In this issue:
- Oregon Fast Food Chain Goes Mail Ballot
- The Gig Economy
- Transportation & Logistics
- Scoreboard, SEIU Watch, Insight and more…
The bottom of each story contains a link to the individual post on our site.
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Labor Relations Insight by Phil Wilson
New Decision Protects Employer Property
The NLRB is steadily rolling back (or I’d call it rationalizing) a number of the more outrageous Obama-era NLRB decisions. Earlier this month they returned to the longstanding rule that employers do not have to welcome union organizers onto public areas of their private property.
The Supreme Court has ruled in two important decisions (Babcock & Wilcox and Lechmere) that employers generally have the right to exclude non-employee organizers from their private property. These cases carve out very limited exceptions for when organizers might gain access to an employer’s private property.
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), the Supreme Court held that while an employer can’t prohibit employees from soliciting each other, “no such obligation is owed nonemployee organizers.” The court then held an employer can restrict access to union organizers so long as the union has other ways to access employees and that it is not withholding access in a discriminatory way.
In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the Supreme Court reaffirmed and extended Babcock. It held that employers can restrict nonemployee union access to an employee parking lot on the employer’s property. The Court even said that the Babcock access exception would only apply in “rare cases” and where it was absolutely necessary to protect the Section 7 rights of employees. The Supreme Court in Lechmere went out of its way to remind everyone that outside of this very limited exception, “Section 7 simply does not protect nonemployee union organizers . . . .” Not much to argue about, right?
Not so fast. Over the last 30 years unions and pro-labor Boards have sought to create additional exceptions to broaden the general Babcock and Lechmere access framework. They set their sights on access to “public spaces” on the employer’s property like cafeterias. Numerous Board decisions over this period have given union organizers access to these public spaces.
Most Circuit Courts who have considered the issue continue to follow Babcock and Lechmere, but this month the Board wanted to make clear that its position is clear. There is no “public space” exception outside of the limited circumstances of what the Supreme Court provided in Babcock and Lechmere.
In UPMC (368 NLRB No. 2) the NLRB clarified that an employer does not have to allow access to its facility by nonemployees for promotional or organizing purposes. They further state that just because there is a public space like a cafeteria located on company private property does not mean nonemployees get access to that public space.
The Board also clarified that the general rule is that an employer’s private property remains private and they can establish and enforce any access they want as long as they are facially neutral and consistently enforced. Absent a showing of discrimination, the employer is free to decide what activities, if any, nonemployees get to do. They have the right to eject someone who violates those rules, even if they are a union organizer.
What’s the key takeaway for you? First, make sure to review your no solicitation rules and practices. If you have public spaces, make sure you are clear that your rules apply to these spaces as well. These rules must be facially neutral and consistently enforced.
Second (and most important) make sure your supervisors know and understand the rules. The key problem in most of these cases it that exceptions to the rule get made from time to time, and those exceptions are later used as evidence of discrimination whenever the union wants access.
The UPMC decision is a welcome clarification to this consistent encroachment to employer private property over the last several decades. And it’s a great time review your no solicitation rules and practices.
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Union Bailout Update
NLRB General Counsel, Peter Robb, issued two memos adding guidelines to the December 2017 Boeing decision, which established a new standard for evaluating workplace rules. In the memos, Robb explains that it is lawful to:
- require employees to cooperate in workplace investigations,
- require employees to maintain a professional appearance, free of “[a]ny . . . inappropriate commercial advertising or insignia,”
- define confidential information to include business plans, internal correspondence, customer lists, and personally identifiable customer and employee information and prohibit employees from
- disclosing such information, and
- prohibit employees from communicating with the media on behalf of the employer.
In Nuance Transportation, which elicited the memos, the GC found the following to be unlawful:
- A rule prohibiting employees from sharing payroll information.
- A rule prohibiting all “non-business use” of the employer’s email system, or using email for matters that did not “promote the [employer’s] objectives” was not only unlawfully overbroad, but it conflicted with a policy that allowed limited personal use of the email.
- A rule prohibiting personal cell phone use because it prohibited employees from using their phones to communicate with each other regarding, or take photographs to document workplaces concerns, during non-work hours.
The NLRB has announced new rulemaking priorities, to include:
- access to an employer’s private property;
- standards to determine when students who perform work at a private college or university in connection with their studies are “employees” within Section 2(3) of the NLRA; and
- representation election regulations, including the Board’s current procedures for blocking an election petition after the filing of an unfair labor practices charge, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
It is anticipated that the proposed rules will be made public in September.
It looks like giant rat inflatables may no longer be considered lawful union speech (against a neutral party), but instead classified as picketing, and thus illegal. When a Chicago IBEW local hung some banners and set up an inflatable “Corporate Fat Cat” balloon, the NLRB General Counsel pressed the board’s Chicago office to issue a complaint. In his advice memo, the GC said the banner was a “functional equivalent” of a picket sign, and by having it next to the inflatable rat, the union was picketing a neutral employer, thus violating Section 8(b)(4) of the National Labor Relations Act. The parties informally settled the matter, so the board will have to wait for another opportune time to prosecute the issue.
Early in his tenure, President Trump used an Executive Order to initiate an overhaul to the apprenticeship training system, reducing government oversight and allowing industry to set the standards and handle certification. No proposed program has yet emerged, but drafts of the plan indicate that parameters for the third-party program certifiers would largely remove the Labor Department from the certification equation. Labor Secretary, Alexander Acosta, favors excluding the building trades from the new program, siding with the unions.
In New York, an appeals court ruled a New York state law barring farm workers from unionizing and collective bargaining is a violation of the state constitution. New York Governor, Andrew Cuomo, hailed the ruling and urged the state legislature to enshrine farm workers’ right to unionize into state law. The Senate followed through, and passed the Farm Laborers Fair Labor Practices Act. The New York Farm Bureau had argued the state constitution explicitly disallowed farm workers organizing, and plans to appeal the ruling.
The overtime storm created by the Obama administration hasn’t abated yet, as both the House and Senate passed bills aimed at codifying new overtime levels as originally proposed ($51,000), rather than accept the DOL’s more reasonable target of $35,308. It is unlikely the congressional initiative will become law in the current administration.
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Oregon Fast Food Chain Goes Mail Ballot
Portland may soon play host to the first two unionized fast food chains. Employees at thirteen Little Big Burger stores will be able to vote by mail ballot, after the company’s offer to rent a U-Haul trailer and run around town to facilitate in-person voting wasn’t deemed reasonable.
If workers vote to unionize, they join five Burgerville locations, also in the Portland area.
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The Gig Economy
In April, the NLRB and the DOL both revealed their stance that Uber drivers should be classified as independent contractors. Last month, the NLRB released a memorandum that outlines their reasoning.
While there are 10 qualitative factors when determining contractor status, the NLRB places the most emphasis, in the case of Uber at least, on just two: “level of control by the company over the worker and how the workers are paid in relation to the company.”
Meanwhile, California has passed its own bill that applies a three-part test, called the ABC test, when determining employer status. “To be a true independent contractor, it says, a worker must be free from a company’s control, doing work not central to the company’s business, and have an independent business in that trade.” The bill still needs Senate approval to go into effect.
In New York, lawmakers just proposed the “Dependent Worker Act,” which isn’t so much trying to get more independent contractors classified as employees, but rather to provide more benefits to those who work within the gig economy. Click here for details.
The gig economy isn’t going anywhere. In fact, IRS reporting shows that at least 11.8% of US workers are now participating in this kind of part-time work, with that number on a steady incline.
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SEIU Watch
SEIU-UHW spent $37.5 million on “political activities and lobbying” in 2018, which is more than their entire expenditure on organizing and representing membership during the same period. In fact, three-quarters of the political spending can be broken down into six recipients, each some form of a political consultant group pushing for certain statewide initiatives:
- $14.9 million to Waterfront Strategies (Washington DC)
- $4.6 million to the Fairness Project (Washington DC)
- $2.5 million to Kimball Petition Management (Thousand Oaks, CA)
- $2.1 million to Ohioans for Kidney Dialysis Patient Protection (Ohio)
- $1.2 million to Savvy Communications (Rancho Mirage, CA)
- $2.2 million to Greenstripe Media, Inc. (Newport Beach, CA)
In other SEIU news,
- An ex-SEIU officer in Chicago, Robert Kurtycz, was found guilty of six counts of wire fraud.
- A Washington State SEIU affiliate settled a suit last month, admitting that one of its canvassers forged a woman’s signature and the union has since been illegally withdrawing dues from her.
- After being under an imposed trusteeship for years, Local 73 held its first election for new leadership in October 2018. Last month, the Department of Labor overturned the election due to union misconduct and ordered a new one scheduled, with government oversight.
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SCORE BOARD
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).
Download a PDF of this month’s scoreboard
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It’s All Academic
The National Education Association keeps losing local affiliates and they’re not coming back any time soon.
The Blue Valley Education Association (BVEA), which represents 1,800 staff in Kansas’ fourth largest school district, cut ties with NEA in May 2019. Soon after, the national union created a “new” affiliate, Blue Valley NEA, and petitioned the NLRB for an election in an attempt to regain its lost membership. It didn’t work. BVEA defeated Blue Valley NEA by 904 to 104 in a mail-in ballot election this month.
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Healthcare
The renowned Johns Hopkins Hospital has been the target of a long running organizing campaign by National Nurses United. The union resorted to filing Unfair Labor Practice charges against the hospital last October. To avoid costly litigation, the hospital reached an agreement to post a notice of employee rights to organize. Contrary to the unions statements, hospital spokesperson, Kim Hoppe, reiterated that the NLRB made no determination that the hospital violated federal labor law.
Nurses at St. Vincent Hospital in Toledo, OH walked out on strike on May 6th and returned June 12 when a tentative agreement was reached between the UAW and the hospital. When given the chance to vote on the new contract, 57% of the nurses rejected it, leaving the group without a contract. Two other hospital units totaling about 930 employees took part in the strike until they approved new contracts in early June.
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Transportation & Logistics
Just before Thanksgiving 2016, 95 truckers and dockworkers employed by Lakeville Motor Express in Roseville were laid off without notice and the company filed for bankruptcy. Soon after, the workers and their union—a Teamsters local—filed a complaint with the NLRB claiming that Motor Express “actually continued to operate, just at a different location in the Twin Cities and under the new name LME Inc.”
Last year, the NLRB found the two companies had been acting as “alter egos” and ordered LME to pay $1.25 million in back pay. Workers received the first of these payments this month.
LME continues to deny the accusation of wrongly dismissing Motor Express workers in favor of cheaper nonunion laborers.
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Minimum Rising
House Democrats are expected to bring the bill for a national $15 minimum wage to the floor for a vote in just a few weeks. Confidence that it will pass appears to be high.
And when you consider facts like:
- this is the longest America has ever gone without raising the minimum wage,
- more than half of U.S. states have a higher minimum wage than the federal benchmark, and
- the total number of states with $15 minimum wage laws has doubled this year
…it’s hard to imagine the Dems not taking this one.
Even if the bill doesn’t pass now, we can expect to continue hearing about a national $15 minimum wage throughout the 2020 election cycle.
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Whistlin’ Dixie
Workers at the Volkswagen Chattanooga plant voted, for the second time, against joining the UAW earlier this month, but (big surprise) the union still won’t take the hint! Rather than accepting that the workers at this location simply don’t want a union, the Auto Workers are pinning the results on current labor laws and pushing for a bill that would prevent captive audience meetings during organizing campaigns.
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Labor Around the World
On the final day of the International Labour Organization’s (ILO) annual conference this month, the UN labor body adopted a new treaty against violence and harassment in the workplace. The treaty, fueled by the #MeToo movement, aims to “protect workers, irrespective of contractual status, from harassment in places where they are paid, taking a rest, eating or using sanitary facilities.” More details here.
Also this month, the nation of Argentina came to a standstill when thousands of people took part in a general strike as a protest to government policies and the rising cost of inflation.
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Sticky Fingers
Current charges or sentences of embezzling union officials:
- Linda Woodford – AFSCME: $4,000
- Bud Sherwood – TCU: $10,813
- John Scarcella – ACT: $10,000
- George Peltz – IBEW: $1,000,000
- Robert Kurtycz – SEIU: $85,962
- Claudia Beltran – UA: $30,000
- Caroline Phelps – IUOE: $36,923
http://nlpc.org/index.php?q=union-corruption-update
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Nurses at the Mercy Health St. Vincent Medical Center in Toledo, Ohio ratified a new three-year contract at the beginning of this month.
Sticky Fingers
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And while in this particular case with Google (who apparently employs more than 102,000 full-time temporary workers), a request for equal treatment and benefits may be validated, a recent article in the Harvard Business Review lays out some considerations for why we should be careful not to impose sweeping, one-size-fits-all ‘solutions’ on gig workers. We highly recommend the read. 
It seems anachronistic to talk about unions as havens for the Mafia, and most folks think of the more industrial unions like the Teamsters or the Laborers when they thinking about a union being “mobbed up.” The recent sentencing of Vincent D’Acunto, former secretary-treasurer of UFCW Local 2D in Brooklyn, dispels the 
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The UAW’s corruption scandal with Fiat Chrysler over the last couple years was just the tip of the iceberg. Since then, federal investigators have been led deeper and deeper into the bed of UAW corruption.
Steven Greenhouse, a labor pundit and pro-union author, has “graded” the Democratic candidates labor platforms. If you’re interested in a pro-union perspective of these platforms, 
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Although it may seem counter-intuitive, the stronger overall economy is leading to 
Although businesses tend to focus on the traditional employee collective action threat of union organization, with the goal of collective bargaining in mind, there has been a recent rise of non-traditional organizational action.
The Watchmen turns the typical superhero story on its head. The heroes are not heroic. They’ve been outlawed and either retired, live their lives underground, or work for the government. The entire series struggles with the question of what to do when the powerful can no longer be trusted. Graffiti peppers the book (or the great 
Bernie Sanders beat out Elizabeth Warren for 
A former Kickstarter employee has launched a new project on Kickstarter that is designed to help workers unionize the tech industry. It’s called 
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Alt Labor organizations, like the Restaurant Opportunities Centers United, have long been known to be an outreach arm of organized labor. Operating in the background, they have continued to escape scrutiny of the rules and disclosure requirements that traditional unions are subject to (
On August 15, OLMS Detroit-Milwaukee District Director, Thomas Murray, sent a letter to CTUL. The letter stated that the group has members who pay voluntary annual dues of $50 in order to be designated as “ally members” who have the right to vote on organization decisions.
Yet another union pension plan is in jeopardy. The largest private coal mining company in the country, Murray Energy, is the 
The International Longshore and Warehouse Union (ILWU) got punched hard when a jury held the national union and Portland-based Local 8 
A southern neighbor encountered problems of a different kind, when a VP of HR at Oregon Health and Science University 
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 
Seattle joined New York City last month as one of the few locations that has set a minimum wage for gig economy workers. The 
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Because healthcare is now the largest employment sector in the U.S. and is expected to add over two million jobs in the next decade, unions have stepped up their attack on healthcare employers, but that’s NOT the good news. LRI is bringing new focus and resources to your business! 
A google spreadsheet. (Wait - what?)
George Laufenberg, former benefit funds administrator for the United Brotherhood of Carpenters, has been indicted for fraud and stealing more than 
After a 27-day strike, the 
California’s controversial AB 5 bill, which imposes the country’s strictest standards for determining whether or not an employee can be classified as a contractor, went into effect this month. Still, some gig companies and industries aren’t ready to throw in the towel.
Revisioning of Labor Law
The staff at crowdfunding platform 
Meanwhile, Meijer is tapping into the gig economy to create flexibility to meet shifting demand. They have 
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Walmart has gradually been 
Labor Relations Insight by Phil Wilson
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Auto companies have 
France provided 
New entrants to the field include 
Will traditional unions take advantage of these innovations? Historically they’ve been slow to adopt, but I think anyone reading this would say their use of technology over the last two months has changed dramatically. It is hard to see the world going back to the way it was before the pandemic, and I am sure that will be true of union organizing as well. The first two months of 2020 saw union petition activity surge over the same period in 2019 (according to 
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One bright-line rule to come out of the pandemic crisis relates to stray marks on mail ballots used for union elections. The board, calling the history of past rulings inconsistent, established the simple rule that 
Big Labor may be scrambling to 
Facebook has deployed a new tool called 
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In a few other cases, gig employers are choosing to grant this benefit on their own. Instacart is the primary example of this. In addition to granting sick pay to those who contract the virus themselves, the company has approved sick pay for those who have had a family member contract the virus as well. They are also offering free telehealth services, and they are applying this policy nationwide.
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UAW Regional Director 
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After being on strike for over 9 months, Asarco employees in Arizona are heading back to work. This comes after a June NLRB decision in favor of the unions, who argued that Asarco was not bargaining in good faith.
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Staff at Bustle Digital Group announced their 
At what point does “securing worker rights” end up hurting workers more? Specifically, in the case of the gig economy, the answer is when the 
First the pitch. If you are reading this and aren’t a subscriber of 
New: Free Online Union Calculators Webpage!
The biggest news in tech and media this month is the formation of Google’s 
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Since we were working from home we have been holding bi-weekly zoom meetings and I would use those meetings to tell the group where on the LH we were. My favorites were the Donner Pass and Cozad. For these places, I dressed up for the meetings (pics attached). At Donner Pass my character was a survivor from the party and I told a brief story of the troubles. Then for Cozad, NE, I dressed loosely like a member of the band Bon Jovi and played the song, ‘Livin’ on a Prayer’ “we’re half way there”. The team loved it and now I think I might have set the bar a little high.
More than 130 professional and clerical staff at Augsburg University in Minneapolis, Minnesota voted to form a union this month, making them the 
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