Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Decisive Delivery: Amazon Defeats Largest Labor Drive in Company History

Posted in Elections, Union Organizing

Amazon has defeated the largest labor drive in the company’s history.  Today, the NLRB completed a vote count in an election involving employees at Amazon’s facility in Bessemer, Alabama, which employs nearly 6,000 people.  Of these nearly 6,000 people, 3,041 mailed in their ballots indicating whether they wished to be represented by the Retail, Wholesale and Department Store Union (RWDSU).

The results were remarkably lopsided, with 1,798 employees voting against the Union and 738 voting for the Union.  Although there were also 76 void ballots and 505 challenged ballots, the NLRB noted that the number of challenges is not sufficient to change the results of the election.

The election results deliver what many are calling a win for Amazon.  For its part, Amazon released a statement maintaining that “Amazon didn’t win–our employees made the choice to vote against joining a union.”

Stuart Appelbaum, President of the RWDSU, also released a statement, promising to challenge the election results.  Appelbaum asserted that Amazon “left no stone unturned in its efforts to gaslight its own employees.”  Appelbaum also claimed lies, deception, and illegal activities on the part of Amazon, demanding “a comprehensive investigation over Amazon’s behavior in corrupting this election.”  In its statement, Amazon retorted that its employees “heard far more anti-Amazon messages from the union, policymakers, and media outlets than they heard from us.”

The parties have five business days to file objections contesting the conduct or results of the election.  The Appelbaum statement says the RWDSU will do exactly that.

Leading up to the election, the Union effort received support from across the political spectrum, including President Joe Biden (D), Senator Marco Rubio (R-FL), and Senator Bernie Sanders (I-VT).  Amazon has also faced scrutiny for allegedly quashing labor activism and for what many consider its disproportionate market power and influence.

Many of Amazon’s employees at the Bessemer facility explain, however, that they voluntarily voted against the RWDSU because Amazon already provided them with relatively high pay, opportunities to advance, and good benefits.  Because of Amazon’s message of offering good jobs and competitive wages, some are seeing the election’s outcome as a vindication and a “bellwether” likely to make organized labor reconsider its efforts to represent Amazon employees.

For the labor professional, the results of this election certainly suggest that successful union organizing, particularly in large units and even with widespread public or political support, is not a foregone conclusion.  The views that matter are those of the employees voting.  And, on that issue, the Amazon results serve as a cautionary tale for other employers about considerations that at least some employees view as significant when deciding how to vote in a union election.

IAM Files Election Petition for 87 Nissan Tennessee Workers – Another Micro-Unit Test for the Auto Industry

Posted in Elections, Union Organizing

The International Association of Machinists and Aerospace Workers filed an NLRB election petition to represent 87 tool and die maintenance technicians at Nissan’s Smyrna, Tennessee auto plant.  At the Smyrna facility, Nissan employs approximately 4,300 production and maintenance workers.  The IAM union is trying to slice a very small group out of the whole.  The IAM’s effort follows two previous UAW losses to represent all of the production and maintenance workers at Nissan’s Smyrna plant.

This is the second micro-unit test for auto manufacturers within the past few years.  In 2015, the UAW won a micro-unit election of about 160 skilled maintenance workers at the VW plant in Chattanooga.  But, the UAW’s election victory stalled at the NLRB, when VW contended that the micro-unit was not an appropriate bargaining unit under the federal law.  Rather than wait for all of the litigation and appeals, the UAW dropped its micro-unit argument and filed another election petition to represent all of the VW production and maintenance workers.  The UAW lost that election.

Now, Nissan is contesting the IAM’s micro-unit argument, contending that there is no community-of-interests difference between the 87 tool and die maintenance technicians and all of the other Nissan production and maintenance technicians.  The NLRB will decide whether the IAM’s petition for election moves forward.

More NLRB Changes Coming: Biden Appoints New Pro-Labor General Counsel

Posted in Nominations & Appointments

If even a day can make a significant difference, a month can make much more.  On February 17, 2021, President Biden nominated Jennifer Abruzzo to serve as the next General Counsel of the National Labor Relations Board (NLRB).

The Biden Presidency has thus far brought unanticipated upheavals to the NLRB.  As this blog previously discussed, President Biden, on his first day in office, fired the previous GC of the NLRB, Peter Robb (R), a Trump appointee, in an unprecedented move.  This was followed by Robb’s replacement, AGC Peter Sung Ohr, walking back many Trump-era policies by issuing rescissions of ten of Robb’s memoranda, among other actions.  If confirmed, Jennifer Abruzzo is expected to continue this pro-labor agenda.

Abruzzo is no stranger to the NLRB, having a 23-year tenure with the Board.  She previously served as deputy GC under former GC Richard Griffin (D) and as acting GC before Trump appointee Robb was confirmed in 2017.  Abruzzo most recently served as a special counsel to the Communications Workers of America.

Given the controversial nature of former GC Robb’s termination, some are expecting Abruzzo’s confirmation hearings to be contentious.  Still, Democrats will have the votes to confirm her provided none break ranks.  Her confirmation will likely do little to resolve the frustrations of employers who have raised legal challenges in NLRB cases by suggesting that President Biden lacked the legal authority to fire Robb in January 2021.

Abruzzo is expected to advance pro-labor and pro-union initiatives such as more aggressively prosecuting employers for alleged labor law violations.  In a statement released the day of Abruzzo’s nomination, the White House said, “Abruzzo will be an important member in supporting the NLRB’s work to build a stronger, more resilient, and more inclusive economy that delivers every American a fair return for their work and an equal chance to get ahead.”

For the labor professional on the management side, the nomination is simply confirmation of our prior conclusion:  do not expect much good news from the NLRB for some time to come.

Employer Uniform Policies Back in the Limelight at the NLRB

Posted in Employee Discipline, Employee Handbooks, Union Insignia

Many employers have policies that require employees to wear uniforms.  What if an employee of such an employer, however, wants to instead wear a t-shirt expressing support for a labor union?  The NLRB has long regulated an employer’s ability to restrict such a right.  But, the NLRB recently signaled that a change in this rule may be in the works.

Last week, the NLRB issued an order inviting interested parties to submit briefs to address what rule the NLRB should apply to evaluate the legality of an employer’s policy requiring uniforms.  The case grows out of a car manufacturer’s “team-wear” policy, which it maintained for its production associates.  These individuals work in a manufacturing environment, and are thus different from the customer-facing employees involved a few years ago in a case this blog has previously discussed.

The employer applied its team-wear policy to prohibit an employee from wearing a union shirt.  An administrative law judge found that the employer’s enforcement of its team-wear policy in this manner violated the Act.  Specifically, the judge found that employer’s team-wear policy unlawfully prohibited production associates from wearing union shirts because the employer failed to establish that team-wear policy was justified by “special circumstances,” as required under a 1945 U.S. Supreme Court decision.

In its appeal to the NLRB, the employer argues that the “special circumstances” analysis is not applicable because the policy only requires production associates to wear a particular shirt (thus prohibiting union shirts).  The employer notes that production associates were entirely free to wear union insignia on hats or other clothing.  Indeed, the employer noted that many employees had done so.

In issuing the invitation for briefs, the NLRB noted its 2010 decision, Stabilus, Inc., provides that an employer cannot avoid the “special circumstances” test simply by requiring employees to wear uniforms or other designated clothing, which would then preclude the wearing of union insignia.  The NLRB majority is asking that the briefs address two issues presented by the Stabilus decision:

  1. Does Stabilus specify the correct standard to apply when an employer maintains and consistently enforces a nondiscriminatory uniform policy that implicitly allows employees to wear union insignia (buttons, pins, stickers, etc.) on their uniforms?
  2. If Stabilus does not specify the correct standard to apply in those circumstances, what standard should the Board apply?

The due date for briefs from interested parties is March 15, 2021.

Chairman McFerran (D) dissented, arguing that there is no need to revisit the Stabilus decision because the 1945 Supreme Court decision is, in her view, sufficiently clear that work rules prohibiting employees from wearing union insignia are unlawful unless justified by special circumstances.  Still, Chairman McFerran acknowledged that she will consider the case “with an open mind” and thus, presumably, take any newly filed briefs into consideration.

For the labor professional, the case will be one to watch as it will likely shed light on employers’ uniform policies specifically with respect to union insignia.  Indeed, the invitation for briefs presents the possibility that the Stabilus standard will be replaced or modified.

Rapid Reversals: Acting NLRB General Counsel Issues Flurry of Rescissions Days after Unprecedented Ousting of Predecessor

Posted in NLRB, Unions

Acting General Counsel Peter Sung Ohr has wasted no time in reversing course at the NLRB’s General Counsel office.  Yesterday, less than two weeks after President Biden’s unprecedented removal of the NLRB’s GC, AGC Ohr issued a memorandum (GC 21-02) to the NLRB’s regional offices.

The memorandum rescinds several general counsel memoranda issued by former GC Robb.  The memoranda rescinded range from those AGC Ohr asserts are no longer necessary, such as guidance on employee handbooks, to those that are process-oriented, and provided charged parties more transparency in connection with regional office investigations of ULP charges.

A significant number of memoranda rescinded addressed unfair labor practices by unions.  For example, GC 19-01 required unions raising a “mere negligence” defense to a duty of fair representation allegation concerning a union’s grievance handling to establish the existence of reasonable procedures or systems to track grievances.  GC 19-01 also classified a union’s failure to communicate grievance decisions and/or respond to a grievant’s inquiries as arbitrary conduct.

GC 19-04 required unions to provide the reduced amount of dues and fees for dues objectors in the initial Beck notice.  Both of these memoranda, along with eight others, are no longer in effect following AGC Ohr’s actions.

The import of the rescissions above are likely plain to the labor professional.  It does not appear that AGC Ohr will simply be a “caretaker,” keeping the case processing machinery at the NLRB running pending Senate confirmation of a new General Counsel.

Rather, the rapid rollback of GC Robb’s efforts has begun.  Indeed, AGC Ohr makes clear that more is to come:  “Future memoranda setting forth additional new policies will issue in the near future.”  For labor professionals on the management side, do not expect much good news for some time to come.

Divided NLRB Panel Offers Expansive Protections for Wildcat Strikes

Posted in Strikes

Last week, an NLRB panel issued a decision in the case of Noah’s Ark Processors, LLC.  The decision addresses a number of important labor law issues.  Most importantly, this decision reinforces protections for employees who go on a strike on their own without authorization from their unions.  These are known as “wildcat strikes.”

Typically, the NLRA does not protect employees who engage in wildcat strikes.  But, exceptions exist, and the NLRB applied one here.  In this case, a group of ten employees stopped working to protest wage disparities between senior employees and new hires.  The aim of the strike was generally consistent with the union’s position on wage issues at the bargaining table.  A labor contract with a no-strike provision had expired two months earlier.

The NLRB noted that the union did not expressly authorize the strike.  But, a union steward explained the group’s actions to management and the union subsequently processed a grievance on behalf of the terminated strikers.  On these facts, the NLRB held that the employees had engaged in protected activity.  Thus, the employer’s termination of the striking employees was unlawful.

The wildcat strike portion of the opinion was not unanimous, with Member Emanuel (R) dissenting.  He argued that there was no evidence that the union supported the work stoppage.  Rather, he would have found that the employees who engaged in the work stoppage were presenting their own demands, not the union’s.  Accordingly, there was no protected, concerted activity, and the terminations of the striking employees was lawful.

The decision also found a number of unfair labor practices by the employer.  All three panel members agreed that the employer committed unfair labor practices when it unilaterally increased wages by $0.15 per hour while a collective bargaining agreement was still in effect, implemented a new wage system without giving the union an opportunity to bargain, refused to provide requested information to the union, failed to deduct and remit union dues from employee paychecks, attempted to circumvent the union by going to employees directly, and refused to bargain in good faith with the union by sending a representative without real bargaining authority.

Notably, as a result of these bargaining violations, the NLRB imposed some extraordinary remedies.  These remedies are not always used, but the NLRB found that the employer’s conduct was sufficient to warrant them.  The remedies the majority imposed included reimbursing the union for its bargaining expenses, reading aloud the NLRB’s notice to an assembled group of all employees, and issuing a bargaining order, with an accompanying bar on processing of any decertification petition.

In addition to serving as an example of a case where these extraordinary remedies are justified, the case serves as a reminder that not all wildcat strikes are unprotected.  Under this decision, strikes by employees may still be considered protected activity, even without express authorization from the union, and even if they appear to be based on employee demands separate from the union.

Employers will need to look beyond a simple determination of whether the employees are acting with union authorization or support, and instead look for employee efforts to bypass their union or deal directly with the employer.  Employers should therefore carefully review the situation before taking adverse actions against employees engaged in a wildcat strike.

General Counsel Controversy Erupts, and New NLRB Chairman Appointed

Posted in NLRB

What a difference a day can make.  On the first day of the Biden administration, the President gave the General Counsel of the National Labor Relations Board until 5 p.m. to resign or be fired.  GC Peter Robb (R) declined to do so.  (Here is a link to the GC’s short letter to the White House.)  By the end of the day yesterday, President Biden had fired him.

This development is unprecedented.  GC Robb (R) was appointed by former President Trump.  He was confirmed by the U.S. Senate to fill a four-year term.  That term is to end in less than 10 months.  According to the NLRB’s website this morning, Mr. Robb’s service ended yesterday.

President Biden acted to remove Mr. Robb after being urged to do so by the Service Employees International Union.  For labor professionals, the implication of this news requires no elaboration.

In more normal and expected developments at the NLRB, President Biden appointed Lauren McFerran (D) as the Chairman of the NLRB.  This development, unlike the President’s actions with respect to the GC, is normal.  It occurs every time political control of the White House changes parties.  More information can be found in the NLRB’s news release here.

Chairman McFerran will lead the NLRB that includes three other members, all of whom have issued management-friendly decisions during their time on the NLRB.  The first of those members whose term will expire, William Emanuel (R), will leave the NLRB on August 27, 2021.  Given Democratic control of the Senate, if the Senate acts to confirms a replacement for Member Emanuel, and to fill an existing vacancy on the NLRB, this more management-friendly majority will almost certainly end later this year.

Labor professionals should then expect to see decisions that, among other things, reverse Trump NLRB precedent.

 

 

Part 5: Will the Federal Government Take Over the UAW?

Posted in Union Membership, Unions

Last week, the UAW and the U.S. Justice Department reached an agreement to end the criminal investigation into the UAW.  Twelve former UAW officials have been convicted of embezzling UAW-Chrysler training funds and UAW dues money and are serving time in a federal penitentiary.  The convicted include two former UAW presidents, Gary Jones and Dennis Williams.  With the illicit funds, the UAW officials, among other things, purchased boats, paid off a mortgage, bought jewel-encrusted pens, and spent extravagantly at Palm Springs resorts and the Beverly Hills Hotel.

Under the agreement, the Justice Department and a federal judge would appoint an independent monitor to oversee the UAW’s operations for six years.  The monitor would have the power to audit and investigate all aspects of the UAW, but would not be involved in collective bargaining negotiations.  The UAW would pay for the monitor.

The Justice Department stopped short of a complete takeover of the UAW, akin to the Teamsters, because the Department concluded that organized crime had not infiltrated the UAW.

Additionally, under the agreement, the UAW membership would vote on how UAW national leaders are chosen.  Presently, the UAW leadership is chosen by a delegate system that, in essence, allows the current leaders to choose their successors.  The UAW membership would vote on whether to keep the current delegate system or have direct elections of the national UAW leadership.  The independent monitor would conduct the election.

Before the agreement is effective, the federal judge overseeing the criminal cases must approve it.

COVID-19-Related Situations Supporting Mail-Ballot Union Elections

Posted in Elections

As this blog previously discussed, the NLRB resumed union elections in April of this year after taking a short COVID-19-related hiatus in March.  Thereafter, the NLRB’s General Counsel provided suggested safety protocols for conducting in-person manual elections.  Now, the NLRB itself has spoken in its first decision on how to determine whether an election should be conducted by mail-ballot or by in-person, “manual” ballot.

Although Regional Directors are afforded discretion in determining whether a manual or mail-ballot election is appropriate, that discretion is not unfettered and must be exercised within certain guidelines established by the NLRB, which includes the NLRB’s preference for manual elections.

The decision outlines six situations related to the COVID-19 pandemic that, when one or more is present, will normally suggest that conducting an election by mail, rather than manual ballot, is not an abuse of discretion.  Those situations are:

  1. The Agency office tasked with conducting the election is operating under “mandatory telework” status.
  2. Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is 5 percent or higher.
  3. The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
  4. The employer fails or refuses to commit to abide by GC Memo 20-10, Suggested Manual Election Protocols.
  5. There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
  6. Other similarly compelling circumstances related to the COVID-19 pandemic.

Although the NLRB’s existing precedent still strongly favors manual elections, this recent decision clarifies that in any of the situations above, Regional Directors will not have abused his or her discretion if a mail-ballot election is directed.  Significantly, however, the NLRB took pains to say that, if one or more of the above factors are present, the Regional Director does not have to order a mail-ballot election.  Rather, the Regional Director can consider, without abusing his or her discretion, ordering a mail-ballot election.

The NLRB’s decision was not unanimous.  A concurring opinion by Member McFerran (D) offers, perhaps, a glimpse of things to come with a change in control of the White House.  Member McFerran would have adopted a presumption in favor of mail ballots “at least until the pandemic is over….”  She also called on the NLRB to “bring its elections into the modern age” by “expanding and normalizing” other ways to conduct an election besides in-person voting.

For the labor professional, the decision provides some welcome guidance on an issue that can be hotly contested in a representation election.  For those with pending petitions, and others for whom planning for a possible union election is important, the decision is worth a read.  It seems likely that it will be one whose outcome could well be different with a different majority at the NLRB.

Employers Take Note: Covid-19-Related Actions that Will Get the Attention of the NLRB

Posted in Employee Discipline, Negotiations, NLRB

This blog previously discussed the NLRB’s dismissal of virus-related charges.  The NLRB General Counsel, however, recently released a new memorandum summarizing cases related to Covid-19 where the NLRB found the virus-related issues had merit and pursued litigation.

Because the cases are still in active litigation, the memo merely summarizes the facts of the cases.  It does not identify the employers involved.  The memo covers six different issues.  It is important to note that the employer’s actions are what the GC is alleging to be unlawful.

Protected Concerted Activity

First, the memo summarizes two protected concerted activity cases, both of which involve employees protesting how the employer was handling Covid-19 safety measures. One case resulted in an employer allegedly violating Section 8(a)(1) by improperly threatening an employee.  The employer allegedly told the employee to follow the employer’s directives on in-person therapy sessions or she would effectively be resigning from her position. The GC is considering pursuing an injunction in federal court against the employer.

The other case involved a group of employees protesting a food delivery establishment’s alleged failure to provide PPE.  The protesting employees took a voluntary leave of absence.  The employer allegedly permitted all of them to return to work, except for two, one of whom was the leader of the protest.  A complaint issued alleging Section 8(a)(1) violations.  Injunctive relief is also being considered.

Weingarten Rights

In another case, an employee was denied his Weingarten rights (which guarantee an employee the right to union representation during an investigatory interview), when his employer unlawfully questioned him about whether he would agree to only wear a mask when required by work duties.  The GC asserts that the employer suspended the employee for the remainder of the day and issued discipline for “uncooperativeness” during the investigative interview.

Discriminatory Layoff

During Covid-19-related layoffs, an employer allegedly admitted to selecting the recently-certified, two-person bargaining unit for layoff as an attempt to erode their bargaining unit.  In response, the General Counsel instructed the Region to issue a complaint against the employer for an alleged discriminatory layoff in violation of Section 8(a)(3).

Discriminatory Recall

Also following a Covid-19-related layoff, a complaint was issued against an employer where the employer withheld recall rights from 20 unit employees, most of whom were union supporters.  Yet, it is alleged, the employer offered recall rights to 12 other employees, the majority of whom were known to not support the union.  Once again, the GC believed the actions were so egregious that it is considering seeking an injunction against the employer.

Bargaining

The three bargaining cases listed in the GC’s memo remind employers of the following:

(1) the pandemic does not give employers a right to refuse to hold bargaining sessions;

(2) although employers can initially act unilaterally in response to emergency situations when reasonably necessary, employers may still need to negotiate over the decision and its effects within a reasonable time thereafter; and

(3) just because a decision is Covid-19-related, does not mean the employer can automatically take unilateral actions.

The regional offices involved in these cases were given the authority to continue pursuing allegations that employers acted inconsistently with these requirements.

Refusal to Provide Information

The GC also approved issuing a complaint where, during a Covid-19-related layoff, the employer failed to provide information to affected employees.  The information requested included a seniority list, paid time off accruals, communications to the bargaining unit members about the layoff decision, information about the expected return date, information relied upon in making the layoff decision, and communications with clients that supported the need for layoffs.

All these cases are a reminder to employers that just because Covid-19 poses extraordinary challenges, this does not mean that employers are given extraordinary leeway from the NLRB’s GC.