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Labor Relations INK December 2016

In this issue:

  • Big Labor Perplexed
  • Is A Dangerous Pension Bailout Precedent On The Way?
  • Auto Workers Fail to Represent
  • Strategy+Tactics
  • Insight, SEIU Watch, Scoreboard and more…

The bottom of each story contains a link to the individual post on our site.

 

http://lrionline.com/labor-relations-ink-december-2016

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How a Trump Administration Could Fix the NLRB

Bob Dylan may have skipped the Nobel Prize ceremonies, and I doubt he’ll be at the inauguration, but I’m sure he’d agree that “the times, they are a changin.”

In just a few days Donald Trump will be inaugurated as America’s 45th President. His transition has felt a lot like his campaign: unconventional, messy, and always interesting to watch.

The list of things Americans want the incoming Trump administration to fix grows longer each day. My guess is aren’t up there at the top of the list of priorities. But I do think there are BIG (or should I say huge) opportunities to improve the way the NLRB does business.

I’d like to take this opportunity to suggest four things the new administration should add to the priorities list. Most of these could be implemented right away and without rulemaking or legislation (although a legislative solution is preferred for many of these to make them permanent).

  1. Nonacquiescence: This is the position that the NLRB and General Counsel take to ignore a Circuit Court decision (or often many Circuit Court decisions) that go against the General Counsel’s views. In October the NLRB got spanked by the DC Circuit and ordered to pay $18,000 in attorney fees to a Michigan health care system for continuing to litigate a case that, “takes obduracy to a new level.” The court found the Board acted in bad faith by continuing to appeal. On the wishlist: Require the NLRB to follow the law in any Circuit in which a case arises and prohibit the General Counsel from handling appeals (all appeals should be handled by the Board’s Solicitor).
  2. Require Secret Ballot Elections. The NLRB orders mail ballot and quick elections more and more often. They allow unions to coerce voluntary recognition from employers using negative PR campaigns. This increases “arm twisting” by unions and prevents the election from having true oversight. On the wishlist: The NLRB should require secret ballot elections in all representation cases unless all parties agree to a mail ballot or non-secret ballot election.
  3. Mandate Minimum Campaign Periods. Since adoption of the “ambush election rule” the average election period has shrunk by nearly one-third. The NLRB should mandate that all election cases have a minimum period from petition to balloting. On the wishlist: The NLRB will not conduct an election within 30 days after a petition is filed unless all parties agree to an earlier date.
  4. Discovery and Evidence in Hearing: The NLRB does not provide copies of witness statements, affidavits or advance copies of documents in hearings until a witness is called to the stand. This results in “hearing by ambush” and is a terrible way to determine fact issues. On the wishlist: The General Counsel is required to provide copies of affidavits, statements, and any other documents it intends to put into evidence in an evidentiary hearing or trial in advance of the hearing. Anything not provided in advance will not be allowed into the record.

These 4 reforms are just a beginning, and I haven’t included any of the huge list of NLRB decisions that should be returned to their prior (in many cases decades-long) position. This includes issues like mandatory arbitration agreements, joint employer, protected concerted activity, use of email and other electronic communication, surface bargaining, and many more.

Other high priority changes include increasing the jurisdictional limits (these limits have not changed in decades and hurt very small companies) and removing charities, Indian tribes, and adjuncts and the like from Board jurisdiction.

The case law and jurisdictional changes will take some time to achieve. However, the four reforms I suggest above could happen “day one” after a new Trump Board is sworn in. That would be a great day one.

Best wishes for a happy holiday season and a prosperous (and exciting) New Year!

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Union Bailout Update

The 5th Circuit court has granted the DOL’s request for an expedited review of the DOL’s appeal of the nationwide injunction against the overtime rule. The injunction was ordered by a District judge in Sherman, Texas in late November, as the rule was due to take effect on Dec. 1. Briefs are due by the end of January, and oral arguments will be scheduled after that date.

Judge Cabranes

Judge Cabranes

The Second Circuit Court of Appeals has upheld the Speciality Healthcare micro-units decision, and provided an additional framework for application. Judge Jose Cabranes, writing for the court, explained the two parts as (a) identifying shared interests among members of the petitioned-for unit, and (b) explaining why excluded employees have meaningfully distinct interests…that outweigh similarities with unit members. To quote Cabranes,

Merely recording similarities or differences between employees is not enough. Explaining why the excluded employees have distinct interests in the context of collective bargaining is necessary to avoid arbitrary lines of demarcation and to avoid making step one of the Specialty Healthcare framework a mere rubber stamp.

The new OSHA “anti-retaliation” provisions took effect Dec. 1st, as a Texas district court denied a preliminary injunction. Although a permanent injunction is possible, the new regulation is now law until the granting of such an injunction or any possible action by the incoming administration.

As we enter the season of the changing of the guard in the White House, the Obama administration’s legacy of regulatory action with respect to labor and employment law is under scrutiny. In a report by the Coalition for a Democratic Workplace and Workplace Policy Institute, over the last 8 years the National Labor Relations Board has overturned 91 precedents, wiping out more than 4,000 years of case law—averaging more than 45 years per decision, and the agency’s new election rules overturned a combined 454 years of protocol.  According to the 73-page study,

In each case where the Obama Board changed the law, the resulting new law became more favorable to labor interests than it did under previous Board rulings—frequently at the expense of promoting stable bargaining and economic growth and without regard for balancing the interests of business, labor and employees under the Act.

As almost all of the actions taken by the Obama NLRB were reversals of longstanding law, and completely partisan (of the 91 cases overturned, not a single Republican board member voted in support), those in favor of supporting employer and employee interests over Big Labor are hopeful that the Trump administration will undo a significant portion of the damage caused by the current board.

Andrew Puzder

Andrew Puzder

Some members of Congress are poised to take action regardless of how quickly a Trump-constituted NLRB may act. Representative Bradley Byrne (R-AL) is touting bipartisan support for legislation designed to “restore the sensible joint employer definition that was in place for more than 30 years.” Representative Byrne is a member of the Education and Workforce Committee. With the appointment of Andrew Puzder as Labor Secretary, a fast-food franchise CEO who has been a vocal critic of the Obama administration’s regulatory agenda, such actions are likely to gain traction.

Another move being suggested for the new administration is the revival of an Office of Labor-Management Standards division created under Bush to audit large international unions. The Obama administration disbanded the division, and the OLMS has been operating with 44 percent fewer full-time employees than during the Bush administration. As LRI’s president Phil Wilson was quoted in a Bloomberg article on the subject, such a shift “doesn’t require rulemaking, that doesn’t require legislation; that’s just enforcing more vigorously the law that’s already on the books.” In fact, no new money need be allocated, as money could be redirected from the Wage and Hour division or from OSHA, as happened under Bush.

The Competitive Enterprise Institute also jumped into the policy conversation with a new report detailing policies it hopes the new administration will tackle. Styling current labor law as an outdated remnant of the New Deal era, the report calls for reform, including passing the Employee Rights Act.

Now that Big Labor has lost a White House advocate for union-friendly laws and regulations, the one bright spot potentially remaining on the union radar screen is trade, where Trump appears to line up more to labor’s liking. However, since all trade deals must pass the approval of Congress, this isn’t yet a windfall on the side of Big Labor.

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Big Labor Perplexed

Having thrown $530 million of workers’ dues into mostly Democratic Party groups and liberal causes over a four-year period, only to see barely half of union households voting for their candidate in the recent election, union leaders seem to be flailing around in a state of confusion. Now they can’t decide if Trump’s efforts to keep U.S. jobs from crossing borders should be applauded, and they can’t even agree to support former Big-Labor darling Tom Perez in his bid as chairman of the Democratic National Committee.

On the one hand, it’s quite entertaining to see Big Labor stumbling around attempting to collect itself. On the other hand, one must not overlook what unexpected actions a bear backed into a corner might take. They could still make life miserable for some!

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SEIU Watch

SEIU members in a school district in Michigan are being sued by the SEIU Local over the ownership of a banquet hall. The employees of the Taylor school district had built the hall with money secured via fund raising efforts (as opposed to union dues), prior to a merger of the Taylor local with an SEIU local in Lansing. What happened?

Typical SEIU strong-arm tactics. The Taylor employees decided they wanted to undo the 10-year-old merger with the Lansing local and remain a distinct SEIU local, but the Lansing local didn’t want to want to play nice. Kathie Fields, former president of the Taylor union local, and a defendant in the lawsuit, sent a petition with nearly 400 signatures to the International headquarters, asking the International to dissolve the merger or send legal help. After this request was ignored, a 200-signature petition was sent to the Michigan Employment Relations Commission to decertify the SEIU in Taylor, and the Lansing local filed suit a month later.

bankrupt

A Texas SEIU local has filed for bankruptcy rather than have to pay the combined $7.8 million judgment for it’s illegal activities against Professional Janitorial Service of Houston. Never mind that the parent International spent $80 million it didn’t have helping to elect Barak Obama twice.

The jury found the SEIU local to have made false claims, false statements, and engaged in media collaboration to libel PJS. The jury ordered the local to pay $5.3 million to the company for the harassment, and the judge tacked on $2.5 million for interest accrued during the proceedings.

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Is A Dangerous Pension Bailout Precedent On The Way?

Unions have been allowed to operate by a set of rules that if used by any other enterprise, would land the executives of those enterprises in prison. A common example is the immunity from violence allowed by unionistas during strikes, protests and other “protected concerted activities.”

For the most part, unless you are a target for such violence, this disparity doesn’t affect you. However, perhaps a more dangerous rule immunity applies to the math that unions are allowed to use in managing (or mis-managing) their pension funds.

Non-union private pension plans must use a government-prescribed and realistic interest rate when managing their funds. Unions are under no such restrictions and may use whatever interest rate assumptions they want when running their pension plans.

umwa-logoAs the recent Mine Workers of America pension debacle illustrates, this regulatory favoritism creates a fiscal train wreck, and a win-win for unions: the union delivered significant pension benefit promises for its members, and coal industry employers did not have to contribute enough to actually fund those promises. The UMWA now faces a devastating sinkhole of $5.6 billion in unfunded pension promises.

Unfortunately for the rest of us, Senators from the coal-mining states are threatening to “use whatever means necessary” to lay the burden of union malfeasance at the feet of American taxpayers in the form of a government bailout – the first of its kind of a private pension fund. Should this occur, more than a thousand other private union pensions, with over $600 billion in unfunded liabilities, will be lining up to feed at the federal trough.

This 2009 YouTube video attempted to give some perspective to how much money $6 Billion represents.

This 2009 YouTube video attempted to give some perspective to how much money $6 Billion represents.

ink_scoreboard_dec_16**********

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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Teamster Beat

fred-zuckermanLast month, we reported that James P. Hoffa managed to secure the role of president of the Teamsters union for his 18th consecutive year. While this win does show that Hoffa still has some power plays up his sleeves, the election itself proved that he may not be able to hang on for much longer.

Not only did he lose his “home local” this year, he only beat rival Zuckerman by 709 votes. It’s starting to become painfully clear that Teamsters members are ready for a change.

In other news, after only 15 months of representation, Goodwill truck drivers and warehouse workers are ready to decertify Local 839. Why? Because their local didn’t get anything done. Goodwill addressed many employee issues on its own. And it just doesn’t make sense to keep passing off hard-earned money for, essentially, nothing.

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Strategy+Tactics

A new report released earlier this month by the U.S. Chamber of Commerce’s Workforce Freedom Initiative shows how the NLRB’s 2011 decision authorizing “micro-unions” has spread across industries.

The Specialty Healthcare decision “abandoned decades of precedent regarding what is an ‘appropriate’ bargaining unit for forming a union.” At the time of the decision, the NLRB said the ruling would likely only apply to non-acute healthcare facilities and “did not constitute a broad new legal standard.” However, as this new report shows, these micro-unions are being formed across a variety of industries including retail, manufacturing, rental cars, delivery services, and telecommunications.

workit-app

Unions are finding new leverage at the tactical level as well, using everything from app technology to alt-labor organizing to increase their organizing capacity and political punch.

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Fight for $15

faces-of-15From the time Fight for $15 began in 2012, critics have warned of the repercussions of a $15 minimum wage: self-service kiosks replacing the hourly workforce, reduced hours of operation, eliminating staff positions, and the closure of small businesses.

Study after study over the past four years show us that all these worries have come to light. And yet, the fight continues.

Just last month workers gathered in 340 cities and 20 airports in Fight for 15 protests. Most of the protesters, at least at Chicago O’Hare, were wearing SEIU purple. The World Socialist Web Site made an interesting comment about this day of protests:

While the workers’ grievances are entirely legitimate, the SEIU’s claim to fight for them is a complete fraud. Far from actually fighting for increased living standards for workers, the campaign is aimed at getting a foot in the door for the SEIU so it can collect dues from these highly exploited layers and ensure their own position as junior partner to the bosses.

A proposed New York City law shows that they’re making headway in that arena. The law would require McDonald’s and other chains to “let workers send membership dues directly from their paychecks.” These membership dues would not technically go to unions, but rather to an independent third-party organization that could then “donate” the money back to groups like SEIU and the Fight for $15 movement.

It’s important to note that not all businesses are accepting this movement without a fight. One group in Arizona filed a suit last week to block a voter-approved minimum wage increase from taking effect Jan. 1.

For anyone interested in learning about the real effect this increase in the minimum wage is having on actual business owners and employees, check out this site.

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Auto Workers Fail to Represent

uawSome UAW members are pretty upset with their union. And it’s not so much about what the Auto Workers did, but rather what they didn’t do.

Volvo Trucks just announced its intention to lay off another 500 workers in early February. This comes after two previous rounds of layoffs earlier this year.

When asked what his union was doing to prevent the job losses, one worker said:

“It sets up perfectly for the union. They are holding their local elections in March, right after the layoffs take effect. If you are laid off the union doesn’t tell you when you can vote. So they exclude the workers who are most affected by their sellout policies from being able to vote them out.”

To learn more about Local 2069 prioritizing corporate interests over the well-being of its members, click here.

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Labor Around the World

In Greece, 7,000 demonstrators marched in the capital of Athens and another 5,000 in the country’s second-largest city, Thessaloniki. From public transportation to state-run schools and hospitals, this nationwide strike was a disruption to many. These protests came after a series of income cuts and tax hikes across the country.

A similar situation took place in Madrid, Spain on Sunday. UGT and CCOO, Spain’s two main labor unions, organized a march of several thousand workers to protest recent changes in labor policy.

In places like Bangladesh and Qatar, labor issues of late lend themselves to more serious concerns like child labor and abusing migrant workers.

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prisonerSticky Fingers

Current charges or sentences of embezzling union officials:

  • Roy Murray – TWU:  $31,136
  • Jared Henson – AFGE:  $1,000
  • Anthony Frederick Sr. – LIUNA:  $1,700.000
  • David Gomez & Sergio Amador – ILWU:  $3,000,000
  • Patrick Remigio – AFGE:  $95,000
  • Violet Lamorie – AFGE:  $70,000

http://nlpc.org/category/project-name/union-corruption-update/

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