Labor Relations Weekly Recap #1
Welcome to The Labor Leader - a weekly recap of the most valuable content on labor relations from an employer's perspective. The National Labor Relations Act covers both union and non-union private-sector employers. This newsletter is a digest of my views on labor laws, the National Labor Relations Board, and unions.
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Did you know that I-9 compliance is a mandatory subject of bargaining?
The end of the year is a time for HR audits. I-9 forms are inevitably audited because compliance can sometimes be tricky and penalties for noncompliance are steep.
One employer realized that because of noncompliance it needed to obtain new I-9 forms from most of its workforce. Naturally, it notified the workforce they needed to submit new I-9s. This is normal.?
The union representing the employees complained that it did not receive prior notice of the need to submit new I-9 forms and demanded to bargain over it. The employer said it didn't need to bargain over collecting new I-9s because the employer was just trying to follow federal law.?
First, the ALJ said it was a mandatory subject of bargaining because the employer had discretion over how to comply with the Immigration Reform and Control Act (which covers I-9 forms). For example, the employer had discretion on “the amount of time it would give an employee to obtain and present documents that establish the employee’s identity.”?
The NLRB also held that the requirement to submit new I-9 forms was a mandatory subject of bargaining because it affects terms and conditions of employment. Per the NLRB, "employees who (for whatever reason) have difficulty completing the I-9 forms risk losing their jobs, among other potential consequences.”
To be clear - this ruling does not say employers must bargain over the decision to collect new I-9 forms in an effort to comply with the law. Rather, the employer must bargain over the impact (the effect) that the collection of those forms may have on employees.?
Successful Union Organizing Now Uses Technology and Social Issues to Rally Employees
2022 saw a lot of union organizing activity. Successful unions used technology and social issues to rally employees.?
Technology has allowed union organizers to be more efficient and organize more employees in far less time.
Smartphones, email, social media, and private apps have enabled unions to recruit members virtually. No more hanging out in parking lots passing out flyers that were thrown away. Employees are no longer willing to give up non-work time for a union organizing meeting at the local pizza parlor.
Social issues have replaced the typical economic issues as the focal point for union organizing tactics. Gone are the days of unions promising more money or time off in exchange for a union vote.?
Unions are now aligned with employee activism in social issues such as climate change, racial justice, harassment prevention, equal pay, diversity, equity, and inclusion. These issues are making their way into collective bargaining agreements and unions are holding employers accountable for complying with them.?
Employers who have long expected top-of-market pay to stave off union organizing are encouraged to reevaluate their playbook. These issues are vitally important to younger workers. They aren't going away.
NLRB has Unconventional Definition of "Insubordination"
NLRB caselaw (covering both union and non-union workforces) has a different definition of what insubordination means than most managers and business owners.
Almost weekly I am told of an employee disciplined or terminated for insubordination for slinging vulgarities at a supervisor.
When I'm not wearing my labor lawyer hat, I agree, the person acted insubordinately. But the NLRB will usually rescind the discipline and/or reinstate (with backpay) the foul-mouthed employee.??
The latest example of this that I just came across is Cadillac of Naperville, Inc., 371 NLRB No. 140 (Sept. 22, 2022).
There, the employer terminated an employee member of the union's bargaining committee for insubordination after he yelled a derogatory term at the owner.
As it usually does, the NLRB determined the behavior was "the utterance of a single derogatory term..." and use of such language by both sides was common. Also, the employer did not have a policy prohibiting foul language.?
I call this the "goose and gander" rule. If it's good enough for the goose, it's gotta be good enough for the gander. Meaning, if an employer wants to discipline or terminate for foul language, it must do so with each instance of foul language - not just when it's upset with a certain employee.
Most workplaces allow foul language. If yours does, then it's extremely difficult to discipline or terminate for using foul language.?
If your workplace does not permit foul language, common sense says discipline or termination needs to occur every time foul language is uttered. But don't do that. First, it is nearly impossible to do that, and you must be consistent. Second, the NLRB does not like these types of "civility" policies. Third, there is NLRB case law that says an "excited exuberance" is lawful.
Certainly there are times when an employer can discipline or terminate because of words said by employees - but those times are rare and require a close legal analysis before doing so.
Pro-Union Mandate at Chicago O'Hare Threatens to Disrupt Cargo Flights
Labor Peace Agreements are a relatively new concept but municipalities across the United States have thoroughly embraced them as a way to force unionization upon non-union workforces.
Municipalities pass legislation requiring private companies to:
I deal with this in several sectors all across the country. It has had tremendous impact on employers. Chicago’s freight transportation industry is the latest.?
Link to article: here. Article highlights:
Interesting Stats and Numbers Behind NLRB Funding Increase
The NLRB received a $25 million hike in funding from Congress a few weeks ago. This is the first increase in nearly 10 years. What's interesting, though, are some of the stats and numbers behind this increase.?
The Biden administration called for a $43 million boost to the NLRB’s funding. A group of nearly 150 lawmakers asked appropriators for even more, saying the agency needs at least a $93 million increase.
Per NLRB leadership - it needed $18.7 million in new funding just to maintain the status quo. It cited to increased wages, inflation, and regional office cost-savings relocation commitments.?If the NLRB did not get a pile of cash, it threatened to furlough employees.
Proponents for the increase pointed to the 53% increase in union representation petitions and nearly 19% increase in unfair labor practice charges in the past year. These increases have resulted in an increased workload for NLRB employees.
But some find these increase to be an aberration, since the NLRB's caseload has been steadily declining for decades. Unionization rates are near an all-time low.??
That 19% bump in unfair labor practice filings last year resulted in 17,998 filings. This is over 10,000 less filings than the Board processed in 2001. The same is true for union elections.?
Many argue these numbers do not suggest the agency is now suddenly under-resourced and in dire need of money. Unions, the White House, Democrats in Congress, and NLRB employees believe they need more money. Business owners and many Republicans in Congress feel differently.?
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More Proof that Mail-In Union Elections Favor Unions
The general rule is that union elections are done in-person. Both federal courts and the National Labor Relations Board have acknowledged that secret, manual elections are the most reliable and preferred method of assessing whether a majority of employees support union representation.
Mail-ballot elections have historically been permitted only when getting voters together was virtually impossible. But that changed in November 2020.
During Covid, the NLRB implemented the following 6-factor test (the?Aspirus?factors) to determine whether “extraordinary” circumstances exist to trigger a Covid-related mail-ballot election.
The use of the word “or” means just one of those factors (including the “similarly compelling” factor”) needs to be present for the NLRB Regional Director to order a mail-ballot election.?
The result of the?Aspirus?factors has been a dramatic increase in the number of mail-ballot elections.
Mail ballot elections for unions are like mail-ballot elections for politicians. Voters are mailed a packet with a ballot, a return envelope, and instructions for completing and returning the ballot. Voter participation in mail-ballot elections is significantly lower than in manual, in-person elections. Some people also express concern for the integrity of the ballot processing in mail-ballot elections because unions win mail-ballot elections at a much greater percentage than in-person elections.?Generally, unions favor mail-ballot elections; companies prefer voting to be conducted in-person.
Perplexingly, despite workplaces being open, and the President saying the pandemic is over, the NLRB has continued to follow the?Asipus?factors, even relying on the catchall “similarly compelling” reason to permit mail-ballot elections.?
Enter Starbucks and its nationwide defense to union organizing. Starbucks are open. The baristas report to work daily. Yet, over Starbucks’ objections, the NLRB has ordered mail-ballot elections at most of its locations.
The union won 215 of 259 (83%) of the mail-ballot elections at Starbucks but only 20 of the 31 (65%) in-person elections. The 65% win rate is aligned with historical union win rates. Extrapolating the 65% win rate to all 290 stores, only 189 would have a union, not 215; that’s a 26-store difference.
Why do you think the union won 20% more mail-ballot elections than in-person elections at Starbucks??
Since federal courts and the National Labor Relations Board have acknowledged that secret, manual elections are the most reliable and preferred method of assessing whether a majority of employees support union representation, Starbucks has challenged the Board’s insistence on mail-ballot elections.
NLRB Seeks to Make Decertifying Unions Harder
The National Labor Relations Board plans to change the law regarding what it does when a union files an unfair labor practice charge after employees file a petition to decertify the union. The public comment period for this change expired last week. This new process will likely take effect soon.
Currently, if a party to an election (typically, a union) files an unfair labor practice charge while an election is pending, the election is held as scheduled. The Board impounds the ballots while determining if the charge had merit. If no merit, the ballots are counted. If potentially there was merit to the charge, the NLRB files a complaint against the offending party (usually the employer) and does not count the ballots until after resolution of the charge. Sometimes the unlawful conduct warrants holding a rerun election.?
Under the anticipated new law, if a party to an election files an unfair labor practice charge while an election petition is pending, the NLRB Regional Director may delay the election “if the conduct alleged threatens to interfere with employee free choice.” In the past, the party filing the blocking charge had the power to allow the vote to continue as scheduled; not anymore. Going forward, there will not be an election until the unfair labor practice charge is resolved.?
Unions can, and will, strategically file blocking charges to delay decertification elections they are likely to lose. The filing of the charge automatically stops the election for an undetermined amount of time. This provides the union with the opportunity to try to flip employees from voting for decertification to voting against it.
Given the NLRB’s current resource and staffing shortage, the investigation time for the pending unfair labor practices could be extensive. Time spent answering the complaint, having a hearing, filing post-hearing briefs, waiting for an Administrative Law Judge’s ruling, and then appeals from the ruling add to this already extensive delay.?
Election delays could stretch several years. Delaying the vote means the employees most involved in the decertification process may move on to other employment. They would have voted to decertify the union, but they left the company during the pendency of the blocking charge.
I see this happen a lot – employees who are dissatisfied with their union representation are virtually powerless to do anything about it. Rather than continue to work under a union contract, abide by union rules, or pay union dues, they simply find work somewhere else. Companies lose their institutional knowledge and skill. Employers are forced to backfill their positions. The union stays in place. Rinse. Repeat.
NLRB Seeks Another Change in Law to Make Union Organizing Easier
Employers are allowed to talk to their employees. That’s common sense, right? Not to the NLRB. It wants to eliminate a company’s right to talk to employees about unions.
For almost 75 years, employers faced with a union organizing campaign have been able to discuss with their employees the pros and cons of unions, the truth about working with a union, and the company’s position on unions. So long as the company did not make any threats or promises, ask employees who is for or against unions, or coerce employees from exercising their right to join a union, the company was allowed to speak freely.
In 2022, the National Labor Relations Board’s General Counsel Jennifer Abruzzo issued a memorandum to all NLRB Field offices announcing she would ask the Board to “find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings” a violation of the National Labor Relations Act. See, NLRB website for the press release (https://bit.ly/3W0CtPm).
The press release is complete with quotes from the General Counsel like:
This license to coerce is an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice. It is based on a fundamental misunderstanding of employers’ speech rights. I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our Congressional mandate. Because of this, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.
Again, this law has been around for 75 years.
A week after the press release, the NLRB found a case,?Cemex Construction Materials Pacific, to effectuate the change to the law. While most of this activity occurred several months ago, the NLRB has yet to rule on?Cemex. I expect the ruling any time. Soon captive audience meetings will likely be unlawful.
The impact of a ruling that holds captive audience meetings unlawful is multi-faceted. Any meeting with employees where the employee feels cornered or compelled to attend is potentially unlawful if there is a nexus to the employee’s rights under Section 7 of the NLRA.
These types of meetings happen all the time and have nothing to do with union organizing. Section 7 is broad and protects employees when acting as a group (or on behalf of a group). A meeting convened to discuss safety issues, equitable distribution of overtime, and workplace policies are just a few examples of meetings that employees are required to attend that have a nexus with their Section 7 rights but nothing to do with union organizing.
For employers faced with actual union organizing, captive audience meetings are paramount in expressing the employer’s (as of now lawful) views of unions and the reality of life as a union member.?
The elimination of these meetings will effectively force employers into?de facto?neutrality agreements with unions where employees will only hear one side of the story, the union’s side. Employers that enter neutrality agreements have employees vote for union representation roughly 80% of the time.
The?Cemex?case is not on the radar of most business owners or human resource departments. But this is just one more example of how the current NLRB is helping unions to organize employees one small change at a time. So far it seems to be paying off.
Union Strikes Surged in 2022
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Matt Austin?is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.
Matt also runs Austin Legal's?HR Legal Compliance Program?that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.?
Matt's experience is deeply rooted in helping manage many aspects of his clients' businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.
You can reach Matt via email at [email protected].?