On April 30th 2012, the employer and employee interaction transformed. For the first time in 50 years, labor law reform has caused a significant alteration in how Unions will organize. Permanent Solutions Labor Consultants’ Ricardo Torres and Dan Block discussed these changes with Clifford Hammond from Nemeth Burwell P.C. and what the implications are for employers.
With campaign election times being cut from 45 days down to as short as 5 days, Union success rates are expected to increase substantially. Having worked with shorter election periods in the Canadian Labor environment for quite some time now, Ricardo touches base on his previous experiences in similar situations.
Nemeth Burwell’s Clifford Hammond is an experienced employment and labor law counseling and litigation attorney. His expertise, in conjunction with Ricardo Torres’, provides a unique perspective into the Unions’ mind and employers’ goals.
Unless an injunction falls upon the new regulations added to the National Labor Relation Act, the changes are, in fact, law. Prudent employers should take note of the new landscape and prepare themselves diligently.
May Day Protesters flee from Stinging Gas
May Day, celebrated in more than 80 countries, is a holiday that originates from the 1886 Haymarket Affair in Chicago. On this day in 1886, during an 8-hour workday protest, police retaliated to a bombing by opening fire on protesters, killing dozens -including members of their own police force. In subsequent years protests continued to occur, making this a seminal day for those who believed that their employers were mistreating them.
Throughout the world, the working class has sought to make May Day an official holiday – and their efforts have largely succeeded. Protests and demonstrations mark the occasion, often run by Socialist, Communist and Anarchist groups around the world.
On Tuesday, thousands of people around the U.S participated in anti-Wall Street demonstrations, seen as an attempt to rekindle the Occupy Wall Street Movement that has lost ground in the last few months.
A handful of arrests were made in major cities around the nation who had tried to recapture the enthusiasm that propelled the movement last year. While the protesters and police violence were less severe compared to OWS peak rallies, this year’s May Day proved that there is still discontent from activists with anti-Wall Street sentiments.
Perhaps one of the most violent scenes between the protesters and police occurred in Oakland where several violent clashes occurred, which ultimately ended with Police firing tear gas, and flash-bang grenades to disperse crowds.
Additionally, the city of Seattle also saw violent protesters who had smashed the windows of local businesses and ran through streets disrupting the city’s traffic. Terry Collins from Associated Press called it “reminiscent of the 1999 World Trade Organization protests” but on a much smaller scale.
With talks of Big Labor and the Occupy movement teaming up, the combined hopes of rekindling the energy could mean changes in the labor environment in the coming year. As an employer looking out at Big Labor, there is a validated concern over maintaining strong communication and keeping positive employee relations between management and employees.
The NLRB has released a FAQ (printable version) on the new representation case rules. Our read on them boils them down to this: As an employer, you are on your own. The entire election cycle will be ruled by the Regional Director, who have consistently been leaning in the unions’ favor.
- If there is a dispute over unit size/employee appropriateness, and the difference is less than 10% of the whole, disputing will be a waste of time and resources; the ruling WILL be in favor of the petitioner.
- Hearings will now take place in 5 business days, rather than the previous 25.
- Elections will be scheduled at the Regional Director’s convenience. Our take is that slower regions will have elections within 5-10 days of filing and busier regions within 10-15 days. Plan on an average 12 day election cycle.
- If there was a dispute over unit size/employee appropriateness and it was not resolved in the Hearing stage, do not expect any changes before or after the election; you will probably have to take it to court, unless the petitioner is reasonable. Per the Board “the parties have often resolved these issues themselves in negotiations.” (i.e. “We’re not going to get involved.”)
You as an employer are not going to receive a fair deal. The FAQ makes a minor attempt to address the Board’s blatant bias with some pointed questions (e.g. Isn’t the refusal of the Board to resolve supervisory status before the election going to inhibit employer rights… and …isn’t this a backdoor way to speed up elections?) Unfortunately, the responses are evasive and do not really answer anything. Reading between the lines, however, reveals a clear message: The employer is definitely the underdog.
The AFL/CIO’s efforts have been undermined by widespread infighting between two factions. There are those who supported former AFL/CIO President John Sweeney’s long term member growth strategy of putting policy members in key positions to change labor laws, and those who believed it was a waste to spend so much time, money and energy helping politicians get elected. Sweeney’s opponents believed the money could be better spent supporting organizing campaigns. In 2008, they thought this rift had finally been repaired. All doubts had been erased by having a true union supporter in the White House.
Where’s the Love?
In the 2008 elections, Big Labor mobilized millions of volunteers and spent hundreds of millions of dollars to help elect President Obama. Union bosses celebrated; never before had Labor’s voice resonated so strongly within our Capitol. The end of Labor’s decline was in sight, and former AFL/CIO President John Sweeney’s controversial strategy looked like it was finally paying off.
Fast-forward four years: Now the unions are angry at President Obama and the Democratic Party. AFL/CIO President Richard Trumka told reporters that the nation’s largest labor federation is scaling back their involvement with Obama and the Democrats in advance of the 2012 elections. What happened to the love fest? It sounds strange that Big Labor is so angry at the Obama administration. Haven’t his recess appointments to the NLRB made it possible to change over 50 years of labor law to benefit unions? This resentment just demonstrates how big a return Big Labor was expecting on their investment.
My history with unions is long and varied, but one of the most frustrating parts of it was my time lobbying Congress for the AFL/CIO and assisting legislative departments across the country to enact changes in labor law. Giving support to politicians was constant, but getting them to honor their commitments to be a strong advocate for labor was fleeting.
Big Labor has fought for years to get the perfect candidate in the White House. Everything was geared up for this jackpot and they were expecting sweeping labor law changes to ease the process of organizing new members. Big Labor thought they would get a free pass with Obama; instead,they found themselves on the outside looking in. Randi Weingarten, the current president of the American Federation of Teachers (AFT), confessed that the unions are to blame for their lack of progress in organizing new members and changing the NLRA to favor unions. “We got lazy,” she confessed. “We were just waiting for Obama to come to us and we stopped putting pressure on the politicians to pay us back for our support.”
Despite the monumental changes allowed by President Obama’s NLRB recess appointments, Big Labor still has many grievances with him, including the make-up of his Jobs and Competitiveness Council, where Trumka is one of the only two union representatives on the 26-member group (which, to add insult to injury, is headed by General Electric’s Jeffrey Immelt). Additionally, Labor’s top legislative priority has been the Employee Free Choice Act, which would make it easier to unionize workers. Unfortunately for them, it was never very high on the White House’s agenda, and the Act was allowed to die on Capitol Hill. Furthermore, Obama haskept his distance from the demonstrations that roiled the Wisconsin state capitol for weeks over Governor Scott Walker’s plans. The final straw has been the Obama administration’s support for free-trade agreements with Colombia, Panama and South Korea; all while refusing to lend its support to the Verizon strikers.
Obama’s relationship with labor is not as novel a situation as it may seem, says Robert Reich, who was Bill Clinton’s labor secretary before he returned to teaching. The unions thought the same thing would happen with Bill Clinton, but he also let them down. “Clinton promised labor law reform, and they never got it. It rapidly sank to the bottom of his agenda. Democratic presidents rely enormously on unions as ground troops,and then take them for granted. Unions don’t really have much of an option,” says Reich.
However, Labor seems to have finally figured out otherwise: At a February 2012 press conference, AFL-CIO President Richard Trumka announced that the labor movement was reinventing itself, and would no longer depend on the Democratic Party to be their defenders. He said that the Democrats would be held more accountable for their support.
Occupy Wall Street (OWS) legal working group attorney and spokesperson Marina Sitrin stated that the OWS movement and labor unions are working closer together. The unions are helping to make the OWS group a political powerhouse, while OWS is helping to make the unions even more aggressive. She also stated that they were working on changing the structure of the union movement to fit the changing times. The OWS movement is ready to take action against the unions’ enemies; they will fulfill the actions that labor laws restrict unions from performing.
Hedging their bets, AFL/CIO President Richard Trukma says the top goal if Mr. Obama is reelected is to pass striker replacement reform. Since the 1981 PATCO (Professional Air Traffic Controllers Organization) strike, union strikes lost effectiveness and have dropped dramatically. Much of this is the fault of the AFL/CIO. PATCO members voted overwhelmingly to strike the government in 1981. However, President Reagan fired all those who refused to return to work, and ordered the FAA to hire permanent replacements. Replacing strikers in this manner is not unlawful, but has always been considered a “nuclear option”, not to be used. Strikers were often fired, but were usually rehired with full seniority. What many people do not know is that then-president of the AFL/CIO Lane Kirkland did not support the striking workers. Upset that the controllers had not consulted him before striking, Kirkland privately ordered AFL/CIO unions not to get involved while publicly denounced Reagan’s strike-breaking strategy. Within a year, PATCO was decertified and its striking members were never rehired.
Bill Fletcher, Jr., from the Center for Labor Renewal, recently stated that they are feverishly working to win congressional support for striker replacement reform. Now that the unions have a shortened election cycle, they desperately need to reacquire the right to strike – their biggest strength and the biggest threat to business. IBT president Jimmy Hoffa, Jr. best expressed this thinking when he said that Labor needed to return to the days of his father, when they could “close the country down with a strike.”