248-409-1900 dburke@mi-worklaw.com
NLRB Issues Final Rule on Quickie Elections

NLRB Issues Final Rule on Quickie Elections

By:  Dan Cohen – 12/15/14

On December 12, 2014, the National Labor Relations Board issued its final rule on “quickie” elections. The final rule is to be published today in the Federal Register and is to take effect on April 14, 2015. According to the NLRB website, the final rule:

is designed to remove unnecessary barriers to the fair and expeditious resolution of representation questions. The Final Rule will streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.”

The final rule should not come as a surprise with Democratic Board Member Nancy Schiffer’s term set to expire on December 16. Both Republican Board Members dissented, calling the final rule unnecessary, a violation of employee privacy and an obstacle to employees making informed choices regarding unionization

The final rule significantly reduces the amount of time in which the parties can campaign in support of their respective positions and the number of issues that can be litigated before the NLRB. Of course, these limitations clearly favor unions since employers can win most elections by simply communicating the truth about unions and what it would mean to employees be represented by a union. However, it does take time to adequately communicate that message to the workforce. And, the more employees involved, the more time it typically will take. With less time, unions can conduct their campaigns and make all of their promises and misrepresentations to the workers before filing their petitions, and employers will have little time to respond.

Up until the “quickie election rules, employers have had between 37 and 75 days to debunk union myths and provide a dose of reality to the employees depending on whether the employer chose to contest the proposed bargaining unit or other issues. The new rules limit how much an employer can do and changes the time line significantly as follows:

  • Employers will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens (i.e. 7 days after receipt of the petition). Litigation inconsistent with the positions taken by the parties will generally not be allowed.
  • Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties.
  • Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held.
  • Post hearing briefs will be allowed only if the regional director determines they are necessary.
  • The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.

Unions will also benefit from the new requirement that employers respond to the petition by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition, which must include a list of prospective voters, their job classifications, shifts and work locations, and their available personal email addresses and phone numbers.

The “quickie” election rules are closer to reality than ever before. They are scheduled to go live in the Spring of 2015 and it is hard to imagine anything the Republican controlled Congress can/will do to derail them. Employers better start getting their messaging strategies together and otherwise getting their ducks in a row right now. If there is a petition filed under the new rules, there will be little time to react.

You may read more by linking to the NLRB Case Procedure Fact Sheet and the NLRB’s Comparison of the Old and New Election Rules.

Union Solidarity At Its Best

Union Solidarity At Its Best

By:  Bill Pilchak – 11/18/14

          Readers of this blog know that we don’t hesitate to criticize unions. Especially at commercial enterprises, where the ability to compete against other companies is crucial, unions frequently impair that competitiveness and the flexibility needed in a rapidly changing world, sometimes through ignorance or selfishness, but sometimes intentionally. Businesses, including overseas competitors that have supplanted American companies in success-rankings, avoid unions for that reason. In the business-to-business context, utilizing unionized suppliers means increased costs to fund wasteful practices required by collective bargaining agreements, including drivers sitting at idling hilos instead of performing out-of-classification work. We have gone on record that we believe that unions should employ their own business-savvy professionals to develop a strategy for the 21st Century that is not modeled on the 1935 business climate that produced the current union business-model.

          So, I don’t want readers to think I have gone “soft” on my stance regarding unions, when I laud Fraternal Order of Police Lodge 124 for their outstanding efforts on behalf of my “cousin-in-law,” Deputy Frank Delise on November 12.   First, let me note that public sector unions do not have the same effect on America’s competitiveness as private sector unions.

          So, all disclaimers having been issued, the police officers at Lodge 124 are to be highly commended. Dep. Frank Delise was diagnosed with cancer a while ago, and most recently was found to have a malignant brain tumor. Happily, he is in good spirits while going through a health crises, looks surprisingly good bald, and enjoys the support of his beautiful wife and sons. However, unavoidably, the health crisis has resulted in a financial crisis.

          Here’s where Lodge 124 stepped in by providing their union hall and kitchen to produce a benefit spaghetti dinner for Frank.   Upon approach last Tuesday, one might have thought the academy awards were being held on 14 Mile Road in Warren. Cars overflowed from Lodge 124’s parking lot, and at least 6 officers directed traffic to nearby empty fields, while others parked in lots across the street dodging traffic. Inside, among Frank’s family – my outlaws…I mean my in-laws, every imaginable cop-type was there: Barrel chested veterans, rookies evolving into the tough-guy stereotype, and long-haired undercover officers who confined themselves to a far corner lest someone they encountered on-duty happen to attend the event.

          Through a variety of means, raffles, auctions and drinks-for-dollars gimmicks, hundreds of attendees gladly departed with dollars, to cousin Frank’s benefit. When the speeches were delivered at the end of the evening, one saw the softer side of those burly first-responders. I don’t want to discount the effort of an army of Frank’s friends and closer-than-us relatives, but the support of Lodge 124 members and maybe other FOP members was crucial.

          I don’t want readers to leave with the impression that this grizzled, opinionated, cynic only finds something positive about unions when they do something good for his family.   Let me adjust that perspective just a bit: This grizzled, opinionated, management-side lawyer doesn’t get too many opportunities to mix with a Fraternal Order, and it always warms one’s heart to see the generous donation of time, effort and treasure to help a brother…any kind of brother.

If You Can Read This, Thank a Teacher by Reminding Her/Him That August is the Only Month to Leave the MEA

If You Can Read This, Thank a Teacher by Reminding Her/Him That August is the Only Month to Leave the MEA

By:  Bill Pilchak – 8/19/14

          In case you don’t read the editorial page every morning, let me pass on a message from Robert Wiersma, an economics teacher at Hopkins High School near Holland, Michigan found in today’s Detroit News. Hopkins details how his dues money to the MEA, approximately $1000 per year, had been “air dropped” into the pockets of political candidates and wasted on controversial agendas that he did not support and which had nothing to do with education for years. He mentions “costly and economically unsustainable collective bargaining practices” that he says make him – as an economic teacher- “cringe.”

          Wiersma details his efforts to exercise his Right-To-Work rights to revoke his union membership, including communications immediately after RTW was passed in December, 2012, and culminating in e-mails and letters as late as June of that year. However, union dues continued to appear on his credit card invoices. He then learned that the MEA would not honor his many requests to leave the union, because the MEA constitution only allows members to resign in August of each year.   In other words, they disregarded his pre-August requests to resign. It’s like when Luke Skywalker made his bombing run on the Deathstar and had to fire his photon torpedo into a thermal exhaust port no bigger than a womp rat. Miss that window, and you are stuck in the union for another year. Wiersma was finally able to opt out in August, 2013 after the MEA divested him of another $1000.

          The MEA’s August “window of opportunity” demonstrates what the attorneys at P&C have known for years. Unions are in business for themselves. It’s all about the dues. Sometimes they do shockingly little for bargaining units. This is illustrated by the recent nation-wide scam where the Service Employees International Union (SEIU) made deals with Jennifer Granholm and other governors whose campaigns they helped fund, to declare the SEIU the bargaining agent for “home health care workers.” Those workers were usually parents and family members caring for elderly or disabled family members. Because the state paid the caregivers out of federal allocations, it was purportedly the employer of the caregivers, and $30 per month was automatically deducted from the amount intended to pay for the care of the disabled/elderly and sent to the SEIU. Right to Work freed those caregivers in Michigan from the scam in 2012 and the U.S. Supreme Court ruled on Harris v Quinn earlier this year holding that the state’s minimal role, paying money but setting no other terms of employment, did not justify the arrangement and divesting individuals of funds then spent on the union’s political agenda violated the First Amendment. In Michigan, more than 40,000 caregivers immediately opted out of the SEIU. The Mackinac Center estimates that $30 million was diverted from home health care to the SEIU.

          Imagine someone reaching into your pocket and taking $1000 to pay for political activity you didn’t support. If you know a teacher in that position, forward this e-mail to him/her. The language below is recommended by the Mackinac Center to resign membership:

 Michigan Education Association 1216 Kendale Blvd. P.O. Box 2573 East Lansing, MI 48826-2573

To whom it may concern:

I am an education employee in _________school district and I am in the collective bargaining unit of __________. With this letter, I am seeking to immediately and permanently exercise my rights under Michigan’s right-to-work law. [MCL 423.210] Therefore, I am terminating my membership in the MEA and all of its affiliates and revoking any previous dues authorization, check off, or continuing membership form that I may have signed. I am making this request in August, as you say I must under MEA bylaws. I understand that I may rejoin at a later time if I believe that membership is in the best interests of me, my family, and the students at my school.

If my collective bargaining agreement does not allow me to take advantage of my right-to-work rights at this time, then I ask that you accept my resignation from the MEA and all its affiliates and consider me an agency fee payer pursuant to my rights under the Supreme Court Case Abood v. Detroit Board of Education, 431 U.S. 209 (1977) until I am able to fully exercise my rights under right-to-work.

Please be aware that your failure to comply with this request can lead to a civil fine, and/or a court action against you and the payment of my attorney fees.

I ask that you notify me immediately in writing if you are not willing to honor my rights, and provide me with the legal reasons for your refusal.

Thank you for your assistance in this matter.



Obama and Union Agendas Suffer Blows in Three SCOTUS Cases

Obama and Union Agendas Suffer Blows in Three SCOTUS Cases

Recess Appointment Ruling Limits Presidential Power 

By:  Rhonda Armstrong – 7/1/14

          Another example of President Obama pushing his pro-union agenda by non-traditional means (as I last mentioned in a blog article dated 6/19/14), was highlighted last Thursday. Specifically, in NLRB v Noel Canning, No. 12-1282 (June 26, 2014), a much anticipated decision, the Supreme Court of the United States decided that three recess appointments made by President Obama to the National Labor Relations Board were invalid. In short, the high court found that the Senate was not really on “recess” (it being only a 3-day hiatus between sessions) and that President Obama “lacked the power” to make the appointments. (more…)

A Chance To Bring Labor Relations Into The Information Age Silently Slips Away

A Chance To Bring Labor Relations Into The Information Age Silently Slips Away

Every Business In America Constantly Adapts To Changing Conditions –Except Unions

By:  Bill Pilchak – 6/26/14

          No one can lead a successful business or business unit in the 21st century without two qualities: knowledge and the ability to respond to change.

          As to knowledge: In the new century, with business developments passing like fence posts on the freeway, virtually every person responsible for running a business is in a constant state of learning. The Peter Principal, Demming, Total Quality Management, Six Sigma, Kaizen, e-business, information technology, ISO 9000, deemed export regulations, environmental impact, social media. The list goes on and on. Every year something new looms which may force change. We are, after all, in the information age, which Wikipedia describes as where “the digital industry creates a knowledge-based society surrounded by a high-tech global economy that…influence[s] how the manufacturing… and…service sector operate in an efficient and convenient way.”

          Handling information – i.e., leveraging knowledge- is what we now do in America. Manufacturing has declined from 24.3% of GDP in 1970 to 12.8% in 2010. (U.S. Chamber of Commerce Study conducted by University of Michigan) For decades, Microsoft, Cisco, HP, Intel, etc. have grown while manufacturing industries making electronics, clothes, appliances, toys, shoes and many other goods have virtually disappeared from the U.S.

          As Wikipedia suggests, the information age now dominates what remains of the manufacturing sector.  Machine operators no longer read blue prints, turn on the lathe, cut the metal and measure with a micrometer. Now, a designer prepares a CAD rendering and a technician enters that data into a CNC machine which cuts the tool and electronically measures the finished product. CAD and CNC skills are taught at the community college level.

         Reflective of greater demands for knowledge, by year 2000 college degrees became as common as high school diplomas were in the 1940’s (just under 25% of the general population). (Census bureau data) Today, the percentage of college degrees among the workforce has grown to approximately 35%, with another 30% having “some college.” (Georgetown University study) Only 35% in the workforce have only a high school diploma or less. (Id) Drill press operators have been replaced by robots who do not do not demand unrealistic wage increases, fake workers’ comp injuries, bring grievances, file employment litigation or call in sick on Mondays and Fridays. The job that exists instead, Robotics Field Service Technician, generally requires a bachelor’s degree in engineering (electric or mechanical) according to the items found on Careerbuilder.com today.

          As to change: I am constantly amazed how companies employ technology and insight to upgrade service or operations to improve their competitiveness or to eke out another fraction of a percentage point in profit. A different distribution model, lowering claims experiences and insurance costs, even stiff-arming plaintiffs in litigation can all be strategies to reduce costs and prices and improve competitiveness. Every segment of the operation is expected to contribute. One client substituted a free customer service requiring an expensive full-time position with a web-based service where all customers obtained the same service by connecting to a website (and was sued for it).  In 2014, increasing efficiency and changing one’s business in response to conditions is expected. For successful companies, change is constant.

          Except in unions. In 2014, unions still operate on the same business model they employed in the 1950’s – indeed, since the 1930’s. That model made sense when America emerged from WWII unscathed and competed against industrial nations that had been decimated by war. The only issue then was how to split up a virtually untouchable pie.

          However, once satellite transmission of data, improved air travel and container shipping resulted in global competition, the unions’ 1950 business model became obsolete. No one leading the labor movement, it seems, realizes that American employers are dancing to a different, global tune.   As the State Bar President said recently about the changing environment, when the band starts playing a tango, one doesn’t merely waltz a little faster. Asian manufacturers abroad cultivate a team mentality where employees aim at the competitors. (See, e.g., a fascinating Wall Street Journal item by a 1978 consultant to Nissan: “Nissan had assumed that [U.S.]unions…were much like those in Japan, where the …bargaining unit collaborates with management to strengthen competitive position and prestige” at http://online.wsj.com/news/articles/SB10001424052702304675504579391163334785396) Conversely, U.S. unions still portray the employer as a villain, both at the local union-election level and by fueling the left’s nationwide class warfare political agenda. They gain their foothold among those employees at risk of termination because of poor performance, attendance or respect for supervision. After promising protection for those employees hurting the company’s mission, they next sell the idea that they can increase wages by threatening to shut down the company – i.e., by striking, when anyone with any knowledge knows that even the hint of a strike scares off business customers and drives them to competitors so that inevitably there will be less revenue to fund raises. Even if a strike is averted, paying wages or accepting work rules that do not make business sense to avert a strike drives up costs and impairs the company’s competitive posture. Looking at the issue in a “macro” sense, any company saddled with a union is handicapped. In a thousand ways, via work rules, contract provisions that lock companies into outmoded methods, strikes and cultivating general disdain for the company, a union saps life from a company so that more flexible competitors pass it by.   Customers, too. Just as an army of aphids can kill a thriving garden plant, a disloyal workforce sucking out resources can cripple industrial plants. Even GM can go bankrupt, ironically while Japanese brands not only thrive but dominate certain markets, including California, where they have 48.4% of the market share while domestic brands have only 24.8%. (2013 R.L. Polk & Co data prepared for the California New Car Dealer’s Assn.)

          I daresay one could not find a labor lawyer who has not dealt with a union who dug in and threatened labor unrest rather than permit change that would save existing work, bring in new work or enhance competitiveness generally. Unions often say “we’d rather shut the company down/ lose the work” than change a provision that has been in the contract for thirty years. Management’s excitement over devising a solution to a daunting outside challenge can evaporate upon realization that the union must agree to the change.   Bringing the union into the process can be like when a special-needs cousin joins a fast-paced board game. When no one on the union team understands what competitors are doing or the latest business trends that demand change, the union’s veto-power can doom the only solution. That occurs often enough that the management team often rejoices when a degreed auditor or attorney joins the union team and can educate the bargaining unit and legitimize management’s needs.

          Occasionally, we encounter colleagues who have served internships at Solidarity House. Two, in different ways, wondered why the UAW didn’t spend some of its estimated $260 Million in annual revenue to hire MBAs to provide them with a game plan for the future. If the “help” management often gets from union auditors and attorneys is any indicator, one has to believe that the nation’s manufacturing competitiveness would improve by infusing an educated viewpoint into the unions, even if the MBAs were paid by the UAW and shared their pro-worker agenda.

          So, it is worth noting that Bob King, the son of a Ford Director of Labor Relations, who -with a bachelors and a law degree- has more education than any UAW President in history, is leaving office. Unless King and his father had a legendarily poor relationship, King should have gained some insight on the need to respond to outside business pressures from dinner table conversation. So, it is regrettable that as he hands over the presidency to Dennis Williams, who has no college at all and who led a venomous five year (unsuccessful) strike against Caterpillar, the UAW’s business model remains the same.  As King leaves, the UAW’s only meaningful new strategy is an unsuccessful (though unopposed) attempt to also handicap overseas transplants by saddling them with the UAW’s obsolete business model.

          So, what kind of ideas and changes might an educated, innovative mind suggest to unions in the information age? How about these off the top of our head:

  • How about not fighting for (and achieving) reinstatement of 13 pot-smoking Chrysler workers caught on film, to avoid nationwide news items that give consumers yet another reason to avoid American brands? Doesn’t anyone at Solidarity House realize that telling America that Chryslers are built by workers high on pot hurts their membership by losing far than 13 jobs due to lost market share? Doesn’t anyone at Solidarity House realize that workers in Tennessee, Alabama, and other southern auto manufacturing states might vote against a union that fights to place stoned colleagues into an environment where loaded hilos speed down aisles and safety concerns abound?
  • How about aligning the union workforce with strategies to increase market share and thus revenue, in exchange for an agreed method of measuring the economic benefits and an agreed split between workers and the shareholders of the increased profits?       The kind of strategies we have in mind would be based on the fundamental principal that each employee, whether management or hourly, should do an honest and vigorous eight hours of work per day. That means the union would work with the company to:
    • Stop rampant time theft where employees leave the plant after punching in;
    • Eliminate no-work jobs;
    • Break down job classifications that result in workers sitting idle for hours on end;
    • Where idle time is inevitable, such as maintenance repair positions, fill the time with constructive duties;
    • Stop the Monday and Friday call offs.
  • How about permitting the company to reward hustle, good attendance and excellent work product by paying bonuses or higher wages to the best employees, instead of stamping out excellence by paying go-getters the same as the worst slacker? Why wouldn’t the union want their members to get more cash?   Is there something wrong with promoting a better work ethic?

          Anyone who has been involved in business for 30 years knows that America is declining on many fronts. It’s hard not to believe that Asia is winning the global competition in the auto industry because their unions “collaborate with management to strengthen competitive position and prestige.” When will American unions abandon their class warfare ideologies and begin to think outside of their outdated box?

Why Use Neutrality Agreements?

By:  Dan Cohen – 6/24/14

          Over the weekend, I read an article, “Neutrality agreements aid UAW in organizing.” According to Brent Snavely, who wrote the article,

 “[N]eutrality remains the exception in an environment that is hostile to most unions. Now that the right-to-work movement has penetrated Indiana and Michigan, even companies in that portion of the industrial Midwest will be emboldened to resist. The climate is not growing any more hospitable in the South, either.”

         I beg your pardon Brent, but what environment are you referring to that is “hostile to most unions”?

          How about a dose of reality, Brent? The National Labor Relations Act gives employees the right to self-organization, to form, join or assist a union, to engage in collective bargaining or to refrain from any or all such activities. 29 U.S.C. §157 (otherwise known as §7 rights). This means it is their own decision whether to vote a union in as their bargaining representative. This same law gives employers the absolute right to bring employees the other side of the story after the union tells them just how great they are and how much they can do for the employees. The NLRA allows the union to lie to the employees and make unrealistic promises to them. But this same law requires employers to tell the truth and does not permit employers to make promises to the employees. This cannot possibly be the environment Brent believes to be “hostile” to the Union.

          What Brent must be referring to is that when employers do tell employee the other side of the story, the union generally loses the election. This is why unions push so hard for neutrality agreements, which generally prevent employers from becoming involved in the union election. They don‘t want employers to tell their employees the truth about what it means to be represented by the Union. For example, they don’t want employees to know that the International Brotherhood of Teamsters has a provision in its Constitution that takes away the right of the employees to vote on a contract that they, the employees, want to ratify. Quite frankly, referring to this environment as “hostile” is intellectually dishonest and actually ignores reality.

          Employers should not sign neutrality agreements. With rare exceptions like Volkswagen in Tennessee, signing a neutrality agreement will result in a union victory and a duty to recognize and bargain with the union, which translates into less profit for the business. Employers should care enough about their employees not to sign a neutrality agreement so they can tell them the truth about unions and how being represented by a union will affect them. Employers owe it to their employees to be upfront with them.