Harry Johnson’s NLRB term expired on August 27th. It was way too short. Thankfully Member Johnson was able to leave a few parting shots before he departed. There have been so many important changes over the last few weeks it is impossible to cover them all. These are the things I’ve been asked about most and a few thoughts about the implications:
Who is going to replace Harry Johnson? I haven’t seen much buzz on this so far. The only rumor I’ve seen
suggests Roger King. Roger would be a terrific choice - he's among the sharpest labor lawyers I know. Don’t just take my word for it –
read the AFL-CIO’s reaction. They say Roger would be a “finger in the eye of the President.” While they didn’t mention which finger, I don’t think the AFL-CIO gives any higher recommendation than that.
Electronic Signatures. This actually isn’t an NLRB decision, so Johnson didn’t get a chance to dissent. Instead,
the General Counsel responded to a request in the ambush election rulemaking to comment on whether or not it was feasible to accept electronic signatures. The General Counsel really overachieved here, not only saying it was feasible but outlining exactly how he’d accept them. Needless to say, you can expect to see petitions supported by electronic signatures soon.
How big is this change?
I’ve already explained why I think it’s a terrible decision. Bottom line, it will increase the ability of unions to get “soft cards” in an organizing campaign. I think for employers this means increased petitions. However, I think unions will lose more elections supported by electronic signatures because
people just don’t mean what they sign electronically.
Joint Employer. The
BFI decision finally issued. This is a victory for unions, but I think its overall impact is overstated. While
BFI gives unions some interesting new tools to use, especially in situations where they already represent workers, I don’t think it is the end of the world. In some ways the decision hurts unions. It increases the likelihood an employer will get involved earlier and more forcefully in the labor relations activities of an often less sophisticated contractor employer. It increases the chances an employer will expand attempted bargaining units, making these units harder to organize. And it doesn’t really make the organizing job any easier than it is today (you still have to convince workers in either unit to buy a pretty lame product).
This decision does create more opportunities for unions to be a nuisance, although even here I’d say the practical difference is small. Today unions often use the relationship between the contractor and the larger employer entity as a way to pressure the larger company, even without a “joint employment” relationship. This decision tightens that relationship, but as a practical matter unions (not to mention the news media and the public) never really look at these entities as separate anyway.
Dues Checkoff. In
Lincoln Lutheran of Racine the NLRB upended a half-century old precedent, requiring employers to continue deducting union dues after a collective bargaining agreement expires. Even though the Board is supposed to be promoting labor peace, this decision guarantees fireworks in upcoming contract negotiations around the country. Employers now have the perfect excuse to remove dues checkoff out of their contracts (or extract some decent concessions in exchange for keeping the clause). Unions are definitely going to regret asking for this change.
Ambush Election Rule. We’ve had the ambush rule for just over 4 months now. The charts below tell the tale, but election periods have shrunk pretty close to 25 days.
Petitions are up, but not nearly as much as it looked like they might be when the rule first went into effect.
Nearly all of the new petitions are in small units of under 10 employees.
That’s the latest on the new election rules and the latest out of Washington. There should be a bit a break in the action until a new Republican member of the Board is seated. That is unless the Board abandons its longstanding practice of only issuing important decisions with a 5-member panel. There is no reason to believe they would stop following such a time-honored precedent. Oh, wait. Maybe there is… stay tuned.
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Union Bailout
Reversing precedent in place since 1962 (sound familiar?), the National Labor Relations Board recently ruled that companies must continue to deduct
dues from employees paychecks after the contract has expired. Those following the
Lincoln Lutheran case were not surprised.
The board also “piled on” to the
Speciality Healthcare micro-unit ruling in
DPI Secuprint, Inc., ruling that a petitioned-for unit can exclude a functionally-integrated department of employees from the unit and still be found appropriate, even where the excluded employees work in the same space and form part of the same workflow as unit employees. You should
read the details if micro-unit attacks are a concern. A
micro-unit attack was responsible for Target Corp’s first organizing defeat, when a group of pharmacy employees in Brooklyn, New York, recently voted to form a union.
When the Ambush Rule passed earlier this spring, the door was opened for the use of electronic signatures in showing of interest, despite the greater opportunity for fraud and abuse inherent in such a system. In a recent memo, the NLRB General Counsel signaled to unions that it would not likely investigate any charges of fraud. According to the memo,
“As is now the case with handwritten signatures, an electronic signature submitted in support of a showing of interest that meets the requirements set forth herein will be presumed to be valid absent sufficient probative evidence warranting an investigation of possible fraud. Mere speculation or assertions of fraud are not now, and will not in the future, be sufficient to cause the Agency to investigate.”
The definition of protected concerted activity continues to expand faster than
spray foam insulation. In this latest case, an employee who was disciplined for a rule infraction, and was upset over the episode, posted his discipline notice in his cubicle so that it was visible to other employees. When the employer threatened suspension, he removed the notice but filed an
unfair labor practice charge, which the board upheld.
Although unions are hoping to turn the recent joint employer decision into an
organizing windfall, legislators are attempting to intervene in the joint employer debacle by introducing a
bill designed to protect franchisors from the NLRB’s joint employer decision. Called the
Protecting Local Business Opportunity Act, the bill would roll back the ruling and return to “actual, direct and immediate” control over an employee as the test for joint employer status.
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New Tool for Leverage in Organizing
Unions can now look up the
“ratio” of CEO pay to median pay and use that information in organizing or collective bargaining efforts. The ruling, from the Securities and Exchange Commission, mandates all US companies provide the ratio, and Glassdoor published a report and
searchable database disclosing names, salaries, and median pay of what appears to be every publicly traded company.
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Political Season & Labor Rhetoric
As election season approaches, both Democrats and Republicans are attempting to use issues related to unions and labor regulatory agencies to position themselves for campaign contributions and votes.
Republican contender
Scott Walker came out of the chute aiming high, planning to dissolve the NLRB, make it illegal for public employees to join unions, and create a national right-to-work law. Unless there is a GOP landslide in both houses of Congress, such a landscape change isn’t very likely, and at this point, Walker seems to be losing headway in the race. [BREAKING – Walker has resigned from the race. It remains to be seen if another GOP candidate will take up the pro-employer mantle.]
The Democrats have meanwhile proposed a bill that will most likely become a litmus test for vetting Democrat candidates, similar to the way the Employee Free Choice Act was used in 2008. In contrast to Walker’s proposal, the
proposed Wage Act would strengthen the NLRB, requiring the board to go to court on behalf of workers fired for attempting to unionize. It would also establish damages and back pay for such workers, give similar protections to immigrant workers without work authorizations and establish penalties against employers who supposedly violate workers’ rights.
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Right to Work
The biggest right-to-work news of the past month was
Missouri Governor Jay Nixon’s veto of H.B. 116 – the bill that passed right-to-work in Missouri. Gov. Nixon’s veto was supported by a number of self-proclaimed “grassroots” organizations – the two most notable being Preserve Middle Class America and We Are Missouri. Here are a few quick facts about these groups:
- Preserve Middle Class America is essentially run by the Teamsters. Their address confirms this – it’s the same as IBT Local 245 headquarters. The group has also received nearly $2 million from the Teamsters and other local unions.
- We Are Missouri has received approximately $45,000 in payments from the AFL-CIO Headquarters in Washington, DC.
The
Missouri House attempted to override Nixon’s veto in a vote last week, but failed to gain a two-thirds majority.
Those who oppose right-to-work laws claim that they make it “harder for middle class families to protect their wages and job security.” These ideas are further ingrained through the use of
“fundamentally flawed” data. James Sherk, a research fellow in labor economics at The Heritage Foundation, points to a paper published by Economic Policy Institute as an example. The paper concluded that right-to-work laws reduce wages by 3 percent. The problem with the data in this case, Sherk says, is that EPI failed to take into account the differences in cost of living.
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SEIU Watch
It is no secret that labor unions are in business to funnel dues collected from members into the pockets of unions officials and staff, instead of putting that money to work on behalf of those members. Here’s a quick recap of some of SEIU’s recent financial shenanigans.
SEIU Local 1000 put forth a new
proposal that would give union officers stipends for the work they do for the organization. In a broad sense, the proposal provides a valid argument; it’s the details that seem a little, well, greedy.
Union officers already get 100% paid leave from their “day job” in order to conduct union business. They are now proposing that they get stipends on top of it. How did they come up with the value of the stipends? By making their total pay equal to or more than the highest paid employees in their organization. This would more than double, and in a couple cases, triple these officers current income. It’s safe to say these officers might be pushing it a little, but we do have to give props to Local 1000 for one thing – at least they are letting their members weigh in on the decision of how their dues money is distributed. As we all know, this isn’t always the case.
For example, in 2014
SEIU gave $1.5 million to a North Carolina shell group called Carolina Workers Organizing Committee. Carolina Workers Organizing Committee then took $1.12 million of that money and gave it to Action NC. Action NC is a financial backer for Moral Monday. The Moral Monday group regularly protests a wide array of what they deem unfair treatment, discrimination, and adverse effects of government legislation. Their protests involve various acts of civil disobedience.
So the question is, what about the members who don’t support the Moral Monday movement? Why should it be okay that this is what their dues money is being spent on? Perhaps they have issues closer to home they need the union’s help with. Perhaps they just want what they paid for – representation.
Speaking of which, the CEO of Hollywood Presbyterian Medical Center in Los Angeles just laid off the hospital’s whole Respiratory Therapy Department, most of which are paying members of SEIU-UHW. So how did one of the largest union locals in the country handle this attack on their member’s livelihoods? According to an article published by RT Focus:
“When it came to the termination of the respiratory department, their
union was at best, largely ineffective or at worst, terribly silent.”
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SCORE BOARD Because this issue had to be prepared in advance, the current strike data was not available at the time of publication. We'll send out a notice next week with the current scoreboard.
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Tax Payers Subsidizing Union Labor
As is typical in many communities, the city of Joliet has offered tax incentives for a developer desiring to build commercial enterprises in the area, which will eventually benefit the city. Unfortunately, the city also restricts developers who take advantages of the cities largesse (in the form of these tax breaks) to using all-union labor. Thus, the developer’s profits and the artificially inflated wages of union employees are picked from the pockets of Joliet’s tax-paying citizens.
Everyone likes tax breaks and developer Hospitality Guru Group is no different. The group has proposed building two new hotels, totaling 200 rooms, connected to a conference center, a restaurant, and a fitness center. The project was supposed to break ground at the start of summer in 2014. Construction has yet to begin. Even with the tax incentives,
the cost of all-union labor is just far too high.
Hospitality Guru has asked the city to either increase the tax incentive or decrease the union labor requirement to make it more feasible for them to invest; all this to no avail.
The construction industry, especially in areas of high union density, is one industry where union labor costs are typically much higher than for non-union labor. This recent example from Joliet highlights the fact that the solution for developers attempting to execute profitable projects is often laid at the feet of taxpayers, who are totally unaware that they are being forced to fund union-labor premiums.
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Debunking Union Myths
Labor Day, along with providing a day off for many employees, also generally produces some interesting reading on labor issues. This year was no exception.
Diana Furchtgott-Roth, responding to the Labor Day drivel of Labor Secretary Thomas Perez, revealed the
misuse of data Perez attempted to use to propagate the myth that union employees “make more money.” It’s a good read for understanding basic labor economics and data “sleight-of-hand.”
A new Gallup poll indicates that
non-union employees are more happy with their work environment than union members. According to the report, “Employed Americans who report being members of labor unions are significantly less likely than nonunion employees to say they are ‘completely satisfied’ with six of 13 job aspects.”
To be fair, and as described by Furchtgott-Roth in the article mentioned above, data can be misleading. Safety was one of the key factors used in the Gallop survey, and Gallop asserts that some of the difference could be attributed to the fact that unionized employees are more likely to be in either low-skilled or more dangerous jobs. Either way, unions cannot claim their members are happier in their jobs than non-union workers.
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Alt-Labor
The face of the labor movement is changing. It’s becoming younger, more educated, and more female. Though union membership numbers are down as a whole,
the number of women in organized labor has increased by 12% in the last 30 years. One national survey also found that young adults view unions more favorably.
The rise in organizing in the tech industry confirms this. In fact,
Al Jazeera America, a digital newsroom, just announced that a majority of their organization has petitioned to join the NewsGuild of New York. The next big decision in the technical era of organizing will be if the National Labor Relations Board approves a proposal by The Century Foundation to allow
organizing via a mobile app. It seems inevitable in this day and age.
There are a couple organizing attempts happening right now though that seem like a bit of a stretch. The Industrial Workers of the World are attempting to
organize panhandlers in Windsor, Ontario; and here in the U.S., one man has just started a
campaign to organize Metro riders.
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Whistlin’ Dixie
The
Auto Workers and the American Council of Employees are still battling it out over the workers at Volkswagen’s Chattanooga, Tennessee plant. UAW currently claims to have signatures approving representation from 55% of the workforce. The last confirmed number for ACE was 15%. Both these percentages give the unions access inside the shop. The next step, each say, is to successfully set up a works council.
UAW has started a
new campaign at Honda’s manufacturing plant in Talladega County, Alabama. The union has tried to organize this facility in the past, but there has never been enough support to file for an official election.
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Teamster Beat
The Teamsters are known for
keeping it in the family and Local 727 is no different. A month to the day after his license to practice law in Illinois came through, Joseph Coli Jr. opened his own law firm and was handed $1 million in business by his brother and his father, who run the Chicago Teamster local.
After six weeks of a
workforce on strike, Sun Tran routes in Tucson will be back to normal. The strike began when Teamsters rejected Sun Tran’s original offer which would have cost the company $2.7 million. The final contract will cost the company $4.36 million. It’s important to note that 47% of the striking workforce already made
top pay for the region.
The union had better hope that this same tactic works with
Republic Airways. Earlier this month they turned down the company’s proposal before members could vote on it. Meanwhile, Republic Airways inches closer and closer to bankruptcy.
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Labor Around the World
A business secretary in the UK has proposed a new bill, the
Trade Union Bill. It includes legislation that would require a minimum of 50 percent of union members to vote yes on strike action before it could take place; it would allow employers to replace strikers with temporary workers; and would require strikers to wear armbands that identify them when picketing. This proposal is, of course, getting a lot of backlash from those in the labour movement.
Australia is still sorting out the
deep corruption in its trade unions. This article details the immense need for an end to it. A quick snippet:
Take the issue of union corruption. Is there anyone in Australia prepared to stand up and say our unions are clean? The answer is no. Not all are as base as some but the worst are terrible, and after that it is a question of degree.
This article provides some great charts that compare union membership, average hours, minimum wage, and unemployment in America to other countries. The takeaway – we’re pretty average.
As far as September strikes go, there were plenty. The following list touches on a few of the most notable.
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Sticky Fingers
Current charges or sentences of embezzling union officials:
- Karen McJimpson - CWA: $19,000
- Kenneth Vanderwyst - NAPS: $14,077
- Betty Martin and Duane Rush - Transportation Aides of Buffalo: $120,000
- Raul Mascote - IAM: $62,263
- Jesus Gonzales - APWU: $6,720
- Heather Banhidy - UA: $13,906
- Estella Collier - UBC: $12,933
- Helen Genal - UAW: $29,968
- Tiffany Randle - AFSCME: unspecified
- Maxine Davis - NFFE: $5,875
- Shirley Johns - NFFE: $8,190
http://www.nlpc.org/union-corruption-update
