In this issue:
- Perception & Reality
- Do As I Say…
- Never Squander A Good Crisis
- Who Needs Another Social Network?
- SEIU Watch, Insight, Sticky Fingers, Scoreboard and more…
The bottom of each story contains a link to the individual post on our site.
Labor Relations Insight
by Phil Wilson
The more things change…
My tenth Christmas was the worst. It started out well enough. I knew I was getting one of those handheld LED football games. This was the one where you could play head-to-head with whoever had the audacity to think they could compete with you. My brother Kyle was first in line.
As the big day approached we were giddy with anticipation. Kyle’s special talent is talking people into stuff that will either get them into trouble or hurt (or both). He honed this gift on me throughout our childhood. In this particular case, he talked me into opening up the present early.
I wasn’t a total idiot, so I made him help me unwrap the present. We played a few quick games, then carefully re-wrapped the present and put it back under the tree.
Within about 10 minutes after my mom got home I knew I was toast. Kyle turned state’s evidence before mom even put her purse down. Not knowing this, I tried to protect the conspiracy by blaming her for a poor wrapping job. I was completely hosed.
When all was said and done I got grounded forever for lying. Kyle somehow got away scot-free for turning me in (another annoying habit of his). And the worst part? That game totally sucked. (Luckily, the Intellivision video game we got that year rocked).
I’m a little worried this next couple of months that the NLRB is going to be like that Christmas. I’m excited to finally have a full Republican-majority at the NLRB for the first time in a decade. They have a great opportunity to fix a bunch of the “field leveling” we’ve seen during the Liebman and Pearce Boards.
At the same time, I’m also worried that I might be a little too hopeful. First, it has taken forever to get this Board seated and there are basically 6 work weeks until it’s back to a 2-2 tie. Which means we will be treading water for a few more months while we wait for the Senate to confirm another Board member (rumor has it that John Ring will get the nod there, but nothing official as of this writing).
Even after you get the Board members seated that doesn’t mean they just start rolling back bad law. It takes time. They have to have a case that presents the right issue in front of them. The bigger cases are typically decided by the full 5-member panel, and you can expect the Democrats to do what they can to slow things down. After all, that’s what Republicans do when they are in the minority.
That means the decisions coming out of the Board for the next few months may be like that head-to-head football game: highly anticipated but disappointing. I truly hope I’m wrong about this. But Marvin Kaplan’s first decision sided with Democrat Mark Pearce against Republican Phil Miscimarra. It wasn’t a huge case (and maybe it was just Kaplan being cagey). But still.
The other key position that can’t be replaced quickly enough is the General Counsel. Richard Griffin’s term ends on November 4, and the nominee to replace him, Peter Robb, is now heading to committee hearings and a floor vote in the Senate. The legislative calendar is very tight, so the NLRB may be without a General Counsel for a month or two, but it shouldn’t be long.
That’s a good thing. Because Griffin is leaving with a bang, not a whimper. We just learned recently that at the end of last year Griffin issued guidance on a case to grant Weingarten rights to non-union employees, a move I predicted would happen at the beginning of the Obama Board. Not sure what took so long, but it’s clear Griffin is going to keep shooting until the clock runs out.
This guidance telegraphs to Regional offices to issue complaints in cases where non-union employees ask for a co-worker witness during disciplinary investigations. Until the new General Counsel is seated and can reverse the memo that is the direction from Washington. One would expect a Republican-majority Board to stick with current precedent in this area. However, until the memo is reversed you can expect at least a few Regions to consider issuing complaint in these cases.
I’m a glass half-full person. Which is why I stupidly trusted my brother and opened that present early. But most of the time my trust in others pays off. Which is why I am hoping for more of an Intellivision-NLRB in 2018.
Union Bailout Update
The NLRB is getting up to full strength with the nomination of Peter Robb for General Counsel and the confirmation this week of Bill Emmanuel to fill the remaining board seat, giving the board a Republican majority for the first time since President Bush was in office. The search is on to find a successor to Phil Miscimarra when his term expires in December, and one of the front runners appears to be management lawyer John Ring, of the Morgan Lewis law firm.
In an interesting twist to the saga of board composition, in his first decision new Republican board member Marvin Kaplan sided with Pearce in a 3-member vote denying an employer’s request to stay an election. Miscimarra’s dissent focused on his disagreement with the board’s ambush election rule, while Kaplan explained he was expressing “no view with respect to whether he agrees or disagrees with revisions made by the Election Rule.”
When an aggressive ALJ decided against a Macy’s rule prohibiting the disclosure of customer information by employees, the NLRB reversed course and upheld the rule, finding that the rule didn’t restrict Section 7 rights and that employees would not reasonably understand the rule to restrict Section 7 activity.
The Outline of Law and Procedure in Representation Cases is a much-used research tool by employers. The 2017 version features amendments to the Board’s election procedures, the most recent representation case decisions, and newly formatted sections.
The Fifth Circuit provide some welcome sanity to a T-mobile handbook policies case. The board originally declared that four provisions of the handbook violated the NLRA. The court found that only one of the four passed the test of whether a “reasonable employee would construe the policy as prohibiting protected activity.” The three policies cleared 1) encouraged employees to maintain a positive work environment; 2) prohibited arguing or fighting, failing to treat others with respect, and failing to demonstrate appropriate teamwork; and 3) barred access to electronic information by non-approved individuals. The single policy found to run afoul of the Act was one which prohibited all photography and audio or video recording in the workplace
In the D.C. Circuit, the court rejected the Board’s unprecedented application of Weingarten rights to voluntary meetings, reversing another NLRB decision.
At the end of last month, U.S. District Judge Amos Mazzant in Sherman, Texas struck down the Obama administration overtime rule. Earlier in June, the Labor Department had asked the judge to clarify that it can use a salary threshold in overtime pay regulations. In his decision, Mazzant said the department does have the ability to use a salary test but must base eligibility for overtime pay on a combination of workers’ duties and wages, and was invalidating this particular rule as going “too far” in essentially eliminating those who perform exempt duties but make less than the high salary threshold. It is anticipated that the DOL will propose increasing the salary thresholds for the executive, administrative, and (some) professional exemptions to the overtime requirements, but at a more reasonable salary level.
The Second Circuit affirmed the NLRB’s ruling that you can’t force employees to sign confidentiality agreements that prohibit them from disclosing “non-public information intended for internal purposes” or that bar them from speaking with any “media source” without the employer‘s permission. The court stated:
We hold that the NLRB was correct in deciding that an employer violates Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), when an employer terminates an employee for refusing to agree to an unlawful confidentiality agreement. An employer may not require even one individual employee to agree to abide by unlawful restrictions as a condition of employment. That the employees have not yet organized in order to protest the unlawful nature of the restriction at issue does not make it any less unlawful. . . . We see no reason to judge the effect of an unlawful requirement on an employee’s termination based solely on whether the employee acted in concert or alone.
If you’re looking for something to help put you to sleep tonight, you can watch all two and a half hours on YouTube of the Subcommittee on Workforce Protections hearing on H.R. 3441, Save Local Business Act (related to joint employer).
In an interesting move, Canada (tired of competing with non-union U.S. workers) is attempting to negotiate the denial of right-to-work laws as a part of a new NAFTA deal. Canada likely knows there is absolutely no chance the U.S. would agree to this, but is apparently “staking out an extreme negotiating position in order to signal that it’s treating these talks seriously and is prepared to ask for major concessions,” according to Jordan Weissmann of Slate.
If there is one place on the planet in which you wouldn’t want to have to start or run a business, it is probably California. The combination of ultra-liberal political leaders and aggressive (and deviously creative) unions does its best to keep employers on the ropes.
To start with, California lawmakers inserted a provision in an environmental cap-and-trade deal intended to allow unions to grab Tesla motors by the family jewels. Tesla buyers currently receive a $2500 state rebate for purchasing zero-emission vehicles. The new bill would allow this rebate only from companies certified by the state labor secretary “as fair and responsible in the treatment of their workers.” In other words, unionized.
All other car manufacturers would be impacted by the law, but Tesla is the only auto maker with a manufacturing footprint in California (after Toyota and GM fled the state), and is currently fighting a campaign against the UAW. Steve Greenhut, writing for The American Spectator, sums up nicely:
So, yes, California remains a capital for innovation, but only until all the union work rules crush that one bright spot in the economy. Meanwhile, the rest of the state is becoming something of an innovation-free zone, given lawmakers’ ongoing efforts to saddle businesses with bone-crushing regulations and tax rates. If [Governor] Brown really believes in innovation, he ought to worry less about federal funding and more about the way his union allies mess with the Golden State’s economy.
In another attack on business innovation, legislators are considering new rules to force new meal delivery services like Blue Apron to turn over all of their employees personal contact information. If unions are able to entrench themselves into these new business models, and force them to conform to old-style work rules, it will be much harder for these new business models to survive. Interestingly, although Blue Apron was named as the impetus for the legislation, as currently written, the law would not apply to them!
Another bill pending in the California legislature has a similar effect. Currently, the state’s Department of Social Services maintains a registry of all home care workers, to allow consumers to locate home care aides (only name and registration status are released to the public). The pending bill would turn over full contact information from this database to labor unions.
The California State Supreme Court has gotten into the act as well. In a ruling allowing “citizen initiatives” to put tax increase measures on the ballot, certain local governments (cities, counties, school districts, water districts, transportation districts and many others) only need point the public employee unions in the right direction. While ostensibly promoted to fix roads, educate children or clean the air, the real motivation is to inflate government workers’ pay and fund their overly generous underfunded pension plans.
Perception & Reality
In a tug-of-war of polling results, Gallup and OdinText came to two different conclusions. According to Gallup’s latest data, union approval is now at 60% - up from the 48% low in 2009.
On the flip side, on Labor Day OdinText ran a text analytics poll, asking 1500 Americans “What are your thoughts and impressions of Workers Unions?” As the image below indicates, only 40% indicated they were in favor of unions, with 25% indicating they were not in favor of, and the remaining 35% being indifferent. Text analytics polls supposedly do a great job of quantifying the reasons behind the results, and we suggest visiting the article for the details.
Interestingly, Gallup summed their results in this fashion: “Americans remain more pessimistic than optimistic about unions’ future. Forty-six percent say they think unions will become weaker than they are today, while 27 percent say they will be the same and 22 percent say stronger.”
Perhaps the two polls are closer in alignment after all.
Against the poll results, 24/7 Wall St. reviewed hard data: 10-year changes in union membership. Of the 200 metro areas in the study, 15 showed declines of 7.5% or more in the decade between 2006 and 2016.
Do As I Say…
It is almost comical how often union hypocrisy is on full display, while unionistas don’t even notice, or simply turn a blind eye. In the latest example, the alt-labor organization Restaurant Opportunities Center (ROC) wants to hire someone to spearhead its campaign to raise the minimum wage for tipped workers. The ads for the position specify “an experienced legislative advocate [who will] live and breathe this campaign from now until the end of the New York State legislative session,” yet also specify that the worker will be an independent contractor, not an employee.
The ROC has railed against businesses that consider workers as independent contractors. Once again, “Do as I say, not as I do.”
Never Squander A Good Crisis
In a blatant attempt to capitalize on the catastrophe of Hurricane Harvey, the SEIU once again shows its true colors. The SEIU-funded Texas Organizing Project Education Fund launched the Hurricane Harvey Community Relief Fund, not to distribute anything that would benefit the devastated residents of the Houston area (although to cover their butts, they’ll include a few bottles of water I’m sure), but to pay for union organization efforts! “Your donation is vital to ensuring that we have the resources we need to organize and fight for Texans devastated by Hurricane Harvey,” states the web site.
When confronted with questions about the intent of the program, Executive Director Michelle Tremillo attempted to “clarify” that “100 percent of the money raised into this fund will be spent directly on ensuring low income and people of color are not forgotten in the relief, recovery and reconstruction efforts.” When pushed to define exactly what the money will be delivered in the way of aide, Tremillo said expenditures “will range from personal hygiene items to legal aid and advocacy.”
Talk about verbal jiu jitsu. Please find some other relief agency through which to contribute!
Who are the winners (and losers) of the labor movement? Don’t guess, just check the LRI Scoreboard
View this month’s scoreboard (archives also located here).
Who Needs Another Social Network?
Apparently, this millennial thinks the unionistas do. Larry Williams Jr. was exposed to the Teamsters while still in college, and after taking a healthy dose of Big Labor kool-aide, sunk about $25,000 out of his own pocket over the years creating a simple database to help people looking for union contact information. On Labor Day of this year, a more robust social media component (á la FaceBook) was added in an attempt to enhance the sites ability to aid organizing activities.
UnionBase is the next iteration of technology/social media attempts to make unions seem relevant to today’s workers. Our Walmart gave us the WorkIt app, and CoWorker.org launched an online organizing tool. It is unlikely any of these online or mobile tools will make much of a difference unless unions can make a better pitch for why someone should join up, rather than just how.
The SEIU is probably our favorite place for in-fighting drama. Cherie Mancini, who was ousted as Nevada SEIU Local 1107 president in April, is suing to be reinstated, and to prevent the International from placing the local into trusteeship - a favorite gambit of the SEIU International for maintaining control. Supposedly, the removal stemmed from infighting within the local between Mancini, and former local executive vice president Sharon Kisling, who was also removed and suspended. Seems like just another episode of All My Children.
Across the desert in San Diego at SEIU Local 221, the largest public employees union in the region, the union representing the SEIU staff (CWA) filed a letter blasting the SEIU for the way it treats its own staff. The letter cites managers barely working half-days, and notes that several groups represented by the local are planning to ditch the SEIU and look elsewhere for help.
We already mentioned that SEIU plans to give up on the Fight for 15 campaign, after flushing millions down that drain, following their failed OUR Walmart effort. It appears they believe they can follow the California strategy of using legislators to do their bidding, and have decided to pour $100 million into 2018 political campaigns in the midwest. That’s a pretty massive uptick. The union spent about $70 million on all federal political activity in 2012 and again in 2016, and the Fight for 15 campaign didn’t cost them that much (as far as we can discern, anyway).
The healthcare industry has seen recent wins, losses, and expenses. In Pennsylvania, nurses at Penn Highlands DuBois turned down the Pennsylvania Association of Staff Nurses and Allied Professionals, while nurses for Shasta Regional in California voted 241-27 to join the California Nurses Association. In Riverside County California, the Board of Supervisors approved up to $7 million to hire replacement nurses, minus the $1.5 million already spent during the nurses strike there.
It’s All Academic
Campus organizing of grad student adjuncts hit a roadblock in Minnesota when the Minnesota Court of Appeals ruled that adjuncts could not be placed in the same bargaining unit as tenure track and non-tenure track faculty.
Union Pension Turmoil
A new report released by Cherion, a Virginia consulting company, estimates 114 multi-employer pension plans are underfunded by $36 billion and are expected to go insolvent within two decades. In addition, the Pension Benefit Guaranty Corporation has announced that its program to backstop such plans will run out of money in 2025.
The Multiemployer Pension Reform Act of 2014 was designed to prevent the PBGC from running out of money by allowing businesses to negotiate pension benefit cuts in an effort to mitigate the underfunding problem. Using this mechanism, a group of New York Teamsters voted to reduce benefits by 30% beginning next month.
Kroger announced it would follow UPS in extracting itself from the Teamsters Central States, Southeast & Southwest Areas Pension Fund. The withdrawal will leave Kroger with a withdrawal liability, payable at $60 million per year for 20 years. Currently, the Teamsters Central States fund spends $2 billion more per year in benefits than it receives in contributions.
First it was sanctuary cities. Now we have sanctuary unions. When a member of the Teamsters Joint Council 16 was deported, Joint Council president George Miranda declared his Council a “sanctuary union.” What exactly does this mean? Miranda described it as follows:
“We are not going to cooperate with the immigration service whatsoever in going after our members. We are going to indoctrinate our members and help them with attorneys and whatever other expertise they need in order to protect them and their families, and hopefully, get them out of the mess that they may find themselves in.”
Once again, Jimmy Hoffa Jr. will face a challenger in the next run for the International presidency. Local 25 president Sean O’Brien was ousted by Hoffa from the committee negotiating a new contract with UPS. While O’Brien ran on Hoffa’s ticket as a Vice President in the last election, he contends the move by Hoffa was made to contain him as a political threat, and blasted Hoffa on Boston Herald Radio’s “Morning Meeting” show, claiming “It just goes to show you how out of touch he is. Unless it affects him personally, he doesn’t want to deal with it or hear about or could care less about it.”
Fight for $15
In a tug-of-war between the city of St. Louis and the Missouri State Legislature, you can guess the outcome. A new law signed by Governor Greitens forced St. Louis to retract the $10 minimum wage instituted in May of this year, and conform to the state minimum wage of $7.50.
To offset the loss of support when SEIU pulled out from the Fight for $15 movement, the organization is asking supporters to give up a week of vacation to continue to fight the cause. According to an email from the group, secured by InsideSources, “[We’re] putting our energy, our resources, and our power to defeating anti-worker politicians all across the country in 2018. As part of this new fight, we’ll be asking supporters like you to commit to volunteering 40 hours of time – one full work week to help working people – ahead of Election Day 2018. We’re calling it the Forty for $15.”
Ontario is now getting a taste of the Fight for $15 action, as a new workplace reforms bill proposes to raise the minimum wage from $11.40 to $14 by Jan 1, 2018, and to $15 the following January. Although economists claim that the bill will create a $11 billion stimulus, opponents claim a $23 Billion costs to businesses, that if pushed to consumers will cost the average family $1300 per year.
Unions lost another right-to-work fight in Wisconsin, as the Wisconsin 3rd District Court of Appeals ruled to reverse, remand and dismiss a lower court ruling striking down the state’s 2015 right-to-work law. In West Virginia, the state is continuing to defend its recently enacted law. Kanawha Circuit Judge Jennifer Bailey has issued the temporary injunction while she considers her final ruling.
In last month’s issue of INK, we covered the federal investigation of Virdell King and other UAW officials in the Fiat Chrysler National Training Center case, where $4.5 million was skimmed from the program.
This month, former UAW Local 2419 president was sentenced to federal prison for mail fraud and embezzlement. Bob Buford, president from Jan. 2007 to Oct. 2011, redirected over $129,000 from dues collections into his personal account, and attempted to cover it up by filing falsified reports with the government. His sentence includes 21 months in prison and 3 years of supervised release.
When the UAW lost their election campaign at a Mississippi Nissan plant, they partly blamed the loss on the bad publicity of the Training Center case. Whatever the reasons (irrelevance?), the UAW is struggling, as is evident by the merger of two locals in Lordstown, OH. The move is touted as a cost-saving measure, “to keep GM Lordstown competitive.”
Labor Around the World
The unionized workforces of Hundai, Kia and GM Korea are all affiliated with the militant Korean Metal Workers Union. The union is pushing for similar wage and bonus packages at all three manufactures, and has spurned offers thus far, creating uncertainty in the Korean auto industry. With the union in the middle of electing new leadership, it isn’t expected that negotiations will be back on track any time soon.
Union members and supporters of the far-left France Unbowed movement, which is headed by the former presidential candidate Jean-Luc Mélenchon, staged demonstrations in Paris and 180 other locations in France protesting President Emmanuel Macron’s new labor policies. Rather than any specific changes to the labor code, most of the criticism was leveled at Macron himself. However, even among unions the opposition is divided, with only the hard-line General Confederation of Labor inciting its members to protest, while other unions are taking the approach of working with the government to try to shape policy.
Macron has also stirred up sentiments among other EU members, particularly calling out Poland for opposition to plans to change EU rules on “posted workers” - cheap labor from eastern Europe imported to more prosperous EU countries.
Current charges or sentences of embezzling union officials:
- John Hamilton - IUOE: $250,000
- Violent Lamorie - AFGE: $71,530
- Sophia Love - AFSCME: $10,000 - $100,000
- Thomas Rodgers - SMART: $3,672
- Michael Evans & William Uggiano - AFGE: $50,000
- Jo-Anne Micheletti - AFSCME: $6,946
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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