Labor Relations INSIGHT

by | Sep 22, 2016 | News

by Phil Wilson

Today is the first day of fall. This is my favorite time of year. School starts back up and things tend to get into a more normal routine. The weather begins to cool off. The hiking trails around here get much more bearable (not to mention beautiful). And football season is in full swing (Go Blue! And Go Team Big House – my fantasy football team). bright-autumn-road-popular-trees   While I really enjoy this time of year, it is not without its downsides. Last weekend I personally witnessed another favorite team, Oklahoma, get pounded by Ohio State. For a Michigan fan that was double punishment. This is also the heaviest time of year for my business travel. Seems like every group I know holds a conference in the fall, and I’ve been privileged to speak to a number of them. Recent stops include Topeka, New Orleans, Chicago, Washington D.C., and Stillwater. I’ve got San Antonio and Dallas coming up next week, then the CUE Conference and DisruptHR  right around the corner. Don’t get me wrong, it is a huge honor to be asked to present to groups. But being on the road wears me out. The other problem is trying to keep up with labor law developments. Back in the good old days you could get a deck of slides together about once a year and you’d be in good shape. Today there will be three new cases decided between the time you’re introduced and the time you sit down! Now that Kent Hirozawa’s term ended there is some hope that the number of controversial decisions will slow down. After all, the NLRB has a tradition of not overturning precedent once the Board is down to 3 members. But I’m not so sure that this tradition will be honored. The General Counsel and Board Chairman Pierce have a pretty long list of legal principles they want to “reconsider” (i.e. overturn). And with the uncertainty over the upcoming presidential election I think the odds are better than 50/50 that they will dispense with the old tradition the same way they are dispensing with things like replacement workers, arbitration agreements and employee handbooks. Instead of trying to laundry list all these new decisions (which would take a dozen articles) there is one area that I think all employers should watch carefully. That is the increased protection and codification of public shaming. There are two developments you should watch. First is the recent blacklisting regulation. If you are a government contractor (or a subcontractor to one) you need to be neck deep into this regulation. It is an administrative nightmare. It requires monitoring and reporting of an incredibly broad range of administrative actions by the whole alphabet soup of federal agencies involved in employment matters. Of course the NLRB hopped right to the front of the line to report anyone they issue a complaint against. This is a clear overreach on the part of the General Counsel to basically use the threat of publicly shaming an employer to get settlements without actually having to prove an employer has done anything wrong. It is a legal shakedown of the employer community. This rule is obviously bad for employers, but it is also terrible for working people who the Board is supposed to protect. A rule like this puts an employer in a horrible “rock and hard place” situation. They either buckle and settle a claim they think is illegitimate (often disenfranchising workers who don’t want a union). Or they fight their case, go on the “blacklist” for years while the case slowly winds its way through the NLRB, and potentially lose out on government contracts – and even private contracts – killing their business (and jobs). Another development to watch is the use of international law in run of the mill labor disputes. A recent case worth looking at is the El Super case.) Joe Turzi at DLA Piper wrote a great piece on this. I encourage you to check it out. The quick rundown is this. El Super and the UFCW were unable to reach a labor agreement. The union decided to walk away from the bargaining table and complain. So far, nothing unusual. What is unusual is who they complained to. Instead of going to the NLRB and filing an unfair labor practice they filed complaints with the Department of Labor under the NAFTA side agreement and the Department of State. This turned a run of the mill bargaining case into a full-blown international incident. Both agencies did their part and condemned the actions of El Super giving the union its PR talking points. Neither agency could actually do anything about it – after all the government of Mexico has nothing to do with this purely domestic labor dispute – but that was really beside the point. Both agencies weighed in on an issue they had no business with and now the UFCW is running around arguing this small grocery chain is some kind of international law breaking pariah. This is something all employers need to watch. Unions are getting very sophisticated looking at relationships with even small companies and the international community. Things like your corporate social responsibility policy (or those of other companies you do business with) or even your loan documents could put you unwittingly in the crosshairs of a strategy like this. Check out the article. There are some great tips there on things to look out for. Well, I gotta run. I’m heading out the door to give another talk on Approachable Leadership. But until next month I hope you enjoy the fall season!

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