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Punching In: Volkswagen Fixin’ for a Union Election Fight?

April 15, 2019, 10:01 AM

Monday morning musings for workplace watchers

Chattanooga Two Step | Paging Cheryl Stanton | EEOC’s Pay Data Blues

Chris Opfer: We could get a better idea of how Volkswagen plans to play the upcoming union election at the company’s Tennessee plant when VW and the United Auto Workers go before an administrative law judge in a hearing on Wednesday. Will the German automaker and the union trying to organize its workers again hold hands, skip rope, and sing songs together in the run up to the vote? Or should we expect the company to play harder ball this time around. We’ll be watching for signals in how much the company and its Littler Mendelson lawyers push to delay the election, which the UAW wants to start as soon as April 29.

Volkswagen publicly maintained a neutral stance in 2014 when workers in Chattanooga narrowly voted down union representation. That’s despite some significant pressure from local, state, and federal lawmakers. If this letter from Republican Sen. Lamar Alexander and his former Senate colleague Bob Corker is any indication, politicians were convinced that a win for the UAW would have brought on some sort of apocalyptic doomsday scenario in which frogs start raining from the sky, barefoot California hippies descend on Rocky Top in droves, and Nashville hot chicken goes the way of the dodo.

Still, a win would be a huge deal for the UAW, which has seen more than an 8 percent drop in membership in the last year. The Volkswagen plant would be the first from a major European transplant to be organized in the South.

An Obama-era National Labor Relations Board rule designed to streamline union elections largely limits what VW can do to push back the vote, management-side labor lawyer Stephanie Gournis recently told me. But there are some things the company can do to expand the pool of workers who actually lodge votes, Gournis said. The more workers that participate in an election, the better the chances are for those opposing the union in most cases.

“What we have seen so far under the ‘quickie’ election rule is that there’s not much room to push back the date,” Gournis, a partner in Drinker Biddle’s Chicago office, said. “So, you want to maximize the number of people that come out to vote.”

Nearly 89 percent of the 1,500 workers eligible to vote in the 2014 plantwide election lodged a vote, according to Bloomberg Law data. Those workers voted 712-626 against unionizing.

Care to predict how it will shake out this time? Contact me and Bloomberg Law labor union guru Andrew Wallender.

In this week’s Punching In podcast, Jaclyn spoke with Maya Raghu from the National Women’s Law Center about a new Democrat bill to combat harassment on the job. That includes sticking a fork in forced arbitration.

Jaclyn Diaz: It finally happened. No, not the release of Game of Thrones (although I’m ecstatic it’s back). I’m talking about the Senate confirmation of Cheryl Stanton to lead the DOL’s Wage and Hour Division. Stanton has been waiting to be confirmed by the Senate since President Donald Trump nominated her in September 2017.

Her confirmation took some at the DOL by surprise. The message from Secretary Acosta’s office was he was done with lobbying the Senate to move labor nominees given a longstanding impasse. Interestingly, the call to move her nomination, and to do it soon, apparently came from another, unknown influence.

Stanton’s background is fairly light in Wage and Hour expertise so it should be interesting to see whether she chooses to maintain the status quo or to plow her own path in the agency.

She does of course have major work ahead of her on finalizing proposals on joint employment liability, overtime eligibility, and regular rate of pay standards. But what of enforcement guidance or tackling the remaining Obama era guidance that still stands?

The business community is looking forward to a new body in the administrator’s seat. The first thing on the agenda is to get Stanton to ease up on the agency’s Obama-like enforcement measures.The DOL under Trump has aggressively enforced wage and hour violations, especially with the much hated (by employer folks) liquidated damages for wage violations.

Worker advocates hope Stanton maintains the open line of communication that was the norm with Bryan Jarrett and Keith Sonderling’s leadership. Judy Conti with the National Employment Law Project told me she’s hoping Stanton doesn’t move to dismantle the DOL’s enforcement style any time soon.

Acosta’s office allegedly runs the place with an iron fist, keeping much of the major decision making up to the Secretary’s closest advisors. It’s possible that changing the direction of the agency may not be entirely up to her.

There’s still time for lobbyists to perfect their elevator pitches. Stanton’s first day won’t be for at least another month as the White House still has to sign off on the paperwork.

CO: The VW-UAW meet up isn’t the only important hearing on the docket this week. Jaclyn will be in the courthouse on Tuesday when lawyers for the White House Office of Management and Budget explain how the Equal Employment Opportunity Commission plans to comply with a ruling that revived new pay data reporting requirements floated during the Obama administration.

Government lawyers have already said the EEOC wants to push back to at least Sept. 30 any deadline for companies to start handing over information on their workers’ wages and hours, broken down by race, sex, and ethnicity. The requirement was intended to help the EEOC root out pay discrimination.

The National Women’s Law Center, which convinced Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia to salvage the pay data requirements, says the OMB’s pan isn’t good enough. It wants companies to be forced to start sharing their data pronto.

“The Court should reject Defendants’ baseless attempt to avoid collecting an entire year’s worth of required data,” the NWLC recently told Chutkan.

Meanwhile, business groups like the Chamber of Commerce and the DirectEmployers Association say companies shouldn’t be expected to start complying until at least next year.

JD: There have been growing calls of late to get someone, anyone to handle workplace automation head on.

There’s some momentum on Capitol Hill, but so far, there hasn’t been any major, bipartisan approach to address risks that automation pose to the workplace. We’re just beginning to grasp the potential problems automation, robots, and artificial intelligence, pose for millions of workers.

Women may face the brunt of the negatives robots at work bring, according to a recent study by the Institute for Women’s Policy Research. There are more than 20 million women who work in occupations deemed “high risk” of automation displacement, compared to more than 14 million men. Hispanic women are most at risk from automation: One in three Hispanic women work in jobs that are likely to face disruption from technology. White men are the least likely to hold those jobs, according to the report.

Chandra Childers, one of the authors of the report, says preventing this type of inequality in the future will mean “action from everyone.” That means employers, unions, and legislators.

A part of that is creating digital skills training for workers unaccustomed to working with advanced technology, and providing retraining opportunities on the job and in partnership with higher education.

For women, who often carry the burden of handling child and elder care for their families, it’s crucial employers and legislators consider policies addressing those needs in addition to retraining, she said. Women face additional barriers to accessing these opportunities because of those added responsibilities, she said.

Andrew Wallender and I will be examining how unions are tackling retraining needs for their members, in a story out later this week.

CO: We’re punching out. Daily Labor Report subscribers can check in during the week 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

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com