Daily Labor Report®

Punching In: Volkswagen Looks to Pump Brakes on Union Vote

April 22, 2019, 10:01 AM

Monday morning musings for workplace watchers

Third Time’s the Charm? | Fear of an EEOC Pay Data Hack | Bill Emanuel’s Lost Winter

Chris Opfer: Lawyers for Volkswagen and the United Auto Workers have until Wednesday to file briefs with an administrative law judge, arguing over VW’s effort to push back a union election at its Chattanooga, Tenn., plant.

UAW had originally hoped to start handing out ballots as soon as next Monday. But VW says the voting should be delayed until a separate legal dispute over a smaller group of maintenance workers who voted to organize in 2015 is resolved. The company is arguing that the “micro-unit” of workers can’t be separated from other employees at the plant for purposes of unionizing. The workforce as a whole can’t vote on unionizing until the National Labor Relations Board decides what to do with the smaller group first, the company says.

The company’s push to press pause on the new election is one sign that it isn’t exactly welcoming the union with open arms. A recent notice it sent to plant workers is another sign. VW officials in the memo said the company will take a “neutral” stance to unionization, just as it did in 2014. UAW narrowly lost the 2014 plantwide union election, but a couple of important things are different this time around.

Seems someone at the company has been to Union Avoidance 101 in the interim. VW officials stressed in the notice that they already have an “open dialogue” going on with workers in Chattanooga. They said they’d prefer to keep communicating with workers “directly” rather than having some outsider like a labor union getting in the way. That’s more or less the first rule for trying to convince workers not to unionize.

The company also said it will hold “special information sessions” for employees. No word yet on whether those meetings will be mandatory.

In other labor and employment news, this week’s Punching In podcast poses a question: Think everything can be arbitrated? Think again. Bloomberg Law’s Robert Iafolla talks with Loyola University New Orleans law professor Imre Szalai about a 150-year-old civil rights law that tests the limits of arbitration.

Jaclyn Diaz: Lawyers for the White House Office of Management and Budget and the National Women’s Law Center have until 5 p.m. to file briefs on their latest arguments in the lawsuit over Equal Employment Opportunity Commission pay data disclosure requirements.

Last week’s hearing in the case followed a judge’s decision earlier this month to revive an EEOC plan to require companies with 100 or more workers to provide pay data broken down by race, sex, and ethnicity. The hearing featured an EEOC official trying to stress the monumental task the agency would face in complying with the plan, an Obama-era effort that was put on hold early in the Trump administration.

Dr. Samuel Haffer, the agency’s chief data officer, said it would be feasible to meet a suggested Sept. 30 deadline for requiring businesses to start handing over the data, but that the EEOC would have to start preparing ASAP. He also expressed some worries about data security, echoing concerns from business lawyers.

Management attorneys are concerned about having the EEOC contract out the data collection process to a private company. They say allowing an outside firm to access the data could make private pay information susceptible to hackers.

Haffer suggested during the hearing that hackers who got their hands on summary pay information could use demographic information to link it to individual employees at smaller contracting companies. Although the EEOC’s data security systems meet federal standards, Haffer said he’d like some more time to add additional protections.

The NWLC says the agency can and should start collecting the data immediately. We should find out soon whether Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia agrees.

CO: National Labor Relations Board Member Bill Emanuel (R) has kept a low profile in the year or so since he was at the center of an ethics controversy that threatened to cost the former management attorney his job. Very low, according to a copy of his calendar that we recently obtained from the board.

The NLRB’s inspector general last year said Emanuel should have sat out a case the board used to overturn the 2015 Browning-Ferris decision. In that ruling, the Obama board had expanded joint employer liability. The problem with Emanuel participating in the case to overturn the Obama board’s decision was that his former law firm—Littler Mendelson—represented a company involved in the Browning-Ferris case, which was also still on appeal at the time.

The NLRB is still working on a new set of guidelines about when members should recuse themselves from cases because of conflict-of-interest concerns. The board is also wrestling with a request for Emanuel and Chairman John Ring (R) to sit out the ongoing McDonald’s joint employment case for similar reasons.

It’s not entirely clear what Emanuel has been doing recently. We periodically request copies of members’ calendars to try to get a sense of what might be on the board’s agenda. Those calendars are obtained through the Freedom of Information Act but are often heavily redacted. Emanuel’s calendar came with a different wrinkle: A nearly two-month stretch is entirely blank.

We know that Emanuel was on the job last year from Nov. 16 to Feb. 12, despite no calendar entries for calls, events, and the meetings that other members attended during that time. He signed onto board decisions issued during the period. But an agency FOIA officer tells me that Emanuel’s staff double-checked the calendar and also found no entries.

Perhaps Member Emanuel is one of those people that can keep his appointments without needing an electronic reminder. If you know anything about what he was up to during the calendar gap, please let me know.

JD: New Labor Department Wage and Hour Administrator Cheryl Stanton is slated to start on the job April 29.

It’s not likely the DOL will pursue new regulatory initiatives immediately after Stanton joins the department. It already has its hands full trying to finalize three other major wage and hour rules.

Some of the regulatory focus may also shift to the DOL’s Office of Labor Management Standards, which oversees union disclosure requirements.

CO: We’re punching out. But before we do, we’d be remiss if we didn’t mention that veteran management-side labor lobbyist Hal Coxson passed away last week. The Ogletree Deakins shareholder represented businesses in courts and Congress for nearly four decades.

“The management community has lost one of its most effective advocates in history,” Littler Mendelson’s Michael Lotito told me.

Programming note: We’re taking a brief Punching In hiatus. We’ll be back with a new column May 6.

Daily Labor Report subscribers can check in during the next two weeks for updates. In the meantime, feel free to reach out to us on any and all labor and employment news: copfer@bloomberglaw.com and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer and @JaclynmDiaz.

See you back here next Monday.

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To contact the reporters on this story: Chris Opfer in New York at copfer@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

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