Subject: Labor Relations INK October 2022

October 28, 2022

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What to Say When Your CHRO "Pops the Question?" or How to Create and Run an Effective Tabletop Exercise

Labor Relations Insight by Phil Wilson

 

“Are WE ready to deal with THIS?” 

 

Labor pros are getting way more facetime with the C-Suite. Unions are in the headlines every day, and your execs are watching nightmares unfold at other companies. 

 

Wildcat walkouts. Multiple organizing campaigns at once. Accusations of unfair labor activity. Negative PR blitzes from out of nowhere. And every time they see one, they ask themselves the same question: Are WE ready? And then they stare directly at YOU.

 

Do you have a good answer? Now you do. “We’ve tabletopped this same scenario, and know exactly how we’d respond.”

 

Every time I hear “tabletop exercise” I think of Pilates (and then rapidly think “no thank you!”). But numerous clients have asked us to run or help with tabletop exercises over the last few months. Here are some of the things we’ve learned about creating and running an effective tabletop exercise. 

 

A tabletop exercise (or TTX for short) is a discussion-based simulation activity. It takes a team through one or a series of scenarios to help them pressure test response strategies and identify gaps in people, processes, and resources.

 

A TTX is one of seven training methodologies used to evaluate and prepare emergency response plans and teams. They are broken down like this:

What makes an effective (and ineffective) TTX? We’re big fans of tabletop exercises, but they’re not the right tool for every situation. For example, when you’re training a response team you need to focus more heavily on operations-based exercises (drills, role-plays, and even full simulations). 

 

Here are some of the advantages and disadvantages of tabletops:

Pros

·       Lower intensity: Unlike operations-based exercises, a TTX is normally a lower stress discussion that doesn’t put participants into a “live fire” situation. Don’t get me wrong, the discussions can get intense but it’s a different kind of stress than performing in real time.

·       Inexpensive: Even the most elaborate TTX usually takes a few hours and doesn’t require a large team to deliver. We can normally execute a tabletop with a few hours of preparation and scenario planning, the event itself, and post-event next action reporting. 

·       Flexible: While a TTX is often held in a face-to-face meeting, you can also conduct a very effective tabletop with a remote team. This also reduces travel expense and time lost to travel. It’s especially effective for a response team that is geographically dispersed.

Cons

·       Unrealistic: You must design scenarios well, or the exercise can be unrealistic. You won’t experience resource constraints and response can seem a lot simpler than it is in real-life.

·       Lower intensity: The lower intensity is also a disadvantage of tabletop exercises. You’re never going to simulate the intensity of an actual event during a tabletop. Instead, you’ll need to use operations-based exercises.

·       Doesn’t build response capacity: These exercises aren’t designed to build skills like operations-based exercises. They have value to identify areas to test later in operations-based exercises, but they don’t build skills on their own. They must be part of a more comprehensive response team development plan.

 

Many tabletops are heavy on brainstorming. Like any brainstorm, the output is often wide-ranging and not prioritized. This is an advantage of brainstorming: it encourages creativity and looking at problems from different perspectives. 

 

While brainstorming has advantages, it can also send conversations off in unproductive directions. Further, it tends to give equal priority to things that don’t deserve equal focus. This can reduce that value of the time spent in the exercise. You can overcome these challenges with a skillful facilitator and with strong scenario design.

 

Another key component to the success of a tabletop exercise is well-defined scenarios the team will attack. It is normally better to tabletop a narrow scenario (response to a petition or walkout at a specific location, for example) versus numerous different scenarios, especially at first. Over time you may choose to broaden scenarios to test the interplay between different response strategies, or to test resource constraints. But generally, narrower scenarios give you more focused outcomes.

 

Another design feature we call a “Left of Boom” TTX. You’ve heard of a post-mortem, right? Most tabletop exercise designs ask the team to react to the scenario, kind of like a post-mortem after a negative event. This is what we call responding “Right of Boom.” 

 

In a Left of Boom TTX you first ask the team to explore how we got here. This is a pre-mortem. The negative event happened, but how did we get here?

 

This twist may seem insignificant, but it really impacts the conversations and work you do. Before you ever explore the response, you first identify the most likely root causes of the negative event. That not only informs the discussion you’ll eventually have about the appropriate response activities, but also identifies important gaps you can shrink to avoid problems in the first place.

 

For example, a common scenario for a traditional tabletop might be that a location experiences a walkout or a strike. The team is asked to play out the different ways the organization would respond. The “left of boom” version initially asks, “if we experienced a walkout or a strike at this location, how did we get there?”

 

Asking the “how we got here” question will identify gaps that aren’t specifically related to your response (right of boom) gaps. These are proactive ways to avoid the negative event from happening at all.

 

I prefer orienting TTX discussions using this left of boom/right of boom framework. It gets the team to look at both sides of a negative event. It uncovers more actionable ideas than the traditional post-mortem exercise alone. It's more likely to identify issues that are within your span of control.

 

The other challenge with traditional tabletop exercises is action planning after the event. I leave a lot of tabletop discussions feeling like they were intriguing, but vague about what happens next. This is why you should make sure to close the TTX by asking the team to identify the highest priority actions to take based on that day’s discussion.

 

My favorite way to do this is with a whiteboard and sticky notes (you can also do this on a virtual whiteboard). The team identifies all the key issues and writes them on a post-it note. You then place the post-it notes on a 2X2 grid, where the X axis is “impact” and the Y axis is “difficulty.” Then the team posts each issue or action somewhere on the grid based on the impact that issue has and how easy or difficult it will be to solve.

 

This is a visual way to identify a handful of “low hanging fruit” action items. Your most important action items will have the highest impact and be easy to implement. In addition, you’ll identify high-impact items that may be more difficult to accomplish. Those can go on a longer-term project plan.

 

A TTX is a great way to keep a response team fresh. Tabletop exercises can engage your response team without having to be physically together. You still need to do operations-based activities (which you can also do virtually by the way) but occasional TTX exercises can also identify areas where the team might need additional development. Additionally, the response team members can be deployed to tackle some of the “low hanging fruit” projects you identify in the TTX.

 

Because tabletops are a lower time commitment, you can also invite higher level executives to participate alongside subject matter experts. Executives without much labor experience will learn a lot from these exercises. I've seen light bulbs go off during these exercises where top executives realize the company is not ready to respond to a scenario. Suddenly the response team gains executive sponsorship and additional resources.

 

Interested in being ready with an answer when your CHRO “pops the question?” If you’d like to add tabletop exercises to your labor relations strategy let us know. We’re happy to walk you through scenario design and can even facilitate a TTX for your team.

Big Labor's Representatives at NLRB Forge Ahead

by Greg Kittinger

The National Labor Relations board once again flip-flopped the rules on whether a company must continue to withhold dues once a union contract expires. Reversing the 2019 Valley Hospital decision, an employer must continue to honor a dues-checkoff arrangement established in a contract until either parties have reached a successor collective-bargaining agreement or a valid overall bargaining impasse permits unilateral action by the employer.

 

At the end of September the NLRB reversed a prior position in a T-Mobile email use case. Originally, an employee who emailed all her colleagues about a union meeting using the company’s email system was held to have been lawfully terminated for policy violations. The Board revisited the decision and determined the enforcement was selective and therefore unlawful. In footnotes, board member David Prouty suggested that the current pro-employer position on email may soon change

 

In another effort to bolster Big Labor, the NLRB just reduced the damages charged to a union from a ULP settlement agreement to $500,000 from the original $13.3 million!  Quite the handout to the United Mine Workers, and a signal of what to expect going forward from this board.

 

The deadline to file comments related to the joint employer rule has been extended to December 7th.  

 

NLRB General Counsel Abruzzo is turning up the heat on employers by streamlining the process of applying Section 10(j) injunctive relief. A memo distributed to all field offices on October 20th explained the measures.

NLRB Mail Ballot Abuses Called Out

by Greg Kittinger

The mail-ballot process has allegedly been abused by the National Labor Relations Board to favor pro-union election outcomes. According to Neil Bradley of the U.S. Chamber of Commerce, such abuses include:

 

●      NLRB agents secretly coordinating with unions to arrange for in-person voting by union supporters during a mail-in ballot,

●      Giving unions non-public information about vote counts so they could target employees,

●      Generally collaborating with unions to produce the desired outcome in elections. 

 

According to Bradley’s letter to NLRB Inspector General David Berry, these abuses were revealed by an NLRB whistleblower.

 

letter sent to NLRB Chairperson Lauren McFadden by the House Committee on Education and Labor (instigated by Republicans Rick Allen of Georgia and Virginia Foxx of North Carolina) called on the board to toss the outdated test used during the pandemic to warrant a mail ballot election, and return to in-person voting.

Score Board

Who are the winners (and losers) of the labor movement? Don't guess, just check the LRI Scoreboard

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The Supreme Court Could Take Aim at Strikes

by Kimberly Ricci

The Supreme Court might soon undo efforts from the most pro-union NLRB in history. The justices will review a 2017 caseGlacier Northwest, Inc. v. International Brotherhood of Teamsters, to determine whether employers can sue to recover economic damages (destruction of property, spoiled products, etc.) caused by strikes. In this case, Glacier financially suffered after losing many truckloads of concrete, only to have the drivers agree to a new contract without much fuss.

 

Fast forward to 2022, and the court could rule that an employer can settle grievances with unions while bypassing the NLRB and suing in state court. This development, of course, runs counter to the National Labor Relations Act’s articulated right to strike. The outcome of this high court decision could make unions think longer and harder about legal consequences for striking.

 

This judicial jousting takes place alongside the first anniversary of “Striketober,” which received its label from a handful of heavily reported events that didn't actually add up to an increase in strikes. Still, the media wanted Striketober to happen, and this fall, only the healthcare industry stands as an example where workers are striking in large numbers. A recent months-long Starbucks strike in Boston looks like a bust with no remarkable results for union members as they returned to work. 

Tricks and Ill-Gotten Treats of Union Corruption
by Kimberly Ricci

Much like union officials can’t resist the cookie jar, it’s hard to resist feeling satisfaction when corruptiondoesn’t go unpunished. Here’s a fresh batch of bad behavior:

 -       An ex-leader of the International Brotherhood of Electrical Workers faces prosecution for snatching $80,000 from union coffers and indulging in first-class international travel, luxury goods, and cars. In addition, Brian Ahakuelo allegedly hired several family members and paid them six figures apiece. The feds must have had a ball with those 70 counts of white collar thievery. 


-       Former Teamsters Chicago boss John T. Coli Sr. whipped up a racket and received a 19-month prison sentence in exchange for a guilty plea on extortion charges that (at least partially) stem from his associations with Senenator Thomas Cullerton, who’s currently serving a year-long sentence for embezzlement after he drew a salary from the union. Coli previously vowed to never talk about his extorting ways, but times have changed.  


-       An ex-local president of a government employees’ union got whacked with federal grand jury indictments on a number of fraud-related charges. This includes allegedly embezzling at least five digits full of union funds for lavish shopping sprees of guns, jewelry, fine dining, and good old fashioned groceries.


-       A Teamsters local received lawsuit papers from the Equal Employment Opportunity Commission on the grounds that its business agent sexually harassed a female UPS supervisor. The business agent received probation after entering a guilty plea, but the Teamsters won’t get off the hook that easily, especially considering evidence that union officials knew of the business agent’s unsavory behavior and didn’t take steps to remediate it.

The Starbucks Saga Reaches a Slower Yet Still Swirling Phase

by Kimberly Ricci

Ten months after the first Starbucks cafe voted to unionize in Buffalo, New York, over 250 locations followed suit, but the flood has slowed, not quite to a trickle but noticeably so. 

 

The New York Times recently acknowledged a third phase of the Starbucks United campaign, in which workers are learning that a union win doesn’t magically lead to a contract or a change in pay or working conditions. The publication follows a two-month strike at that same Boston cafe, where a recent law school grad (who gave up a public defender job for this) hoped to inspire fellow baristas to regain momentum.

 

LRI’s Phil Wilson recently discussed that same strike with a Boston-based publication, to which he provided analysis about findings that showed how the 24/7 strike didn’t lead to greater benefit for workers. In fact, they only took home 70% of their normal pay (through a local labor council) and went back to work (again, two months later) without any changes to working conditions or negotiations to be found.

 

One of the potential takeaways of the muted Starbucks saga (and the recent Amazon Labor Union loss in Albany, New York) could be growing worker ambivalence toward unions. At the very least, there’s slightly more worker skepticism by seeing diminishing returns after organizers promise the world in increased wages and benefits. Regardless, plenty of union-related Starbucks developments continue:

 

-       A Houston Starbucks saw workers strike to protest the firing of a union leader. The company maintains that this particular worker was let go due for violation of attendance policies rather than for organizing behavior. Meanwhile, an NLRB judge ruled that a Michigan barista was illegally fired over her union activity.

 

-       Tensions remain high with Starbucks workers expressing fears that the coffeehouse giant will retaliate against unionized cafes. As such, the union took to filing at least 325 unfair labor charges against the company.

 

-       Outgoing Starbucks interim CEO Howard Schultz might not be helping the messy situation by recently telling Washington Post that organizing baristas are “angry at the world.” Yet to be fair, Schultz only temporarily returned to the job after former CEO Kevin Johnson departed in March with the organizing flood already in motion. Incoming CEO Laxman Narasimhan will fully take over in Spring 2023.

A Grab-Bag Of Organizing Developments
by Kimberly Ricci

Unions now seemingly leave no possible organizing stone unturned. From retail to food-service, higher education to manufacturing, the art world, and even Capitol Hill, no industry remains immune to union infiltration. We do also note some prominent instances where workers voted down unions, but there’s a lot going on here:

 

-       Grocery store workers at two New Seasons stores in Portland, Oregon filed for union elections. This news arrives while workers at two other Oregon New Seasons stores began voting in their elections this month. All told, the stores could eventually employ over 500 union workers.

 

-       Medical cannabis workers for Good Day Farm in St. Louis also filed for an election following an organizing drive by United Food and Commercial Workers, which continues to aggressively target the cannabis industry. 

 

-       Podcast engineers (along with producers and editors) at Pineapple Street Studios voted to join the Writers Guild of America, East, which has already unionized multiple brands under the Spotify umbrella. 

 

-       Graduate students at Boston university are joining the organizing trend seen at universities across the U.S. Thus far, at least 40 graduate student unions have emerged, many falling under UAW locals, but the Boston University Graduate Workers Union aims to join the SEIU.

 

-       Adjunct professors and librarians at Skidmore College in New York already voted to join the SEIU. They’re asking for similar benefits to those enjoyed by tenure track professors while maintaining that they carry similar workloads.

 

-       Condominium workers (including desk attendants, maintenance workers, and caretakers) in Minnesota will soon strike over their employer’s decision to not recognize their union effort. 

 

-       Brooklyn Museum Workers (represented by the UAW and frustrated by slow-moving contract negotiations, ongoing since January) held a rally during an opening for two new prominent galleries. 

 

-       Security guards for USENTRA (based in Warwick, Rhode Island) began to organize (and held multiple rallies near hospitals) in an effort to join the SEIU.

 

-       Congressional staffers voted to form the first such union on Capitol Hill. This took place in the office of Representative Andy Levin (D-MI), and similar efforts are underway in seven other Democratic congressional offices.

 

-       Kellogg workers at the Ohio MorningStar Farms plant voted against joining the Bakery, Confectionery, Tobacco, and Grain Millers International Union.

 

-       The Amazon Labor Union withdrew their petition for a vote at a California fulfillment center (the ONT8 facility) after filing the petition on October 12. This move follows the recent news of ALB1 warehouse workers voting against joining the union in Albany, New York.

Long Strikes With No Meaningful Results

by Kimberly Ricci

Our own Phil Wilson recently contributed analysis to a follow-up report on a two-month long Boston Starbucks strike. In the end, the workers picketed around the clock with little to no benefit, and in the case of the 10-week-long Kaiser Permanente mental health worker strike in California, the results aren’t too different. 

 

The longest U.S. strike by mental health staffers failed to solve the core grievances that prompted 2,000+ workers to head to the picket lines. The strike-ending agreement mainly includes an inflation-canceling 13% pay hike (spread over four years) for therapists. Kaiser will also attempt to hire more therapists to ease scheduling concerns, although again, these results pale in comparison to the strike’s magnitude.

 

Still, those healthcare worker unions continue to flirt with striking. Earlier this year, we observed a new trend in doctors joining unions, and at California’s Santa Clara Valley Medical Center, 450 physicians could strike and leave the healthcare system in a lurch.

 

More union news from healthcare and other industries:

 

-       Chicago nurses at Community First Medical Center signaled an impending three-day strike while the SEIU blasted working conditions.

 

-       California nurses at Alta Bates Summit Medical Center signaled a 5-day strike at multiple California campuses. In Fresno, nursing home workers took a different route by carrying out a six-hour fast to raise awareness of staffing issues.

 

-       Minnesota saw twin mental healthcare worker strikes (at Abbott Northwestern and Mercy Hospital-Unity Campus) for three days as a follow-up to 15,000 nurses striking in September across the state.

 

-       Kansas could soon see 600+ nurses from one of the state’s biggest hospitals, Ascension Via Christi St. Francis, unionize after filing for an election.

 

-       Kroger grocery workers from 80+ Ohio stores won’t strike due to a new contract after United Food and Commercial Workers negotiations.

 

-       Facebook parent company Meta watched 250 janitors go on strike in multiple locations in the Bay Area. Although the strike was considered indefinite, a new contract materialized within a week.

 

-       Costco avoided a potentially massive strike by 18,000+ Teamsters members after the union announced a new three-year contract.

 

In addition, California’s quest to significantly hike minimum wage might soon lead to private-facility healthcare workers reaching $25 per hour. After plenty of back and forth, the issue will head to voters in November.

A Potentially Historic UAW Election In The Works 

by Kimberly Ricci

The notoriously corrupt UAW can’t shake its legacy of corruption (or that federal watchdog), and that’s why the union’s first direct election could bring a significant shakeup. We previously told you about Ray Curry’s rival, Will Lehman, a rank-and-file, tiered Mack Truck worker whose popularity makes him a viable presidential candidate. Voting began on October 17 with tabulations set for late November.

 

The stakes remain high for this election while the union attempts to regrow its membership by aiming to unionize burgeoning EV plants, even as challenges to the overall process (including the daunting process of workers learning to build EVs) continue. Amid all of those moving wheels, Lehman is delivering speeches about the ills of union bureaucracy and the scandals that continue to plague his union. 

 

Workers received the socialist candidate with open arms while he distributed campaign information at his Pennsylvania home plant. Further, Lehman is speaking to many of their concerns while calling upon automakers to deliver 50% wage boosts and full strike pay. Although these don’t appear to be realistic demands by any stretch, UAW members are clearly looking for change, and Lehman offers that promise. 

 

In the meantime, the UAW could be maneuvering against Hyundai while asking the Biden administration to withhold loans and subsidies from the automaker due to concerns about job losses. Potential layoffs could arrive due to Hyundai moving to cut ties with their suppliers (including a stamping plant) that commit child-labor violations.

Transportation Woes Could Complicate The Holiday Season

by Kimberly Ricci

The sitting U.S. president thought he had the railroad workers dispute all tied up, but unions have another idea altogether. At one of a dozen unions covered by a proposed contract, a majority vote by 12,000 Brotherhood of Maintenance of Way Employees rejected the deal that Biden brokered. All 12 unions must approve the deal for it to stand, so this could eventually pave the way to a November strike and wreak havoc upon the supply chain and an already strained economy. 

 

A few more transportation updates:

 

-       Two Sysco food distribution strikes ended in Syracuse and Boston with Teamsters announcing new contracts. This didn’t happen without chaos, however. At the Plympton plant in Boston, 20 striking workers came under arrest for blocking the plant’s doors with other allegations including assault and battery. 

 

-       Seattle dockworkers could jeopardize talks for a new contract involving 22,000 workers at ports throughout the West Coast. At issue: the International Longshore and Warehouse Union wants the NLRB to intervene on the issue of workplace assignments.

Disputes Aplenty For Tech Workers

by Kimberly Ricci

Union activity in the tech realm continues to intensify. At the beginning of the year, we told you about the aggressive union tactics (including those from the CODE-CWA initiative to recruit tech employees of all stripes) targeting video game developers. 

 

The subject continues to be messy with NLRB complaints adding chaos. This resulted in Nintendo of America and a staffing agency settling (for $25,000) with a contracted Quality Assurance worker, who alleged that she was fired for broaching the topic of unionization during a company meeting and tweeting about the subject. 

 

On another tech-involved note, the Alphabet Workers Union alleges that two Google contract workers were fired for voicing union support and publicly discussing benefits.

Signs Of Gig Economy Times To Come?

by Kimberly Ricci

The gig economy continues to prosper in inflationary times while awaiting those promised watershed moments from Biden’s NLRB. That includes General Counsel Jennifer Abruzzo’s dream of overruling the 2019 Velox Express decision that ruled in favor of a courier company not being required to classify independently-contracted drivers as employees. The NLRB also formed a partnership with the FTC to collaborate upon making a labor laboratory out of the gig economy. 

 

An interesting case study involves the only U.S.-based lobstering union via Bloomberg. The local represents about 100 lobstermen who fit the currently accepted definition of gig worker. After talking to an International Association of Machinists and Aerospace Workers organizer, the union formed a tank-room cooperative and began to sell their own product, bypassing fishermen and setting their own prices. In 2021, the collective turned a profit after years of efforts. This may or may not inspire other gig workers to band together in a similar way, but it’s an example worth watching.

No Easy U.S. Fix For Union Corruption In Mexico

by Kimberly Ricci

A little over a year ago, GM plant workers in Silao, Mexico voted to oust their notoriously corrupt union in favor of an independent, U.S.-government sponsored union. However, workers allege that the new union is up to the same tricks as the old bunch. That’s not entirely surprising news, despite hope that workers ousting the powerful Confederation of Mexican Workers (CTM) would promote change.

 

Those GM workers’ claims – against the new Independent Union of Auto Industry Workers (SINTTIA) – don’t bode well for the ability of the U.S.-Mexico-Canada Trade Agreement (T-MEC) to squash corruption. Nor does the agreement guarantee that union contracts won’t be “sellouts” that don’t raise wages in pace with inflation. Several of these GM workers report that their wages remain near poverty levels while the union fails to heed worker grievances. Strike pay? Forget about it.

 

VP Kamala Harris previously pledged $130 million in U.S. funding to help form these independent unions in Mexico (with oversight from the AFL-CIO’s Solidarity Center) and emphasized a May 2023 goal set for contracts with newly installed independent unions. According to the workers, it’s not going well so far, as echoed by Volkswagen plant workers (in Puebla), who recently rejected their union’s deal with the company while citing disappointment in negotiations for wage increases.

About Labor Relations INK


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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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