NYC is Passing Outrageous Laws that Benefit Unions

Car Wash Licenses Cost Ten Times as Much for Non-Union Companies

Local Law 62 was passed by the City Council and signed by Mayor de Blasio in 2015 during a period of intense labor organizing among the city’s roughly 150 car wash companies, many of which are staffed by immigrant, non-union workers. The law made it illegal to operate car wash without a license and gave financial incentives to car wash companies that employed union workers. To get a license, companies need to post a bond which was a guarantee of solvency to cover workers’ wages. Companies whose employees were represented by a union posted a $30,000 bond. Companies whose employees were not represented by a union posted a $150,000 bond.

Thankfully, a federal judge shot down Local Law 62 because it “explicitly encourages unionization” and imposed an unfair burden on car wash companies where workers were not part of organized labor.”

This reminds of the inflated minimum wage laws that have spread across the country in cities like Los Angeles, Milwaukee, and Washington D.C. Those laws have two sets of minimum wages: a minimum wage for union employees and a higher minimum wage for non-union employees. The goal for those laws is to make unionization the less expensive way to do business.  in Los Angeles:

Fast Food Workers Can Payroll Deduct Donations to a Charity of their Choice

New York City Council approved a bill allowing fast-food employers to withhold up to $12 per month from a worker’s paycheck and remit that amount to the “non-profit organization” of the employee’s choice. The purpose of this legislation, per Council Member Julissa Ferreras-Copeland (D-Queens) is “to make it easier for employees to support advocacy organizations working on their behalf.”

While the bill expressly states that money collected is not to go to a union, it likewise expressly states that the money can be funneled to Fight for $15. This is clever. If all fast food workers made the maximum contribution, the SEIU (who thus far has spent $90 million on the failed Fight for $15 campaign) stands to receive over $9 million per year in “contributions.”

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

Unions Divided on Pathway to Organize Gig Economy Workers

Unions remain baffled in how to organize workers in the gig economy. The gig economy is a term use for companies, like Uber, whose business model is built on the use of independent contractors. Independent contractors are, by law, not allowed to join unions. But that is not stopping unions from creatively trying to represent the independent contractors.

 

Remember when Seattle City Council passed an ordinance allowing ride-share drivers to join unions? Well, that ordinance is on-hold pending the outcome of a lawsuit filed by the U.S. Chamber of Commerce seeking to invalidate it. In the meantime, union organizers are considering quasi-union models for independent contractors. One option bandied about is to create an industry-wide oversight board with the power to audit sharing-economy businesses and negotiate certain terms and conditions of work.

 

The gig economy is not limited to just Uber. It also includes Lyft personal car service, Instacart personal grocery shoppers, Postmates food deliverers, and home cleaning and repair service providers linked with customers through online platforms such as TaskRabbit and Handy, to name a few. As technology continues to develop, conventional wisdom believes that the gig economy will proliferate which means 1) less employees for unions to organize, and 2) more independent contractors for unions to figure out how to organize.

 

A Teamster lobbyist recently said “Labor unions are kind of split, and they certainly don’t have a single voice on how to [unionize gig workers] and how to create an organizing model that makes sense.”

 

The Independent Driver’s Guild is trying to fill some of that void for Uber drivers in New York. The Guild is funded by Uber and works in partnership with the International Association of Machinists. (IAM representing independent contractors in the taxi/ridesharing industry sounds about right these days.) The Guild has established an appeals system for drivers kicked off of the Uber platform and convinced Uber to scrap a policy requiring luxury vehicle drivers to also pick up lower-paying fares.

 

Notice the Guild hasn’t done anything with prices or pay. When you have a bunch of businesses (which independent contractors are) coming together to fix prices among them, you may have antitrust issues. Antitrust law exempts unions that bargain on behalf of employees they represent. But, according to Mike O’Brien, a member of the Seattle City Council, “My understanding of antitrust law is that it was intended to break up the robber barons colluding to limit competition. [To say] that these companies want to use it to stop low-wage workers from joining together seems to be a stretch.”

 

To be sure, unions would like dues money from gig workers, but as it relates to rideshare gig workers, unions would rather they go out of business. Follow me here. Each effort that chips away the rideshare gig worker from being an independent contractor places the worker, and the company, closer to a traditional taxi company which will ruin the very thing (whatever that is) that makes the gig economy successful. Americans outside of New York City and Chicago do not regularly use taxi cabs. Americans throughout the United States use Uber. Organizing Uber equals turning Uber into a cab company which equals no one will use it which results in Uber going out of business. A union wins if it organizes a company or the company goes out of business. A union loses if its workers are non-union.

 

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

Fight for $15 Leader Paid $146,000 to Fight, Not Protest

By now readers of this blog have heard about worker centers and the worker center called Fight for $15 whose mission is to establish a $15 minimum wage for fast food workers. Anecdotally, the Fight for $15 leader (who is the subject of this post) said that $15 was chosen as their preferred minimum wage not because of solid economic theories but because it “made sense.” According to him, “$10 was too low and $20 was too high so we landed at $15.”

Back to your regularly scheduled programming. Fight for $15 staged a protest against McDonalds in Chicago in mid-May. The leader of Fight for $15 is Ken Fells. When Mr. Fells was asked whether he was paid to attend the “March on McDonalds” in May, he said, “No I am not.” This is parsing words at its finest.

Fight for $15 is a worker center affiliated with the Service Employees International Union (SEIU). Fight for $15 is not a union, and thus does not have to file paperwork detailing its income or expenses. The SEIU, on the other hand, is a union and must detail its income and expenses on a Form LM-2. The SEIU’s 2016 LM-2 lists Mr. Fells as its “deputy organizing director” who is “on loan” to the “Fight for $14” campaign with a salary of $146,000 per year.

Later in the interview, Mr. Fells divulged some of the tactics his Fight for $15 activists employ to pressure fast food restaurants. For example, when a restaurant fires an employee, “McDonald’s, Wendy’s, Burger King – these places specialize in selling burgers. We specialize in fighting. So it’s hard for them to fight us and sell burgers at the same time,” he said. “So if they were to fire one of our workers or cut one of our worker’s hours, we try to have a reasonable conversation with them because we’re very reasonable individuals.” If that doesn’t work, then we’ll bring in 150 people and shut their store down day after day after day.”

To date, Fight for $15 has spent millions of dollars trying to disrupt the fast food industry without a single union organizing victory to its credit.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

Steelworkers’ Blue Print for Union Engagement / Expansion

If more unions would act like the Steelworkers Local 675, more workers would want to join unions. Local 675 represents oil refinery workers (among others) in the right to work state of Nevada where union employees get a window of opportunity every few years to withdraw from the union and stop paying union dues while still enjoying the benefits of the collective bargaining agreement. But Local 675 employees gladly stay in the union and keep paying union dues.

There appears to be comradery between union members. They engage in a lot of concerted action on behalf of each other. For example, a supervisor issued a rule forbidding workers from wearing baseball caps, sunglasses, and Hawaiian shirts on the shop flop. (Sorry, I don’t know the impetus of this rule, though I am sure it is entertaining). The workers signed a petition to undo this rule, presented it to their supervisor, but the supervisor threw it away.

In response, all workers reported to work wearing Hawaiian shirts, baseball caps, and sunglasses. The union bought a roasted pig. The workers had a luau on company property during their lunch break. The rule was rescinded and the supervisor was reassigned.

In an example with less levity, an explosion occurred at a refinery that blanketed nearby homes with potentially toxic dust. The union organized a caravan of vehicles that drove to the oil company’s headquarters where members in hazmat suits emptied a dump truck of horse manure on the company’s front door and held a sit-in.

Whether fun or serious, the union is active. The union members are engaged. The union stands for something. In most of the union shops I represent, the union has grown apathetic. The union does nothing for the workers, and the workers do nothing to support their cause. This lack of engagement, in my mind, is why unionization keeps dwindling year after year after year.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Tesla Workers Seeking a Union File Specious Charges Against their Employer

Some workers at Tesla’s Freemont, California electric car factory are following a common play from the union organizing handbook: file specious unfair labor practice charges. Unions often file these to increase the employer’s cost of defending against unionization, to throw red herrings at the employer during the organizing campaign, and to foster media interest in the organizing activity. Here, pro-union employees alleged the company engaged in illegal surveillance, coercion, intimidation, and prevented worker communication. Let’s explore these allegations a bit further.

Tesla workers passed out flyers to their colleagues, during a shift change, that featured the blog post by co-worker Jose Moran. According to the ULP, Tesla “conducted surveillance” on these employees. Well, activity conducted in public spaces are public and an employer is rarely guilty of “surveillance” of conduct occurring in public. The same is true for conduct performed in areas where surveillance cameras are located.

Tesla supposedly held an employee meeting to remind workers that they were not allowed to pass out any literature unless it was pre-approved by Tesla. This is a lawful policy so long as it is enforced against all literature, not just pro-union literature.

Tesla also supposedly had employees sign confidentiality agreements threatening “loss of employment” and “possible criminal prosecution” for speaking publicly about “everything that you work on, learn about, or observe in your work about Tesla.” This may be a bit broad, but the intent appears to protect the company’s trade secrets. Confidentiality clauses tailored to prevent the public disclosure of trade secrets is perfectly lawful.

And there you have it. Specious allegations in an unfair labor practice charge filed by a union trying to organize workers. In the words of Hilary Clinton, this is charge amounts to a big fat nothing burger.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

UAW Wins Right to Organize College Resident Advisers, Cancels Election to Avoid Loss

Organized labor has been on a crusade to organize all facets of higher education. The NLRB has granted unions the right to organize adjunct professors, graduate assistants, and Division I scholarship athletes. These wins have been controversial but successful for unions. You can now add to that list Resident Advisors.

The Regional Director of the Baltimore Office of the National Labor Relations Board accepted the union’s argument that resident advisors are technically university employees because they receive compensation in the form of a stipend and free housing. That RD relied on the decision granting graduate assistants the right to organize when concluding resident advisors had the right to form and join a union. This paved the way for the SEIU to proceed to a union election of resident advisors at George Washington University.

Instead of proceeding to an election, though, the SEIU withdrew its petition to organize the RAs. Ironically, the union blamed the ambush election rules for why it canceled the election. “We had only 5 days in which to ensure participation of RAs in this democratic process, and those 5 days happened to be in the middle of your exams,” said the union’s Director of Research and Planning. Canceling the vote was a shock to the student organizing committee who tweeted:

It I with great frustration that we received news at 5:15 pm this evening that SEIU Local 500 made the executive decision to cancel the election for tomorrow. We were not consulted in this decision and are upset that RAs will not have the opportunity to express their favor or disfavor for unionization. We do not agree with the decision to pull the vote.

We currently are trying to make sense of SEIU’s choice to pull the election, as it adds to the confusion that many of you have expressed during this long process.

I can appreciate the RAs confusion – mostly because they were wrapped up in the process and not explained the rationale behind the SEIU’s decision to cancel the vote. Unions cancel votes for representation because of one reason: they believe they will lose.

After all the of the hard work, grass roots organizing, NLRB hearings, etc., the SEIU turned its back on the college kids at George Washington University instead of risk publicly losing the election. While losing an election is embarrassing enough for a union, what the RAs didn’t know, is that the loss becomes a permanent blight on the union’s scorecard and the union is prohibited from trying to organize the same group of students for at least one calendar year. In other words, cancelling the election gives the union more time to garner more pro-union votes.

This brings me back to the little nugget largely overlooked by others in this story: the SEIU blamed the newish quickie / ambush election rules for why it did not have enough votes to win the election. The union needed more time to get more pro-union votes. This is the exact argument unions eschewed when made by employers seeking to halt the ambush election rules before they went into effect.

This should serve as a reminder to all unions: be careful what you wish for.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Unions Trying to Stop Members from Leaving

Some unions are terrified that their membership will shrink dramatically while President Trump is in office. The SEIU slashed its budget by $90 million dollars because it foresees a shortage of members paying into the union’s coffers. Likewise, other unions are laying off and restructuring. I applaud the United Food and Commercial Workers Union, though, for playing offense. The UFCW isn’t sitting back and hoping to weather the Trumpnado; it is proactively trying to rally its troops.

The UFCW released a memo to local labor leaders announcing that it will hold regional meetings to rally union workers to get behind their union. The memo acknowledged that the meetings must showcase the union’s value to workers – something I’ve thought unions should have been doing for years.

The UFCW said that it will share data and tools to help local leaders reach new workers. It then outlined an aggressive growth plan for 2017, saying that it will broaden its membership by 2-3 percent in 2017 – mostly through bargaining so as to avoid costly organizing campaigns and risky secret ballot elections. The UFCW also would like to increase its database of membership cell phone numbers by 10% and raise the union’s profile in the community by staging at least 3 philanthropic events in each local area.

The entrepreneur in me applauds the UFCW’s attitude. The realist in me doesn’t think it will have much impact on the union whose membership has steadily declined over the past 15 years.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.