INK: July 9, 2009

Labor Relations INK

Download a PDF of this issue with links here.

In This Issue:

• Insight from Phil Wilson
• A Disturbance In The Force
• UAW vs. UAW
• A Peek Behind ObamaCare
• and more…

Labor Relations Insight from Phil Wilson

NLRB: Employee Free Choice Act Ace in the Hole?

Is the Employee Free Choice Act still alive? Al Franken is now officially seated and the 60-vote caucus needed to overcome a filibuster on the Free Choice Act is in place. But just when unions should be rejoicing in the streets, it’s getting fashionable to write Employee Free Choice Act obituaries, like the one this morning in the New York Times. I think companies should keep a very close eye on the NLRB, because the news of EFCA’s death is greatly exaggerated – but I’m getting ahead of myself. Read the rest of the article here

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EFCA Update

Even with healthcare and cap & trade legislation consuming a great deal of attention, there is plenty of action in the EFCA arena. The democrat/Big Labor camp is happy to have Franken declared the winner in the Minnesota senate race, providing the 60th vote required to break cloture. On the pro-business side, several democratic senators still have not confirmed wholehearted support for the current version of the bill, while the SEIU seems to be fighting against themselves in a recent California episode by ignoring employees wishes on the basis of signatures alone! The pro-business lobby is continuing to keep the battle in the public eye, most recently with a television campaign targeting Senator Nelson in Nebraska.

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There is new ammunition on the intellectual front against the EFCA. An attorney who has negotiated over 100 first contracts made a great argument that it wasn’t possible to “fix” the mandatory arbitration provision of the bill to make it non-destructive to businesses. Recent data also demonstrate that non-right-to-work states are shedding jobs to right-to-work states. The Mackinac Center For Public Policy in Michigan put together this very graphic interactive dashboard of statistics comparisons of non-right-to-work states vs. right-to-work states and Michigan.

In another very interesting twist, the healthcare debate has suddenly become a possible sop to Big Labor. As Congress grapples with how to pay for a public insurance program, one of the proposals involves taxing the health benefits of companies that provide such benefits via private insurance. A exemption is being considered for unionized companies. Here’s the apparent trade-off: if unions can no longer use health benefits as a bargaining or organizing tool (due to government healthcare making it a non-issue), then the unions could still use the “tax-free benefits” loophole as the replacement bargaining chip.

It could be an interesting summer!

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A Disturbance In The Force

Andy Stern, head of the Service Employees International Union, has now been likened to “the Darth Vader of the labor movement,” as union presidents and representatives from across the country are taking UNITE-HERE’s side in the raging fight between the SEIU and the besieged union. Going against legal counsel, the AFL-CIO officially came out against SEIU’s “raiding of organized workers.” Over 15 international unions, including AFSCME and the Laborers, have committed both moral and monetary support to UNITE-HERE. As one former pro-Stern supporter put it, “the American labor movement declared war on Andy Stern.”

Labor insiders believe that the schism, and the attempts by the SEIU to dominate the American labor movement, have placed the nail in the coffin of the Change To Win labor federation. It is expected that many of the unions that originally broke away from the AFL-CIO to form Change To Win may return to the fold, without the SEIU.

Meanwhile, the battle between SEIU (including the newly-created Workers United) and UNITE-HERE continues at high tempo, with no sign of resolve.

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UAW vs. UAW

In an ironic twist, the UAW now finds itself in a position to negotiate against itself by virtue of the recent shuffling of ownership of Chrysler and GM. The UAW is both the employer and the employee of Chrysler and GM, and is both the competitor and the employee of Ford.

The recent deal between Chrysler and GM and the UAW include the agreement not to strike until 2015. Ford is now asking the same concession of the UAW. The UAW finds itself in a conflicted situation, and Ford, who effectively evaded government intervention (bailout money) finds itself in a possible competitive disadvantage.

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Only In A Union

The State of Michigan agreed with the United Auto Workers (which represents state employees in MI) for several furlough days in an effort to balance the budget. The Detroit Local of the UAW (Local 6000) filed a complaint to block the move, saying that the international overstepped its jurisdiction. Apparently, when the state attempted to bargain with the Local, the Local was not willing to grant any concessions. The state then sent a letter to the UAW international VP, who agreed to an amount of furloughed days. The local countered, saying the UAW international move was a violation of its constitution.

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AFL-CIO Extreme Make-Over

The International Association of Machinists and Aerospace Workers (IAM) organized a conference last month that included 23 labor leaders. The objective of the meeting was to consider changes to the AFL-CIO intended to revitalize the labor coalition. “We focused on systemic changes that would strengthen the labor federation’s finances and increase its clout,” said IAM president Tom Buffenbarger.

With the current head of the AFL-CIO, John Sweeney, set to retire in September, a more aggressive leadership coupled with an overhaul of agenda and operational functions could bring the labor organization back to the public square in a powerful way. If the rival Change To Win federation disbands, and an EFCA-type bill passes soon, we could have a legitimate 800-pound gorilla on our hands.

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Valiant Attempt

In a move to eradicate Depression Era-legislation enacted to bolster unions, Representative Connie Mack (R-FL) proposed a repeal of the Davis-Bacon Act, which would eliminate minimum compensation provisions for construction workers on public works projects. Proponents of the repeal believe that such a move would encourage more job growth for federal construction projects. “Instead of pandering to big labor,” Mack said, “Congress should be fostering a competitive environment for businesses to be able to hire more people for more jobs.”

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A Peek Behind ObamaCare

Peeling back the layers of the healthcare reform onion, you will find several key “partners” on the administration’s healthcare reform team: ACORN, the SEIU, AFSCME, and the AFL-CIO. Having given the American auto industry over to unions (the UAW) and the government, are we sure that doing the same with the 14% of the GDP known as the American healthcare system is an intelligent choice?

The healthcare industry had better pay close attention, as the “unintended” consequences of a government plan are being forshadowed in the auto, and to some extent the banking, industries.

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Typical Non-Representation

The AFSCME recently announced its endorsement of Albuquerque Mayor Martin Chavez for reelection. Not so fast, says the Albuquerque local! In typical fashion, the membership of the large union that represents city workers was never polled, or in any other fashion asked who they endorsed. The union made its decision based strictly on its own agenda, rather than the wishes of its constituency.

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• How to determine your company’s internal and external vulnerability – and why you have to deal with both kinds of vulnerability.

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CLICK HERE to find out more about The Next 52 Weeks: One Year To Transform Your Work Environment by Phillip B. Wilson

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Southern California In The Crosshairs

The Inland Empire consists of portions of Riverside and San Bernardino counties in southern California, home to almost 2,900 warehouses of at least 50,000 square feet each, which employ nearly 113,000 people. These warehouses, operated by some of the largest retailers in the world, handle much of the container cargo that moves through the ports of Los Angeles and Long Beach, the busiest trade gateway in the United States. And they are under siege.

The Change To Win federation, along with Warehouse Workers United, is squaring off with American businesses in a concerted effort to organize this compact region of workers. “There needs to be a general union movement. We expect to have a long-term campaign there,” said Tom Woodruff, organizing director of Change to Win.

“If we are concerned, we are concerned about efforts in Washington that would change the rules for union organization,” said Rob Green, vice president for government and political affairs at the National Retail Federation, speaking of the EFCA. Green suggests that if the organizing movement gains traction, many of the large retailers may move their warehouses to other parts of the country where costs would be lower.

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Steelworkers Get The Boot

A small sawmill in Larder Lake, Ontario, voted to decertify the United Steelworkers of America. The union had represented them since a 2006 vote, and the employees still had 3 months left on the one contract the union had negotiated, when 75% of them voted to decertify the union.

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SEIU vs. BOA

The campaign against Ken Lewis, CEO of Bank Of America, is one to keep an eye on. Will the embattled CEO cave to SEIU pressure to save his job?

The quandary stems from a) BOA acceptance of TARP funds, b) Big Labor deftly using the “economic crisis” and a friendly administration in Washington as leverage to pressure businesses, and c) Ken Lewis’ refusal to sit down with SEIU to pave the way for easier organizing of BOA employees.

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NLRB: Employee Free Choice Act Ace in the Hole?

Is the Employee Free Choice Act still alive? Al Franken is now officially seated and the 60-vote caucus needed to overcome a filibuster on the Free Choice Act is in place. But just when unions should be rejoicing in the streets, it’s getting fashionable to write Employee Free Choice Act obituaries, like the one this morning in the New York Times. I think companies should keep a very close eye on the NLRB, because the news of EFCA’s death is greatly exaggerated – but I’m getting ahead of myself.

The “EFCA is dead” narrative goes like this. Unions have once again snatched defeat from the jaws of victory. Unable to overcome their petty internal squabbles, the labor movement is splitting at the seams. The major unions are split in half and talk of reuniting is evaporating in the summer heat. Unions are raiding each other like never before, including the very public divorce of United Healthcare Workers West from the SEIU, and the swan dive into an empty swimming pool jointly performed by UNITE-HERE’s dynamic duo Raynor and Wilhelm.

The narrative continues that Andy “Darth” Stern and his SEIU are most to blame for all this infighting. So-labeled from his “brothers” inside the labor movement, Leo Gerard of the Steelworkers said in the Times interview, “Every division in the labor movement seems to have Andy Stern’s fingerprints on it.” Especially as the SEIU start gobbling up big chunks of imploding unions like UNITE-HERE, there is a real fear that Andy Stern has decided to unilaterally implement his vision of the labor movement and the rest of the movement be damned.

All this dis-unity is being blamed for the problems with EFCA. Moderate Democrats are looking for the exits and it is clear that EFCA as it is currently proposed has nowhere near the 60 votes needed for passage. Instead Tom Harkin and Arlen Specter are negotiating a derivative version of the current bill, one that they hope will get the other votes they need. The most likely provisions of the “derivative” version of EFCA are the following:

1. Quick Elections (14-21 days) instead of card-check;
2. Interest arbitration (baseball arbitration) as a remedy for bad faith bargaining;
3. Union access to employees (getting a voter list earlier in the process, possible access to employer property); and
4. Increased penalties

So let’s assume for a minute that unions can’t get 60 senators to support EFCA or an acceptable derivative version. What then? Well, the most likely compromises do not require ANY action from the Senate, not when unions are about to be hand-delivered the NLRB.

Wilma Liebman has made no bones about her support for reforming the nation’s labor laws generally, and she welcomes the debate on the Employee Free Choice Act specifically. Once she has a Board majority she will have the full power to implement massive labor law reform without the need for a single Senate vote.

Consider, for example, the vote period. The current 42-day vote window that unions complain about so wildly is completely Board created. The statute says nothing other than the Board will conduct an election. It could just as easily be 7-days or 14-days or 21-days after the petition is filed. The time limit is just a target, but the Board does a great job of meeting the 42-day target today and there is no reason to believe that they couldn’t meet a quicker target. So if unions can’t get a compromise on card-check, no problem. Just get the Board to shrink the vote window down to 7 or 14 days, which is effectively the same thing.

Another modification to “card-check” is the “postcard-check” proposal floated by Diane Feinstein. It simply says that instead of secret ballot elections held at the employer’s premises, there will be mail ballot elections where employees mail their ballots to the NLRB. Again, mail ballots are allowed and used under the current statute and there is nothing in the law that prevents the Board from changing its current practice and requiring mail ballots for all elections. It doesn’t take too much imagination to look at these ballots as authorization cards and realize that organizers will just show up at people’s homes to “encourage” them to vote the right way – the same way they “encourage” employees to sign a union card today. Bam – you’ve got card check.

What about interest arbitration? This one is a little trickier, but I still believe an activist Board could easily take a crack at this as well. Under current law there is something called a Gissel bargaining order. That is a Board created (and Supreme Court approved) order for a company and union to bargain in good faith, even in cases where the union failed to be certified in an NLRB-supervised election. The basic premise is that the Board is given authority under Section 10(c) to “take such affirmative action … as will effectuate the policies of this Act.” The idea behind a Gissel order is that the employer can be required to bargain – even if a union technically isn’t certified and the majority representative – where the Board concludes that the employer’s actions make a fair election impossible. The Gissel order is a way to force the parties into a situation they would have been in had the employer been operating in good faith.

Why couldn’t an additional remedy for bad-faith bargaining include an order for the parties to submit their dispute to binding, baseball-style arbitration? There is nothing in the Act that prohibits this remedy. Employers would certainly argue that this is overstepping the bounds of the Act (the same as they would if an arbitration provision were included in the Free Choice Act), but if it is constitutional in the one case it is probably constitutional as a Board remedy. After all, the only thing the Free Choice Act does is amend the National Labor Relations Act – if the mandatory arbitration provision of EFCA is constitutional, then the remedy under the current statute almost certainly is constitutional too.

Union access? This is also well within the Board’s power today. Unionized companies are already forced to provide union access at reasonable times and places, so the statute clearly allows such a provision. Many companies in the retail, healthcare and gaming sectors already have organizers on their property during union campaigns. It is easy to envision the Board trying to create some structure around the way employee meetings are held during election campaigns, including perhaps the requirement for equal time and equal access.

And granting the access to employee homes using the “Excelsior” list is also Board created. While today the list is only handed over after the filing of a petition, there is nothing that prevents the Board from requiring the list to be handed over much sooner (perhaps at the 30% point of support, maybe even sooner than that).

Finally, the fines against the employers. There is nothing in the Act that prohibits the Board from issuing fines – the remedy power is vague and says the Board can “take such affirmative action” as will effectuate the purposes of the Act. Most people would be surprised to learn that the Board already has the ability to fine persons who “willfully resist, prevent, impede, or interfere with any member of the Board or any of its agents or agencies.” That certainly could be interpreted more broadly to include egregious unfair labor practice activity. The current fine is $5,000 (and imprisonment of up to one year) but it is not clear whether that could be interpreted as $5,000 per incident. Not quite as good as a $20,000 fine per incident, but it’s a start.

Understand that I’m not arguing that each of these expansions of Board power would fly through without incident (and I’m the first to admit that the idea of adding fines or imposing mandatory arbitration as remedies would face a tough legal challenge). But the fact remains that nearly everything unions hope to accomplish with the Employee Free Choice Act can be accomplished without one single change to the current statute.

Board imposed changes won’t be permanent (but then again, neither is a legislative change – after all EFCA is an attempt to re-write the current statute) but they can at least start the ball rolling. They also might make legislative change that much easier down the road. But in the end the Employee Free Choice Act – or at least its key provisions – appear far from dead. Not when you have the NLRB as your ace in the hole.

INK: May 14, 2009

Labor Relations INK

Download a PDF of this issue with links here.

 

Labor Relations Insight from Phil Wilson

The Employee Free Choice Act:  When Should I Start Talking To My Employees?

This week we posted a blog item on an interesting study about the Employee Free Choice Act. In it a solid majority of employers (nearly 60%) say they think some form of EFCA will pass this year. This note is to them. The other 40% of company leaders in that survey are smoking crack … a compromise bill is being negotiated as we speak and will become law this summer. 

I’ve been doing a series of strategy calls with companies around the country over the last month. These calls are a blast (if you’re interested in doing a Free Choice Act strategy call for your company you can learn more here - until EFCA passes I’m doing them for free). The companies we’ve talked to range from large, multi-facility organizations who are already doing a lot of the right things to companies that are just learning that EFCA is coming. For the bigger companies we are able to really roll up our sleeves and work on advanced communications strategy. We work on a basic game plan for the smaller companies. But one question comes up in every call, no matter how big and sophisticated the employer: When should I start talking to my employees about EFCA?

It’s a great question.

read the rest of the article here…

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EFCA Update

There is no let-up in the furor over the Employee “Forced” Choice Act. Almost every day, a new editorial in some local paper comes out either pushing the act as the one piece of legislation to save the middle class, or aghast at the end of democracy.

The list of Democrats coming out against the bill continues to grow, while Dem stalwart George McGovern spoke out a second time, this time attacking the arbitration provision. McGovern nicely quotes former AFL-CIO head George Meany condemning mandatory arbitration as “an abrogation of freedom.” New studies decrying the negative economic impact of EFCA arrived. The government’s own recent data even dispelled the myth that the unions are playing on an “uneven field.”

Big Labor and their allies are scrambling to salvage the bill, continuing to float alternatives, including “card checks by mail.” What a ride!

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Companies Fight Back

Two supermarket chains have had enough of the lies and bullying tactics of unions, and have mounted a public defense of their businesses. Arizona-based Bashas’ mailed flyers to homes in Phoenix, countering the smear campaign being waged by the United Food and Commercial Workers. Times Supermarkets in Hawaii actually filed a defamation suit against the Teamsters. “The union has carried on a campaign of negative, untrue and unlawful attacks against us and our customers in an effort to smear Times Supermarkets’ name and extort concessions from the company,” said John Quinn, president and CEO of the chain. When the Times workers decertified the union, they intensified a radio and web boycott campaign.

Even with the economy as soft and fragile as it is, unions are still willing to toss the strike trump card on the table. In Colorado, 17,000 part-time workers in the grocery industry were on the trip-wire of strike, part of the United Food and Commercial Workers Local 7, over contract issues with Safeway and other grocery chains. In response, the grocers began advertising for potential replacement workers.

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Stacking The Deck

While the EFCA rollercoaster continues to careen wildly, the administration continues to steadily work in numerous other ways to provide every possible advantage to Big Labor. Both of his recent nominees to the National Labor Relations Board are former militant union operatives, one of which is on record espousing the elimination of any role of the employer in union representation elections. In another deft move, the Department of Labor drastically reduced funding for the Office of Labor-Management Standards, which monitors the fraudulent activities of unions (obtaining 929 convictions of corrupt union officials and the recovery of more than $93 million on behalf of union members from 2001 to January of this year), while increasing the budgets of other offices within the Employment Standards Administration, which monitor employer behavior.

Meanwhile, the courts created a scare from out of left field when one appellate court canceled 300 NLRB decisions made last year, while another court contradicted this ruling by upholding the decisions as valid. No telling where this one will settle, but if Obama has his way with court appointments, the outcome is easy to predict.

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SEIU Raiding Techniques

Here is another reminder that unions care nothing for America’s workforce but are only interested in growing their own power base and bank accounts. This under-three-minute, well-constructed video describes the sophisticated raiding process deployed by Big Labor’s most aggressive attack dog, the Service Employees International Union.

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Find this YouTube video here.

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ULP Charge of the Month

It’s always amusing to see how unions treat their own employees, especially when it involves SEIU.

Download a PDF of this ULP here.

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SEIU Imbedded

If you have any questions about how “pay to play” works at the federal level, this short video should answer them! Andy Stern, president of the Service Employees International Union, brags that

“SEIU is on the field, it’s in the whitehouse, it’s in the administration…SEIU members and staff are now all throughout the White House.”

You don’t have to look far to see how this plays out. Witness the sway the SEIU apparently has in withholding stimulus funds to the state of California in an attempt to prevent the state from implementing needed wage cuts to some of its labor force (SEIU members).

Any questions?

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Find this YouTube video here.

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Union Members Picket Their Union

“Anna Burger is a hypocrite,” said Malcolm Harris, president of the Union of Union Representatives, which represents 210 employees of the SEIU. Anna Burger is a top executive in the SEIU and head of the Change To Win coalition. SEIU recently laid off 75 workers in a way that violated their contract, and according to the picketers, used “union-busting” tactics to quell opposition.

 

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SEIU Abandons Members

A group of employees who were discriminated against in an internal job reshuffle, filed a grievance with their union, the SEIU. Since the union had agreed with the changes made to the status of the workers, the SEIU did not pursue the grievance. The employees, having no other option, filed suit against the company.

Here’s where it gets fun! The SEIU negotiated with the employer that any such issue would be handled by arbitration only. By rejecting the grievance, the union had refused to submit to arbitration. When the workers lawsuit ended up at the Supreme Court, the court agreed that the workers had signed away their right to sue by allowing the union to bargain such a clause into their contract. The only entity left for the workers to sue – is their union!

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EFCA Threat Provokes Action

A recent study indicates that companies are at least beginning to plan on taking action in anticipation of upcoming labor law changes. According to the survey,

• 64% of those taking action are planning, considering adding, or increasing supervisor management and training programs

• 47% are planning or considering improvements to unit climate and engagement

While, most of the respondents (70%) rated their current work climate as positive, only 35% had actually administered employee opinion surveys to address union avoidance and vulnerability. Our recent blog post addressed this concern and provides some details about the proper use of the survey process.

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Sticky Fingers

Current charges or sentences of embezzling union officials:

James Decker – ISDWU: undisclosed

Don Padgett – AFGE: $186,997

Donna Simpson – USW: $87,823

Christine Throckmorton – HERE: $9,674

William “Willie” Brown – UA: $4,942

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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:

http://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: www.LRIonline.com

Contributing editors for this issue: Phillip Wilson, Greg Kittinger

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