Labor Relations INK June 2022

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Subject: Labor Relations INK June 2022

June 23, 2022

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Problems with the 10(j) Injunction

Labor Relations Insight by Phil Wilson

Fair warning: I’m going on a bit of a legal ramble today on the abuse of the 10(j) injunction.

This week the NLRB proudly announced a 10(j) injunction action filed against Starbucks in Buffalo. The suit asks a federal court in Buffalo to issue a nationwide injunction against Starbucks for alleged (and unproven) unfair labor practices (ULPs) during the union elections held late last year.

In August of 2021 and again in February of this year NLRB General Counsel Abruzzo issued memos encouraging the Regions to aggressively seek injunctive relief under Section 10(j) whenever possible. The press release on the Starbucks case explains that:

Section 10(j) of the National Labor Relations Act (NLRA) authorizes the NLRB to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations.

This brief summary highlights the problems inherent with the way the 10(j) injunction is being used on the heels of the Abruzzo memos. First, let’s double-click on that “passage of time” clause. The “passage of time” in unfair labor practice charge cases like this is completely under the control of the Regional Director. These charges have been pending for more than six months and are just receiving a fact-finding hearing on July 11.

Part of the reason it’s taking so long is the consolidated complaint filed against Starbucks alleges over 200 unfair labor practices. It is worth noting that the vast majority of these allegations are the same allegation repeated multiple times, because they allege the same thing happened at multiple stores. Many of these alleged ULPs are vague (the company filed a motion for clarification on two dozen of the allegations, which instead of clarifying the Region opposed). Some are over new legal theories like currently lawful conduct (such as mandatory meetings) that the General Counsel wants to outlaw.

There is no way to determine prior to a fact-finding hearing whether any of these vague allegations have evidence to back them up. That’s because there is no discovery in the leadup to an a ULP hearing – it is literally trial by ambush. All the employer has to go on is whatever vague allegations are in the complaint. The Region’s attorney has an incentive to keep the allegations vague and to keep in allegations they can’t really prove because it forces the company to waste time trying to anticipate what the Region might spring on them. It’s not uncommon for the Region to drop many allegations at the outset of a trial because they don’t have witnesses or evidence to back them up.

This illustrates the second major problem with these 10(j) cases. A federal judge is asked to decide whether to enjoin alleged practices that are vague and unproven. The legal standard in 10(j) cases is quite low, and the courts give deference to the agency. Some Circuits require the Board to prove “reasonable cause” to believe violations have occurred. Others consider a variety of factors, such as the likelihood of success and whether irreparable harm will occur without an injunction. But in either case the Board does not have to prove that the allegations happened, like they would in a hearing on the merits.

Which brings up an additional problem with the 10(j) injunction. The case was filed just a few weeks before a hearing was scheduled. In that hearing an actual factfinder is supposed to determine, based on actual evidence and witness testimony, whether any of these allegations in fact occurred. The timing isn’t coincidental. The Regions often threaten 10(j) injunctions to force an employer to settle. If the employer doesn’t buckle, the Region files for the injunction to apply even further pressure to settle.

You don’t pull a stunt like this when you think your case is strong. You do it when you want to avoid having to show your cards at all. And it is stunts like this that gets Congress rolling their eyes when the Board asks for more money .

There is a decent chance the Buffalo Region will win its 10(j) injunction case. That’s not because their case is strong. It’s because their burden is low. The key question is what kind of remedy will be imposed. Hopefully the federal judge in this case sees through the abuse of process and forces the Region to prove these allegations in a hearing that will be happening at the same time the judge is being asked to rule in this case. After all, that’s the way the process is supposed to work.

Blog Post

Employer Private Property Rights at Risk?

by Greg Kittinger

The NLRB modified the rules for the timing of electronic notice posting, mostly to account for the impact of Covid-19 on workers presence in the workplace. Electronic posting must now be made within 14 days of service by the Region, while physical posting requirements remain unchanged.

A May advice memo reveals that Board General Counsel Abruzzo wishes to diminish employer private property rights by seeking to overturn 2019 court rulings in UPMC and Kroger. If she succeeds, it will become harder to limit non-employee union organizer access to employees.

A Trump-era requirement that NLRB regional offices reduce the length of time required to handle a case was tossed out by GC Abruzzo, who categorized the action as aiming for “quality” over speed.

The board also negated another Trump-era restriction on the use of “blocking charges” to stifle union decertifying drives.

In California, a bill designed to create more regulatory oversight of certain segments of the fast food industry is being discussed. Touted by unions as a way to provide more protections for fast food employees from “wage theft,” business interests claim it would force the loss of jobs in the industry, and some of the lawmakers considering the bill even question its constitutionality.

Blog Post

AFL-CIO Convention Includes Historic Elections and Goals for Increased Organizing

by Stephanie O'Malley

At the recent AFL-CIO convention in Philadelphia, Liz Shuler was elected the first female President of the organization, formally securing the position she has held since the death of Richard Trumka last August. Also, Fred Redmond was elected Secretary-Treasurer, the organization’s highest-ranking office ever held by a person of color.

President Biden spoke at the convention, praising both Shuler and labor unions.

At the convention, Shuler pledged to expand union organizing, and announced a goal to add 1 million new members to union ranks over the next 10 years. She pointed to Starbucks, Apple, and non-traditional sectors organizing as examples of workers “gaining power” and “demanding respect.” Workers in every sector desire respect and control in their work lives, but does the reality of union membership meet that goal?

There’s no question that the upcoming midterm elections are important for labor unions, and Shuler said they will be active in the elections, supporting pro-union policies and candidates.

Blog Post

The Union Corruption Theme Quietly Continues In The Background

by Kimberly Ricci

All the pro-union bias from Biden’s NLRB in the world (and attempted UAW cleanups of their long-running scandal) can’t erase the reality of union corruption with some real doozies hitting the news this month:

The ex-treasurer of the Detroit Fire Fighters Union received federal prison time for embezzling over $220,000 in union dues. Verdine Day, who joined the union in 1986 and worked up to treasurer in 2015, will land behind bars for up to a year and must make full restitution to the union after splashing out on cruises, fancy hotel rooms, and boozy bar jaunts at casinos.
An SEIU local in Michigan allegedly committed sizable and grave financial wrongdoings (including theft of dues) against its members at Sinai-Grace Hospital, where workers hope to oust the union with a decertification petition.
An International Association of Machinists and Aerospace Workers local (in Missouri) is under fire for allegedly intimidating potential whistleblowers into silence for reporting upon officers who amassed over six figures in an account that funded a bizarre stockpile of cell phones on the members’ dime.

That last story feels like an odd hill to climb in order to end one’s career, although potential prison time might be an equally worse fate. Presumably, federal crackdowns on these corruption scandals would curb the behavior, but the stories keep coming.

Blog Post

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The Simmering Starbucks Saga’s Coffee Cup Runneth Over

by Kimberly Ricci

No doubt about it, the Starbucks saga caught many off guard. Only one year ago, none of the coffeehouse giant’s locations fell under the union umbrella. Fast forward to June 2022, and workers from at least 150 cafes have voted to unionize. Granted, that’s a mere drop in the bucket for the company’s nearly 9,000 company-operated locations in the U.S., but the trend continues, and workers in wide-ranging industries are looking to Starbucks baristas for inspiration. Here are the latest developments in this story:

A top executive, North American president Rossann Williams, will depart the company after her vocal opposition to unions. It’s one of many workplace changes coming from interim CEO Howard Schultz, who replaced ex-CEO Kevin Johnson after worker organizing drives began multiplying.
Schultz must feel the heat, given that Starbucks Workers United filed NLRB charges against him after Schultz told the New York Times that he refused to welcome unions with open arms. The union alleges that the sentiment proves that he doesn’t intend to have meaningful discussions at the bargaining table.
Yet the company won a significant labor trial victory (involving a Phoenix, Arizona cafe) when a federal judge ruled that the NLRB could not force the company to reinstate a trio of ex-employees who say they were fired for organizing. This comes as a blow to Biden’s labor board, which is eager to push open as many doors to unions as possible.
Workers at an Ithaca, New York Starbucks location claimed retaliation after news that Starbucks is closing a store where workers unionized.
Deep pockets already exist for Starbucks Workers United, which announced a $1 million fund to pay wages and benefits for striking workers. The tea leaves forecast this as a sure sign that the union is gearing up for more picket lines.
And we have confirmation: Starbucks workers in multiple states already went on strike after alleging unfair labor practices including reduced work hours at organized stores.

Blog Post

Starbucks Inspired More Organizing “Firsts” At Apple, Trader Joe’s, And More
by Kimberly Ricci

A no-brainer: the leak of union-activity inside of Starbucks led other coffee house workers to pursue the same. Colectivo followed suit, and now, Intelligentsia Coffee Workers (in Chicago) filed for a union election under the IBEW. This news feels all-too familiar by now, but Starbucks inspired workers for other corporate giants:

Apple workers in Towson, Maryland voted for their first unionized U.S. retail store in the U.S. This low-volume store could be a stepping stone for multiple unions to gain a foothold elsewhere. On that note, both Workers United and the CWA announced their coordinated effort to topple more Apple locations in the U.S.
Trader Joe’s workers filed (another company first) to vote in a union election. They’re seeking increased salaries in accordance with inflation.
Show business could also prove to be lucrative for dues-craving unions, which claimed another “first”, this time among NYC post-production coordinators from eight studios (including Apple Studios, Netflix, HBO, and Disney Pictures, who voted to unionize under the CWA). Subsequently, a separate crop of coordinators (including those who work in live theater) voted for UAW representation.
The Southern Workers Opportunity Fund announced $14 million in funding (coming from the AFL-CIO, the SEIU, and more usual suspects) for organized labor with an eye on putting more organizing drives into motion, including at Amazon warehouses.
Although union victories make flashier headlines, losses quietly accumulate as well. At Bodo’s Bagels in Charlottesville, VA, a majority of workers voted against representation by the United Food and Commercial Workers union. And the NLRB ruled that workers at a Hampton Inn in Long Island, NY wished to give their union the boot.

Blog Post

You Might Want to Secure Your Fourth of July Beer Supply Now

by Kimberly Ricci

As we previously reported, unions took aim at ice cream and beer supply lines, which does not bode well for the most optimal Fourth of July celebration in your backyard. Previously, Molson Coors and Budweiser snags appeared to be limited to Canada and the United Kingdom, but the drought appears to be spreading to the United States.

In Philadelphia, Teamsters members for three beer distributors (Origlio, Muller, and Penn) hit the picket lines over the weekend after overwhelmingly voting (308-to-40) to strike for higher wages. Shortages have already begun in several counties as a result. Already, Muller declared that new orders are out of the question for its delivery area while it scrambles to fulfill existing orders ahead of the next holiday weekend. So wherever you’re located, beer fans, it’s time to stock up.

Speaking of unpopular (and potentially counterproductive) strikes:

On the other side of the U.S., recent Teamsters moves left Seattle-area concrete companies (and their union employees) struggling to recover after 141 days off the job. No new contract materialized as a result of the Teamsters bringing construction to a halt across the area, and workers’ strike pay doesn’t even begin to add up to normal wages.

The UAW might be taking a hint while boosting strike pay for its members, and one can only imagine that this is a strategic move before the Detroit 3 automakers (Ford, GM, and Chrysler Stellantis) head back to the bargaining table for new contracts. These negotiations could cause more supply chain woes that spread to the dealer level and the consumer, fueling more inflation. And the cycle keeps rolling.

Increased strike pay or not, the UAW and Teamsters still face great challenges:

UAW locals are setting their sights on unionizing an Indiana EV battery plant (that will open in 2025) slated for 1,400 workers; and another in Ohio, where the union is maneuvering for a card-check agreement to make unionizing easier. All of this is happening while the UAW is staring down the loss of member dues with a Stellantis stamping plant forecasting layoffs.
Meanwhile, a UAW official is attempting to tamp down expectations that EV factories will automatically bring dream jobs to its members. In doing so, UAW VP Cindy Estrada began a lobbying effort for federal dollars to pump up jobs.
Striking Teamsters in Indiana saw FireKing replace them with permanent workers as the company continues pushing to meet customer demand. That strike is probably not ending anytime soon, and at a great cost for workers.

Blog Post

The NLRB Set Its Sights Upon One Very Vocal CEO
by Kimberly Ricci

Months ago, Tesla CEO Elon Musk threw down the gauntlet with a dare to the UAW (which he frequently calls out for its corruption scandal) and invited the union to attempt to organize his employees. Thus far, this hasn’t happened, although a Canadian nonprofit, Share, now calls upon Musk to put rules into place to ban management from interfering with worker organization – despite the legality of management to campaign against unions, so long as threats, retaliation, or the like don’t happen.

Tesla remains under NLRB fire after the board ruled that Tesla attempted to coerce workers (including firing one) for organizing behavior. And the NLRB even directed Musk to delete an anti-union tweet. There is more to come from this rivalry, no doubt.

Blog Post

Is Microsoft’s Union Position a Sign of More to Come For Tech?

by Kimberly Ricci

The Communication Workers of America set its sights upon tech and gaming workers, and new belt notches, which are a part of the CODE-CWA (Coalition to Organize Digital Employees) initiative, continue to appear. The video game and comic book realms remain in the union’s sights, as do digital media employees.

The CWA’s now attempting to bump elbows with Microsoft. The company is on the cusp of finishing its acquisition of video-game company Activision Blizzard, which saw its workers vote to join the CWA’s Game Workers Alliance. Microsoft has now made a public declaration of intending to collaborate with unions, to avoid “public disputes.” Microsoft President Brad Smith declared that the company will recognize workers’ legal right to organize, and in a blog post, Smith laid out loose guidelines of how he views the collaboration process, which includes a pledge to not oppose the organizing process.

Exactly how Microsoft’s new approach reflects upon the tech industry remains to be seen, but the new stance seemingly reflects a desire to project a lack of hostility toward unions. Whether that affects the level of union activity in tech is anyone’s guess.

What is more certain, however, is that a return-to-the-office remains out of the question for some workers. Contractors for Google Maps threatened to strike (as part of the Alphabet Workers Union) ahead of a scheduled return and received a 90-day extension.

Over at Vox Media, workers are tiptoeing toward a possible strike (while belonging to the Writers Guild of America, East) for the publisher of The Verge and Eater. And a California IATSE local now claims about 5,000 members within its animation guild.

Blog Post

A Quick Healthcare Follow-Up Visit

by Kimberly Ricci

We recently rounded up the fever from unions to organize as much of the healthcare industry as possible. That includes nurses, support staff, and even doctors, all of whom feel the strain while the pandemic is not yet over, but their workplace chaos continues.

A few relevant industry updates require a mini checkup:

Although last year’s so-called “Striketober” attracted a lot of media attention, strikes remain relatively rare. Yet in healthcare (and specifically at Kaiser Permanente), the picket line is increasingly commonplace. This month, 1,200+ Kaiser nurses (represented by the California Nurses Association) in Los Angeles went on strike to protest their short-staffed environments, violence in the workplace, and ongoing supply shortages.

In related news, workers for abortion care providers began eyeing union representation while awaiting the Supreme Court’s updated ruling on Roe v. Wade. Planned Parenthood North Central States United hopes to organize 400 workers (who cite burnout, low pay, and a concern for their continued employment following the high court’s opinion) spread across several states.

Blog Post

A U.S. Trade Deal Continues to Tamp Down Union Corruption

by Kimberly Ricci

We previously discussed Trump’s U.S.-Mexico-Canada Trade Agreement (USMCA), which replaced the North American Free Trade Agreement (NAFTA) as a regional trade deal. The deal helped auto plant workers in Mexico oust notoriously corrupt unions, although the war is clearly not over yet.

The U.S. has now filed a fourth complaint to ensure that workers in Mexico can choose their own union, rather than remain with pro-company and corrupt representation. This particular case involves a Stellantis parts plant that is chock full of labor violation complaints including chronically deflated wages. As part of the trade deal, the U.S. can pile on the tariffs on exports from specific factories, and that is a weapon that the Trump deal is gearing up to use.

In other words, labor policies by different presidential administrations do collide, and the results can be quite insightful and even point toward the future.

Blog Post

Save the date! Last chance to sign up before the next Approachable Leadership open workshop.

The three sessions for the workshop are June 28, 29, and 30, starting at 1pm CST each day.

If you’ve hosted the workshop over the last year or so and have new leaders who have not yet experienced the workshop, this is a great opportunity for them to catch up. The cost is $249 per leader.

If you are considering introducing this Workshop to your team for the first time and would like to give it a test run, please email Stephanie for a complimentary seat. We would love to see you there!

Here’s the link for new leaders to enroll: Click Here, and here’s Stephanie’s email: somalley@lrionline.com

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, Kimberly Ricci, and Stephanie O'Malley

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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 June 2022