2019 LABOR LAW SOLUTIONS

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UNCONVENTIONAL ORGANIZING

AND WORKER CENTERS

BEYOND LABOR LAWS

Mark M. Stubley – Ogletree Deakins (Greenville)

Mark Codd – Publix Supermarkets, Inc.

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Introduction

Fast food workers made national headlines in July, when several hundred walked off the

job, demanding $15 per hour. The strikes were organized by allegedly grass roots organizations,

such as “Fight for 15,” “Jobs with Justice,” and “Raise Up MKE!,” among others. Hundreds of

these organizations have sprung up over the last several years. While they attempt to project a

spontaneous, grassroots image, many of them are nothing of the sort. Some of the more well-

known “worker centers” are, in fact, organized, bankrolled, and run by Big Labor.

Membership in traditional labor unions continues to decline. As of 2018, only 6.4% of

the private sector workforce belongs to unions.1 Big Labor continues to have serious image

problems in the wake of things like Detroit’s collapse, the continued exodus of unionized

manufacturing jobs, and the most recent UAW corruption scandal.2

As a result of these and other problems, unions are looking for new and innovative ways

to attract members. One way is by using worker centers. This paper will discuss how unions are

using worker centers to achieve their goals of increasing union membership.

What Is A Worker Center?

The answer to this question often depends upon who you are and whom you ask.

Wikipedia, for example, describes worker centers as follows:

Worker centers are institutions based in and led by the community, which deliver

support to low earning workers. In order to best assist in improving working

conditions and necessary wages, many centers include services such as English

language instruction, help with unpaid wage claims, access to health care,

leadership development, educational activities, advocacy and organization. Many

centers also take the role as defender of rights for immigrants in their

communities.

https://en.wikipedia.org/wiki/Worker_center.

Unions, such as the AFL-CIO, describe them as valued “partners” in their efforts to bring

justice to the workplace. See https://aflcio.org/what-unions-do/social-economic-justice/worker-

centers. In fact, this AFL-CIO website lists well over a dozen such “partners” in 11 states.

1 U.S. Department of Labor, BLS Data Viewer, https://beta.bls.gov/dataViewer/view/timeseries/LUU0204906600

(last visited Oct. 29, 2019).

2 Tracy Samilton, UAW Corruption Scandal Widens With Raid On Homes And Latest Arrest (Sept. 12, 2019)

https://www.npr.org/2019/09/12/760264386/fiat-chrysler-kickback-scandal-widens-fbi-raids-uaw-heads-home; see

also Evie Fordman, Another UAW ex-official pleads guilty in corruption scandal: ‘I apologize’ (Oct. 23, 2019)

https://www.foxbusiness.com/money/jeffery-pietrzyk-united-auto-workers-corruption-guilty.

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The Chamber of Commerce, however, sees them in a much different and, in some cases,

a more accurate light. The Chamber classifies many worker centers as nothing more than union

fronts designed to evade worker and employer protections provided by federal labor laws.3

There is probably some truth to all of these definitions. Some are indeed grass roots

organizations created to address social justice issues. Some clearly, and admittedly, are AFL-

CIO partners. And others, as accurately described by the Chamber, are little more than fronts for

union organizing activities. It is this third group that is the subject of this paper.

Generally, worker centers target low-wage workers in industries and jobs that cannot be

moved overseas – think retail, fast food, and agricultural workers, to name a few. While these

industries have been largely immune to traditional union campaigns, due to high turnover, the

goal of worker centers is not a secret ballot election. Their weapon is the corporate campaign and

soliciting members and participants with social justice appeals. The ultimate goal, however, has

not changed – increase revenue by increasing the number of dues-paying members.

Why Do Unions Use Worker Centers?

Federal laws contain a variety of restrictions addressing how labor organizations, as

defined by the National Labor Relations Act (NLRA) are permitted to operate. For example, the

NLRA prohibits unions from:

Engaging in “recognitional picketing” for more than 30 days without petitioning for a

secret ballot election (picketing a business to force a company to recognize the union

as the bargaining representative of a group of employees without a vote). See 29

U.S.C. § 158(b)(7)(c).

Engaging in secondary boycotts (picketing or otherwise pressuring a third-party

company that is not a part of a labor dispute that a union has with a “primary”

employer). See 29 U.S.C. § 158(b)(4).

Favoring members when operating “hiring halls.” See 29 U.S.C. § 158(f). Hiring halls

are often used in construction and maritime industries. Unions that operate exclusive

hiring halls must notify workers how the referral system works, and must maintain

non-discriminatory standards and procedures in making job referrals from a hiring

hall.4

Breaching a union’s duty to fairly represent both members and non-members in a

bargaining unit. See 29 U.S.C. §185.

3 See U.S. Chamber of Commerce Employment Policy Division, The Status of Worker Centers as Labor

Organizations (April 2019), https://www.uschamber.com/report/the-status-of-worker-centers-labor-organizations-

under-the-national-labor-relations-act.

4 For more information on hiring halls, see the National Labor Relations Board’s website at:

https://www.nlrb.gov/rights-we-protect/whats-law/employees/i-am-represented-union/hiring-halls.

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Additionally, the federal Labor Management Reporting and Disclosure Act places several

additional obligations on labor organizations. These include:

Filing detailed annual financial reports with the U.S. Department of Labor (e.g., LM-

2 and LM-3 reports) outlining how member money is spent. See 29 U.S.C. §§ 431 -

435.

Filing copies of constitutions and bylaws. See 29 U.S.C. § 431.

Requiring officers to a have fiduciary duty to members concerning the union’s money

and property. See 29 U.S.C. § 501.

Guaranteeing member rights, like running for office, obtaining information about

union operations, receiving due process in disciplinary proceedings, and participating

in regularly held election of officers. See 29 U.S.C. § 411.

By operating through worker centers, unions can avoid these restrictions and obligations.

For example, a worker center may picket an establishment for months to complain about and

demand changes in pay and working conditions. The worker center could contain within its

demands the right be recognized as the “representative” of the workers. The NLRA would not

permit this type of conduct. Worker centers could also target customers of companies and

demand that they stop doing business with the group’s targeted employer. This conduct, too,

would be deemed illegal under the Act, in many cases.

Further, worker centers do not have to provide member rights, even though many of them

charge dues to their members. Their outside funding can be shrouded in secrecy because they are

not required to disclose sources or how the collected money is spent.

Moreover, activities through worker centers can create the impression that the issues they

raise are part of community or grassroots concerns for the rights of the workers targeted by the

union. Creating allies with unaffiliated faith-based and community-based groups enhance the

image of justice versus the corporation. This community support, in turn, can be used to

encourage workers of the targeted employer to assist the worker center in its ultimate, if

unspoken, goal – organizing a labor union.

In short, worker centers provide a convenient method for unions to avoid laws applicable

to labor unions, while exerting pressure on employers that might otherwise be protected from

their activities.

How Do Unions Use Worker Centers?

As explained above, unions use worker centers to convert organizing themes from

economic to issues of principles, morals, and social justice. Some of the more well-known

groups generally recognized as heavily funded by unions include:

Fast Food Forward: Service Employees International Union (SEIU)

(https://workercenters.com/union-front-groups/fast-food-forward/)

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Organization United for Respect at Walmart (OUR Walmart): United Food and

Commercial Workers (UFCW) (https://workercenters.com/union-front-groups/our-

walmart/)

Restaurant Opportunities Center-United (ROC): UNITE-HERE

(https://workercenters.com/union-front-groups/restaurant-opportunities-center-united-

roc/)

Working America: AFL-CIO (https://unionhall.aflcio.org/working-america-coalition)

Arise Chicago Workers Center: United Steelworkers (USW)

(http://workercenters.com/union-front-groups/arise-chicago-workers-center/)

Retail Action Project: Retail, Wholesale and Department Store Union, a subsidiary of

UFCW

(https://nyworkerfederation.org/2016/05/27/retail-action-project-our-new-member/)

Hotel Workers Rising: UNITE-HERE (https://unitehere.org/unite-here-hotel-workers-

rising-campaign-gathering-heat/)

Laundry Workers Center United: Workers United, SEIU

(https://www.workersunited.org/laundry-distribution-food-service-j)

A good illustration of how these groups operate can be seen in the tactics of the Retail

Action Project (RAP). RAP is a wholly owned subsidiary of the Retail, Wholesale, and

Department Store Union (RWDSU), itself an arm of the UFCW. RAP solicits employee

grievances and uses them to sow discontent. For example, they will take a wage dispute and tell

employees that their employers have been “stealing” their wages by cutting their hours or failing

to pay overtime. Next, they present the employer with a “bill” for the back pay allegedly owed –

payable to the worker center, of course. After that, employers have two choices: give in to the

worker center’s demands or suffer pickets, boycotts, walkouts, and demonstrations designed to

portray the employer as a bad corporate citizen unworthy of patronage by the public. Using these

tactics, RAP claims to have “negotiated” several seven-figure settlements with New York City

retailers, such as Shoe Mania, Scoop NYC, and Mystique Boutique.5

5 See, e.g., David Jones, After shutting stores, Shoe Mania faces lawsuit (July 26, 2012),

https://therealdeal.com/2012/07/26/after-shuttering-stores-shoe-mania-faces-lawsuit/; Diane Krauthamer, NYC

Retail Workers Win Settlement, Look to Fight for Living Wage (July 14, 2010), https://labornotes.org/2010/07/nyc-

retail-workers-win-settlement-look-fight-living-wage?language=es; Laurel Pinson, Mystique Boutique Owner

Busted for Underpaying Employees (Feb. 24, 2010) https://www.nbcnewyork.com/blogs/threadny/THREAD-

Mystique-Boutique-Owner-Busted-for-Underpaying-Employees-85210002.html

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What Can Your Company Do To Minimize The Risks Of Worker Center Activity?

There are a number of actions your company can take to prepare for the possibility of

worker center activity. These include:

Recognize the fact that you may be a target because of what you do and where

you are located. Worker centers tend to focus on low-wage jobs that cannot be

moved such as fast food, retail, warehousing and distribution, and health care. Worker

centers are more active in urban areas.

Assess your areas of vulnerability. Conduct employee attitude surveys to determine

what your employees think about your company. Pay attention to concerns about

wages and working conditions. Many union campaigns have been started over

unclean restrooms or broken microwave ovens.

Fix major issues while you can. Do not ignore valid complaints. Fix them.

Remember, if a union shows up, you may not be able to make any changes in wages,

hours, and other terms and conditions of employment that you are free to make now.

Monitor social media. If your company starts to come under attack by groups or

individuals with common complaints about how you operate, do not assume this is a

coincidence. You may be the target of a budding corporate campaign spearheaded by

one or more worker centers.

Review your legal record. If you are being sued more often, or challenged more by

administrative agencies (including non-labor related entities), you may be the target

of a budding corporate campaign spearheaded by one or more worker centers.

Make sure your Corporate Responsibility Program is up to date and

functioning. This includes more than just complying with federal and other reporting

requirements. Consumers are demanding that companies become, and remain, good

corporate citizens. Statements on sustainability, environmental issues, commitments

to worker and public safety, and support of charities can be just as important as good

wages and benefits.

Train your people. It is important for your employees to understand that they may be

the target of a worker center at any time. This is particularly true of public-facing

employees. In this age of technology and social media platforms, like You Tube and

Instagram, one of the most important messages you can convey is this – If you think

you are being set up, you probably are being set up. Instruct employees on how to

recognize set-ups and how to properly direct inquiries to the proper person. Hint: A

true “no comment” and pushing a recording device away does not present a flattering

image when posted on social media.

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Conclusion

Worker centers are here to say. You can minimize your risks by taking proactive steps to

address their activities and recognizing when you are becoming a target.

1

PRESENTED BY

Mark M. Stubley (Greenville)

Mark Codd, Director of Labor Relations Group, Publix Supermarkets, Inc.

Unconventional Organizing and Worker Centers: Beyond Labor Laws

2

• Largest employee-owned supermarket chain in the United States

• One of the 10 largest-volume supermarket chains in the United States

• 1,239 store locations

• 2018 retail sales of $36.1 billion

• Employee count of more than 205,000 (as of 12/19)

Publix

Coalition of Immokalee Workers

• Grassroots organization of mainly Latino, Mayan Indian, and Haitian immigrants working throughout Florida

• Founded in 1993 by Greg Asbed and Laura Germino

• Well funded 501(c)3

3

December 4–6, 2019 – Hilton Nashville DowntownLabor Law Solutions: Practical Solutions for Today’s Workplace

Coalition of Immokalee Workers

• Central issues include:

– “1 penny more per lb.”

– ½ cent for growers

– Right to organize

– An end to modern day slavery

– Employee grievance systems

– Employee safety committees at farms

Student Farmworker Alliance“Energy” of the campaign

4

Interfaith Action“Spiritual Conscience ” of the campaign

December 4–6, 2019 – Hilton Nashville DowntownLabor Law Solutions: Practical Solutions for Today’s Workplace

CIW Organizing Strategy

• CIW “never gives up”

• Divide the target from the rest of the industry

• Use of local supporters for pickets and protests

• Heavy social media usage

• CIW targets individual employees to marginalize their involvement

• CIW not adapted as easily to grocery industry

5

December 4–6, 2019 – Hilton Nashville DowntownLabor Law Solutions: Practical Solutions for Today’s Workplace

Campaign Tactics

• Letter, phone, email, social media campaigns to Corp, letter drops in stores

• Store picketing typically 35-50, as high as 1,500

• Large scale pickets in spring and fall

• Pray-ins by clergy inside stores and corporate

• Boycott threats

• Hunger strike on/just off premises

December 4–6, 2019 – Hilton Nashville DowntownLabor Law Solutions: Practical Solutions for Today’s Workplace

Campaign Tactics

• Letters to editor, journalist, college professor advocates

• Use of social media to influence online community– Employ social media specialists

– Tweets, posts on company Facebook page

– Monitor, antagonize staff online, personalize

• Satirize company icon: Ronald McDonald/BK’s King, Chipotle– Boot the Bell, Chipocracy Tour, Slavery Museum

• Challenge target’s CSR policy as hypocritical – To set up contractual agreement/transparency

6

7

“Food Chains”

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December 4–6, 2019 – Hilton Nashville DowntownLabor Law Solutions: Practical Solutions for Today’s Workplace

Picketing and Protests

• Pickets and protests focusing on wages and working conditions

– Dealing with?

– Iterative process?

– Objective is to raise the price of labor/goods?

– If not labor organizations, then not exempt from anti-trust laws

Worker Center

or Labor Organization?

9

• Labor Organizations by Another Name: The Worker Center Movement and its Evolution into Coverage under the NLRA and LMRDA, Stefan J. Marculewicz and Jennifer Thomas

• THE EMERGING ROLE OF WORKER CENTERS IN UNION ORGANIZING: A Strategic Assessment, Jarol B. Manheim, U.S. Chamber of Commerce, WFI

• THE EMERGING ROLE OF WORKER CENTERS IN UNION ORGANIZING: An Update and Supplement, Jarol B. Manheim, U.S. Chamber of Commerce, WFI

• THE NEW MODEL OF REPRESENTATION; AN OVERVIEW OF LEADING WORKER CENTERS, U.S. Chamber of Commerce, WFI

• Worker Centers: Organizing Communities at the Edge of the Dream, Janice Fine Cornell University ILR School

Resources

• Worker Centers: Emerging Labor Organizations - Until They Confront the National Labor Relations Act, David Rosenfeld, Berkeley Journal of Employment & Labor Law

• Worker centers: How unions circumvent federal rules, Rep. Francis Rooney, Washington Examiner

• Labor Front Group Shares Headquarters With Powerful Union, Bill McMorris, Washington Free Beacon

• Building A Movement Together: Worker Centers and Labor Union Affiliations Prepared by the UCLA Labor Center, Victor Narro, Saba Waheed, Jassmin Poyaoan

• Workers Centers Increasingly Are Forging Alliances with Unions, Tiffany Ten Eyck

Resources

10

• The Labor Department Needs To Scrutinize Unions’ “Worker Center” Loophole, Michael Saltsman, Forbes

• The Worker Center Movement and Traditional Labor Law: A Contextual Analysis, Eli Naduris-Weissman, Berkeley Journal of Employment & Labor Law

• Backhanded Compliment: Acosta Threatens Workers Centers, Sharon Block, On Labor

• Labor Department Looking Into Worker Center Scrutiny: Acosta, Ben Penn and Tyrone Richardson, From Labor & Employment on Bloomberg Law

• Labor Watchdog Wants Wendy’s Protesters Stripped of Tax-Exempt Status, Bill McMorris, Washington Free Beacon

• Lawsuit: “Worker Center” Stiffing Workers, Bill McMorris, Washington Free Beacon

Resources

1. “Power is not only what you have but what the enemy thinks you have.”

2. “Never go outside the expertise of your people.”

3. “Whenever possible go outside the expertise of the enemy.”

4. “Make the enemy live up to its own book of rules.”

5. “Ridicule is man’s most potent weapon.”

6. “A good tactic is one your people enjoy.”

7. “A tactic that drags on too long becomes a drag.”

8. “Keep the pressure on.”

9. “The threat is usually more terrifying than the thing itself.”

10. “The major premise for tactics is the development of operations that will maintain a constant pressure upon the opposition.”

11. “If you push a negative hard and deep enough it will break through into its counterside.”

12. “The price of a successful attack is a constructive alternative.”

13. “Pick the target, freeze it, personalize it, and polarize it.”

Saul Alinsky

11

Questions?

PRESENTED BY

Mark M. Stubley (Greenville)

Mark Codd, Director of Labor Relations Group, Publix Supermarkets, Inc.

Unconventional Organizing and Worker Centers: Beyond Labor Laws

Mark M. StubleyShareholder  ||  Greenville

Mark Stubley is a shareholder in the Greenville o�ce of Ogletree

Deakins. He has extensive legal and professional experience in

representing employers in labor and employment ma�ers. Mr. Stubley

has worked closely with clients in the construction, airline,

transportation, distribution, food processing, health care,

manufacturing and service industries. He is highly successful in

defending union organizing campaigns and in developing and

implementing preventive labor relations programs for clients

throughout the United States. Mr. Stubley also is a skilled labor

negotiator, advisor and litigator. He frequently speaks to groups on a

varie� of legal issues. Mr. Stubley is also the author of numerous

articles on current employment issues.

US News and World Report has recognized Mr. Stubley as a Best Lawyer

since ���� in the special� areas of Employment Law – Management;

Labor Law – Management; and Litigation – Labor and Employment. Best

Lawyers named him as Lawyer of the Year for ���� in the area of Labor

Law – Management. Mr. Stubley is also one of the Top ��� Labor

A�orneys in the United States as determined by Labor Relations, Inc.

�is honor placed him in the top �% of all labor a�orneys.

In ����, the Urban League of the Upstate, Inc. honored Mr. Stubley as

Volunteer of the Year. Mr. Stubley served as General Counsel and later

Chairman of the Urban League of the Upstate.