Countering the NLRB With Rigorous Truth

The current National Labor Relations Board is hostile to private enterprise. Its recent actions have handed powerful weapons to the Teamsters and other union organizers while at the same time mandating disarmament by the employer community.

The NLRB’s avowed purpose is to put all the power into the hands of union organizers. However, the fact is that unions live off a destructive us-versus-them operating mentality, which inevitably kills any attempt to build a relationship with your workforce intended to improve productivity, collaboration, cooperation, teamwork and create a joyful, self-fulfilling workplace.

The unions and their allies at the NLRB want every private sector employee to view employers as their class enemies, and only allow employers to talk to them through union representatives paid for by their dues.

The IWLA Board of Directors recently approved a strategy to confront and counter this assault on employers which in the end also is an assault on employees by limiting their rights and scope of action. The strategy consists of three key short-term action items along with a longer-term approach which we believe will become a game changer.

The short-term actions are:

• Providing financial and operational support for the Coalition for a Democratic Workplace, U.S. Chamber of Commerce Labor Committee, and other employer coalitions operating in Washington that are opposing these anti-employment policies.
• Focusing the IWLA Political Action Committee’s activities to encourage business-aware candidates to run and stay in public office, keeping in mind that only those who are elected get to vote on funding the NLRB and other issues. When business stays on the political sidelines, those who act get to set the rules. 
• Provide substantial instruction and workshops on preventive labor relations for the IWLA membership (and in some cases non-members as well), utilizing the knowledge and expertise of leading labor relations attorneys as instructors, like our recently completed labor workshop in Chicago.

In addition, we believe our long-term strategy can be the game changer in the political debate over granting the unions’ unwarranted power. It will do so by altering the focus of the conversation from punishing nonunion employers to why government should partner with employers to create good jobs.

To fulfill this strategy IWLA formed a new Public Affairs Center, which will collect and disseminate the factual data about our industry gathered by a respected, non-partisan university. We believe the logistics industry has the facts on our side, and these facts will supply the clout needed to change the discussion if -- and only if – the date is collected and analyzed by respected academic researchers.

When we invest in research by credible, respected academic instructions, we pursue an economical means for educating policy makers and thought leaders. We also stimulate awareness about our industry’s contributions to job creation and building career ladders, and its role in promoting essential trade and commerce. We also raise awareness concerning the demand for and the role of third-party logistics. With this factual support, we can take the moral high ground over our opponents, who rely on emotion over facts.

Through the mastery of industry knowledge, the IWLA Public Affairs Center adds a powerful new dimension to our industry’s advocacy efforts, giving us the political muscle to take on some of the toughest battles ahead. Neutral facts strengthen IWLA’s voice and provide the resources to put our opponents on the defensive.

Fact-based advocacy, based on credible references to university studies (and not privately funded think tanks, which are perceived as partisan) tipped the political balance in our favor when we achieved repeal of the Michigan service tax several years ago, and will do the same on the national level.

This combination of short- and long-term game-changing actions will give IWLA members the foundation, expertise and credibility to achieve significant legislative and regulatory accomplishments in Washington. As Sherlock Holmes said, “The game’s afoot;” IWLA and our members are wasting no time and welcome this challenge to represent, defend and promote the logistics industry.

Unions and the NLRB – A Dangerous Marriage for Logistics

Last week, I attended the special IWLA labor law workshop focusing on the recently enacted or proposed regulations of the National Labor Relations Board. I heard descriptions of the board’s nine most recent decisions and regulation changes, and I listened to the concerns and questions from my members.

One common theme ran through the discussions: Put on your armor; the federal government is in bed with organized labor, particularly the Teamsters union, which is using this new advantage to mount a major organizing assault on the logistics industry.

Let me cite some facts that should chill you: The utilities and transportation industries historically have had the highest percentage of private industry organized labor activities. The Teamsters union has been the most aggressive union when it comes to mounting organizing campaigns and is actively exploiting the new rules to their advantage. Our industry is the historic home turf for the Teamsters.

Combine this with an NRLB intent on making the failed Employee Free Choice Act (EFCA) a near reality through its administrative decisions, and many companies now find themselves sitting on a powder keg of Teamster union organizing activities – and the bomb disposal squad lit the fuse and is fanning the flames.  

I returned from the IWLA workshop deeply disturbed that my members will have to expend so much time, energy and resources defending their companies instead of investing in new business development, improved capitalization and additional employees.

I was struck by President Obama’s recent observation that in the U.S., “We’ve been a little bit lazy I think over the last couple of decades. We’ve kind of taken for granted — ‘Well, people would want to come here’ — and we aren’t out there hungry, selling America and trying to attract new businesses into America.”

Yet this same President appointed an NLRB that issued a stream of new regulations that will divert employers’ time and money better spent serving our customers and our workforce.  My industry would take extreme issue with anyone who tries to assert that we have not been actively promoting American business, including the creation of near-shoring, on-shoring, assembly, light manufacturing, kitting, packaging and refurbishing activities – all of which have gown jobs here in the United States.

This governmental disconnect between words and deeds frustrates the logistics industry. The NLRB has turned the process of hiring even a temporary workforce into a run through a gauntlet of punitive regulations, costs and compliance checks. New liabilities are created each day, and each liability becomes a new disincentive to enlarge your workforce.

You can see the direct impact of this in terms of stagnant employment. In view of the current situation and future uncertainties, the smarter business decision is to pay overtime to the current workforce when extra work is created, and only hire new workers as a last resort. The intended result of the NLRB’s decisions is to increase the number of union employees in the private sector. Instead it has served to discourage the hiring of anyone other than attorneys, human resources consultants and specialty contractors.

This litany of horribles coming out of the NLRB and the administration must be confronted by employers throughout the U.S. In next week’s blog, I will cover what IWLA is doing to push back. The very fabric of private enterprise is under attack, and ever since card check legislation was defeated by a Democrat-controlled Congress, the campaign to pass it has been converted into an administrative assault on employers by an openly hostile NLRB.

At Last, Some Good News From California

It’s rare that employers hear anything coming out of California in terms of law and regulation to feel cheerful about, but recently a federal district court in San Diego handed down a decision that prevents state officials from enforcing a strict state law for some warehouse delivery and trucking operations.

In effect for 10 years now, the California Industrial Welfare Commission’s rigid order mandating paid rest and meal periods for all employees regardless of their circumstances has spawned a cottage industry of class action lawsuits against employers filed on behalf of employees by tort lawyers specializing in this sort of litigation, something all too common in the Golden State. In fact, the state Supreme Court recently heard arguments in a case that is expected to determine the shape of these requirements for most employers.

However, when attorneys representing some delivery drivers for Penske Logistics brought suit against the company, they ran smack into the pre-emption of state law by federal law. Penske successfully argued that as an interstate motor carrier, federal law supplanted the state requirements, and the district court agreed.

But don’t break out the champagne glasses quite yet.  Although the court decision bolsters logistics employers’ arguments in other cases, district courts in cities beyond San Diego may hold differently, and the Penske decision most likely will be appealed to federal appeals court.

And there are other new laws in California to concern employers. These are just a few:

The Wages Theft Prevention Act requires that employers supply extensive and detailed information to all of their non-union, non-exempt employees, and for the first time imposes criminal penalties for violations that previously had not been criminalized.

• Employers are prohibited from obtaining credit information about applicants or employees except in limited circumstances.
• Civil penalties of up to $25,000 per violation are imposed on employers who “willfully” misclassify employees as independent contractors.
• Discrimination on the basis of gender identity and “gender expression” is prohibited. Gender expression refers to a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s sex at birth. Employees must be allowed to appear or dress consistently with the employee’s gender expression in the workplace.
• Out-of-state employers must provide written information about commission compensation to employees.

This is just a small slice of what employers in California must deal with on a daily basis. Some readers may have followed the controversies surrounding attempts to eliminate owner-operator truck drivers from southern California ports.

IWLA recognizes the unique and important position California represents, and we maintain a strong, activist state chapter and California Government Affairs director based there. If you are based in California or you do business there, please contact me about how you can participate in finding real-world solutions to these threats to business growth and supply chain efficiency.

Ignore Washington at Your Cost

This is the first of what I hope will be many blog entries designed to keep you informed about the vital issues impacting those who work in the supply chain. I plan to keep each entry factual, short and offer practical help – how you can make yourself a hero by helping your company succeed in the midst of unrelenting cost challenges posed by regulation and legislation.

In mid-October we saw a record number of members attend IWLA’s Washington, DC, Fly-In, with 32 warehouse-based 3PL senior executives receiving briefings from policy experts and government officials, and using the opportunity to meet face to face with their representatives on Capitol Hill.

One of the most important and sobering takeaways came from a senior staffer to the Republican House Majority Whip, who stressed: “Washington isn’t going away,” future changes most likely will be incremental. But Washington must reduce its reach for the private sector to grow and prosper.

A good example of these is the National Labor Relations Board. Since President Obama took office the NLRB has changed from an honest referee of union-employer disputes to become a pro-union advocate wielding the force of law in an attempt to recreate the unions’ long-lost glory days. Although there have been angry calls for eliminating the board, a more realistic goal is to make sure that in the future it will return to being an arbitrator of labor-employer disputes instead of a heavy-handed advocate for unionization.

To this end, WLA is supporting HR 3094, the Workforce Democracy and Fairness Act legislation, introduced in early October by Rep. John Kline (R-MN), Chairman of the House Education and the Workforce Committee, which would roll back the NLRB’s most onerous and unjustified decisions.

How important is this to you? Take a look at some of the board’s most recent decisions:

• Ordering all employers to place prominently in each workplace a poster declaring in detail employees’ right to form a union and detailing how to do so.

• Giving employers just seven days to find legal counsel and prepare their entire case before an NLRB pre-election hearing.

• Providing workers with as little as 10 days before an organizing vote.

• Severely limiting an employer's ability to raise additional issues during the election hearing process, and requiring employers to give the union their employees’ personal information, including street and email home addresses, and home and cell phone numbers.

• Adopting a new standard for determining which group or of employees will vote in the union election, allowing the union to break up the workforce in any given facility into “mini-unions” consisting of a handful of employees in each location.

The “mini-union” decision allows unions to organize small numbers of workers in a larger workforce, increasing the likelihood of multiple mini-units in a single facility that would require employers negotiate and supervise several different union contracts in one facility.

Any of these decisions would be costly for employers, taking money directly out of your bottom line. Just think for a moment how many dollars in revenue your company would have to generate to pay for just the poster requirement.

In later blogs we will explore in greater depth how the NLRB and the entire alphabet soup of federal and state agencies are threatening your bottom line and tell you in concrete detail what you can do about it. You also will learn how IWLA is working with other industry groups and coalitions to deal with issues involving sustainability, chemical handling, and food safety and security.

In the meantime I would like to invite you to attend a special seminar on preventive labor relations that directly addresses how you can most effectively deal with the board and other regulatory actions. It will take place on Nov. 15 near Chicago O’Hare Airport, led by Kerryann Haase, who is a partner at Michael Best & Friedrich, a leading national employment and labor law firm. The registration cost of $349 for IWLA members and $599 for non-members is far less than you would pay to receive the same expert advice from a top-notch labor relations attorney. To learn more, visit: http://www.iwla.com/Events/CalDetails.aspx?Page=Home&id=366

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