Labor Relations Insight by Phil Wilson

Surprising New Data on Ambush Elections

This may come as a shock, but the question I get asked most these days isn't about where I get my haircut (it doesn't take long - although getting that "trees running away from the forest" look just right isn't as easy as it looks). It's not even about whether I think Rey is the daughter of Han Solo and Leia in The Force Awakens.

Nope. The question I get asked about most is about what unions are doing in the month since the ambush election rule went into effect. Seriously, that is what my life has come to. But since you asked...

I've said for a while that I don't think the new ambush rule is going to significantly change organizing trends over the long term. Overall people just aren't buying what unions are selling, and the ambush rule does nothing to change that. I did expect there to be a spike in petitions after the rule went into effect, but I've argued that over time things will find a level pretty much where they've been the last several years.

But one month in I'm not sure my prediction will hold. There has been a significant increase in activity. Take a look at the chart below, hot off the presses from our whiz kids at LRI RightNow.

That's a significant increase over the period of 30-days. There are about 40 what I'd call "anomalous" petitions here. For example, 21 of these petitions were filed against one security company. Another 21 petitions were filed on one big New York construction project (probably a Project Labor Agreement situation). But petitions like these are not uncommon this time of year and similar activity happened in the prior 5 years. Even removing some of these anomalous petitions there is still a significant jump here. I'm not ready to say that this is a "new normal" but I think this is more than a blip.

It's also interesting to see that decertification petitions are down for the same period. I am not sure what the explanation is here, but it is something worth watching. As Board Regions and practitioners struggle with implementing the new rule, employees could be facing some more resistance or discouragement than usual as they try to file their petitions. This is something worth paying attention to.

Another trend worth watching is the size of these newly petitioned-for bargaining units. They are shrinking rapidly. Take a look at this chart:

Looking over the past 5 years the thing that stands out is the number of very small (1-10 employee) units. These have nearly doubled over the prior 4-year average while every other category has remained basically flat (there was a slight uptick in units of 51 to 100). Again, I'm not ready to declare this the new normal, but it suggests that these new petitions are focusing mostly on smaller bargaining units. What I haven't seen is a lot of "Specialty Healthcare" fractured units - these are mostly just very small traditional bargaining units.

Finally I get asked a lot about how many days companies are getting in elections under the new ambush rule. Our team has been involved in 12 cases (with an undefeated record so far - we are working hard to keep that streak going) since the new rule went into effect. Two of these were re-run elections that happened in 14 days. Of the remaining 10 cases, one of them will go to hearing in June and will certainly go longer than the traditional target of 42 days. The next longest case was 29 days. The shortest election so far was 14 days.  The average number of days from petition to election in these cases is 24 days. Anecdotally I've heard from other consultants and law firms that they are experiencing about the same number of days to election. That's at one prediction that looks like will hold. (See additional data in the article below).

To sum up: petitions up, unit sizes down, and 24 days to an election. We'll keep you posted.

By the way, if you are a labor relations nerd like just about everyone around this office, you really need to grab the most recent LRI RightNow quarterly report. It's full of stuff like this (and as far as I know there are no Star Wars spoilers).  

**********

Union Bailout Update

The Ambush Rule is having the impact intended (by the unions and their NLRB supporters). According to a random sampling of 42 elections filed since the rule went into effect, the new average time between the date of filing and the election is 23.5 days, which is a 14.5-day decrease to the average prior to the rule. Additional results of the survey include:

• A high of 35 days from filing to election.
• A low of 10 days from filing to election.
• 3 cases with 13 days or less.
• 7 cases with 19 days or less.

It’s too early to gage the impact on the winning percentages, but once we have enough data to make an assessment we’ll let you know. Although Congress made noise that they were going to attempt to nullify the rule, they ended up tabling the maneuver, perhaps realizing they couldn’t get past a presidential veto. In another gambit designed to cripple the NLRB’s union-friendly activities, Rep. Matt Salmon (R-AZ) submitted a bill to defund the board, claiming that the Justice Department could carry out the original mandate proposed by the National Labor Relations Act. This is also likely to go nowhere.

In what could become a more common tactic, the IAM cancelled an election scheduled to occur at Boeing’s South Carolina plant. Under the new rules, the union now will have an enhanced list of employee information, so they can extend their reach early in the next organizing attempt. Because they pulled out early, then only have to wait 6 months to petition for a new election date, but in the meantime they have what they need to launch a full communication campaign rather than having to wait to receive a list upon filing a petition, giving them more time to spread their propaganda.

And speaking of this list, it is disconcerting that the General Counsel of the NLRB would need to pen a memo to his own staff, asking them to not use such lists for personal gain, including “(1) selling the list to telemarketers, (2) providing it to a political campaign, or (3) using the list to harass, coerce, or rob employees.” If the GC is concerned about his own staff, how much abuse should we expect from Big Labor?

It appears the NLRB will next target right-to-work laws. The board asked for briefs on “whether parties and amici believe the Board should adopt a rule permitting unions to collect fees from nonmembers for grievance processing.” With the current board, this typically means they already have decided they want to change the law and are asking for justification.

The battle over joint employer is still rumbling on. The SEIU decided to try the “pile on” tactic by petitioning the FTC to investigate so called “predatory abuse” by franchisors of franchisees. The International Franchise Association characterised the move by the union for what it is:  "manufacturing a crisis as part of its increasingly expensive public relations campaign, now estimated to be more than $33 million, to destroy the time-tested franchise model in order to fill its own depleted membership." The IFA also announced it will take a play from the competition’s playbook and increase political funding in the 2016 election cycle, although the $3-4 million the organization hopes to raise pales in comparison to the SEIU alone (see the $33 million mentioned above), let alone what the combined amount of all Big Labor contributions will be.

There has been a bit of good news for franchisors. A recent advice memo by the NLRB General Counsel gave some indications of guidelines that shape a franchisor/franchisee relationship in a way that avoids joint-employer status. If you are concerned about joint employer, click through to read the details, but keep in mind that the NLRB would need to line up to this standard before you could rely upon it.

In an interesting twist, joint employer protections may be rolled out state-by-state similar to the evolution of right-to-work protections. The Texas legislature introduced a bill designed to protect franchisors from inappropriate joint-employer status. The move could catch on in other states.

One last item to keep on your radar screen.   Richard Trumka bragged recently that the AFL-CIO and member unions are working on a package of bills designed to overhaul the National Labor Relations Act, and that we could start seeing this package in “weeks.” Hmmm...

**********

Labor Leaders Cash In On Workers’ Dues

Union financial reports are in for 2014 and the data isn’t the least bit surprising – union leaders continue to pocket huge amounts of their members’ dues money.

Excluding pro sports unions, 497 union officers and employees were paid more than $250,000 in 2014 with 19 union bosses raking in more than $500,000. While a few of these unions represent high wage industries like the Independent Pilot Association and the Directors Guild of America, the majority are representatives of some of the lowest paid positions in America’s workforce. We’re talking about teachers, blue-collar workers, and government employees – people who pay dues because they believe the union will be a lobbyist for their value, not a parasite that simply extracts from it.

Click here for more a more detailed summary of the data.

**********

LRI RightNow First Quarter Elections Review 

Our LRI RightNow data libraries team does a phenomenal job assembling and organizing information on strikes, petitions, elections and other union activity. 

These comprehensive reports are a valuable resource for you and your labor team, and the 2015 first quarter report is out now! Like all of our election review reports, it’s chock full of graphs, charts and maps that will provide the detail you need to see the patterns through the weeds when looking at the mountain of available labor data. 

When the CEO comes knocking, whip out your iPad or laptop and show him exactly what he wants to know. If you’ve made a habit of securing our reports each quarter, you can even point to trends happening in real time. (If you are just getting started, you might want to purchase a couple of back issues…) And our interactive map can be a real eye-opener. 

Go to this page for further details, and to download the table of contents and some sample pages. 

http://lrionline.com/elections-review-report

**********

Only in a Union

The American Federation of State, County, and Municipal Employees Local 1199J tried recently to pull a fast one over on the employees of one of their bargaining units, the employer of those members, and the NLRB…and failed.

When AFSCME 1199J received notice that a decertification petition had been filed against them, they attempted to invalidate the petition by claiming that the filer owed $666.30 in unpaid dues and initiation fees. During the time leading up to the election, the union slandered this employee to his coworkers and tried to get management to discharge the employee for his lack of payment. When the employer challenged the union’s discharge request, the union withdrew it but did not inform members of the bargaining unit that the whole thing had been a hoax.

The union won the decertification election 15-13, but their celebration didn’t last long. Soon after, the NLRB determined the union’s conduct to be unlawful and has ordered a rerun election.  

**********

Whistlin’ Dixie

After losing the election to organize Volkswagen employees at its Chattanooga, Tennessee plant last year, the UAW set up an office just down the road to begin its efforts anew. Their hope has been that once they gather enough signatures, they will be approved as the bargaining representative through card check rather than another secret-ballot election. Currently, they claim to have signatures from about 55 percent of the employees.

The American Council of Employees, the other union looking to organize VW Chattanooga, believes those numbers to be unsubstantiated and urges all parties involved not to make any decision on labor representation without a secret ballot election.

Just south in Alabama the Auto Workers are having far less success. In fact, 80 percent of the employees at Renosol Seating, an extension of Lear Corp., recently signed a petition urging UAW to “leave this business and us, its employees, alone.” The Auto Workers, bull-headed as they are, are having a hard time accepting that this petition truly represents employee opinion and are alleging that workers were coerced into signing the document. Workers at the plant, however, counter that they were not forced or tricked. They simply read the petition “and signed it of their own free will.”

Things aren’t looking so good on the Machinists southern front right either. After being accused of forged authorization cards during their organizing campaign at Delta and pulling a petition for election at Boeing in South Carolina in April, an NLRB administrative law judge filed an unfair labor practice charge against District 70 and Local Lodge 839 due to one of their representatives getting caught on tape threatening a former employee.

**********

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

**********

The Good Life...

Life must be good for officials and staff of the California Nurses Association, since they just laid out about $65 million for the most coveted office space in San Francisco!

Life isn’t so good if you’re a Boilermaker in Pittsburgh. The FBI is investigating the potential diversion of over $1 million in unauthorized expenditures over the last three years. The excesses of this union had been documented in 2012 by a Kansas City Star expose, indicating that over half of the 125 employees of the international headquarters pulled down over $100,000 per year, and the union spent over $500,000 on maintenance and fees of its two planes that year. Apparently the Pittsburgh local thought they should be emulating the example set at the head office.

And if you want to succeed as a Teamster in Boston, it appears you had better hone your extortion skills. Two former members of Local 82, John Perry and Joseph Burhoe, were convicted for putting the squeeze on a wide range of non-union entities, including hotels, event planners, catering companies, pharmaceutical companies, hospitals, music entertainment companies and nonprofit organizations. Not wanting to leave any stone unturned, they also extorted wages and benefits from other union members.

**********

Grasping At Straws?

Union proponents see signs of the “rebirth of labor” in the tea leaves of whatever cup they seem to be drinking. In two recent examples, a history professor and a founder of a freelancers “union” have both seen hope in recent events.

It shouldn’t be surprising that an associate professor of history/Director of the Labor Education and Research Center at University of Oregon would read the tea leaves in this light. What would you expect from a left-coast academic, other than noble-sounding rhetoric such as the “Rebirth of Progressivism?” It’s a bit more interesting to see the founder of an organization designed to sell products and services to freelancers take the same plunge. Admittedly, by description the younger generation are more likely to be freelancers, and are also more likely to hold positive attitudes about unions. However, reading of one media outlet staff’s union organizing drive as a trend to “make unions cool again” seems a bit of a stretch, particularly coming from an entrepreneur.

For reasons that we’ll let you read for yourself, perhaps the most useful perspective for advancing unions came in a pro-union article on the recent State of Black Workers in America Conference at Columbia University. To quote from the article, “Black women want to be organized.”

**********

Is Militancy In Health Care Good For You?

Last month the National Nurses United called for strikes at eight California hospitals along with the University of Chicago Medical Center. This decision followed a slew of fights between management and the union. Management claimed the union was demanding more money on top of the yearly raises already offered by the hospital. The union claimed the hold-up was entirely due to staffing issues. Two days before the strike was set to take place, the union called it off claiming that it found victory in negotiations.

According to Ken Jacobs, chair of the Center for Labor Research and Education at the University of California at Berkeley, this sort of controversy is not abnormal for NNU. “National Nurses United is a more militant union in general, in terms of how they’ve decided to carry out their work,” he said.

**********

SEIU Watch

Looks like Dave Regan may have to tone down his sliminess for a while…unless he wants to go to prison. Here’s the breakdown. You all may remember back in 2014 when Regan proposed a ballot initiative called “Live Better Together.” The initiative would have capped the salaries of hospital executives and used that extra money to reduce patients’ hospital bills. Regan and SEIU-UHW staffers traversed California and gathered enough signatures to put the initiative on the ballot. They even proposed the bill to Washington. Just before the deadline to hand in the signatures, Regan scrapped them; choosing instead to put his own organizing deal together with hospital execs. Californians were furious – so much so that in August state legislatures passed their own bill, Senate Bill 1253, in response.

This bill makes it a crime for a proponent of a statewide initiative measure to seek, solicit, bargain for, or obtain any money or thing of value of or from any person, firm, or corporation for the purpose of withdrawing an initiative petition after filing it with the appropriate elections official.

Punishment for violation of the law? A $5,000 fine or imprisonment for up to three years or both.

Moving on to other corrupt SEIU leadership – in February, SEIU Executive Board member and Local 2008 Executive Director, Dana Cope, stepped down from his position after a district attorney accused him of embezzlement. Upon his departure, Local 2008 awarded him a $148,000 severance package. Two months later, an audit of the Local’s finances found that in just 28 months Cope “racked up nearly a half-million dollars in unjustified spending and credit card transactions.”

**********

Sticky Fingers

Current charges or sentences of embezzling union officials:

• Assane Faye – USPOA: $300,000
• Boilermakers Local 154 – IBB: $1,000,000
• Carolyn Hall – LIUNA: $26,491
• Alfonso Rodriquez – UTU: $34,601
• John Earvin – UFLEO: $50,000
• Michael Low – LIUNA: $12,937
• Kimberly Hesla – BLET: $1,025

http://www.nlpc.org/union-corruption-update