Today’s News & Commentary — May 23, 2019


Published May 23rd, 2019 - 05.23.194


Yesterday the NLRB ruled against the UAW in its bid for a new election to represent both skilled production and maintenance employees at the Volkswagen plant in Chattanooga, Tennessee.  In December 2015, the Board certified the UAW as the representative of only the maintenance employees following an election victory for that unit after the union’s narrow plantwide election loss in February 2014.  Volkswagen refused to bargain, waited for the union to file a charge and for the Board to rule on it, and then sought judicial review of the Board’s order, arguing that the initial certification was improper because the only appropriate unit was one that included both production and maintenance employees. This April, the UAW filed a petition seeking to represent the combined unit.  A few days later, it notified the Board that it no longer wished to represent the existing unit of only maintenance employees.  In yesterday’s split decision, the Board dismissed the new petition because the union was already representing some employees in the proposed unit when it filed, despite the union’s subsequent renunciation of its role as representative.  The majority cited the Board’s certification bar, under which the Board dismisses election petitions filed within one year of the union’s certification as the exclusive bargaining representative absent “unusual circumstances.”  Even though the Board certified the maintenance employees union in 2015, yesterday’s majority explained that “[w]here an employer exercises its right to pursue judicial review of a certification, the certification year will begin with the first bargaining session held following court enforcement of the Board’s order.”  Because Volkswagen had refused to bargain, the bar remained in place (even though it technically had not even started).  Writing in dissent, Democratic appointee Lauren McFerran characterized the majority’s approach as anti-union gamesmanship: “Heads, the employer wins; tails, the union loses.”  The UAW said it would file a new petition.

The OMB’s Office of Information and Regulatory Affairs released the Unified Agenda of Federal and Deregulatory Actions for spring 2019 yesterday, revealing short- and long-term rulemaking plans by the NLRB and the DOL.  The NLRB’s short-term list includes revised standards for whether students who perform teaching or research assistant work at private colleges and universities are “employees” under 2(3) of the NLRA; for access rights to an employer’s property; and for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.  Its long-term list includes codification of a new joint-employer standard and amendments to its representation case procedures.  The Board’s resort to rulemaking is out of character for an agency that, in recent decades, has relied almost exclusively on adjudication to establish legal principles, save for one rule from 1987 on bargaining unit determinations in the health care industry and two Obama-era rules on notice-posting and representation case procedures.  On the student employee question, the Board’s pursuit of rulemaking likely results from the coordinated effort among unions representing higher education workers to prevent a new case that could overturn Columbia from reaching the agency’s Republican majority.  Rulemaking on the issue could slow the Board’s notorious flip-flopping on student employee status through adjudication.  The DOL’s extensive list of proposed rules includes union disclosure requirements recycled from the Bush era, updates to regulations under the Family and Medical Leave Act (FMLA), and a new process to streamline recognition of industry-recognized apprenticeship programs.

In addition to initiating legal action against McDonald’s for sexual harassment this week, workers at the fast food giant also lodged a complaint with the Occupational Safety and Health Administration (OSHA) about unsafe working conditions.  Employees in Chicago say that they are frequently the targets of violence and that McDonald’s has failed to adequately protect them.  A new report from the National Employment Law Project (NELP) documents 721 media stories on workplace violence at McDonald’s locations in the continental United States over the past three years.  The report points to late-night shifts, meager training, and few hazard controls as causal factors.

Vox explains how the Green New Deal is fracturing unions.  While the resolution authored by Senator Ed Markey and Representative Alexandria Ocasio-Cortrez aligns with many of organized labor’s goals, such as strengthening collective bargaining, groups like the AFL-CIO, the UMWA, and the IBEW have voiced concerns that they were not adequately consulted.  Meanwhile, 32BJ SEIU’s Executive Board voted to endorse the plan, while Association of Flight Attendants-CWA president Sara Nelson called it “the moonshot of our time.”  Maine’s version of the Green New Deal, introduced in April, won labor’s support by involving unions early on.  But the state already generates three-fourths of its electricity from renewable energy sources, so advocates’ success in courting labor there may not be replicable in states where fossil fuels play a more central role in the economy.

Sweetgreen, the fast casual restaurant chain, announced that it would provide all employees with five months of paid parental leave.  The policy covers biological parents, adoptive parents, foster parents, and “others with new additions to their families.”  The company acknowledged that its policy is “rare for our industry” and said that it hoped to spark a broader conversation.

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