Are you living in a card-check multiverse?
If someone offered you a chance to step into a
Star Trek transporter and send you somewhere else in the universe, would you do it?
That was the first question
Tyler Cowen asked physicist and philosopher
David Deutsch on a recent
Conversations with Tyler podcast (highly recommended). What followed was a fascinating primer on the latest thinking in quantum physics on the multiverse (spoiler: Tyler would NOT hop in the transporter, but David might).
I realized as I listened that we are absolutely living in a multiverse, and I can prove it! Because you live in a universe where union elections are how we officially certify whether a union enjoys majority status. But there’s been a fork in that universe. Alongside that universe is another, where the
Joy Silk Mills doctrine is alive and well (and expanded).
In this new universe a union can seek certification by simply asserting its majority status on the basis of cards. Yep, card check. Without any change in the National Labor Relations Act and without adopting the PRO Act.
On August 12, 2021, General Counsel Abruzzo initiated the new fork. She asked the Regional Directors to forward to advice any cases in which an employer, “refuses to recognize and bargain with a union where the union presents evidence of a card majority, but where the employer is
unable to establish a good faith doubt as to majority status; specifically, where the employer refusing to recognize has either engaged in unfair labor practices
or where the employer is unable to explain its reason for doubting majority status in rejecting the union’s demand. See Joy Silk Mills, Inc., 85 NLRB 1263 (1949).”
Less than one month later we already have our first case in this new fork of the multiverse. It’s the first I’m aware of and is ongoing, so I’m not going to get into the exact facts. But rest assured this will be the first of many.
In this new fork a union sends a letter to an employer demanding recognition (and to begin collective bargaining, including and information request), claiming a majority of employees signed authorization cards. That same day the union files a certification petition with the NLRB.
One day later, after the employer declines to recognize the union based on cards, the union files an unfair labor practice charge alleging that the employer illegally refused to recognize the union as the bargaining agent. A few days later the union then reiterates its demand to bargain and information request. About 10 days later the union files an additional charge against the employer for failing to respond to its information request.
This is what every employer should be expecting over the coming months. If a union has a majority signed up on cards they’ll engage in this same dance, living in a new
Joy Silk multiverse until told otherwise. And the weight of the General Counsel will be on their side all the way.
One might ask, “wasn’t this whole
Joy Silk thing put to rest by the Supreme Court in the 1970’s?” Well, as a matter of fact it was, in the
Linden Lumber Division decision in 1974. In that case the Supreme Court held that the NLRB did not abuse its discretion when it created the current framework, where an employer is not required to accept a union’s proof of majority status and can instead ask the union to seek an election to prove it represents a majority. Seems like that sort of shuts off this fork of the multiverse, right? Not so fast.
The new General Counsel must be contemplating a whole new framework. She’ll ask the Board to go further than the original
Joy Silk framework, instead arguing they should exercise their discretion exactly the opposite way it did in
Linden Lumber. In other words, if an employer does not have proof that a union lacks majority status it is an unfair labor practice to fail to recognize the union. In other words, the 9(c) election is only available in cases where an employer proves its good faith doubt (or a union has less than a majority signed up). In other words, card check becomes the default certification method.
This new branch in the multiverse will certainly face legal challenges, especially since the Supreme Court has already given its stamp of approval to the current framework. But is changing the default an abuse of discretion by the Board? That’s a little more slippery than if the Court had held that the statute dictates the current framework – and unfortunately, they didn’t say that. And since we don’t have a transporter to go back and get them to edit their opinion, we’re going to be stuck in this new branch of the multiverse for a while. Beam me up Scotty!
PS – Curious about how your company should respond to this new “card check” multiverse? Join me next week on our PRO Act Pivot Part 2 webinar where we’ll cover this and much more.
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Union Bailout Update
As we highlighted last month, the new Democrat-majority NLRB is itching to make its mark on labor law. General Counsel Abruzzo has
targeted more than 40 decisions from the last four years, and the low-hanging fruit will be starting with the cases already in hand. Abruzzo is also cooking up ways to
increase the penalties to businesses for alleged labor violations, including providing access to unions and reimbursing them for organizational expenses. Congressional democrats meanwhile are attempting to
use the budget process to implement PRO Act penalty provisions.
The D.C. Circuit Court of Appeals
struck down a Trump era ruling restricting non-employees from demonstrating in front of businesses. The court
sent the case back to the now-Democratic board.
Former NLRB member William Emanuel is facing a probe by the Department of Justice over whether he should have recused himself from five cases brought before the board during his term, due to alleged conflicts of interest. The action stems from Emanuel holding stock via mutual funds.
In a statement, Emanuel clarified:
“At no time was I aware of the names of the many individual stocks held in these sector mutual funds,” he said. “In all but one instance the small dollar amounts that could be attributed to me through the fund’s holdings of individual stocks did not exceed levels that would have required me to seek a waiver had I held the stocks individually. When this issue was called to my attention, my advisor immediately sold these sector mutual funds.”
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Covid-19
Last month, the subject of vaccination (against a labor backdrop) sparked so much back-and-forth that it didn’t seem possible for the issue to fuel greater contention, but lo and behold, that’s precisely what happened. President Biden’s sweeping new
federal mandate (requiring that companies with 100+ employees must require vaccination or test weekly) affects up to 100 million American workers, and of course, the mandate is under fire.
The new guidelines
appear to be constitutional (as framed through a rare exception via the Occupational Safety and Health Administration of the Labor Department), although court challenges should be expected. It must be noted that mandates by individual employers had already
rocketed following the Pfizer jab’s FDA approval; yet the federal nature of Biden’s mandate leaves some employees (particularly those in short-staffed industries) feeling
emboldened to resist the requirements.
Amid unions, the general subject of vaccine mandates proves to be scattered:
- New UAW President Ray Curry declared that mandates must be negotiated at the employer level (including the Detroit Big Three automakers) while making room for religious and health exceptions;
- The UFCW and SEIU aren’t warding off mandates and will push for union input;
- Municipal unions in NYC are already whipping out the lawsuits over mandates; and
- Newly installed AFL-CIO president LIz Schuler made her perspective clear: “Everyone should be vaccinated.”
Here’s how the topic previously rolled out with several prominent employers, independent of Biden’s aggressive mandate:
- Delta Air Lines stepped up as the first major U.S. employer to penalize workers who won’t get vaccinated with a $200 monthly surcharge, and the plan has so far seen increased compliance;
- United Airlines drew a line in the sand over religious mandates, declaring that those employees with a successful claim would nonetheless be placed on unpaid leave;
- Disney World negotiated a company-wide mandate after forging a deal with six unions;
- The Pentagon declared that service members (including active duty and reserves) face compulsory vaccination;
- Automakers maintain a divided stance with strong recommendations from the Big Three, which stop short of mandates thus far, yet GM did survey white-collar workers on whether they’d received the jab and is requiring disclosures from salaried employees.
In the face of vaccine mandates, mounting claims of
religious exemptions throughout the public and private sectors leave employers in an unenviable position. However, leaders of several faiths (including Catholicism) have
announced that they won’t endorse exemptions, with dioceses in multiple faiths taking steps to mandate the jab among their own employees.
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Organizing
Starbucks’ union-free streak (across it’s 8000+ locations)
might soon come to an end. Workers in Buffalo, New York began to organize and announced the first organizing committee (Starbucks Workers United) in the company’s history. Before long, news broke that workers seek to unionize
all 20 stores in the city.
Elsewhere, the art world is seeing museum staffers organize
in Chicago while fully unionizing
in Brooklyn, and Hamilton College
student workers are on the verge of unionizing tour staff, which may be a first in the United States.
Amazon employees
squashed a headline-making attempt at organization in April by the Retail, Wholesale and Department Store Union (RWDSU). However, the Teamsters are maneuvering
at a local level, which shows that the long-term battle is not over. Multiple battlegrounds have emerged for the deep-pocketed union, which is circling facilities in Southern California, Oceanside, California, and Massachusetts. On a related note, California lawmakers are advancing
historic legislation that, if passed, would require transparency from Amazon and similar companies about warehouse quotas and productivity goals.
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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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Sexual Harassment Gets a Make-over in Texas
Two new laws in Texas make it much
easier for a sexual harassment claim to be made by employees. The law now specifies that any business that has at least one employee qualifies under the law, and provides very specific language to outline what is considered sexual harassment.
