Labor Relations INK May 2022

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Subject: Labor Relations INK May 2022

May 26, 2022

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Are Union Elections Really Skyrocketing?

Labor Relations Insight by Phil Wilson

Have petitions really rocketed up 57% over the last six months? That’s what the NLRB announced recently in a plea to Congress for more money to run the agency. And article after article talks about the resurgence. Activity has certainly increased, especially if you consider the nearly 300 Starbucks petitions filed since last August. But are NLRB petitions really surging? Not so much.

Here’s the biggest problem with the 57% figure. It is comparing the first 6 months of fiscal year 2022 to the first 6 months of fiscal year 2021. The NLRB’s fiscal year begins on October 1, so this press release compares petition activity from October 2021 to the end of March 2022 against the period of October 2020 to the end of March 2021.

One thing you might recall that happened during the winter of 2020 and spring of 2021 was that much of the country was still dealing with a surge in pandemic cases. There was a massive decrease in activity during the early phase of the pandemic (the NLRB was closed for nearly a month) and petition activity remained depressed throughout 2020 and into the winter of 2021 as Covid cases spiked again.

While Covid cases surged again during December and January of this year, activity in the labor relations world was much less impacted than it was in 2020 and 2021. Looking at data from our LRIrightnow libraries, here is a comparison of petition activity over the first half of the last five fiscal years:

The NLRB press release looks only at FY 2022 versus FY 2021. That (ridiculous) comparison shows about a 60% increase.^[1] It is worth noting here that during the first half of FY 2022, 180 petitions were filed at Starbucks locations. It is obviously correct to count those petitions–the NLRB has had to process and conduct elections in those cases. However, these petitions remain an anomaly. While the Starbucks campaign may very well generate a tsunami of additional organizing activity, that hasn’t been the case so far. If you remove the Starbucks campaigns, petition activity is well below the average of the prior non-Covid years.

Even when you include the Starbucks petitions, all petition activity averaged 992 petitions over the prior four non-Covid years. This means the first half of FY 2022 is up about 15% over the average. It’s an increase, but much less remarkable than the NLRB would have you believe. And the pace of Starbucks petitions has cooled off over the last month, so it is plausible that even the Starbucks bump will disappear in the last half of this fiscal year.

One other thing to consider. Even if you grant the NLRB claim that petition activity has surged, this doesn’t in any way suggest that the total activity at the NLRB will be any greater this year than in the last five years. The chart below shows what fiscal year 2022 would look like if you extrapolate numbers from the first half. One approach is to double the first half numbers. This is probably the most accurate way to do it since it appears that we’re not through the Covid woods yet. But if you wanted to include a post-Covid surge in petitions like we saw with Starbucks in the first three months of 2022 (the second quarter of the Board’s fiscal year) you could just multiply that number by four. Below you can see how both calculations compare to the non-Covid years of fiscal years 2016-2020.

Either approach yields the same conclusion. Activity may fall short of the numbers we saw in the pre-Covid years, even with all the pixels spilled about labor’s resurgence. The Starbucks campaign is a remarkable organizing success story, and it may yet generate a surge in organizing–it is much too early to tell. But at this point I feel like the news of labor’s resurgence is overblown. Which brings us back to the NLRB’s budget request.

The NLRB press release includes its justification for a requested 16% increase in appropriation funding. The Agency has received level funding since FY 2010 of just over $272 million. The NLRB argues that inflation has eaten away at that appropriation amount, and it is now an inflation-adjusted $205 million or a 25% decrease from FY 2010 funding levels.

In fiscal year 2010 the NLRB processed 4,340 petitions (3414 RC petitions, 926 RD, and RM petitions). That’s a 51% decrease in petition case volume compared to FY 2021, and a projected 47% decrease in case volume for this fiscal year. If anything, this suggests that even another flat appropriation isn’t justified.

But I don’t think the reason Congress has refused to increase the budget at the NLRB for more than a decade is because of declining case volume. It is because the agency’s credibility is shot, no matter which party is in charge. And the announced lineup of decades-old precedent that is about to get tossed out the window is probably not giving many in Congress a warm fuzzy about this year’s appropriation either.

^[1] The NLRB numbers include a small number of petitions for unit clarification, deauthorization, conversion of pre-hire construction units, and amendment of certification petitions which we don’t track. This explains the small difference in the numbers here.

Blog Post

NLRB Decisions Expected to Increase

by Greg Kittinger

There has been a lot of print on the potential disruptions to current labor precedent by the Biden administrations labor board, but not a lot of decisions to date. Pundits expect that to change by fall, as two former NLRB members Mark Pearce and Wilma Liebman said, they expect activity to ramp up over the summer, to accomplish as much as possible before current NLRB member John Ring’s seat expires in December.

Expect to see a vast expansion of protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Signaling an intent to abandon the 2019 Alstate Maintenance standard and return to or expand the prior Wyndham standard, in March 2021, the Board issued Memorandum 21-03 stating that when a single employee speaks about certain social justice issues, the speech is “inherently concerted” (and protected) regardless of whether any of the traditional bases for concertedness are satisfied.

Handbook policies are also in the center of the bullseye. If the board returns to the Lutheran Heritage standard (probably a best-case scenario!), a sampling of the types of policies that would be unlawful include:

Policies prohibiting “loud, abusive, or foul language”;
Rules banning “false, vicious, profane, or malicious statements about an employer or its employees”;
Standards requiring employees to “work harmoniously” with one another; or
Mandates prohibiting “negative energy or attitudes.”

If the NLRB (and General Counsel Jennifer Abruzzo) have their way, we expect almost every employee handbook in the nation will be found in some way in violation of the NLRA.

As of today, there have been 277 petitions filed at Starbucks locations, and the NLRB is feeling the pinch. Board GC Abruzzo has been seeking to pressure Congress for more funding, and a group of 150 lawmakers appealed to the House Appropriations Committee for a 34% increase in funding. Election petitions are at a 10-year high due to the Starbucks surge. The board has also lost 30% of its staff since 2010 due to attrition and flat funding.

The NLRB has been aggravating the situation further by expanding the opportunity to file ULPs by the unions, such as taking an aggressive approach to employee handbook rules (mentioned above), and by inciting unions to file ULPs in cases of captive audience meetings in order to give Abruzzo a chance to push several of her key issues into the courts. ULPs are up 17%. The appropriations issue is one possible opportunity to keep the NLRB somewhat in check.

Abruzzo’s goal to ban captive audience meetings took another step forward with Connecticut becoming the second state (behind Oregon) to have their legislature ban such meetings. It remains for a court challenge to arise in one of these states to see if such a law can be held in conflict with the National Labor Relations Act.

Blog Post

The Starbucks Saga Continues to Flow with New Organizing Twists

by Kimberly Ricci

The so-called rise of Big Labor frequently gets characterized as a looming, rapidly growing monster ready to swallow up any and all workplaces, but the truth is that total union membership remains surprisingly low. At least, that’s surprising if one only sees the headlines about high-profile union organizing campaigns like Starbucks.

Still, the Starbucks saga is worth watching closely, given that (like the coffee that flows freely at a certain coffeehouse giant), the pandemic brewed up a perfect storm of worker frustration that feels contagious. From corporate giants like Apple to mom-and-pop operations, from grocery stores to banks, no industry remains immune.

The Starbucks story remains a leading example of how an organizing campaign can spread, seemingly like wildfire, and the saga is still churning out union-related updates:

A Bay Area cafe’s organizing employees include multiple teenagers who reached out to Starbucks’ Workers United before reaching their senior year in high school. In other words, the relatively young workers driving the coffeehouse giant’s wave of organizing may be even younger than expected.
The NLRB seeks an administrative law ruling for a bargaining order, which would require Starbucks to recognize the union at a New York cafe despite no vote from the store’s employees. This is an atypical move for sure, although the NLRB claims that Starbucks prevented organizing activities that can only be remedied by this bargaining order.
The NLRB is also holding Starbucks’ feet to the fire with allegations that the company must reinstate seven fired organizing employees at a Tennessee cafe.
Starbucks’ Workers United isn’t the only union on the scene. The United Food & Commercial Workers stepped up to attempt organizing three cafes after successfully organizing several Starbucks inside Kroger grocery stores.

Let’s catch up on the flurry of other organizing activity:

Trader Joes employees (inspired by the Starbucks wave) in Massachusetts began a renewed push (following an abandoned attempt in 2020) to organize in search of increased pay and benefits, along with an eye toward workers safety.
Target workers went on a merry-go-round, first filing for a union vote (while citing inflation vs. pay raises) but then withdrawing the petition without further explanation. Although the Target Workers Unite does plan to refile, it’s worth noting that Target recently raised its minimum wage up to $24 in some locations.
The Apple retail employee story chose chaos with multiple unions attempting to organize workers spread across three states. At an Atlanta store, workers will soon vote in a Communications Workers of America drive; in Maryland, the International Association of Machinists aims to organize workers; and in Manhattan, Workers United (responsible for the Starbucks union wave) is working for another feather in their union cap. Meanwhile, Apple corporate employees formed a solidarity union called Apple Together, through which they’re speaking with their retail counterparts.
The CWA’s CODE initiative to organize tech workers began 2022 by claiming Vodeo Games as North America’s first unionized video game studio. This month, workers at Raven Software (part of Activision Blizzard) voted to unionize as Game Workers Alliance (with election results pending NLRB certification).
Penalties are no joke when it comes to tangling with unions. King Soopers employees face substantial fines (more than a day’s wages) after crossing picket lines, and Verizon is now on the hot seat with the CWA for allegedly terminating an employee over union organizing.
Amazon Labor Union President, Christian Smalls, accepted a Senate invitation to discuss union activity at the online retailer’s warehouses. Although the union won a vote at the JFK8 location, workers at a second warehouse voted against the union, and the NLRB will allow a hearing that could overturn the JFK8 vote.

Blog Post

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 UAW’s (Attempting To) Finally Leave Their Corruption Scandal Behind

by Kimberly Ricci

We recently told you about the United Auto Workers’ fresh trio of federal lawsuits involving accepting bribes from Fiat Chrysler, while the union allegedly worked against the workers who they claimed to represent. These lawsuits significantly hampered the union’s attempt to repair its reputation after a long-running corruption scandal.

As an update, the union is hoping to finally place a decade of well-publicized corruption firmly in the past after referendum results require that the union will now directly elect officers. The court-appointed UAW watchdog, Neil Barofsky, published detailed rules on how these votes will happen. The rules address the process from nominations to rankings and runoffs to vetting processes to bank account and campaign finance guidelines. Barofsky aims to leave no stone unturned to prevent future corruption within this troubled union.

Meanwhile – months after the Freedom Foundation published an investigative report on those unions that illegally accepted Paycheck Protection Program funds – U.S. lawmakers penned a letter to demand explanations of why 226 unions (including the Teamsters) accepted taxpayer dollars a year before they were eligible to do so.

Blog Post

Strikes Aplenty Across the Manufacturing Sector
by Kimberly Ricci

Conflict between companies and unions remain typically plentiful with multiple ongoing strikes leading the headlines this month:

The UAW launched an aggressive strike at CNH Industrial plants in Iowa and Wisconsin following failed contract talks. Of particular note: the union warned workers to expect to be off the job for three-to-six months. Given that the UAW’s strike pay is only $275 per week, it’s hard to imagine workers can fare well here.
Teamsters members headed to the picket line at a King's Ready-Mix plant in Iowa, where concrete delivery workers had one issue on their minds: higher pay.
A Teamsters local is carrying out an ongoing strike at a FireKing International plant in Indiana, where over 100 workers currently find themselves replaced by temporary workers as the plant continues to operate.
The USW put workers on the picket line at a Chevron refinery in California following five weeks of bargaining table negotiations that led to little progress. The plant continues operations with temp workers, too, and multiple charges by the union against Chevron are pending with the NLRB.

Blog Post

A Curiously Specific, Haunting-Related Media Contract Negotiation

by Kimberly Ricci

Most of the media industry’s union-related news comes straight from their social media accounts. Call it a sign of the times, but a few wild-yet-brief reveals materialized:

The Buzzfeed New Union recently declared success after two years of negotiations between the company and NewsGuild of New York. Oddly enough, the union’s first contract not only specified a salary floor, greater benefits, and a diversity agreement, which feels like standard stuff, but here’s a kicker of a demand: "Protections against going into the office if it is haunted (yes, seriously)." Surely, there’s a further story that we’re not hearing yet.
TIME magazine employees announced a strike on the day of the publication’s Annual Time 100 issue. The day arrived, and the union declared a 30-day postponement after learning that they had neglected to file a required form three years prior at the start of contract negotiations. The union will regroup for a strike.

Blog Post

Pro-Union Training Ground
by Greg Kittinger

We won’t spend a lot of ink talking about all of the union organizing and activity going on across the country except to pose a question that we are asking ourselves: How likely is it that if unions become a more visible component of the educational institutions across the country, graduates entering the workforce will be more likely to have favorable opinions of them?

Already, the latest numbers indicate that unions enjoy a 68% favorability among all Americans, while in the 18-34 age bracket that jumps to 77%. We’ll just list the headlines, and you can answer the question for yourself.

Grinnell College Becomes First Fully Unionized Undergraduate School in the U.S.
48,000 Academic Workers Across University of California Rise In Unison For Equitable Workplaces
Hundreds Rally for Yale to Recognize Graduate Student Union
State Certifies New Mexico State University Graduate Student Workers Union
Indiana University Graduate Students Go on Strike for Union Recognition
UC Academic Workers Block Westwood Intersection to Protest Pay and Policies
Student Workers at Washington State University Push to Unionize
Santa Clara University's Lecturers and Adjunct Faculty Members Petitioned to hold a Union vote

Blog Post

The Healthcare Industry’s Pandemic Woes Could Suggest a Blueprint for All

by Kimberly Ricci

We recently detailed how the healthcare industry’s experiencing an abrupt change in fortunes. Even as nurse unions continue to push OSHA to enact permanent rules for workplace safety, Covid-19 federal dollars continue to dry up. Resulting budgetary strains on hospitals will lead to ongoing transformations, including the bursting of the travel-nurse bubble.

A related and ongoing crisis exists at nursing homes across the United States. Over 2,000 employees in Pennsylvania went on an SEIU-driven strike for higher wages, an issue exacerbated by the pandemic. In California, for example, an SEIU-represented worker alleged a 60-80 hour workweek for “poverty-level wages” that didn’t include overtime pay. She detailed how many of her fellow employees quit during the pandemic because the facility had more money to pay temporary workers, who ended up receiving higher wages than their permanent counterparts.

Blog Post

The Gig Economy Could Soon Reach Watershed Moments

by Kimberly Ricci

The conversation around gig working often involves a series of tradeoffs. On one hand, there is a sense of flexibility of being able to set one’s own work hours and provide services for multiple gig-based companies. As part of that deal, independent contractors generally do so without employee protections and benefits.

So, it’s not shocking to see that unions found a foothold to push for employee status for app-based gig drivers, who can shoulder considerable expenses that translate into taking home less than minimum wage. This union push, however, has so far led to some half-measures with no one (not workers, companies, or unions) fully satisfied with the outcome. Massachusetts (a battleground state for the issue) could push the decision to voters, and if that happens, companies who use gig drivers could see change on wage and tax-liability fronts.

The Massachusetts Supreme Judicial Court will soon rule on the ballot initiative, which would potentially categorize these gig workers under the umbrella of an existing labor law. What happens in this case could lead to change for companies (like Uber, Lyft, and DoorDash, of course, but potentially extending into a wide range of industries) who rely on gig workers. If unions get what they want here, gig drivers could gain more rights and benefits, but the gig economy could eventually be transformed significantly.

On a federal level, NLRB General Counsel, Jennifer Abruzzo, argues that misclassifying independent contractors violates the NLRA. At Abruzzo’s behest, the NLRB wants to overturn the 2019 Velox Express decision, which found that a courier company shouldn’t have to reclassify independently contracted drivers as employees, even though the NLRB found that the drivers were erroneously misclassified, and Velox’s termination of a driver (engaged in a protected activity) was an unfair labor practice.

The majority Velox opinion relied upon the NLRA’s Section 8(c) “free speech” provision but also a public policy consideration, meaning that the board found it unfair to hold the company responsible for a violation because classifying independent contractors is frankly difficult territory to navigate. If Abruzzo’s board overrules Velox, that would open a whole new can of worms, so it’s unlikely to happen, yet it’s still a case to watch.

Blog Post

Minimum Wage Could Head to Ballots this November

by Kimberly Ricci

Voters in Michigan could make the call on whether the state’s minimum wage will rise to $15 from its current $9.87 per hour. The UAW is front and center on pushing the issue to ballots, which could lead not only to the higher overall minimum wage (over the next 5-6 years) but also push tipped workers up to $15 per hour (and keep their tips), too.

The stakes are high because the petition demands further increases beyond $15 for inflation. The Small Business Association of Michigan went on record to express how, despite their support for increased wages, mandated higher wages (that aren’t driven by the market) could translate into fewer available jobs. Given that June 1 is the deadline for the 340,000 petition signatures required, we’ll know soon if the issue will go to voters.

Blog Post

Save the date! Another virtual Approachable Leadership open workshop is on the way.

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, 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 May 2022