March 8, 2012

In this issue:

  • Labor Relations Insight by Phil Wilson: Notice Posting FAQs
  • Union Bailout Update
  • The Civil Right to be Unionized?
  • How Unions Buy Our Elections 
  • Confirmed: Teamsters Have a Hit Out on the Twinkie
  • SEIU Watch, Sticky Fingers and more…

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Labor Relations Insight by Phil Wilson: Notice Posting FAQs

The Bradford Pears are in full bloom and about every other trip from my house these days is to a drug store. It must be spring.

Speaking of things that make me sick, it’s been a mercifully mild winter in Washington DC too. That was probably planned so we could fully enjoy the Republican primaries, which are beginning to make me wish that the NLRB was in charge of those elections too. They certainly could use some streamlining.

While things are popping up all over my yard, so too are things popping on the labor front. Last week The District Court of Washington DC ruled that the NLRB could require employers to post its notice of (some) rights under the NLRA, but could not adopt two enforcement provisions. Instead, the Board must treat enforcement of the notice posting requirement the way it has to treat other issues it oversees – on a case-by-case basis.

This decision has led to a number of questions from clients and friends. I thought I’d answer those here:

Question: It looks like to me that there is no real enforcement provision. What is the penalty now if I don’t post the notice?

Failure to post can be found to be an unfair labor practice by the NLRB. The district court ruled that these cases, like other unfair labor practice cases, must be considered case-by-case. In other words, not posting by itself is not automatically a violation of the Act. The Board must look at all the circumstances and determine whether, based on the facts, the employer interfered with, restrained or coerced employees in their exercise of rights under the Act.

Question: Do I still have to post?

Employers are still required to post the notice, and I advise everyone to post. It is true that the odds of getting an unfair labor practice upheld under this framework are lower. After all, the NLRB now must not only prove that you didn’t post the notice, but also that your failure to post actually interfered with the exercise of rights under the Act. But there is still a risk, and it is especially a risk for any company that actually faces organizing activity. The better question to ask is why not post? At the end of the day the posting probably won’t be read by anyone. If the principle of posting a one-sided explanation of the Act bothers you, you can always post a counter notice that gives employees “the rest of the story.”

Question: When do I have to post the notice?

The notice posting requirement is set to go into effect on April 30, 2012. It is likely that both sides of this case will appeal the District Court ruling. There is a possibility that the parties (the National Association of Manufacturers, the National Right to Work Legal Defense Foundation, National Federation of Independent Businesses among other Amici) will ask for another injunction to prevent the rule from going into effect while it is on appeal. At this point you should definitely be ready to comply on April 30. We will obviously alert our readers if there is any change in that date.

Question: What else should I be doing to prepare for the posting rule?

Like all of these regulatory changes, the most important thing you can do is work diligently at creating a positive work environment at your company. The bottom line is that no matter what the government does to try to bail out unions, if your employees don’t see the need for a union you won’t really be impacted by these rules.

Other than that, keep an eye out for additional changes (Chairman Pearce has already promised additional rulemaking this year). We will keep you up to date there. Also, if you aren’t already a member of the industry groups that are actively fighting these rules (those listed above, plus the U.S. Chamber of Commerce, SHRM, and your own industry trade groups) consider joining up – these groups are the “tip of the spear” in the fight against the overreaches of the agencies.

Let us know if you have any other questions about any of these new rules.


Union Bailout Update

In what is being viewed as a big victory for Big Labor, a federal judge last week upheld the NLRB poster rule set to go into effect on April 30.  U.S. District Judge Amy Berman Jackson waved off plaintiff arguments that the poster requirement was an infringement on the First Amendment rights of employers, calling the rule “a reasonable means of promoting awareness” of the right of employees to engage in union activity. “Nothing in the notice posting suggests that employers favor collective bargaining activities, and nothing in the regulation restricts what the employers may say about the board’s policies,” she wrote.  The National Federation of Independent Business and other business-interest groups are expected to appeal.

However the judge went on to rule against the NLRB, ruling that simple failure to post will not be an automatic unfair labor practice.  Failure to post alone does not “interfere with, restrain, or coerce” employees in exercising their rights under the NLRA and now must be part of a pattern of labor rights violations to rise to the level of a ULP.  (Read the full text of the decision here.)

The poster is seen by critics as encouraging employees to unionize while only paying lip service to the right to oppose unionization or refrain from union activity altogether.  The poster also fails to educate already unionized workers on their right to decertify.  (If you haven’t already, act now to poster proof your company before the April 30 posting deadline.)

In a separate ruling Judge Berman refused to consider a challenge to President Obama’s “recess without a recess” appointments to the NLRB as the Board already approved the new poster rule before those controversial appointments were made.

Meanwhile, unions are yowling over what does appear to be a bone-headed proposal by the Board to consolidate the St. Louis and Kansas City offices under the direction of the regional office in Kansas City.  The St. Louis office received 800 cases in 2011, ranking it 15th of the 32 regions, while the Kansas City office, which covers part or all of four states already, received 375 cases and was ranked dead last.  A final decision on the consolidation plan is set for mid-April.

And in true union bailout news, President Obama made a surprise (campaign) visit to the UAW conference in Washington last week in part to bask in the credit for GM bonus checks of $7000 that went out to 47,500 UAW members the week before.  Never mind that the federal government still owns a 27% share in the company and could sure use a little return on that investment or that the taxpayers are still footing the bill for $10B in unfunded healthcare costs for Big Three UAW retirees. 47,500 voters and their families flush with easy money means the auto company bailouts can’t possibly be a bad thing, right?


The Civil Right to be Unionized?

An editorial in the New York Times raised a flutter last week in calling for expansion of the Civil Rights Act of 1964 to make “discrimination on the basis of union membership” a crime in the same way the Act criminalizes discrimination on the basis of race, religion, gender and national origin.  Such a move (were it ever in a million years able to make it through Congress) would allow for cases of “union discrimination” to live on beyond the NLRB process to be tried in Federal court where employers could be hit with both compensatory and punitive damages for “discriminating” against union supporters in discipline, promotion and hiring.

However unlikely that nightmare scenario, the Times editorial does serve as a fine illustration of just how spectacularly dumb leftist academics can be.  In making their case, authors Richard Kahlenberg and Moshe Z. Marvit display what can only be willful naïveté as they fail to even acknowledge the rights-crushing two-ton tyrannical gorilla in the room that is contemporary American unionism. Instead the authors wax on about the Golden Union Days of Yore and organized labor as an “architect of democracy” without any concern for how real (not make-believe) labor unions actually operate. (Hint: kind of like the real vs. make-believe Communist Party)  The authors then somehow conclude, “In fact, the greatest impediment to unions is weak and anachronistic labor laws.”

Oh. Really.

Never mind how little benefit contemporary unions actually provide for their customers, especially their new customers, or how undemocratic and stifling union power structures are, or how abhorrent most Americans find unions’ radical politic agendas.  And never mind how American businesses have evolved in their employment practices just a bit since the days of Ebenezer Scrooge.  Experience with the dark and crooked side of unionism (or faith in a direct relationship with one’s boss) can’t possibly be the reason informed workers routinely turn down union representation – at least not in the minds of Kahlenberg and Marvit – it must be the unpunished sins of dastardly black-hearted employers.

The authors also wander off into the First Amendment weeds invoking the fundamental right of association, overlooking in their quest for social justice the rights of millions of Americans denied their freedom not to associate with a socialist organization (aka union) in order to gain or keep employment.  Apparently, when it comes to unions, the right to associate is a one-way street paved by social engineers.

The two scholars finish the Times editorial by drawing the following stunning and rather offensive conclusions:

“The labor and civil rights movements have shared values (advancing human dignity), shared interests (people of color are disproportionately working-class), shared historic enemies (the Jim Crow South was also a bastion of right-to-work laws) and shared tactics (sit-ins, strikes and other forms of nonviolent protest).”

Clearly the authors have never watched a video of a Teamsters convention (where human dignity is anything but advanced), nor have they looked too hard at union leadership (it’s absurdly white, male and stale especially when compared to the rank and file), nor are they up to speed on breaking union news (and the headlines coming out of old Jim Crow strongholds like Madison, Wisconsin and Trenton, New Jersey), nor do they understand the stark difference between a march led through Selma in 1965 by Martin Luther King and street theater paid for by SEIU in 2011.  And shame on the editors of the New York Times for even allowing the comparison.


Georgia Bill Would Ban Neighborhood Picketing

Unionistas are all aflutter over a bill working its way through the Georgia legislature that would ban protests in front of private residences.  Georgia Senate Bill 469 would amend existing Georgia code that already prohibits mass picketing to specifically outlaw the picketing of private residences that “has or intends the effect of interfering with the resident’s right to quiet enjoyment, or when such targeted picketing has or intends the effect of violence or intimidation.”

The bill would fine individuals $1000 a day – and organizations that sponsor such protests $10,000 a day – if a court order to stop is ignored.  The Georgia Chamber of Commerce drafted the bill as a response to unions’ increased use of disruptive demonstrations outside the homes of corporate executives.  (The Atlanta area is home to fourteen Fortune 500 companies, second only to New York City and Houston, and thirty-two members of the Fortune 1000.)

Although unions are posturing around the free speech issue, another provision tucked in the bill is no doubt what’s costing the state’s union bosses the most lost sleep.  The bill would also require all Georgia union members put in writing every year their desire to continue to pay union dues, circumventing the sleazy “annual auto-renewal” mechanism built into most dues check-off cards.

After hours of hyperbolic union testimony last week, Georgia lawmakers did strike the provision that made it a felony to “conspire to commit criminal trespass” reducing violation of the new statute to a “high and aggravated misdemeanor.”  However opponents like Martin Luther King III are still arguing that the bill infringes “on the people’s right to free speech and assemble peaceably.” (In front of your house while scaring the daylights out of your spouse, neighbors, dog and kids…but hey, that’s what ya’ll get for being rich.)  Ironically, two opponents of the bill had to be led by police from committee chambers last week after they refused to stop shouting down legislators.


How Unions Buy Our Elections  

This week in the National Review, Jonathan Collegio offers some strong insights into the big muscles labor unions flex in every election cycle.  Unions and their allies in the media would like nothing more than to keep the negative focus on the evil 1% donors like the Koch brothers, Sheldon Adelson and the “Super PACs” and continue to promulgate the myth of elections controlled by corporate billions.  As Collegio writes, “Many roll their eyes and ask: How can Big Labor ever spend more than Big Business?”

It’s simple, actually.  Businesses are in business to make and then take a profit and a business doesn’t stay in business for too long if its decision makers are in the habit of throwing good money after bad.  Unions, on the other hand, rarely if ever have to justify their spending to anyone, including their members. If a company makes poor financial decisions customers are lost and profits suffer (and heads eventually roll); if a union throws away tens of millions of dues dollars on political exploits there’s always much much more where that came from.

Collegio makes a comparison to the arms race between the U.S. and the Soviet Union during the Cold War.  The U.S. had a robust free-market economy that dwarfed the economy of the Soviet bloc and yet military spending on both sides was about equal.  How could that be?  Because the Soviet Union was spending up to 40% of its GDP on militarization while the thriving U.S. economy was devoting only a small fraction of its own.  Percentage of income spent on politics by corporations and unions is similarly lopsided; corporations pour their billions into growth and return on investments; unions throw their kitchen sink at getting their friends reelected and little else.  By some estimates, American businesses spend as little as .02% of profits on politics and the bulk of that goes to lobbying, not influencing elections.

Deluded union members love to tell anyone that will listen that it’s illegal for their union to spend dues money on politics. Well, sort of.  True enough, hard money campaign donations must be collected (or extorted) separately from members and be filtered through a union PAC. However the big political spending by unions isn’t delivered as a check to the campaign or in high profile ad buys.  Unions flex their financial muscles in the grassroots and in ways that are nearly impossible to track and quantify; donations of office space and the free use of union call centers and tech support; copying, mailings, robocalls and door hangers; event planning and hosting; and the mother of all untracked political donations, unionized shoe leather.

Unions will dedicate all their organizing staff full time to political arm-twisting by early August even in a slow election year.  (Imagine for a moment the outcry if every Wal-Mart assistant manager in America was shipped to a swing state this fall to “volunteer.”) Unions will also take advantage of “lost timer” provisions in contracts to pull members out of the shop to knock doors, and often in critical races that may be on the other side of the country.  And the cost of sending staff and members to knock doors in far-flung political battlegrounds is swept under the rug as part of the cost of running the union.

Then there are the thousands of sham community organizations and front groups, large and small –Working America, America Votes and ACORN to name a few — that accomplish little beyond registering and persuading voters and are supported almost entirely by the “charitable donations” of international and local unions.

Finally, businesses like to hedge their bets when it comes to political spending.  As a matter of fact, in the 2010 election cycle business interests split their donations 53% to 47% in favor of Democrats.  Unions, on the other hand, throw it all behind them that brought them to the dance, and that is very rarely a Republican.


The Truth About the “Living Wage”

It’s not uncommon in union drives and corporate attack campaigns for organizers to blather on about the “living wage,” particularly when targeting a minimum wage workforce.  The notion of a living wage has been around for about 20 years and in that time “living wage ordinances” have been adopted by at least 125 municipalities.

There is no set formula or government agency that determines the living wage; if anything it is calculated on the fly to suit an agenda.  As such it currently ranges from $9.50 to $17. 78 per hour nationwide.  Supposedly the living wage is the hourly rate at which a worker could provide for the basic needs of a family of four.  And never mind if not all workers are or should be providing for a family on their single income.  If you aren’t paying the area’s living wage to all your employees the charge will be you don’t care if your employees (or their innocent often imaginary children) live or die.

This week, our friends at Labor Notes inadvertently let the living wage cat out of the union baloney bag with a piece that delves into the history and limitations of living wage ordinances and the true purpose behind them.  As it turns out, the average living wage campaign often spends years building a coalition, lobbying politicians, engaging the media, rallying the troops and exploiting low wage workers for their life stories before an ordinance is enacted.  And even after hundreds of thousands of dues dollars are directly or indirectly spent on such a campaign, the final ordinance may only “protect” a handful of workers employed by the unfortunate city contractor that stumbles into a union’s crosshairs.

So here’s the real objective of a living wage campaign.  “Living wage activists never saw the ordinances themselves as the solution to poverty.  Most saw the campaigns as a way to assist unionization efforts and contract campaigns…So living wage ordinances have often included language to assist organizing…Language on ‘access’ gives unions the ability to visit the workplace…The laws sometime forestall contracting out, since private companies lose interest in city contracts where they can’t cut wages.  Whatever language they win, unions have used living wage campaigns to build ties to workers, launch organizing drives, and support contract campaigns.”

In some cities some unions have actually fought against a living wage campaign out of concern for the perceptions that wages can be raised without pledging one’s troth to a labor union.  In other cities, unions bought quickly into the idea of using a living wage campaign to build a union friendly community activist network or local Jobs with Justice chapter, JwJ being a much coveted source of free high-energy college-age door knockers and instant, passionate, imaginative protestors.

Meanwhile, on the tax dollar side of this idiot’s equation, large cities like New York and Chicago have spent millions fighting against living wage campaigns out of fear that even a toothless ordinance would be used by unions to drive off minimum wage employers like Wal-Mart.


Confirmed: Teamsters Have a Hit Out on the Twinkie

 Labor Notes is now reporting that Teamsters bosses are telling their members at Hostess that it may be better to “remove” their bankrupt employer with a strike this spring than continue to negotiate with “a company set on destroying union standards.”  Killing off the Twinkie would also presumably “clear the field” for unionized competitors to “pick up the pieces” and play nice with Teamsters.  (Or else.)

A strike would “almost certainly put Hostess’ Brands out of business,” read a memo from the union’s bakery division director. “We wish we had better alternatives—but we do not.”  The union is negotiating for “significant governance” and “significant equity” in Hostess should it survive and claims Hostess is not seeking substantial enough concessions from its lenders to satisfy the union.  The union also still refuses to concede on the company’s two over-arching requests – an end to certain onerous work rules and freedom from the crushing liabilities of the Teamsters grossly under-funded multi-employer pension plans.

In the same article, Labor Notes examines a range of strategies unions have used to bully other employers through the bankruptcy process including “work to rule” at Delphi, occupying the plants at Hart Marx and “organized resistance” (aka sabotage) by United flight mechanics.  As bankruptcy proceedings for American Airlines move forward some are anticipating the AFA-CWA, the flight attendants union, will employ a “chaos strategy” as they have throughout the union’s history.  The “chaos strategy” relies on constant mobilization and the element of surprise to call “mini-strikes” that disrupt flights without the risk of strikers being permanently replaced.


Trumka: Undocumented Carwashers are the Future of the Labor Movement

AFL-CIO president Richard Trumka was in Los Angeles last week to celebrate the signing of collective bargaining agreements between the Steelworkers and the Vermont Carwash and Nava’s Carwash in South LA.  The two carwashes have agreed to pay their carwash attendants $8.16 an hour with 2% raises per year that should come close to covering the USW union dues. That makes three unionized carwashes in the country, with Santa Monica’s Bonus Carwash becoming the first last year, and to President Trumka those victories signal an end to decades of union decline. “This is the future of the labor movement,” Trumka said, waving his hand towards a few dozen mostly undocumented carwashers and their families holding signs in English and Spanish. “This should be the headline: Carwash workers make history in L.A., and the labor movement and Los Angeles community stand shoulder to shoulder with them,” Trumka said.

The unions of the AFL-CIO haven’t always been so thrilled with the undocumented, seeing them as depressing wages for American citizens.  As such any organizing of undocumented workers has been conducted by outlier unions like the United Farm Workers and incidentally by service worker catchall unions like SEIU and Unite HERE.    But as the more elitist unions feel the walls closing in on them in the government sector suddenly those undocumented undesirables are looking better and better to more union bosses.

“Rich Trumka’s visit to California signals a big change in the leadership of the American labor movement with regards to attitudes toward immigrant labor,” said Kent Wong, director of the UCLA Center for Labor Research and Education. “It is in the strategic interests of unions to align with the immigrant workforce.”

Union organizers are learning how to approach workers in their neighborhoods and recruit in Spanish while selling the notion of a union as the best protection against deportation. Unions are also investing heavily now in so called “workers’ centers” and immigrant advocacy groups to do the trust building for them.

Meanwhile, on the opposite coast, a “coalition of community and labor organizations” announced a “citywide campaign to reform the carwash industry” in New York City. No coincidence we suspect.  “This is a real partnership between community organizations and organized labor to try to tackle these problematic working conditions,” said Andrew Friedman, co-executive director of Make the Road New York, an advocacy group that is leading the coalition with New York Communities for Change, another advocacy group, with “support” from the Retail, Wholesale and Department Store Union.


Strange Hospital Bedfellows

The Machinists union (IAM) and the National Union of Healthcare Workers (NUHW) made a surprise announcement last week that the two unions were looking into affiliation.  And while the marriage might seem a head scratcher, the rationale for the move is simple – NUHW has healthcare turf cred and the Machinists have money.

The IAM has been in the headlines this year for their attack on Boeing through their friends at the NLRB.  NUHW is the infamous upstart union of Sal Roselli that broke away from SEIU in 2009 and then went to war with the purple Godzilla to maintain that autonomy.  NUHW continues to raid SEIU shops in California and Michigan and is establishing itself as the skilled organizing force to be reckoned with in healthcare, but organizing wars don’t come cheap.

Meanwhile, the IAM, with cash still flowing freely from the dues of highly paid mechanics and machinists, would like a foot in the healthcare door.  But its been rough for the IAM selling machinists as having any handle on the needs of nursing home workers and RNs.


AFL-CIO Launches New Web Site

Now for some fun.  The AFL-CIO has completely renovated its old tired boring web presence, and just in time for this November’s election!  And the key words in this transformation are “connection” and “interactivity”.

In a breathless briefing with reporters last week, AFL-CIO Secretary Treasurer Liz Shuler said the federation wanted to create “a fresher and more user-friendly website for all workers, not just union members.”  So the revamped site features inactive links galore – to learn all about the “union advantage”, contact your congressperson, keep a watchful eye on corporate evil doers, and contact a union organizer – all against the backdrop of gigantic headshots of hard-working real Americans who apparently all have jobs – just like us.  Get it?

The point (we think) here being unionized workers are just like you and me, if just a tad bit more hardworking, contributing and noble than the rest of us.  And according to the “Our New Look” page, it’s not all just about putting a pretty face on the same old labor federation pig – the restyling is about creating a “vibrant on-line community” as only giant headshots giving us penetrating eye contact can.


Social Media Spotlight

An amusing new social networking site has emerged for fully immersed labor nuts.  Called Union Book the site is a project of Labour Start and it’s a great way to get a pulse on the international network of union activists and Anonymous wanna-bes.

Some user groups are into union history, folksongs and folklore, one group is into “poems and polemics,” another into “abolishing the wage system.”  One group calls itself “Union Swag” and discusses “everything from union underwear to golf balls” which sounds like, um, fun.  More than one group dedicates itself to promoting unionism “by any means necessary” (don’t make them get out the Superglue) and a group called Facebook Direct Action is building member strength to, we can only presume, take direct action against Facebook for reasons unknown.  Take a peek. There’s a whole lot of struggles going on.


SEIU Watch

 Gee, and we thought this was common knowledge! Last week the Daily Caller “broke” the story that SEIU has built a secret network of front organizations in cities around the country.  Incorporated by SEIU as local non-profits, these front organizations hide their management by SEIU and pretend they act as independent grass-roots agents of change somehow spontaneously aggregated around an outrage.  They wage concerted attacks against conservative political figures and targeted corporations.

The individual activist groups use benign-sounding names including This Is Our DC; Good Jobs, Great Houston; Good Jobs, Better Baltimore; Good Jobs Now ; Fight for Philly; One Pittsburgh; Good Jobs LA; and Minnesotans for a Fair Economy.  And they have of late grown increasing fond of tucking “99%” and “Occupy” into their rhetoric, primarily because no one could ever accuse SEIU of not beating a dead horse to dust.

Those who spend enough time visiting these and other SEIU sites begin to recognize the website template and the unmistakable fingerprints of an SEIU creation.  But the Daily Caller took that hunch a step further to show these and other “99%” and “Occupy” sites are registered to existing SEIU physical addresses or can be traced to the same SEIU-linked law firm.

Many of the Internet domain names for the groups’ websites were originally registered through an anonymous proxy service. But records compiled by, a website reputation management firm, reveal that all of their IP addresses link back to a main SEIU Web server.

Typically the “coalition” will list SEIU only as one insignificant contributing partner of many, when it is undoubtedly the only “partner” with a controlling interest.  Another gambit is to staff the front group solely with organizers pulling their paychecks from SEIU.

So why the secrecy?  And don’t these covert stunts by SEIU play against the Occupy narrative of openness and accountability by the powers that be?  How can you trust an organization that works so hard to be something it’s not and shields the true decision makers from public accountability?

Could it be time to occupy SEIU?


Sticky Fingers

Current charges or sentences of embezzling union officials:

Natasha Bever CWA


Pamela Hinzman APWU


Joseph Ray Gonzalez, Jr. IGUA


Amy Pullen NALC


Kenneth Schmidt BLET


Federck Petro AFGE


Graven Townsend USW


Gerardo and Vincent Fusella, Jr. IBT


Kenneth Aurecchia UA


Joseph Meizlik SPFPA


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