The NLRB's Triple Threat: A Wake-Up Call for Employers: LRI INK

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Subject: The NLRB's Triple Threat: A Wake-Up Call for Employers: LRI INK

August 31, 2023

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The NLRB's Triple Threat: A Wake-Up Call for Employers

by Michael VanDervort

QUITE AN AUGUST AT THE NLRB

Get our Cemex analysis and guidance here: The Cemex Decision: Navigating The New Era Of Union Organizing

So far, 2023 has been a banner year for unions. Data from LRI Rightnow shows that unions are winning 4 out of 5 NLRB elections. Yet despite this success, the National Labor Relations Board continues to do everything possible to make it easier for a union to organize your company’s employees.

In August, the NLRB has been on a tear, issuing a series of procedural changes that have left employers scrambling to reassess their labor relations strategies. From adopting stringent new standards for workplace rules to reverting to quick union election procedures, the NLRB has made it abundantly clear that the tides are shifting in favor of unions. Here’s a breakdown of the three significant “strikes” against employer rights you need to know about.

Strike One: The Stericycle Decision and Tough New Standards for Workplace Rules

The NLRB’s Stericycle decision reinstates a modified version of the Board’s pro-union Lutheran-Heritage standard for scrutinizing employer workplace rules. Under this new standard, a rule or policy is “presumptively unlawful” if it tends to chill employees from engaging in protected conduct under Section 7 of the National Labor Relations Act (NLRA). Employers must demonstrate that the rule advances a legitimate and substantial business interest that a more narrowly tailored rule cannot advance.

Employers should consider scrutinizing all workplace rules, policies, and procedures through the lens of the new Stericycle test and brace for unfair labor practice charges and litigation on any rules in place. This is especially important considering the new Cemex standard.

Strike Two: Quick Union Elections Are Back

The NLRB has also reverted to quick union election rules, reversing the 2019 election rules implemented under the Trump Administration by issuing a new final rule for union elections that revives the prior “ambush election” rules. The new rule compresses the period between a representation petition filing and the election. The rule’s impact makes it more difficult for employers to educate employees about unions and unionization before a vote.

The rule negatively impacts employer rights by reducing access to hearings. It also shortens the time between petition and election to as little as 14-21 days. The new rule takes effect on December 26, 2023. Employers would be wise to consider taking proactive steps to prepare for conducting campaigns on a much shorter calendar heading into next year.

Strike Three: The Cemex Decision

The Cemex decision broadens the path for unions to organize an employer. The new framework holds that employees can claim majority recognition via card check and that the employer must either recognize or challenge via filing an RM petition. However, should an employers who seeks an election commit unfair labor practices, that alone would require setting aside the election. The Board will then order the employer to recognize and bargain with the union.

Cemex creates a new, perhaps very flawed, framework for determining when employers must recognize and bargain with a union. Employers must operate under this new standard while litigation plays out. See LRI analysis and guidance here.

What’s Next?

There are indications that more changes could be coming, such as a potential ban on mandatory employee meetings about unions and revisions to the Tricast doctrine. Both would further ease the path for labor unions to win elections.

An NLRB ban on mandatory meetings would severely limit an employer’s ability to communicate its stance on unionization to its employees. Changes to Tricast would make it more challenging for employers to discuss their direct relationship with their employees.

Conclusion

The NLRB remains committed to facilitating union organizing despite unions already having an 80% win rate. Employers should consider taking immediate steps to train management on legal rights and responsibilities, prepare for quick litigation, and effectively communicate their stance on unionization. Stay tuned for future updates.

This is a wake-up call for employers navigating a rapidly changing labor relations landscape.

Blog post

A First-Of-Its-Kind Union Ramps Up Efforts To Sweep The South

by Kimberly Ricci

With the release of the new Cemex decision broadening the path for unions to organize an employer, those in the restaurant and other service sector industries will want to be aware of the activities of newly forming groups such as this.

The Union of Southern Service Workers began making headlines last fall after formally christening themselves during a rally in Columbia, South Carolina. This union holds some familiar attributes, given that it began as an offshoot of Raise Up, which is the Southern leg of the SEIU’s Fight for $15 initiative. Yet this is no ordinary effort by the SEIU, for the USSW purports to not only be “built by and for low-wage workers” but also stretches across many industries.

A key distinction: The union frames itself as a cross-sector organization, designed to retain members even if they job-hop between industries, i.e., fast food, retail, hotel, nursing home, warehouses, etc.

That cross-sector focus is cunning for a few reasons: (1) It discourages membership churn by allowing workers to maintain membership after switching jobs; (2) It eases organizing in high-turnover industries that remained relatively immune to organizing activity until recent years.

Full steam ahead: The USSW will attend a Sept. 2 conference in Atlanta to spread their message of “fighting to transform our low wage, high turnover jobs” into unionized jobs. The union also made this a summer of safety issues while intensifying recruitment efforts. Even in workplaces that are not formally unionized, the USSW “backs” walkouts and strikes.

One major summer target: A certain around-the-clock breakfast chain, which has 1900+ locations that are largely concentrated in the South.

Aided by the USSW, Waffle House workers in Columbia protested against “extreme hours” and low pay while lobbying for 24/7 security against the viral “Waffle House fights” that have garnered social media attention. Workers also expressed concern over armed customers after recent shootings broke out at multiple locations.

Those Columbia workers walked off the job during morning rush hour. That walkout turned into a three-day strike, during which union organizers joined the workers as they protested violent and intoxicated customers.

The USSW has remained awfully busy with other summer initiatives:

Also in Columbia, Dollar General and Burger King workers attended USSW informational sessions focusing upon heat safety – obviously a hot issue during this blazing U.S. summer.
In Atlanta, GA, Dunkin’ workers recently picketed for safety, and Publix workers went on strike over working conditions.
In Savannah, GA, the USSW led strikes at three cafes (Foxy Loxy, Henny Penny, and Fox & Fig), which ended with nine workers claiming that they were fired for participating.
In Durham, NC, 50+ service industry workers recently went on a USSW-organized strike over workplace safety concerns.
In South Carolina, the union alleged that the state OSHA fails to perform safety inspections at food service and retail workplaces.

The union claims other distinctions, including how their focus on low-wage workers means that members are likely to be minority and/or female. Additionally, several Southern states are also governed by Right To Work laws, which protect workers from compulsory dues payment in union workplaces. These last points don’t point toward any conclusions yet, although they do add up to more reasons to watch out for the USSW.

Blog post

The UAW’s EV Chess Move: Will It Affect Big Three Negotiations?

by Kimberly Ricci

The Teamsters’ recent “historic” contract “win” against UPS isn’t truly that much of a win. Still, Big Labor feels emboldened by the dustup, and UAW President Shawn Fain is flexing even harder over the ongoing Big Three automaker negotiations. Fain has been waiving his laundry list of “audacious” demands for 150,000 members, and now, he has another tool-belt notch: movement on the EV dilemma.

Simultaneously to Big Three talks, the UAW has been holding separate GM/LG battery plant negotiations in Warren, Ohio, for 1,100 workers. The joint venture agreed to give workers 25% raises on their current $16+ per hour, retroactive to late 2022. Members ratified this interim deal.

What does this portend for Big Three negotiations, if anything?

EVs have been seen as a “wild card” in these Big Three talks, and those Warren raises might be a bargaining chip. If, say, Ford or Stellantis shuts down Fain’s demand for a magical 32-hour work week, then perhaps the companies decide to use the Warren plant as a blueprint for an addendum about EV wages in the future. Considering that another 22 U.S. EV plants are in the works, Fain might think that’s a fair trade-off.

The UAW is undoubtedly looking to close the wage gap between EV and traditional assembly plants. Yet that move could backfire on workers due to the somewhat alien landscape of the EV market.

Higher labor costs move EVs away from the $25,000 “sweet spot” Stellantis insists is vital for EV sales. Unfortunately, zero new EV models currently meet that price point. Wage increases will not ease that goal and could cause job losses and a drop in union membership.

No wonder the UAW is lining its pockets in academia lately.

Onto the Big Three: Fain complained that talks are moving like molasses ahead of the Sept. 14 expiration. He says members are “burned out,” and he has dramatically responded to automaker offers. These fiery displays included Fain tossing a Stellantis offer in the trash on Facebook Live.

Stellantis called the UAW’s perspective unrealistic. At the same time, GM seems fine with raising wages but finds other demands unsustainable.

Another strategic move: Workers overwhelmingly authorized Big Three strikes by 97%. Yep, this negotiation tactic doesn’t guarantee a strike but puts pressure on companies over demands, including 46% pay hikes and restoration of COLA benefits.

The cost of a strike: The UAW has been preparing for this event with a $825 million strike fund. In 2023, their strike pay climbed from $275 to $500 weekly. The cost to the union would be $75 million weekly.

That sounds like a lot, but it’s a drop in the shop-rag bucket compared to the last Big Three skirmish, which cost GM $3.6 billion for a 40-day strike in 2019. Fain recently made a show of joining UAW members for a practice picket session in front of a Detroit Stellantis plant — so everyone knows he means business.

Blog post

The NLRB Just Made Holding A Union Election A Much Quicker Process

by Kimberly Ricci

Last week, the National Labor Relations Board released a new Final Rule for Union Elections. Yes, the NLRB only recently sent companies into revamp mode for employee handbooks, and now, here comes another substantial change. It’s a lot of upheaval at once, but this new rule goes into effect on December 26, so let’s talk it out.

A bit of background: Earlier this year, a U.S. appeals court began dismantling 2019 NLRB changes on the grounds that a proper public comment period wasn’t held for a rule that was opposed by unions. That rule required putting union elections on hold until relevant litigation or unfair labor practice claims were resolved. This undid an Obama-era policy that speeded elections up, naturally to the detriment of employers, who had less time to communicate with workers about unionization and address alleged labor wrongdoings.

The Biden board changes much about the union elections timeline and allows them to proceed regardless of whether unresolved litigation or pending ULP claims are in the mix. So, voting can proceed while a barrage of union propaganda might cloud workers’ judgments.

Here are some important procedural changes from the official Final Rule:

The pre-election hearing window will open at eight days, rather than 14 days, from the day of service of the Notice of Hearing. Once service happens, a company must inform workers of the Notice of Petition for Election within two business days, not 5.

Any pre-election hearings will be narrowed in scope and apply only to questions of representation. Employers will not be allowed to dispute whether certain employees or groups can vote.

Companies will face a high bar to postpone hearings. This must be through extraordinary circumstances; any postponement will only be granted for two days. Further, written response briefs will not be permitted other than by exception.

The election will be scheduled for whenever NLRB regional directors see fit. Goodbye to the mandatory 20-day waiting period.

This is a crucial development, given that companies might no longer have the opportunity to ensure that workers are properly informed of the realities of union membership before they vote. Any unsubstantiated ULP claims against companies could sway workers’ emotions during a vote and give unions an unfair advantage.

Yet interestingly enough, this Final Rule might not be the final say in the matter. Biden’s board did not hold a public comment period on their rule before adopting it. The official excuse is that the board relied upon existing public comments before the 2014 and 2019 changes. There could be more legal challenges coming.

For now, employers will need to adjust to another new standard, which makes it even more important to size up organizing activities swiftly and foster a working environment that encourages open communication between the company and workers. Soon, there will be much less time to open those lines after a petition for a union vote surfaces.

Blog post

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Hot Links For This Week:

OSHA's Proposed Rule Would Allow Union Walkthroughs of All Worksites

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U.S. Chamber Rebukes NLRB Decision Denying Workers’ Rights to Make Free and Fair Choice About Unions

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Is the Service Employees International Union the worst boss in America?

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Trader Joe’s Union Files to Force Company to Recognize Union Under New NLRB Rule

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Hot strike summer has 'real potential to last,' Ivy League expert says: 'There's a contagion effect'

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NLRB decision should cue employer vigilance for labor rights violations, counsel says

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Will election-free unions become the new norm?

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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, Michael VanDervort, and Kimberly Ricci

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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: The NLRB's Triple Threat: A Wake-Up Call for Employers: LRI INK

QUITE AN AUGUST AT THE NLRB