees at Spirit Aerosystems’ Wichita manufacturing plant, were well-known critics of their two IAM Local representatives – often finding themselves in the
crosshairs of the union officials. When the two shared a video of a safety violation at the plant with colleagues, it ultimately ended up in the hands of their union rep who, rather than discussing this newfound knowledge of the safety hazard with management, chose to forward the video to Spirit’s leadership in an effort to get Lehman and Hastings fired. They succeeded
Leman and Hastings filed an unfair labor practice charge against the union for misrepresentation and last month an NLRB judge ruled in their favor, ordering the union to:
Cease and desist from: Attempting to cause or causing Spirit Aerosystems to discharge employee-members because of their dissident union and/or other protected concerted activities. Threatening employee-members with bodily harm or impeding their grievances because of their protected concerted activities. Discriminatorily and/or arbitrarily processing employee-members’ grievances because of their protected concerted activities.
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Young People More Supportive of Unions
The Pew Research Center recently released a new study detailing the American public’s outlook on labor unions. Although not surprising that millennials are more supportive overall, the fact that even
conservative millennials are more supportive than not indicates an uncomfortable trend. If the trend continues there are implications as millennials begin to take the reigns of political power in the U.S.
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International News
There’s a rumor that David Cameron, Prime Minister of the United Kingdom, is going to propose exemptions from the working time and agency workers directives – two pieces of legislation that protect worker rights in the UK. British trade unions just informed all 27 member states of the EU that if Cameron is successful, they will push for
Britain to remove itself from the EU.
Australian Prime Minister Tony Abbott is putting former Australian Workers Union head and current Labor Leader Bill Shorten in the spotlight to answer some questions concerning a supposed
sweetheart deal wherein companies traded bulk union membership dues for employer-friendly pay and condition agreements. The Royal Commission into Trade Union Governance and Corruption has also heard rumor that members of a local sports union were secretly signed up as AWU members. Mr. Shorten will appear before the Royal Commission on July 8.
A New York Times article reported earlier this month that
Germany has lost over 350,000 work days in 2015 due to strikes – more than double the amount seen in 2014. The primary cause is a current labor dispute between trade union Verdi and the VKA federation of local employers over increasing childcare worker pay by 10% and changing their job description to reflect the higher level of qualifications that are now required. Working parents have been effected the most, having to alternate days off work to care for the children.
