NLRB Announces First of its Planned Certification Election Rules Changes

The National Labor Relations Board has announced that it will publish a notice of proposed rulemaking on August 12 that seeks to amend its regulations regarding union certification elections.

Specifically, the rulemaking would amend the board’s blocking charge policy, its voluntary recognition bar, and its Section 9(a) recognition in the construction industry.

The three Republican members of the five-seat board, led by Chairman John F. Ring, lauded the proposals, while the lone minority party member, Democrat Lauren McFerran, dissented. There is one vacancy on the board, a minority-party seat. President Trump has declined to nominate someone to fill the vacancy. In a July 2018 opinion article, a former staff attorney for the NLRB discussed why the president may choose not to nominate a new board member at least until McFerran’s five-year term is due to expire in December.

In a press release, Ring justified the proposed rule changes as a means to ensure “fair and timely Board-conducted secret ballot (certification) elections” for employee groups.

The rulemaking is subject to public input. The majority and dissenting opinions, along with statistical appendices, are available on the NLRB website, along with a link for submitting comments. The board proposes to replace its current blocking charge policy with a “vote-and-impound” procedure. Under current policy, the board must halt a certification vote if workers or an employer file an unfair labor practice charge. The new policy would call for the vote to continue, but the results would be impounded until the charges are resolved.

Regarding the voluntary recognition bar rule, the board proposes to return to its 2007 rule known as Dana Corp. in which the voluntary recognition by an employer of a bargaining unit would bar subsequent representation petitions by members of the unit.

Regarding Section 9(a) recognition in the construction industry, the board proposes to require bargaining units to provide “positive evidence of majority employee support” for the unit, so that recognition of the unit cannot be based on contract language alone. The proposed rule would rescind a 2001 rule known as Staunton Fuel.

Look for These Labor-Friendly Brands for Back-to-School Shopping Needs

The warm weather outside says that summer is still in full swing, but parents and teachers know that the new school year is just around the corner. With that in mind, the website Labor411.org has released its annual list of back-to-school supplies produced by union members on behalf of “ethical employers who treat their workers fairly and give them a voice on the job.”

Labor411.org asks parents, teachers, and child caregivers to look for these labor-friendly products for their back-to-school shopping needs. The list includes paper, notebooks, folders, planners, tissues, art supplies, drinks, and snacks. Brands including ACCO, Five Star, At A Glance, Mead, Trapper, Martin Weber, Roaring Spring, Industries for the Blind, International Paper, Swingline, Kleenex, Puffs, Crystal Springs, Gatorade, Minute Maid, Mott’s, Snapple, Tropicana, V8, and Welch’s are among the recommended products.

Walmart Truckers Still Waiting for Back Wages as Employer Appeals Jury Award

More than a decade after they sued Walmart for unpaid wages and almost three years after a federal jury awarded them $55 million in damages, more than 800 of the company’s truck drivers are still awaiting compensation for hours they worked as long ago as 2005. And their employer continues to fight the allegations.

On August 6, Walmart appealed the jury verdict in a U.S. circuit court, as well as an additional $5.8 million restitution award, arguing that that class action suit should never have made it to trial and that the jury instructions delivered in November 2016 were “just a mess,” Law360 reported.

The dispute revolves around the employer’s obligation to pay drivers minimum wage in accordance with California law for work-related activities such as inspecting and washing their trucks, rest breaks, and layover periods when the drivers are away from home and between driving shifts.

According to the Commercial Carrier Journal, drivers initially filed suit in 2008. Their class has grown to 840 members since then. At trial, attorneys for the plaintiffs argued that because drivers are paid by the mile, their wages do not account for their time spent performing other required duties, the Associated Press reported. Even when they are on breaks and layovers, drivers are required to stay with their trucks, which restricts their personal time.

Walmart argued that the company pays drivers “$42 for 10-hour overnight layovers as an extra benefit, but it does not control their time during that period,” the AP wrote. As a group, the plaintiffs sought $72 million in back wages (the bulk of it for layovers), in addition to other damages and penalties.

After the trial jury reached its $55 million verdict, a U.S. District Court judge awarded an additional $5.8 million in restitution during a January 2017 hearing.

As Walmart was preparing its appeal, the company announced in January 2019 that it would seek to hire 900 truckers this year. Simultaneously, the company said it would raise driver wages by one cent per mile and pay an additional $1 each time they drop off a trailer at a destination. CBS News noted that Walmart hired 1,400 new drivers in 2018 without the heightened publicity, and that its annual driver turnover is about 10 percent. Walmart employs about 8,000 drivers in the U.S.

Pension Guarantee Corp. Releases Grim New Projections for its Multiemployer Program

By releasing its 2018 Projections Report on August 6, the federal Pension Benefit Guarantee Corporation upped the pressure on Congress to rescue many of the nation’s multiemployer pension programs from projected insolvency.

In the report and an accompanying press release, the PBGC stated, “Absent changes in law, the financial condition of PBGC’s Multiemployer Pension Program will continue to worsen over the next 10 years. About 125 multiemployer pension plans covering 1.4 million people are expected to run out of money over the next 20 years. More and larger claims on the Multiemployer Program over the next few years will deplete program assets and lead to the program’s insolvency by the end of FY 2025.”

The program, which is described by Politico as “the federal safety net for multiemployer pensions,” faces a $90 billion shortfall by 2028.

“The projected insolvency would harm 10 million retirees, and one of those funds, the Central States Pension Fund, is forecast to run out of money as soon as 2025,” Politico stated.

If the program were to run out of money, current law would require the PBGC to decrease guarantees – that is, the amount of retirement benefits that it could insure for each multiemployer pension participant – to a fraction of current values.

President Trump in his FY 2020 budget plan proposes to create a new variable rate premium structure that would raise an additional $18 billion in revenue over 10 years and would permit premium waivers for the most-distressed pension plans. Meanwhile, the U.S. House recently adopted legislation known as the Butch Lewis Act that would create a trust fund to provide low-interest, government-guaranteed loans to struggling pensions plans. Politico reported that the Republican-led U.S. Senate is unlikely to consider the legislation.

The same PBGC report observed that its Single-Employer Program continues to show improvement. The plan, which covers about 26 million participants, emerged from a negative net position or deficit for the first time since 2001.

WSJ Article Critical of NYC’s Minimum Wage Hike Actually Makes a Case Supporting It

An article published by the Wall Street Journal on August 5 under the headline “New York City Businesses Struggle to Keep Up After Minimum Wage Increase” created a stir among the ultra-right alternative media.

Staunch anti-Minimum Wage blogs and similar sources like The National Interest, American Enterprise Institute, and Daily Caller predictably piggy-backed on the Journal’s re-reporting of long-standing conservative warnings that raising the minimum wage results in layoffs and lost hours for those workers who manage to retain their jobs.

Problem is, the underlying Journal article offered zero real evidence to support the negativity. In fact, the sources cited by the newspaper essentially demonstrated little to no ill effects since New York raised it’s minimum wage to $15.

None of the three business owners quoted in the article said that they have laid off any workers or reduced their scheduled hours. On the other hand, despite the ominous headline, the body of the article states that the unemployment rate in the city has remained steady at 4.3% during the past year, a period when the local minimum wage has risen from $11 an hour to $15 in two increments. The statewide rate for New York has remained at 4.0%, above the national rate of 3.7% and Pennsylvania’s rate of 3.8%.

One restaurant owner told the Journal that she “worries” about the impact of the higher minimum wage, but she has not been forced to reduce her workforce. She said she has been “more stringent” about calling on employees to work overtime.
A bookstore owner with four locations around the city told a similar story: she hasn’t cut jobs or hours, or wages for that matter. Her main complaint was that the difference between the new minimum wage and what she pays her employees is a lot less than it used to be.

“It feels now like we’re at the bottom of the pay spectrum,” the owner said before lamenting the poor commercial opportunities in the nation’s most-populous city. “There’s absolutely no benefit to being a retail business in New York,” she said.

A third shop owner who operates an eyewear store said he has no problem with a higher minimum wage “because it puts more money or more disposable income into the pockets of people who are my customers.”