Werner Enterprises’ ECM unit is battling unionization efforts on two fronts, one of which may be impacted by a recent legal precedent that observers say could boost union representation efforts.
While fewer than 50 workers are involved in the unionization push at ECM, one group of employees has already chosen to be represented by a union, a campaign that ultimately brought Werner CEO Derek Leathers into the fray with a personal visit to New Jersey.
That campaign resulted last year in approximately 25 workers at ECM units at three New Jersey facilities — Cinnaminson, Hamilton and Piscataway — voting to be organized by the United Food and Commercial Workers (UFCW) union. It was that effort that spurred Leathers to travel to New Jersey to meet the workers, even though the size of the potential union was a drop in the bucket of the transportation and logistics company’s total workforce of more than 13,800, per the company’s 10-K report to the Securities and Exchange Commission.
Negotiations to turn that successful union vote into a contract — not always a guarantee — are progressing, according to Mike Thompson, vice president and director of organizing at UFCW Local 152.
Talks in New Jersey moving forward
Thompson, in an email to FreightWaves, said negotiations “could always go a little faster, but there has been fairly decent movement on both sides and we’re close to completing the non-economic part of the [collective bargaining agreement]. I’ve been in worse negotiations. Time will tell.”
Shortly after the unionization vote, the union filed an unfair labor practices claim with the National Labor Relations Board against Werner (NASDAQ: WERN). But NLRB records say the complaint was withdrawn in May, which a Werner spokeswoman confirmed.
A potentially more signifcant battle is brewing over unionization of 16 employees at an ECM facility in Erie, Pennsylvania. That effort could be impacted by the so-called Cemex decision. That NLRB decision from last year is seen as giving the agency power to order union recognition under certain circumstances even if a unionization vote failed with the rank and file.
The dispute in Erie goes back to last year. Unlike in New Jersey, the Teamsters union, not the UFCW, is seeking to organize the workers.
Among other developments, the standoff involved the dismissal of four workers who the union charges were let go because of their organizing activities. Werner denies that claim.
But Teamsters Local 397 filed a pair of complaints — later consolidated into one filing — with the NLRB against Werner, charging the company with various labor violations. The combined complaint is to be heard by the agency Dec. 9.
Card check in favor of a union
There has not been an election at ECM’s Erie facility. Rather, there was a “card check” drive in which, according to the union’s NLRB filing, a majority of the workers signed and submitted a card that declared they favored Teamsters representation. The complaint says the card submissions were made Sept. 22, and since then, “the union has been the exclusive collective-bargaining representative of the unit.”
But Werner, according to the complaint, “has failed and refused to recognize and bargain with the union as the exclusive collective-bargaining representative.”
Card check is controversial. Critics say it effectively eliminates a secret ballot, because if a worker doesn’t sign and submit a card, it’s a publicly known “no” vote on unionization that could invite harassment from pro-union forces.
The possible impact of the Cemex rule at NLRB
Aaron Vance, an employment attorney with the law firm of Barnes & Thornburgh, said card check has “been around for a long time” but that its use has accelerated since the Cemex decision.
“Prior to Cemex, employers could simply refuse to accept a demand for recognition even with evidence of a majority support of a union,” Vance said in an email to FreightWaves. “And upon doing so, no further action was required by the employer. Moreover, the employer’s refusal to recognize the union would not violate the National Labor Relations Act. So, while it never really went away ‘card checking’ is back in full force under Cemex’s new demand for recognition framework.”
Werner’s relatively standard response to the union’s NLRB complaint simply states it disagrees with or denies most union claims. Additionally, the Werner spokeswoman issued this statement to FreightWaves: “ECM denies the allegations of the Union’s charges in Erie, and we look forward to presenting our evidence at the NLRB hearing set for December 9.”
Where a battle over unionizing the 16 workers could become a much bigger deal is if the NLRB acceded to the union’s request that it turn to the Cemex decision and impose a bargaining unit on the basis of Werner’s ignoring the card check results and other steps it views as anti-union.
In a review of the Cemex decision handed down by the NLRB last August, Nicolas Ball of the law firm of Barren Liebman noted in an American Bar Association blog post that truck drivers at Cemex Construction Materials had narrowly rejected a Teamsters unionization effort.
But a complaint submitted by the Teamsters about Cemex’s actions during the election campaign resulted in the NLRB issuing what Ball called a “remedial affirmative bargaining order.”
“The NLRB effectively ruled that, by committing unfair labor practices in the course of the election, the employer had so polluted the representation process that the union should automatically be found to have attained a majority of votes,” Ball wrote.
The NLRB could order another election at ECM in Erie or allow union representation based on the results of the card check drive, Vance said. The latter is more likely, he added.
“My best guess is that the Board will proceed under Cemex as compared to ordering an election,” Vance said. “This will obviously turn upon whether the Board finds that an unfair labor practice has been committed and a bargaining order is warranted in their view.”
Ties to another possible trucking case involving Cemex
The Werner/ECM complaint with the NLRB is believed to be the second trucking-related action before the agency involving a union seeking what amounts to imposition of union representation on the basis of the Cemex precedent. A Virginia carrier, Garten Trucking, beat back a unionization vote by the Western Pulp and Paper Workers (WPPW). But as with the Werner/ECM case in Erie, the WPPW alleges a long list of labor law violations that it says should result in a “Cemex order” installing the union.
The Teamsters’ NLRB action against Werner/ECM alleges several incidents that it says could meet the standards for a Cemex declaration. Besides the dismissal of the four Erie employees, the union says ECM managers “interrogated employees about their union membership; promised its employees they would receive increased benefits and improved terms and conditions of employment if they refrained from union organizational activity; promised employees increased hours; implied that employee selection of the union as their collective bargaining representative would make the Erie Terminal a bad location.”
ECM has been described as a “one-way” truckload carrier operating mostly in the Northeast. Given the diffuse geographic footprint of most truckload carriers, unionization in that sector can be difficult to achieve. But ECM, with its network of terminals where drivers interact, has a geographic distribution of employees more akin to less-than-truckload carriers, which are more susceptible to being unionized.
Werner acquired 80% of ECM in 2021 with the right to acquire the remaining fifth of the company by 2026. It is part of Werner’s Truckload Transportation Services unit.
At the time of the acquisition, Werner said ECM’s revenue was $108 million, with an operating margin of 19.8%.
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