In this issue:

  • State of the Unions – and LRI
  • Laboring Towards 2020
  • Covid-19
  • Labor Around the World and more…

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Labor Relations Insight by Phil Wilson 

State of the Unions – and LRI

Like most of us, I’m ready to turn the page on 2020. As I reflect on the year, however, I’m actually surprised at how much we’ve accomplished. Looking ahead to 2021, I think about how the lessons of this year may help us as the labor environment changes more dramatically than in the last half-century.

Like most companies, we were forced to pivot again and again this year. We recognize we were fortunate. I have friends whose businesses have been destroyed by the pandemic. Fortunately, we were able to survive and even thrive. There were challenging months. But our team stepped up and delivered again and again.

Speaking of stepping up, LRI began a strategic journey at the end of 2019, months before the pandemic upended everyone’s world. That work transformed our team in 2020. We looked back on our first 40 years(!) and recommitted for our next 40. We focused heavily on our core purpose, which is helping our clients create extraordinary workplaces. We led by our core values (one of them is Step Up!) We really came together as a team.

In the most challenging business environment we’ve ever faced we built new products, developed new services, and grew our capabilities. We’re not going back to 2019 – even when the pandemic is behind us, the world will never be the same. Here are a few things we handled this year that are likely to remain trends in 2021 and beyond:

  • Mail Ballot Elections: Mail ballot elections were exceedingly rare before 2020. Covid changed that, probably for good. Manual ballots will surely return once the pandemic ends, but regions will be much more likely to direct mail ballot elections post-pandemic. We spent a lot of effort working with clients and our consulting partners to develop the tools and tactics needed to win mail ballot elections. Rapidly prototyping, responding to feedback from our consulting team, learning from client experiences (plus a lot of trips to the printer) helped us quickly get to a place where mail ballots – while not preferred – are no longer a major concern.
  • Virtual Learning: Like mail ballot elections, virtual training is also here to stay. Figuring out how to train during a pandemic was also a huge obstacle to overcome. You can’t simply take your normal tools and start presenting them on Zoom or Teams. In partnership with a client we completely re-designed our Approachable Leadership Workshop (if you’re interested in a test drive let us know). This required a complete ground-up redesign to take advantage of what a virtual environment offers while keeping the core learning elements of our live workshop. We’ve also adapted elements of our Rapid Response Team training, Tripwire early warning signs training, and other content for a virtual environment.
  • Campaign Communications and Messaging: From virtual campaign consulting, to our popular explainer videos, updates on our campaign websites and Campaign in the Cloud tools, and cutting edge text messaging campaigns, we’ve also spent the year innovating for a new world of work. The uncertainty and fear of the pandemic environment has given unions a once in a generation opportunity to organize workers and they are taking advantage of every innovative tool they can. We’ve tried to do more than keep up. We want to be where the ball is going to be – in 2021 and beyond.
  • Research Services: We also continue to innovate how we deliver research and analysis to clients in the new virtual world. Our in-depth opposition and market research is second to none. And while our online databases are nothing new (we blazed that trail nearly 30 years ago) the team at LRI RightNow added more features and capability to our data services in 2020 than at any other time I can remember. We’ve always had the most comprehensive database available, but now you can slice and dice data in super useful new ways (including geo-targeting and MSA searches). Conducting searches is much more efficient and comprehensive than any other option. If you haven’t hit the research libraries in a while (including many that are free) you really owe yourself a tour.
  • Virtual Collective Bargaining and Vulnerability Assessment: We also blazed a trail in bargaining during a pandemic. Very early in the summer we negotiated our first agreement virtually, and successfully concluded many others since. Collaborating with clients, union leaders, and FMCS – and frankly learning a lot through experience with both the tools and techniques of bargaining remotely – we were able to build trust and get deals hammered out. We’ve also transformed our vulnerability assessment process so that it can be delivered virtually. These interventions are both better face-to-face. But what 2020 taught us is that doing them virtually is not only possible, but in certain situations preferable. I’m sure we will continue offering a virtual option of both after the pandemic.
  • Networking and Thought Leadership: The world is changing so rapidly that we quickly realized that we needed to invest more than ever in strengthening relationships with and between our clients. We’ve hosted regular virtual get-togethers with our clients and consulting partners where we share what’s happening in real time, collaborate around best practices, brainstorm new innovations, and simply connect. If you haven’t had a chance to attend one of these sessions let us know and we’ll add you to the invite list (this is a confidential, invitation-only meeting). This has been an important addition while people have been isolated, but we will continue these after the pandemic ends. It’s been one of my highlights for 2020 and it pushes me to continue to live our core values of pursuing excellence by constantly challenging yourself to improve and helping others.

Unions are transforming too. They are chomping at the bit for the “most labor-friendly Administration ever” and a Biden labor board and Department of Labor. They are working tirelessly as we speak to help Democrats regain control of the Senate and create that rare situation where the Executive and Legislative branches are in control of the same party. A lot is riding on Georgia and much more is riding on 2022.

With all of the chaos of the presidential election and transition controversy, it is easy to miss the biggest surprise of 2020: Republicans came very close to taking back the House and may retain control of the Senate. If Republicans manage to win one of the two(!) Senate runoff races in Georgia, they will retain control of the Senate, and the Mitch McConnell who gets Supreme Court Justices approved at light speed will hop right back into the slow lane when it comes to approving appointments in the new administration. My Republican friends in Georgia are concerned about those elections. But Democrats winning two must-win seats – in what has until recently been reliably Republican Georgia – still feels like a long shot to me. We’ll know soon enough.

Even if Democrats win control of the Senate, things won’t be smooth. Take the NLRB for example. It will be August 2021 (and realistically months after that) before the Democrats can gain a majority there, and that will require two appointments. Even with a Democrat-controlled Senate, there are a lot of appointments that need to be handled and Republicans will make sure that they take as long as possible to fill.

Like during the last two transitions where the presidency changed parties, it’s going to take a year and maybe longer before a new Board majority can get to work. But the union wish list is already there for them to start working on. My prediction is that 2022 will be a big year for labor law changes at the NLRB and DOL.

Because the Senate will be deadlocked no matter who retains control, it is hard to imagine that significant legislative labor law moves like the PRO Act will become law before 2023. And even that assumes that Democrats make big gains in the Senate during the mid-terms (which normally doesn’t happen).

While there are scenarios where a tied Senate could pass sweeping labor law changes before 2023, it would require an end to the filibuster which – at this point – they don’t have the votes for (Manchin for one says he won’t vote for it). Even if they get rid of the filibuster, they’d still need 50 Senators to pass it without significant amendment. That’s a lot of dominos that have to fall perfectly.

I’m not saying don’t be concerned about the PRO Act – the mid-terms will be here before you can say Mar-a-Lago. I’m just saying it’s not the central immediate concern. If you’re a government contractor, things will happen sooner than that – I fully expect a Biden Administration to test drive key elements of the PRO Act by imposing them on government contractors through Executive Order. But like the last two administrations, for private sector employers the agencies are where the real action remains.

Rest assured, whatever happens, we’ll be here to help. The one thing that never changes in this business is the best workplaces have the least to worry about when it comes to labor disruption. As Peter Drucker said, culture eats strategy for breakfast. Which means now is the time for the best employers to get ready for breakfast.

I want to personally wish all of our clients and consulting partners a joyous and healthy holiday season with your family (whether virtually or face-to-face). Have a safe and happy New Year. 

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Union Bailout Update

As this Christmas edition of INK is coming out early, there hasn’t been a lot of regulatory or court action since the November issue.

If there’s one thing President Trump has taught us, it’s that not every sentiment should be memorialized in a tweet.  In FDRLST Media, LLC, the NLRB called an executive to task for such a tweet, even though there was no union organizing drive in progress.  The tweet?  “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine”. The tweet was ruled an unlawful restraint on protected concerted activity. Interestingly, it wasn’t even an employee that filed the unfair labor practice charge. A key takeaway: the Board’s only inquiry into whether a statement is coercive is to look at the words themselves.

Almost a year after the National Right To Work Foundation filed an unfair labor practice charge against the Yotel Boston hotel, the NLRB upheld the charge, claiming that the hotel signed an agreement with the union during the organizing drive providing access by the union to non-public parts of the facility, and expressed support for the union drive, illegally pressuring employees to sign cards. Virtual hearings will begin in March.

Google is in the spotlight again, as a group of employees were fired for protesting against company policies and attempting to organize a union. The board issued a complaint and will take the matter before an Administrative Law Judge in April.  Google claims its actions were lawful and that the employees’ actions were a “serious violation of our policies and an unacceptable breach of a trusted responsibility.”

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Laboring Toward 2020

Now that the Electoral College has confirmed Joe Biden as President Elect, speculation about his Cabinet and other leadership picks are more important than ever. Follow the links for a rundown.

Biden Recruiting for ‘Acting’ Roles to Jump-Start Labor Agenda
https://lri.link/34bSqdF

California labor secretary in serious contention for Biden Cabinet
http://lri.link/3abkCBb

What Organized Labor Wants From Biden
https://lri.link/37HwibO

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Covid-19

One of the big questions among employers now that a Covid vaccine is being distributed in the U.S. is, “Can I require my employees to get vaccinated?” The short answer, at this time, is yes. More details below. In other news, NLRB elections are still mainly being conducted through mail-in ballots and OSHA has announced over $3 million in Covid violations.

Can U.S. Employers Require Employees To Receive COVID-19 Vaccinations?
https://lri.link/2IARnfM

NLRB officials refrain from ordering in-person union elections amid coronavirus surge
https://lri.link/3n5GLnW

Corrected: U.S. Department of Labor’s OSHA Announces $3,301,932 in Coronavirus Violations
https://lri.link/2K8KjHH

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Union Organizing

Fitness trainers are next up for trying the union model. Other than the yoga instructors last year, we haven’t seen much movement on this front since Gold’s Gym in 2017.

Fitness Trainers Are Organizing to Flex More Muscle in Their Workplaces
http://lri.link/38dNwy6

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Union Corruption

The United Auto Workers agreed to six years of independent oversight this month as a bridge toward bringing the five year federal corruption investigation to an end. The union will also pay $1.5 million to settle tax issues. Other stories include a report that alleges public union contracts in New York are getting approved without public input; carpenter workers who say they were fired for exposing union corruption; and a deep dive into sexual misconduct in the labor movement.

UAW agrees to independent oversight to resolve U.S. corruption inquiry
http://lri.link/34e5fEo

Carpenters say they were fired for exposing union corruption, file whistleblower lawsuit
https://lri.link/2VZyUfK

New report alleges New York union contracts are being ratified without public input
https://lri.link/371cqkX

Breaking the Code of Silence on Sexual Misconduct in the Labor Movement
https://lri.link/37NR4a3

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Gig Economy

The SEC recently voted to propose rules that would allow companies to grant equity compensation (stock ownership) to gig economy employees. This is a major move as it opens up cash flow for gig startups while also granting gig workers a benefit that they would not normally see in the contract sphere.

An Early Holiday for Gig Workers: SEC Proposes to Expand Ability of Companies to Grant Equity Compensation to Gig Economy Workers
https://lri.link/39WkiWI

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Healthcare

The 12-day strike across 11 Infinity Healthcare locations ended earlier this month. This was the largest strike of late, with over 700 nursing home workers taking part. General wage issues, hazard pay, and additional coronavirus considerations (sick time, safety, etc.) continue to be the main issues for healthcare workers striking across the country.

Nursing Home Workers Reach Tentative Agreement to End Infinity Healthcare Strike
https://lri.link/3ozBvJG

California calls for weekly testing of all hospital workers
https://lri.link/3ozBm96

California workers at 3 HCA hospitals call strike
http://lri.link/37jbZCF

5 recent hospital-union conflicts, agreements
https://lri.link/3qBIsff

3 Changes Healthcare Employers Should Watch For Under Biden’s National Labor Relations Board
https://lri.link/3lXAc5L

Doctors Are Calling It Quits Under Stress of the Pandemic
https://lri.link/3m3SD8N

As coronavirus cases rise, 800 Bucks County nurses go on strike over ‘dangerous’ staffing levels
https://lri.link/39Sq4J7

‘Many of us have PTSD’: Pennsylvania nurses strike amid Covid fears
https://lri.link/3gufwkB

7 recent hospital-union conflicts, agreements
https://lri.link/39V2F9L

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Labor Around the World

The U.K’s Trades Union Congress (similar to our AFL-CIO) is stepping up its position on the use of artificial intelligence in the workplace, specifically, as a managerial tool – think resumes, production output, annual reviews, etc. In Berlin, Elon Musk and Tesla are trying to figure out how to develop a huge manufacturing facility without IG Metall (a powerful German union) getting too involved.

Labor Unions Work to Find Ways to Bargain With AI’s Black Box
https://lri.link/3gxgc92

Tesla and powerful German union prepare for a fight over Gigafactory Berlin workforce
https://lri.link/3n14Ts4

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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.

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Contributing editors for this issue: Phillip Wilson, Greg Kittinger, and Meghan Jones

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