The Newest Weapons Against Unions Are Employees

U-Haul workers sent a flood of letters seeking to reverse an Obama-era rule. Most used very similar language, in part because the company wrote it for them.
By Josh Eidelson and Hassan Kanu
‎April‎ ‎2‎, ‎2018‎ ‎4‎:‎00‎ ‎AM‎ ‎EDT
Thomas Neill wrote the government a letter Jan. 23 asking that it reverse an Obama-era rule that could make it easier for unions to win workplace elections. “Repeal the current rules; reinstate the prior rules; revise the election process in a way that brings them up to date in a sensible, fair manner,” he wrote. So did Brian Picanco, Paul Smedberg, Zane Rowland and Jim Smith.

On the same day. Using exactly the same words.  The men, along with dozens of other people working for U-Haul, the self-storage company, seem to have taken an outsized role in the debate over whether the Trump administration should revisit the rule. They’ve been doing this by flooding the National Labor Relations Board with very similar comments. While at least one employee said workers got together on their own, labor experts contend that the campaign has all the hallmarks of a company-influenced effort. U-Haul agreed, saying that while it didn’t compel workers to take part, it did provide the language for them to use.

Over the past few months, the NLRB received at least 100 similarly worded submissions urging it to throw out the policy that shortens the time between when some employees decide to unionize and when a vote is held. More than 60—roughly one out of every 25 comments submitted so far—used names matching people who work at the self-storage and rental giant, according to a review of LinkedIn pages and recent company announcements. More than a dozen additional comments appear to come from people who worked for the company in the past.

The U-Haul staffers ranged from a clerk for one of its local marketing units to a vice president for government relations, Joseph Cook. (Cook and the five men above didn’t respond to requests for comment.) Another submission was by Sam Shoen, who shares the surname of Joe Shoen, chairman of U-Haul’s parent, Reno, Nevada-based Amerco. The company said two people named Sam Shoen have been associated with U-Haul, one a former official and son of the founder, who said the submission wasn’t his. The other Sam Shoen is a manager who currently oversees one of the company’s storage components and couldn’t be reached for comment. Also among the commenters was Assistant General Counsel Michelle Walters, whose LinkedIn biography says her work for U-Haul includes “union avoidance/positive labor relations.” Walters couldn’t be reached for comment, but company spokesman Sebastien Reyes said in a March 30 response to a request for comment that she drafted the language used by U-Haul employees in their letters to the NLRB .

“We encouraged them to submit comments, and we circulated sample language,” Reyes wrote. “Individuals decided whether to submit a sample comment, write their comment or elect not to submit comments at all.” He confirmed that the people identified by Bloomberg in a review of correspondence sent to the NLRB were in fact U-Haul “team members.”

Founded in 1945, U-Haul claims thousands of locations across the U.S. and Canada. In February, Joe Shoen announced bonuses of more than $23.6 million for almost 29,000 employees, telling them it was thanks to the Republican tax overhaul signed by President Donald Trump.
The company has a history of disdain toward organized labor. An alert for U-Haul managers posted on the company’s human resources website (and since removed) emphasized the need to “harden our workplace against possible organizing” and mount a preemptive anti-union campaign that “begins now and lasts every single day.” The document, referring to an earlier legislative proposal, urged managers to participate in company “union avoidance” classes and instructed that the “preservation of our system members’ right to work in a union-free environment is management’s responsibility.” Staff, if treated well, “will keep the union bums out,” it said. (Reyes, the company spokesman, confirmed the document was an internal memorandum representing the company’s stance on organized labor, but added that it was taken down because it was mistakenly made public.)
After employees at two repair facilities voted 2-to-1 to unionize in 2003, the U-Haul Co. of Nevada shut down one of them, terminated 49 employees and allegedly refused to collectively bargain, arguing that the union election had been tainted by misconduct. A federal appeals court ruled against the company in 2007, and in 2008 the company agreed to pay $2.1 million to employees who the International Association of Machinists and Aerospace Workers alleged had been illegally terminated for supporting the union. The company didn’t admit any wrongdoing as part of the agreement.
But the workers declined to return to work there, and the IAM abandoned its efforts to secure a union contract, according to David Rosenfeld, an attorney for the union. “They were extremely vicious,” he said of the company. Of the employees, he added: “Nobody’s tried since then to organize them, as far as I know.” Reyes denied the 2003 firings were related to the union vote, declining further comment on the case or its aftermath.
“Companies are increasingly using their workers to change elections and public policy.”
The recent U-Haul employee comments to the NLRB come in response to a December invitation by the Republican-majority labor board. It seeks input on whether to amend or rescind the 2014 rule change by the Obama administration. The provisions included shortening the time between when workers petition for a vote on unionization and when the vote happens, leaving less time for companies to urge workers to stay union-free. The comments from people associated with U-Haul each urged more stringent rules, including a minimum “campaign period” of at least 40 days before a union vote. On March 14, the NLRB announced that it was pushing back the deadline for submitting comments, which had already been extended, to April 18.

The volume and similarity of comments raise questions as to whether there was a coordinated effort, said Paul Secunda, who directs the labor and employment law program at Marquette University. “These U-Haul employee comments to the NLRB smack of employee mobilization by the company itself,” he said, though encouraging employees to comment on proposed rulemaking is perfectly legal.
That companies urge employees to take part in campaigns for or against government regulations isn’t novel, but the tactic has enjoyed a renaissance of late. Employers and the business lobby have recently urged workers to fight various corporate taxes and support the recent tax legislation. Alexander Hertel-Fernandez, a political scientist at Columbia University who just wrote a book on the topic, recounted how a lobbyist bragged of helping a financial company get 100,000 letters opposing the fiduciary rule—the now-endangered conflict-of-interest regulation for financial advisers. Hertel-Fernandez said a telecommunications company interested in shaping a different debate established an internet portal for workers, providing letter templates they could tweak before sending.
“Companies are increasingly using their workers to change elections and public policy. This has become a key part of companies’ political arsenals,” Hertel-Fernandez said in an interview. “Workers who are most fearful of losing their jobs, or of retaliation from their employers, are most likely to respond to political requests made of them by their employers.”
When AT&T Inc. was fighting proposed net neutrality rules in 2009, its senior vice president for external and legislative affairs reportedly sent employees talking points to use in emails to the Federal Communications Commission, encouraging them to send messages from their personal email accounts. AT&T declined to comment.
There have been other alleged efforts to game the public comment system, both in and out of government, that have gone beyond coordinating employee letters. In December, the Wall Street Journal reported that it had identified comments submitted to five agencies that were posted under the names of people who hadn’t consented. Some of those comments were sent to the Labor Department, professing opposition to the fiduciary rule. Last month, environmental groups cried foul over a Trump administration memo summarizing public comments on its reassessment of an Obama-era sage grouse conservation plan, which advocates say omitted almost 100,000 comments.

President Barack Obama in 2015 responding after the Republican-controlled Congress proclaimed its opposition to the NLRB union election rule.Photographer: Win McNamee/Getty Images
Although there are minor variations, an overwhelming majority of the submissions by persons appearing to be current or former U-Haul workers contain sometimes-identical comments on the proposed rules, as well an almost-mirror image list of recommendations to the NLRB. Many were submitted as PDFs with identical file names (such as “nrlb_response”) or names including the word “sample.” Dozens were submitted on a single day.
Those submissions typically begin with a sentence or two about unfairness to employers and a playing field slanted in unions’ favor. Almost all start with one of six phrases, such as “Any election should have integrity and be fair to EVERYONE involved, not just unions.” Most of those introductions urge the board to repeal the current rules, reinstate prior rules and further revise the election process. Phrases including the “repeal, reinstate, revise” language are present in almost all of the apparent U-Haul submissions.

Almost all suggest requiring in-person signatures on cards workers must sign to trigger a union election, rather than allowing electronic signatures; a 40-day minimum campaign period prior to the union vote; and a 14-day period to prepare for pre-election hearings. They also recommend that workers be allowed to restrict the sharing of their contact information with union organizers, and ask that the NLRB to guarantee post-election review in all elections.
Two U-Haul workers, when asked about their comments, directed the reporter to U-Haul. A third, Scott Lee, director of U-Haul’s storage program for college students, said U-Haul executives didn’t solicit employees to make submissions, but suggested that the comments were similar because employees got together on their own. “We kind of talked like, ‘Oh, we should,’” said Lee.
“The discretion that employers have over their employees’ political activities is almost limitless.”
While many U-Haul employees and managers may indeed oppose unionization, labor advocates say workers could feel compelled to comply if a company asks for help.
“The discretion that employers have over their employees’ political activities is almost limitless,” said Secunda, the law professor. That’s especially true since the U.S. Supreme Court’s Citizens United decision threw out rules restricting mandatory meetings aimed at urging staff to support management’s political agenda, he said. Workers who refuse requests from their bosses risk being perceived as disloyal and then punished. “Employees are very much at the mercy of their employers when it comes to making sure they do not offend,” said Secunda.

Meanwhile, Hertel-Fernandez warns that a key democratizing component of the American regulatory system is being corrupted by efforts to influence public comments. The process was “originally set up to allow a broader set of interests to shape the regulatory process,” he said. Now it’s being “subverted by businesses’ ability to recruit their employees in these coordinated campaigns.”

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Democrats Paid a Huge Price for Letting Unions Die

By  Eric Levitz

There is power in a union.
The GOP understands how important labor unions are to the Democratic Party. The Democratic Party, historically, has not. If you want a two-sentence explanation for why the Midwest is turning red (and thus, why Donald Trump is president), you could do worse than that.
With its financial contributions and grassroots organizing, the labor movement helped give Democrats full control of the federal government three times in the last four decades. And all three of those times — under Jimmy Carter, Bill Clinton, and Barack Obama — Democrats failed to pass labor law reforms that would to bolster the union cause. In hindsight, it’s clear that the Democratic Party didn’t merely betray organized labor with these failures, but also, itself.

Between 1978 and 2017, the union membership rate in the United States fell by more than half — from 26 to 10.7 percent. Some of this decline probably couldn’t have been averted — or, at least, not by changes in labor law alone. The combination of resurgent economies in Europe and Japan, the United States’ decidedly non-protectionist trade policies, and technological advances in shipping was bound to do a number on American unions. Global competition thinned profit margins for U.S. firms; cutting labor costs was one of the easiest ways to fatten ’em back up; and breaking unions (through persuasion, intimidation, or relocation) was one of the easiest ways to cut said costs.
Nevertheless, there was lot that Democrats could have done — through labor law reform — to shelter the union movement from these changes, and help it establish a bigger footprint in the service sector. At present, employers are prohibited from firing workers for organizing or threatening to close businesses if workers unionize — but the penalties for such violations are negligible. Further, while they must recognize unions once they are ratified by workers in an election, employers can delay those elections for months or even years — and, even after recognition, face no obligation to reach a contract with their newly unionized workers.

Democrats could have increased the penalties for violating labor law, enabled unions to circumvent the election process if a majority of workers signed union cards (a.k.a. “card check”), and required employers to enter arbitration with unions if no contract was reached within 120 days of their formation — as Barack Obama promised the labor movement they would, in 2008.
Or, if they were feeling a bit more radical, they could have repealed the part of the Taft-Hartley Act that allows conservatives states to pass “right to work” laws. Such laws undermine organized labor by allowing workers who join a unionized workplace to enjoy the benefits of a collective bargaining agreement without paying dues to the union that negotiated it. This encourages other workers to skirt their dues, which can then drain a union of the funds it needs to survive.
And that has the effect of draining the Democratic Party of the funds — and grassroots organizing — that it needs to thrive. As Sean McElwee writes for The Nation:
In a new study that will soon be released as a National Bureau of Economic Research working paper, James Feigenbaum of Boston University, Alexander Hertel-Fernandez of Columbia, and Vanessa Williamson of the Brookings Institution examined the long-term political consequences of anti-union legislation by comparing counties straddling a state line where one state is right-to-work and another is not. Their findings should strike terror into the hearts of Democratic Party strategists: Right-to-work laws decreased Democratic presidential vote share by 3.5 percent.

The study found that impacts persist in down-ballot races, and have given Republicans more power in the Senate, House, and governors’ mansions, as well as in state legislatures. This leads to a vicious cycle wherein the GOP can use that power to further suppress votes, gut union rights, and gerrymander legislatures—in other words, embark on a fundamental retooling of American political mechanics.

The decimation of the blue wall in 2016 may have been driven by Trump’s unique candidacy, but right-to-work laws had been weakening the foundation for years. In 2014, Republican Governor Rick Snyder’s narrow victory against Democratic opponent Mark Schauer may well have gone in a different direction were it not for the state’s 2012 right-to-work law. It’s not impossible to imagine that progressive Senate candidate Russ Feingold would have beaten Tea Party–backed incumbent Ron Johnson in 2016 if only Wisconsin private- and public-sector unions had not been completely gutted. The effect of right-to-work laws, according to this research, are large enough that it could have easily cost Hillary Clinton Wisconsin and Michigan—two states that went right-to-work before the 2016 elections.

These findings will surprise no one in the Republican leadership. Since 2010, six GOP state governments have passed “right to work” laws. Last year, Kentucky and Missouri joined the club (the latter development will make Senator Claire McCaskill’s already difficult reelection bid all the more challenging). Republicans prioritized these regressive labor law reforms because they understood how devastating they would be for the unions — and thus, to the Democratic Party. Last year, anti-tax crusader Grover Norquist argued that if right-to-work reforms are “enacted in a dozen more states, the modern Democratic Party will cease to be a competitive power in American politics.”
This could have been a golden age for American liberalism. The Democratic Party — and the progressive forces within it — have so much going for them. The GOP’s economic vision has never been less popular with ordinary Americans, or more irrelevant to their material needs. The U.S. electorate is becoming less white, less racist, and less conservative with each passing year. Social conservatism has never had less appeal for American voters than it does today. The garish spectacle of the Trump-era Republican Party is turning the American suburbs — once a core part of the GOP coalition — purple and blue.
If the Democratic Party wasn’t bleeding support from white working-class voters in its old labor strongholds, it would dominate our national politics. Understandably, Democratic partisans often blame their powerlessness on such voters — and the regressive racial views that led them out of Team Blue’s tent. But as unions have declined across the Midwest, Democrats haven’t just been losing white, working-class voters to revanchist Republicans — they’ve also been losing them to quiet evenings at home. The NBER study cited by McElwee found that right-to-work laws reduce voter turnout in presidential elections by 2 to 3 percent.
Further, the notion that grassroots organizing cannot make a non-woke white man prioritize his class interests over his racial resentments — and thus, that the Democratic Party’s refusal to bolster union organizing was irrelevant to its failure to fend off Trump — is unsupportable. In 2008, labor invested a quarter-billion dollars into Barack Obama’s election, allocating the bulk of those funds into burnishing the candidate’s support among union voters in the Midwest. That year, unionized white men backed Obama by an 18 percent margin; while nonunionized ones went for John McCain by 16.
If right-to-work laws alone cost Democrats roughly 3.5 percent of a given state’s vote share, how many votes has the party lost since 1978 by refusing to prioritize progressive labor reforms?
What kind of country would we live in today, if they hadn’t?

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OPM Tells Agencies to Stop Working Collaboratively with Unions

Federal agencies may use President Trump’s executive order abolishing labor-management councils across government as justification for throwing out collective bargaining agreements with their workforces, guidance from the Office of Personnel Management suggested Wednesday.
In a memo to agencies, acting OPM Director Kathleen McGettigan instructed departments to abolish their labor-management forums and eliminate any rules or policies related to those forums. The memo also ordered agencies to examine whether their agreements with federal employee unions include provisions involving the forums or other labor outreach for “pre-decisional involvement,” and when applicable, to renegotiate or get rid of them.
“If a term or article of a collective bargaining agreement or memorandum of understanding was explicitly agreed upon for the purpose of creating and supporting a forum . . . the [order] may also grant agencies the authority to declare such agreements non-enforceable and thus null and void absent the need to renegotiate these agreements,” McGettigan wrote. “Similarly, if a term or article of a collective bargaining agreement or memorandum of understanding was explicitly agreed upon to require or promote bargaining and pre-decisional involvement, agencies may also have the authority to declare such agreements non-enforceable.”
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Additionally, OPM instructed agencies to reach out to labor representatives for “pre-decisional” collaboration on an issue “only to the extent that the cost of doing so brings tangible benefits to the agency.” Collective bargaining agreements that require such outreach “without the sole consideration being the tangible benefit of the agency” also should be renegotiated.
Robert Tobias, former president of the National Treasury Employees Union and a distinguished practitioner in residence at American University’s School of Public Affairs, said OPM’s memo goes far beyond what the George W. Bush administration did when it rescinded President Clinton’s executive order requiring labor-management councils.
“When Bush acted to rescind Clinton’s executive order, many, many relationships continued to use pre-decisional involvement and to operate as though [the order] was still in existence,” Tobias said. “They did it because both parties found it advantageous to continue operating that way . . . Because of the greater positive labor-management relationship, problems were solved faster and better.”
The requirement that the cost of pre-decisional involvement be outweighed by “tangible benefits” could create a nearly impossible bar for agencies to meet when justifying their actions to OPM, Tobias said.
“Agencies must calculate the benefits, to measure pre-decisional involvement’s success on improving the operations of the agency, and to the extent that was done, it should be data that’s easy to gather,” he said. “But data that’s not easy to gather is the impact of the positive relationship that’s created through pre-decisional involvement, whether it’s fewer days spent in bargaining, fewer grievances filed or fewer unfair labor practices filed.”
Federal employee unions blasted the guidance as an outright attack on organized labor.
“The guidance shows that the administration’s action regarding labor-management forums goes far beyond the ridiculous notion that constructive dialogue with front-line employees is not worthwhile,” said J. David Cox, national president of the American Federation of Government Employees. “The guidance is a vicious attack on collective bargaining and shows profound disrespect to the men and women who secure our borders, protect us from the criminals incarcerated in federal prisons, care for our veterans and make sure seniors get their Social Security checks.”
NTEU National President Tony Reardon said that, counter to the administration’s argument, removing labor-management councils will make it harder for agencies to act efficiently.
“The OPM guidance issued Dec. 13 for agencies to implement the executive order abolishing labor-management councils is yet another step in the administration’s efforts to sideline the voices of frontline employees and diminish their role in the workplace,” Reardon said in a statement. “It also undercuts other administration guidance that agencies should be strengthened by removing barriers that make it harder for front-line employees to deliver results.”
Tobias said OPM’s guidance, and particularly the provision allowing agencies to declare collective bargaining agreements unenforceable, is destined to produce unfair labor practice filings and a return to the pre-Clinton-era labor-management relationship.
“The message to unions is that it’s really a return to the adversarial basis of collective bargaining that existed from the inception of the labor-management program,” Tobias said. “All of these studies that led up to [Clinton’s] executive order said that the adversarial labor-management relations will not be effective in solving employee problems or increasing organizational success . . . And I would say it’s a return to that adversarial relationship of the past.”

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Trump administration sides against unions in high court fees case

Lawrence Hurley

WASHINGTON (Reuters) – The Trump administration on Wednesday said it would oppose public sector unions in a major case currently before the U.S. Supreme Court, reversing the view taken by the Obama administration in an identical dispute.

U.S. President Donald Trump speaks to reporters before a cabinet meeting at the White House in Washington, U.S. December 6, 2017. REUTERS/Jonathan Ernst
The Justice Department filed a friend-of-the-court brief against the unions in a case brought by a non-union government employee in Illinois that targets fees his state and many others compel such workers to pay to unions in lieu of dues to fund collective bargaining and other organized labor activities. He is arguing that such fees violate the free speech rights of non-union members.
The high court heard a similar challenge out of California in January 2016 and had appeared headed toward ruling the fees unconstitutional. But conservative justice Antonin Scalia died a month later and the short-handed court ended up with a 4-4 split in April 2016 that left the law intact but set no nationwide precedent. In that case, the Obama administration filed a brief backing the unions.
Addressing the change of position, Solicitor General Noel Francisco said in the court filing that after the Supreme Court agreed to hear the new case “the government reconsidered the question and reached the opposite conclusion.”
The Trump administration has already adopted opposing positions to those taken by the Obama administration in other major cases pending at the Supreme Court, including another labor case on whether employers should be able to require workers to sign contracts that prevent them from making class action claims.
The administration also reversed an Obama administration stance by supporting Ohio in its bid to revive a state policy of purging people from voter-registration lists if they do not regularly cast ballots.

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