In this issue:
- Laboring Toward 2020
- AI, Technology & Labor
- Union Corruption
- UAW Deal Not All It’s Cracked Up To Be
- Insight, Union Bailout Update and more…
The bottom of each story contains a link to the individual post on our site.
Labor Relations Insight by Phil Wilson
NLRB Ends 2019 with a Bang
What a difference a year makes. In the last seven days the NLRB has issued several hugely important rules and decisions, and it looks like the Ring Board is just getting started.
It took a while for this Board to hit its stride. This was primarily due to political foot-dragging, like delays in getting Board seats filled followed by the weaponization of the recusal process. It was also due to run of the mill foot-dragging with Board opinions (I presume dissents). Those days are now over.
Member McFerran left the board this week after her term expired. As is customary, numerous decisions and rules issued as she departed, including dissents she no doubt wanted to make sure were included before her term ended. There was a lot of dissenting for her to do.
Perhaps the most important decision is McDonalds. While the joint employer issue still awaits a comprehensive final rulemaking (which could issue any day), this decision settles a critical issue to a huge part of the American economy: the franchise model. In McDonalds the Board found that McDonalds the franchisor is not a joint employer with its franchisees. The Board ordered an administrative law judge to accept a settlement on that basis. The sound you hear is millions of franchise owners and operators breathing a huge sigh of relief.
It’s hard to overstate how devastating imposing joint employment on franchisors would be to the franchise business model, which is responsible for the employment of millions of American workers and a huge part of our economic engine. Ultimately the Board’s rulemaking will create more solid protection, but this decision is a great start.
In a bit of a surprise, the Board also issued a rulemaking that modifies the ambush (or quickie) election rule from the Obama administration. These modifications dramatically improve the biggest problems with the quickie election rule. First, the rule provides a bit more time for the parties to prepare for a unit hearing and get employee lists together. It also provides a 20-day buffer between the direction of an election and the vote. These common-sense rules make sure the vote isn’t a fire drill like it is today.
More importantly, the modifications put unit determination issues back where they belong – before an election is directed. The ambush rule requires the Region to direct an election even when it’s unclear whether a significant number of voters are actually going to be included in the eventual unit. Instead the ambush rule waits to decide these issues until after the election – if ever.
These unit determination changes never made any sense. The ambush rule was the equivalent of holding a Presidential election but deciding whether we’re going to count the votes of Texas until after the election. Under the new modifications voters will know who is actually in their bargaining unit – before they vote! What a concept.
Two other important decisions overturn very controversial Obama-era decisions. Caesars Entertainment overturns Purple Communications and returns control of email systems back to employers. Under Purple union supporter employees were allowed to use their employer’s email system to solicit co-workers. Caesars makes clear an employer is allowed to restrict use of its email system to work-related conversations and to restrict solicitation, so long as it is done in a non-discriminatory fashion. I guess you could say they rendered unto Caesars what is Caesars (I know, groan).
The other decision is Apogee Retail which overturns Banner Estrella, the controversial (and maddening) decision that prohibited employers from making a blanket request to employees to keep workplace investigations confidential. Banner drove HR professionals (not to mention agencies like the EEOC and DOL) crazy.
Apogee provides a common-sense approach to workplace investigations. A rule asking employees to keep investigations confidential is presumptively valid, unless there is evidence that the rule is being used to infringe on Section 7 rights. This makes much more sense than the Banner approach (and creates much less confusion with other statutes and agencies who want investigations to remain confidential whenever possible).
Of interest to unionized companies, the Board also reversed the Lincoln Lutheran decision. This required employers to continue to honor dues checkoff provisions and pay dues to a union even after the contract with that clause has expired. In Valley Hospital the Board went back to the Bethlehem Steel rule that allows a company to stop deducting dues once a contract expires.
Once again, the ruling just makes sense. Requiring an employer to keep collecting dues when the contract is expired is like you stopping payments for Disney+ but then telling Disney they can’t cancel your subscription because you just started watching the Mandalorian. And often this happens when the union is threatening economic damage to the employer. Bizarre.
One other important recent development came from the General Counsel’s office. On November 20, Peter Robb sustained an appeal from the National Right to Work Legal Defense Foundation. The General Counsel concluded that a neutrality agreement between a hotel and Unite Here! provided “more than ministerial aid” to the union. Therefore, both the union and the company committed unfair labor practices by entering into the neutrality agreement. This is not a final ruling, but one definitely worth watching.
If the last month of 2019 is any indication, 2020 will be a big year for labor law developments. In the meantime, we wish you a peaceful and blessed holiday season. And get some rest. You’ll need to buckle your seat belts for next year!
Union Bailout Update
A few more details on the final Elections Rule posted by the NLRB, due to take effect April 16, 2020. The board did not completely rescind the Obama-era rule but makes fundamental changes. Changes have been made in the following areas (read article for details):
- Pre-election hearings - extended time period
- Notice of petition for election - more time to post
- Statement of position - extended time for filing
- Scope of pre-election hearing - a return to prior board procedures (pre-2014 changes)
- Post-hearing briefs - right to file restored and extended
- Election scheduling - “normally will not schedule an election before the 20th business day after the date of the direction of election.”
- Pre-election requests for review - more latitude for either party to have ballots impounded
- Voter list - extended time to provide list
- Election observers - limited to non-supervisory employees (where possible)
- Certification of results - a request for review will delay certification
Click here to read the PDF from the NLRB.
As a follow-up to the Alstate Maintenance decision reviewing protected concerted activity, the board provided further definition in the recent Tschiggfrie Properties decision, clarifying the appropriate proof paradigm under Wright Line (1980). There must be direct or circumstantial evidence demonstrating that anti-union animus was a motivating factor in the adverse action at issue before the burden shifts to the employer to demonstrate the same action would have been taken in the absence of the unlawful motive.
Google, who has faced the scrutiny of the NLRB before, is now under Board investigation again for its recent firing of four employees, allegedly for involvement in union organizing activities. The company cites the handling of data in a manner against policy as the reason for the terminations.
California’s Anti-Arbitration law (A.B. 51) may not take effect on January 1 as passed in October of this year. State and national trade groups - including the U.S. Chamber of Commerce - filed suit in California federal court, asking for a preliminary injunction. The suit argues that the state law is preempted by the Federal Arbitration Act, and asks the court to declare A.B. 51 unconstitutional.
Laboring Toward 2020
Canvassers for the Joe Biden campaign joined the Teamsters, adding to the list of unionized campaigns, which include Elizabeth Warren, Bernie Sanders, Pete Buttigieg, and Julián Castro to date.
At the time of this writing, it remained to be seen whether tonight’s Democratic presidential debate will take place. Food service workers on the Loyola Marymount University campus are in a contract dispute with Sodexo, and all seven candidates have pledged not to cross the picket line.
AI, Technology, and Labor
As of today, Amazon has 200,000 mobile robots working alongside its 1.1 million employees. Though the robots have saved human stowers and pickers from having to walk 12-20 miles per day across the concrete landscape of an Amazon warehouse, the facilities with the highest injury rates are those more completely automated with robots. This stems from the unintended consequences of workers adapting their work processes to fit their interface with automation and/or robots. Something to keep in mind.
AI is increasingly coming under legal scrutiny, with HireVue’s recruiting system a recent example. Over 700 companies use HireVue’s AI-driving recruiting technology to screen applicants. The Electronic Privacy Information Center (EPIC) has filed a complaint, asking for an FTC investigation. Because the algorithms are confidential, job candidates and employers alike are unclear on the exact methodology underlying the technology’s determinations. As such, these determinations cannot be meaningfully challenged. Illinois has become the first state to impose restrictions on the use of AI in hiring practices, with the Artificial Intelligence Video Interview Act. If federal action isn’t soon-coming, employers may need to navigate a patchwork of state laws.
Labor Solutions Corner
The research continues to reinforce the power of Approachability. A few examples of recent studies conclude that leader approachability is associated with increases in:
- Safety compliance behavior (by 65%);
- Proactive employee behavior (by 76%); and
- Positive patient outcomes (by 79%).
After rolling out the Approachable Leadership® Keynote in 2015 and the Approachable Leadership® Workshop in 2017, many of those who experienced the power of approachability asked us for more - something to extend the learning and further cement the behaviors of approachability.
In the middle of 2019, we launched a series of five additional workshops, designed to reinforce the key tenets of Approachability and the associated behaviors. Just like the flagship workshop, these new half-day experiences include 30 days of online reinforcement to continue to turn new behaviors into habits.
If you haven’t yet experienced the power of Approachability, or if you’ve been waiting for the next step in the leadership journey, don’t miss this opportunity to:
- Reduce turnover
- Increase engagement
- Decrease resistance to change
- Basically - build a better company!
Download a 3-page summary of the Approachable Leadership® Learning System with an outline of the additional workshop topics, and/or the 7-page detailed description of the Approachable Leadership® Learning System. If you haven’t read our Executive Summary (The ROI of Approachable Leaders) on how transformative Approachable Leadership can be to your company, download that here.
And look forward to a powerful 2020!
As we reported last month, the Writers Guild of America East is looking to organize Hearst, one of the largest media companies in the country. But they may have hit a roadblock. Shortly after WGA-East’s petition to organize was filed, another organization claiming to already represent Hearst employees came out of the woodwork and filed an intervention.
The Hearst International Employees Association is the union claiming to be the representative body for company employees for the last 75 years. The NLRB is looking into it.
Meanwhile, some staffers at NBC really do not want a union — so much so that they’ve independently created websites and social media pages to get their message out.
The UAW scandal just keeps getting thicker. The FBI is investigating whether the fire at UAW’s Solidarity House headquarters, which started in the IT department, was arson, and if so, would be considered obstruction of justice. As late as this month, the U.S. Attorney leading the UAW investigation says that the union leadership is still not fully cooperating, and it is mostly tips from individuals that are fueling the ongoing efforts to get to the truth. A government takeover of the union is still listed as a possibility as the probe seeks to uncover the depth of the corruption.
To further complicate matters, the UAW moved to disband Region 5 (the Region at the heart of the scandal). According to UAW president Rory Gamble, the move is designed to break up the region responsible for the mess. The St. Louis-based leadership organized events over a two-year period that spent more than $1 million in union dues on “poolside villas, booze, cigars, golf and steak dinners,” much of it fraudulently expensed to the UAW accounting department.
Overshadowed by the UAW scandal, the SEIU faces a reckoning of its own after it was confirmed that SEIU leadership, including President Mary Kay Henry, failed to take action against sexual predators in the union and actually promoted some of them after their being accused of misconduct. In fact, the union is alleged to have retaliated against whistle-blowers. No action was ever taken against two high-profile SEIU leaders, Dave Regan and Martin Manteca, after multiple allegations of sexual misconduct, including a petition signed by 60 staffers against Manteca. To read the long, sordid in-depth report (if you can stomach it), click here.
Since INK is coming out a week early, the strikes database hasn’t been updated by DOL. We’ll send out the Scoreboard for December just after the first of the year. Merry Christmas!
It’s All Academic
Members of the Harvard Graduate Student Union (represented by UAW) have been on strike since December 3rd. The purpose of the strike is to move the university to bargain with the union and settle on a contract. Negotiations for HGSU’s first contract have been ongoing for 13 months. While many put the blame for this extended negotiation on the university, others are criticizing the Auto Workers for their lack of representation as well.
The university and the union were expected to meet yesterday, Dec. 18, for a three-hour bargaining session.
New York lawmakers are proposing a bill that would allow Uber and Lyft drivers to unionize. This would essentially extend union rights to gig workers under state law. The main question here is whether the NLRB, which enforces labor law nationally, will allow it. And if so, we’re looking at a potentially major step for gig worker classification (considering the fact that current labor law requires workers to be classified as employees in order to organize).
Seattle joined New York City last month as one of the few locations that has set a minimum wage for gig economy workers. The “Fair Share” program was approved by the Seattle City Council on November 25. It adds a new tax of 51 cents per ride that is supposed to be used to help pay for the new $16 per hour minimum wage.
Meanwhile, New Jersey continues its crackdown on the misclassification of independent contractors with six new bills “increasing investigative and enforcement powers.” Read about each bill here.
And finally in our top stories on the gig economy, Spin, a scooter rental company owned by Ford, has recently completely shifted away from its gig-economy business model and now hires all workers as employees. This month, they became the first scooter company in the San Francisco Bay Area to organize its workers through card check. Now, San Fran’s Municipal Transportation Agency is reportedly requiring all scooter companies seeking permits to hire workers as employees and to pledge not to oppose unions.
UAW Deal Not All It’s Cracked Up To Be
In particular, critics of the deal say that the contracts “fall short of giving the automakers enough flexibility to retool factories or reduce labor to compete in a quickly changing world that’s headed toward electrification. And, with health care costs remaining the same, wage increases and a cap on temporary workers, pundits question the economic benefits for the automakers.”
Over the last few years, each New Year has brought with it state minimum wage increases. Click here to review the expected increases by state in list form, or here to view the Economic Policy Institute’s interactive Minimum Wage Tracker map.
Some other notable changes include the increase in Denver, which is happening independent of the state’s current minimum. Denver is the first city in the state to step out in this way. New York will see minimum wage increases across multiple industries (fast food included), which also correspond to workers’ location inside or outside the city. Service employees and food service workers will see an increase in the tip credit. And salary basis thresholds are also increasing in and around the city.
Lastly, the U.S. 11th Circuit Court of Appeals dismissed a case this month in which several groups and lawmakers filed suit against the Alabama state Attorney General, Steve Marshall. In 2016, Birmingham constituents voted for an increase to the city’s minimum wage. Shortly after, the state Legislature passed the Alabama Uniform Minimum Wage Act — which essentially bans minimum wage increases above the $7.25 federal minimum wage (Alabama does not have its own minimum wage). Because this law was passed before the minimum wage increases went into effect, Birmingham’s increase was effectively washed out. The 11th Circuit found that the plaintiffs improperly sued the defendants.
Labor Around the World
The pension strike in France has reached its fourteenth day and some of the country’s unions don’t plan to stop until they see results. The main complaint about the pension system is the governments’ plan to combine the country’s 42 pension schemes into “a single, points-based system.” Some days have included hundreds of thousands of protestors, tear gas, and arrests. Stay tuned for updates.
The walkouts over pensions at 60 universities across the UK last month weren’t quite as dramatic, but worth noting nonetheless. Striking faculty included more than 40,000 lecturers, technicians, librarians and support staff. The walkout lasted for eight days.
Also in the UK, an article in TechWorld proposes the potential of digital organizing tools as a means to “rejuvenate Britain’s trade unions.” The first effort at this came out in 2017 in the form of an app called Worksmart. So far, it has seen little success, but it includes features like translating labor law materials from the gov.uk website “into more comprehensible language” and incorporating quizzes that essentially take the temperature of workforces across industries.
Current charges or sentences of embezzling union officials:
- George Laufenberg - UBC: $1,500,000
- James Moyan - IBEW: $49,000
- Dana Quinn Roush - APWU: $10,089
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.
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Contributing editors for this issue: Phillip Wilson, Greg Kittinger, and Meghan Jones
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