Labor Relations INK June 2015

In this issue:

• Organizing Hotspots
• Tribal Gaming Claims a Victory
• Young People More Supportive of Unions
• SEIU Watch, Sticky Fingers, Scoreboard, Insight and more…

The bottom of each story contains a link to the individual post on our site. Labor Relations Insight by Phil Wilson The NLRB Should Stop Protecting Racial Hatred The NLRB has a chance to take a stand against racism and racial hatred. I hope they make the right choice. I don’t think they will. But we will get to that in a minute. First, a quick update on ambush elections. We now have a little over two months under our belt and the impact of the new rule is starting to emerge. There was a fair amount of concern last month about the big increase in NLRB petitions. It looks like after two months the number of petitions overall is starting to look more like it has over the last several years: There has been about a 10% increase in RC petitions, but that is a big drop from what initially looked like a 30-40% increase just a month ago. I think this is mostly explained by two factors. Some petitions were held back waiting for the rule going into effect. Also there were a couple of unusual situations in the security and construction industry that accounted for around 40 petitions in May. When you add in the decertification petitions (RD and RM) the total petition increase is very modest 4%. I’ve said for a while – and as of now these statistics bear this out – that I don’t think the ambush rule is going to result in a lot more petitions. Unions are selling something that people aren’t buying. The fact that you get to make your purchase twice as fast as before doesn’t change the fact that nobody is in your store. What has changed is the unit sizes. It looks like unions continue to focus primarily on very small (under 10 employee) bargaining units. If you look at this year compared to the last 4 years, petitions are basically flat in all unit sizes other than these very small units, where they’ve surged by 36%. Here’s what that looks like: We’ve noticed anecdotally that a number of petitions are getting filed in units where unions already have a presence. They are just picking up a few more members where they are already in place. That’s not a bad strategy, but it’s not a strategy for sustained long term growth either. Election periods have shrunk around the country. In at least one Region (Region 28 in Phoenix) there are reports that the average period is 18 days from petition to election. Our experience is better, with the average election still happening in around 24 days. But whatever numbers you look at it is clear that election periods have been slashed by at least a third of where they were before the rule went into effect. Are unions winning more of these ambush elections? No. In election campaigns were we have had consultants on the ground (we’ve had more than a dozen go to election since the rule went into effect) we still haven’t lost an ambush election. If you look at election results since May 1^st (14 days or so after the rule went into effect) the union win rate remains exactly the same as it was in the same period a year prior. Again these are very early returns, but in the early going unions aren’t winning more ambush elections. Now on to the protection of racist speech. This month Administrative Law Judge Thomas Randazzo ruled that racist comments from a picketer shouted to workers crossing a picket line are protected concerted activity. He ordered Cooper Tire to reinstate Anthony Runion, the employee who shouted the racist comments. I’m not going to repeat those statements here, but I encourage you to read the opinion. There is no dispute about whether Runion made his comments. They were caught on video and both the Steelworkers union (who are fighting to protect their racist member – every African American voting in a Steelworkers election needs to read this opinion too) and the Company stipulated to this fact. Not only that, but an arbitrator had already heard all the evidence and decided that Cooper Tire had the right – under its company policies and its labor contract – to terminate Runion over his racist speech. Randazzo overruled the arbitrator’s decision. That alone is troubling because it encourages parties to ignore arbitrator rulings and continue taking bites at the apple until they get their way. It won’t be long before the NLRB just eliminates arbitration as a viable dispute resolution process. Randazzo found that the speech was protected because it wasn’t threatening bodily harm. We’ve covered the Cooper Tire lockout before. This case dealt with picket line misconduct. The bottom line on any case like that is that picketers get pretty wide latitude to say what they want on the picket line. Picket lines are highly emotional on both sides. Just about any non-violent speech is protected. It’s not a place for the faint of heart. The question is how far should the government go to protect that speech? And if every utterance other than a direct threat of bodily harm is protected concerted activity, what rights (if any) do companies have to protect their employees from hate speech? The NLRB must reverse ALJ Randazzo and take a stand against racist speech on the picket line or anywhere else. There was no allegation that this termination was a pretext to get rid of a union supporter. Lots of other horrible things were said and tolerated. This was simply about whether a company has a right to protect its employees from hostile racist speech. They are morally and legally required to do so – but this decision makes it illegal to do the right thing. It is one thing to put your thumb on the scale of organized labor. But not everything a union wants should be protected. This decision is an abomination. Racist speech has consequences and a company that wants to take a stand against such speech should have the right to do so. This decision came out before Dylann Roof went on his rampage in South Carolina, killing 9 innocent people while they worshiped in Church. I’m sure 21-year old Roof has no idea that the NLRB even exists, but I am sure he would applaud Randazzo’s decision. I hope the NLRB has the decency and the guts to correct Randazzo’s horrible mistake. Link & Comments ********** Union Bailout Update What qualifies as Section 7 rights and Protected Concerted Activity seems to be expanding with the momentum of a runaway freight train. In one recent case, the NLRB has in essence said that any discussion about wages, benefits, job security (or anything remotely related) is protected, whether or not the conversation is intended to provoke “activity.” In another it determined that union supporters had the right to wear buttons with vulgar or offensive language on them, even in the presence of customers. In yet a third example, workplace rules that require English-only (usually in certain situations) are also coming under scrutiny, and may very well trend down this same path. Violence (and now racism) by union supporters has been exempt from reasonable prosecution for years. Like I said – runaway freight train! Side note:  in the last couple of years, we have had growing requests to help train companies in how to investigate and discriminate between actionable violations of company policy and Protected Concerted Activity. With the landscape of what actually qualifies as PCA shifting like a desert mirage, it is important to focus on the principles behind the rules and recent NLRB interpretations.  Let us know if we can help with this. The board is also meddling in other areas of labor rules. In mid-May, the board granted the review of a 2012 decision related to the organizing of temporary employees.  The case is also connected to the joint employer issue, but extends beyond franchise relationships. The review signals the board’s desire/intent to change the rules, so if you employ temps, you’ll want to keep abreast of this development (the 2012 case is Miller & Anderson Inc.). In another attack on employer policies intended to protect customers (in this case, patients and HIPAA enforcement), two employees fired for accessing a database that contained both personnel information and patient records were ordered reinstated. The two takeaways from the case: if you have sensitive records (patient or customer), you should keep them in separate systems from your personnel files, and if you have policies restricting access or use, they should be very clear so as not to be perceived as suppressing Section 7 rights. Well-meaning congressmen are attempting to slow down the runaway freight train, but it is doubtful there will be much loss of momentum anytime soon. GOP members of the House have proposed an appropriations bill to reduce or restrict funding of the NLRB and the DOL. Unfortunately, funding via appropriations bills has become a thing of the past, being replaced by continuing resolutions, so the measure won’t become anything more than a discussion-starter.

Tackling labor issues on another front, Rep. Earl Carter (R-GA) is sponsoring legislation in Congress that would amend the National Labor Relations Act to ensure union bosses are not exempt from state identity theft and stalking laws. Back in 1973 the Supreme Court exempted unions from the Hobbs Act (which make it a federal crime to use extortion or robbery to disrupt commerce). If H.R. 1431 and 1432 survive, at least some of the union thug weaponry will be removed from their arsenal of intimidation. The Ambush Rule just withstood its first court challenge when Judge Robert Pitman of the U.S. District Court for the Western District of Texas tossed out a lawsuit from business groups challenging the National Labor Relations Board’s (NLRB) union election rule. A federal case is still pending. A move from the executive branch may create new headaches for employers, if Congress and business lobbies can’t fight it down.  The move would raise the current overtime threshold from $23,660 to as much as $52,000. Like any uptick in wages (such as a minimum wage increase) the change would impact employment levels and in many cases actually reduce income levels, as employers would have more incentive to restrict overtime. Link & Comments ********** Tough Negotiations Ahead The United Auto Workers will begin formal negotiations with the biggest automakers in the U.S. next month. Though General Motors Co. and Fiat Chrysler Automotive will enter into negotiations first, July 13 and 14 respectively, the UAW hopes its negotiations with Ford, which begin July 23, will lead the way in setting the bar for wages and benefits. This tactic is also called “pattern bargaining.” After agreeing to a two-tier wage system with Ford in 2011, UAW’s primary goal in these negotiations is to close that gap. Ford has stated, however, that the lower tier designed for entry-level employees has been critical to “its ability to hire more than 15,000 U.S. workers since 2011.” Though both sides believe the other is willing to compromise, it will be interesting to watch this play out. Rex Blackwell, former GM labor relations vice president, must agree based on his June 1 decision to retire rather than serve as lead negotiator against UAW. In other UAW news, former Local 2317 president Michael Bennett has been accused of embezzling close to $85,000 from the local. Link & Comments ********** Teamster Beat Once upon a time, the Teamsters union had nothing better to do than protest Disney World’s mission to keep the magical essence of Disney intact. Disney has always ingrained in its “performance employees” the importance of keeping their character identity a secret as paramount to the effort to create “real-life” fantasies for children. Recently Disney started requiring employees to consent to this commitment in an online disclosure. The disclosure simply states that members of the cast will not reveal the characters they play on social media or in print publications. Teamsters Local 385 believes this requirement to be outrageous – paralleling it to requirements imposed by the CIA. The union has filed an unfair labor practice charge against the company. In other Teamster news, IBT Local 509 just had its third lawsuit filed against them in the past year-and-a-half. The lawsuit, filed by Durham School Services, accuses the local of engaging in a “systematic and continuing campaign aimed at undermining and interfering” with the school bus company’s services for the school district. Link & Comments ********** Right-to-Work Left-wing political economist Robert Riech (former Sec. of Labor under Clinton) has entered the Right-to-Work debate on the side of Big Labor. This video supporting unions contains a section dedicated to the idea of a federal law banning state right-to-work laws. Meanwhile, fed-up employees are taking advantage of newly minted right-to-work laws, and in non-right-to-work states, the deauthorization process, to prevent the union from pilfering from their paycheck. In Michigan, the Michigan Employment Relations Commission upheld a ruling which declared the Michigan Education Association’s  “August window” for withdrawal from the union illegal and permitted union-represented public employees to withdraw from their unions at any time. In Missouri, nurses at a St. Louis hospital are looking to rescind the union security clause and eliminate mandatory dues. The deauthorization option is one of the best-kept secrets of the National Labor Relations Act. In non-right-to-work states (and in case a federal law makes right-to-work laws illegal), it is the only option left that allows union members to hold unions accountable. Unlike decertification attempts, the deauthorization process can proceed at any time. Link & Comments ********* Alt-Labor Earlier this month, the Service Employee put on the second official “Fight for $15” convention which of course the SEIU deemed a success. SEIU has thrown a lot of money the last few years into creating an illusion of accomplishment. Even with their success in the discussion of raising the minimum wage, the big question now is: Will it pay off? Not according to Matt Haller, a spokesman for the International Franchise Association, who, when discussing SEIU’s attempt to persuade the Board to rule in favor of “joint employer” status for franchisers and franchisees, said:

“What SEIU doesn’t want people to understand is that you need employers before you can have employees…Unfortunately for these workers, the union wants to get rid of the small local franchise business owners who employ the vast majority of potential new members they seek to represent.”

We’ve covered Big Labor’s use of worker centers as a way to skirt union reporting requirements, but if you’d like to review the subject, this article contains some nicely detailed analysis, although the author argues that such centers should not be considered as labor organizations. Link & Comments ********** Organizing Hotspots The ripples of the Ambush Rule implementation seem to be hitting some areas and industries more than others. This labor attorney warns employers in four sectors of increased union interest or activity:

• Manufacturers in the Southeast
• Healthcare
• Employers with “white collar” workforces (recent examples including colleges and credit unions)
• Employers with expanding operations

Link & Comments ********* SEIU Watch

You may already know about Mary Kay Henry’s decision to take 70,000 home care workers from SEIU-UHW and create a new local, SEIU 2015; which means you probably also know that Dave Regan is pretty worked up about it. He made it quite clear in his letter to local members when he addressed them as “UHW members” rather than “SEIU-UHW members,” and again in a highly opinionated seven-page memo where he stated, “To put it bluntly, this decision is a massive betrayal of our stated principles and values.” Hypocrisy strikes again. More details have emerged about Regan’s secret deal with the California Hospital Association in 2014. Besides agreeing to hold wages stagnant and prohibit employees from striking, Regan also told hospital executives he would impose a “gag clause” preventing SEIU-UHW and its members from reporting violations to patient care, issuing any communications that “raise concerns about hospital pricing and executive compensation in health care,” and engaging in any “Anti-Employer Activities.” Call us crazy, but this sounds like a “massive betrayal” of SEIU’s “stated principles and values.” As to the gag clause, NUHW has called on California Attorney General Kamala Harris, in association with other state representatives, to issue an injunction to block this clause at all CHA hospitals attempting to implement it. In other SEIU news:

• SEIU Healthcare Michigan’s 2014 LM-2 report reveals just how much money the union exploited from members during its near decade-long dues scheme. Dues collection went from $11.3 million during the last full year the scheme was active to $5.4 million the first full year without it. Read this News-Gazette Commentary for a personal account of one woman’s struggle within this scheme for years.
• SEIU, in conjunction with the Philadelphia City Council, is trying to weasel a labor provision into a lease deal with airlines at Philadelphia International Airport. If accepted, “workers would need only express interest, or sign a petition, to unionize, and the SEIU would become their union.” This would bypass decades-long NLRB voting procedures. The airlines, led by American, are currently refusing to sign the agreement.
• SEIU Local 1107 president, Martin Bassick, has been ordered back to work after being on paid leave from his job as a plans checker for Clark County in order to focus on union-related duties. This arrangement is pretty common practice by public-sector unions and local government agencies in Southern Nevada. However, after reviewing the amount the county is shelling out for union paid leave – $346,200 in 2013 – Clark County decided to take advantage of a new piece of legislation signed by Governor Brian Sandoval and ordered Bassick to come back to work. SEIU is, of course, disputing the county’s interpretation of the law.
• A recent Labor Pains article noted that while SEIU has been loud and proud about its participation in the Fight for $15 movement, having spent over $50 million in promotional activities, it has remained relatively quiet about the effect it’s having on their membership numbers: none.

Link & Comments ********* Tribal Gaming Claims a Victory In a recent NLRB ruling, the NLRA was found not to apply to an Indian-owned casino because the rights of the tribe were protected by a ratified treaty. In a contrasting opinion also issued this month, the 6th U.S. Circuit Court of Appeals judges ruled that federal labor law does apply to a casino operated by the Little River Band of Ottawa Indians. The split makes the issue ripe for appeal to the Supreme Court. Congress is also getting in on the act as the Senate is working on legislation (S. 248) designed to protect tribal businesses from the NLRB. Link & Comments ********** 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 ********** Union “Representation” John Lehman and Ryan Hastings, employees at Spirit Aerosystems’ Wichita manufacturing plant, were well-known critics of their two IAM Local representatives – often finding themselves in the crosshairs of the union officials. When the two shared a video of a safety violation at the plant with colleagues, it ultimately ended up in the hands of their union rep who, rather than discussing this newfound knowledge of the safety hazard with management, chose to forward the video to Spirit’s leadership in an effort to get Lehman and Hastings fired. They succeeded Leman and Hastings filed an unfair labor practice charge against the union for misrepresentation and last month an NLRB judge ruled in their favor, ordering the union to:

Cease and desist from: Attempting to cause or causing Spirit Aerosystems to discharge employee-members because of their dissident union and/or other protected concerted activities. Threatening employee-members with bodily harm or impeding their grievances because of their protected concerted activities. Discriminatorily and/or arbitrarily processing employee-members’ grievances because of their protected concerted activities.

Link & Comments ********** Young People More Supportive of Unions The Pew Research Center recently released a new study detailing the American public’s outlook on labor unions. Although not surprising that millennials are more supportive overall, the fact that even conservative millennials are more supportive than not indicates an uncomfortable trend. If the trend continues there are implications as millennials begin to take the reigns of political power in the U.S. Link & Comments ********** International News There’s a rumor that David Cameron, Prime Minister of the United Kingdom, is going to propose exemptions from the working time and agency workers directives – two pieces of legislation that protect worker rights in the UK. British trade unions just informed all 27 member states of the EU that if Cameron is successful, they will push for Britain to remove itself from the EU. Australian Prime Minister Tony Abbott is putting former Australian Workers Union head and current Labor Leader Bill Shorten in the spotlight to answer some questions concerning a supposed sweetheart deal wherein companies traded bulk union membership dues for employer-friendly pay and condition agreements. The Royal Commission into Trade Union Governance and Corruption has also heard rumor that members of a local sports union were secretly signed up as AWU members. Mr. Shorten will appear before the Royal Commission on July 8. A New York Times article reported earlier this month that Germany has lost over 350,000 work days in 2015 due to strikes – more than double the amount seen in 2014. The primary cause is a current labor dispute between trade union Verdi and the VKA federation of local employers over increasing childcare worker pay by 10% and changing their job description to reflect the higher level of qualifications that are now required. Working parents have been effected the most, having to alternate days off work to care for the children. Link & Comments ********** Sticky Fingers Current charges or sentences of embezzling union officials:

• Michelle Dancy – SAG:  $54,109
• Richard Wayne Johnson – ATU:  $275,000
• Marcia Shull – UAW:  Unspecified
• Aide Spade – AFGE:  $64,169

http://www.nlpc.org/union-corruption-update ********** Labor Relations INK is published semi-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: https://lrionline.com/free-stuff/newsletter-signup/ If you use content from this newsletter please attribute it to Labor Relations Institute and include our website address: http://www.LRIonline.com Contributing editors for this issue: Phillip Wilson, Greg Kittinger, and Meghan Jones You are receiving this email because you subscribed to receive our labor relations newsletters and updates. You can manage your email preferences by clicking the link at the bottom of any of our email communications. NOTE: if you are using older versions of Internet Explorer, read the text version, as the html may not load properly. We recommend upgrading to the latest version.