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Trump’s NLRB Just Quietly Ruled to Make Union Pickets Illegal

Friday, October 26th, 2018

An all-Republican panel of President Trump’s National Labor Relation Board (NLRB) recently ruled that janitors in San Francisco violated the law when they picketed in front of their workplace to win higher wages, better working conditions and freedom from sexual harassment in their workplace. The ruling could result in far-reaching restrictions on picketing that limit the ability of labor unions to put public pressure on management. 

The NLRB reached its conclusion by using the complex and convoluted employment structure created by the janitors’ employers. The janitors were technically employed by one company, Ortiz Janitorial Services, which was subcontracted by another company, Preferred Building Services, to work in the building of a third company.

This type of confusing employment relationship is increasingly common, resulting in workers being put in a position where it’s difficult to negotiate higher wages and better working conditions, or protect their basic employment rights.

The NLRB based its decision on a particularly onerous provision in federal labor law that prohibits employees from engaging in boycotts, pickets or other activities that are aimed at a secondary employer. The provision was added as part of the 1947 Taft-Hartley Act, taking away one of labor’s most powerful weapons.

In this case, the NLRB overturned an administrative law judge’s ruling that because the second company had significant control over the employment relationship, it constituted a joint employer. The judge based her conclusion on evidence that Preferred Building Services was involved in the hiring, firing, disciplining, supervision, direction of work, and other terms and conditions of the janitors’ employment with Ortiz Janitorial Services. Therefore, both Ortiz and Preferred acted as joint employers to the janitors.  

This matters because if the various companies were joint employers, there were no prohibited secondary activities. But the NLRB held that the janitors worked for the subcontractor, and any actions aimed at any other company was illegal under the law.

What is remarkable about this case is how it makes things much worse for workers by only subtly reinterpreting the law. It takes a narrow read on the joint employment doctrine and thereby limits workers’ right to picket. And, as a result, many workers in what former U.S. Department of Labor Wage and Hour Administrator David Weil has termed “the fissured workplace” will find it difficult to vindicate their rights. Ultimately, this case shows how many basic fundamental rights associated with the First Amendment workers are prohibited from engaging in.

At their picket line in San Francisco, the janitors held signs demanding a municipal minimum wage increase, complaints about the companies’ labor practices and demands to stop sexual harassment. If any person other than the janitors had engaged in such a picket, their activities would clearly be protected under the First Amendment. However, because the NLRB found that these janitors “engaged in picketing with a secondary object prohibited by Section 8(b)(4)(ii)(B)” of the NLRA, these workers had run afoul of the law.

In 1984, labor law scholar James Gray Pope used the imagery of a ladder to highlight the absurdity of how the law treats workers’ picketing and speech rights as compared to how the law treats these activities for everyone else. “On the ladder of First Amendment values,” Pope explained, “political speech occupies the top rung, commercial speech rests on the rung below, and labor speech is relegated to a ‘black hole’ beneath the ladder.”

The First Amendment “black hole” for labor rights has become more apparent with the Supreme Court’s Janus decision, which created an onerous free-speech carveout breaking with decades of precedent for how to treat public sector workers’ free speech.

Instead of following its longstanding rule holding that the First Amendment only applies when a public employee speaks as a citizen on a matter of public concern, the Court held that a single employee’s complaint about union was a matter of First Amendment concern. Although time will tell, it appears unlikely that the Supreme Court will extend such First Amendment protections to public employees in cases that would help, rather than hurt labor.

The NLRB’s recent case restricting the picketing rights of subcontractors, temps and other workers who do not have a single direct employment relationship is a further sign that the labor board will continue limiting its joint employer doctrine. This will make it more difficult or even impossible for many workers to have any meaningful voice in the workplace. But the case also highlights some of the core problems of labor law as it currently exists. By being included under the NLRA, workers lose basic rights that all other Americans enjoy.

In addition to pushing for the NLRB to prevent employers from evading liability through a complex web of subcontractors, labor needs to push their way out of the First Amendment black hole that workers have been in for over 70 years.

This article was originally published at In These Times on October 26, 2018. Reprinted with permission. 

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Trump Is Making It Harder for Low-Wage Workers to Organize, But This Fast Food Union Could Win

Wednesday, April 4th, 2018

Workers at a Burgerville in Portland, Oregon declared on March 26 that they will file for a federal union election. If union campaigners win, the restaurant will become the first federally recognized fast food union shop in the United States. The local effort, which has a significant chance of victory, offers a powerful antidote to the Trump administration’s aggressive anti-worker agenda.

This move comes after years of worker organizing as part of the Burgerville Workers Union (BVWU), which is an affiliate of the Industrial Workers of the World (IWW). The workers gave Burgerville 48 hours to voluntarily acknowledge the union, which management refused.

BVWU went public in 2016, seeking raises for hourly workers, affordable healthcare, a sustainable workplace and consistent scheduling. In addition to these demands, workers asked Burgerville to stop using the E-Verify system, which they say targets undocumented workers. E-Verify compares employee information with Department of Homeland Security and other federal records to confirm that people can legally work in the United States.

Today, six of the Washington-based company’s 42 stores have publicly active unions, and workers say they’ve been fighting union busting and resistance from management throughout the entire process.

In an interview with the website It’s Going Down, Luis Brennan, an employee at Burgerville’s Portland Airport location, alleged that the company retaliates against organizers by accusing them of minor infractions that wouldn’t otherwise be enforced. He told the story of two Burgerville workers who were recently let go. One of them was allegedly fired for putting a small amount of ice cream in his coffee. The other was allegedly fired for smelling like marijuana. According to Brennan, the latter worker never admitted to smoking marijuana and the company didn’t ask him to take a drug test. The employee, who is black, did have a medical prescription for marijuana because of his epilepsy. “They gave him a week’s suspension and then they fired him,” said Brennan. “He’s an active union supporter, and the combination of racism and anti-unionism in that is pretty transparent to everybody.”

Last year, Jordan Vaandering, a Burgerville-employee who had worked at the store’s Vancouver Plaza location for fourteen months, was allegedly fired for eating a 70-cent bagel without paying for it. Vaandering said a manager gave him the bagel during a paid-break and didn’t ask him for any money. While the bagel was the pretext for Vaandering’s termination, he believes he was let go because he was recruiting co-workers to join the BVWU.

Asked about the alleged retaliations earlier this year, the company released the following statement: “Burgerville does not comment on individual employee matters or internal company policies.”

Earlier this year, in response to management’s refusal to negotiate with the union and its alleged retaliation against organizers, BVWU called on consumers to boycott Burgerville. The boycott call came during a three-day strike that started at the company’s Northeast MLK Boulevard location before spreading to its Southeast Powell and 26th store, two locations in Portland.

Mark Medina, an employee at the Southeast Portland store and a member of BVWU, told In These Times that, while the union campaign has been active for more than 20, now is the perfect time to file for a union election. “It took a lot of work to get where we are right now,” said Medina. “This was all built from the ground up: no money, all volunteers. We’ve had major strikes and many shops, and now we’ll have more leverage during the process. Our level of organization is concrete now. It’s better.”

Burgerville workers’ call for a union election comes on the heels of a potentially major defeat for fast-food workers at the federal level. Trump’s National Labor Relations Board (NLRB) General Counsel Peter Robb recently negotiated a tentative settlement between McDonald’s and the NLRB over a landmark case pushed by the Service Employees International Union (SEIU)-backed Fight for $15 campaign that aimed to hold the company responsible for its individual franchises’ labor violations. The details of the tentative settlement, which is pending approval by an NLRB judge, remain undisclosed. But McDonald’s admits to no wrongdoing, and the settlement allows the company to avoid the “joint employer” designation that would allow groups like Fight for $15 to unionize fast food locations more effectively.

“In a real settlement, McDonald’s would take responsibility for illegally firing and harassing workers fighting to get off food stamps and out of poverty,” said Fight for $15 attorney Micah Wissinger.

“We think a union contract is just one tool to help build the working class we all deserve,” Chris Merkel, who works at the Convention Center Burgervillel, told In These Times, “The NLRB can change all the rules, but we still have to do the work on the floor and in our communities to get our basic needs met.”

Medina said he has “love and affection” for unions like the SEIU and campaigns like Fight for $15. “Fight for $15 is great,” said Medina, “I support raises, but a raise alone doesn’t empower workers to change their own lives and community.”

Despite the fact that the IWW is a rank-and-file union working independently from the bigger labor organizations, Medina said he’s been blown away by the support it has received in Portland. “You see the AFL-CIO at an IWW event,” he explained. “SEIU has turned out. Carpenters 503 has manned our picket lines. We’ve shown we’re here to stay and the community has shown so much support.”

After BVWU announced their call for the election, Burgerville’s Senior VP of Operations Beth Brewer released a statement: “Burgerville respects the right of every employee to support or not support the organization of a union. If there is enough support, we anticipate they will file a petition with the NLRB. Burgerville will abide by the NLRB’s decision and guidance.”

Medina told In These Times that he hopes the Burgerville efforts inspire others throughout the country. “You can organize fast food workers,” he said. “If you put in the effort to organize them, you can. Take what we did and replicate it.”

This article was originally published at In These Times on April 3, 2018. Reprinted with permission. 

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

Caution: Your Right to a Timely Vote May Be at Risk

Tuesday, April 3rd, 2018

Three years ago, the National Labor Relations Board took modest steps to streamline, modernize and improve the process by which workers petition for an election to vote on forming a union at work. The rules reduced unnecessary delay caused by management lawyers litigating issues in order to slow down elections and deprive workers of their right to vote.

Under the rules, workers get to vote two weeks sooner—the median time from petition to election is 23 days, compared with 38 days under the old rules. This shows that the goal of reducing unnecessary delay has been met.

Unfortunately, the U.S. Chamber of Commerce and other corporate interests have been campaigning to get rid of the rules, saying they are unfair to businesses. First they tried lawsuits—and lost, with the rules upheld in full by courts in Washington, D.C., and Texas. Then the Chamber and their allies tried to block the rules with legislative action, which has so far failed.

But now three Republican appointees to the NLRB are asking for public comments on whether the rules should be changed. The two Democratic appointees to the NLRB—Mark Gaston Pearce and Lauren McFerran—disagree, saying the rules have worked well and there is no reason to change them.

The NLRB is taking public comments until April 18 on whether it should change the 2014 rules. Add your voice to the growing chorus telling the NLRB to keep the rules.

This blog was published at the AFL-CIO on April 3, 2018. Reprinted with permission. 

Trump appointee's conflict of interest forces labor board to toss anti-worker ruling

Thursday, March 1st, 2018

A Trump appointee’s conflict of interest has bitten the Trump administration’s anti-worker agenda in the ass. The National Labor Relations Board has vacated its Hy-Branddecision after the agency’s inspector general said that board member William Emanuel should not have voted due to his conflict of interest.

Hy-Brand reversed an Obama-era decision which expanded rights for workers directly employed by staffing agencies or franchise owners—under Browning-Ferris, companies couldn’t escape responsibility for the workers in their factories or warehouses or restaurants just by making sure someone else signed the paychecks. If a company determined the terms and conditions of employment, it could be treated as a joint employer. That had major implications for the huge temp worker industry and for the heavily franchised fast food industry, too.

Emanuel voted on Hy-Brand despite his former law firm having been involved in the earlier case, and that vote and that conflict of interest proved a problem:

In a report issued Feb. 9, NLRB Inspector General David Berry said Emanuel should not have cast a vote overturning Browning-Ferris. While Hy-Brand involved different companies, Berry wrote that the way the NLRB handled it amounted to a “do over” in which the new case was “merely the vehicle” to reconsider the old one—which at the time was still pending in federal court. Berry said the issue revealed “a serious and flagrant problem and/or deficiency” in the NLRB’s handling of conflict-of-interest issues.

The order vacating Hy-Brand was issued by a 3-0 vote in which Emanuel didn’t participate, according to a statement Monday from the agency, which said the move was made “in light of the determination by the board’s designated agency ethics official that member Emanuel is, and should have been, disqualified from participating in this proceeding.”

“This is, so far as I’m aware, unprecedented,” said former NLRB chair William Gould IV, a professor emeritus at Stanford’s law school. “There is no decision on a matter of such high import that has been vacated based upon a breach of conflict-of-interest rules.”

Don’t doubt the determination of Trump appointees and the Trump administration generally to find ways to hurt workers—they’re likely to look for another chance at a do-over and the House has already passed a bill overturning Browning-Ferris—but it’s nice to see rampant corruption and conflicts of interest get in Team Trump’s way for a change.

This blog was originally published at Daily Kos on February 27, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at DailyKos.

Inside the Trump Administration’s Plan to Shrink the NLRB

Thursday, February 1st, 2018

Labor rights advocates are alarmed by a proposal to centralize more control of the National Labor Relations Board (NLRB) at the agency’s Washington, D.C., headquarters and shrink its network of regional offices. Widely viewed as another effort by appointees of President Donald Trump to reverse some union-friendly policies promoted by Obama appointees, the proposal is a step toward an even smaller role for the NLRB in protecting workers’ rights, these advocates charge.

News of the proposal leaked out to media outlets in mid-January, first to the Daily Labor Report and then to the The New York Times. The news reports focused on objections to the proposal by NLRB staff members at the agency’s 26 regional offices. Some of those staffers would be demoted, or lose their jobs entirely, if the proposal is implemented by NLRB General Counsel Peter B. Robb.

Trump appointee Robb “is a man in a big hurry” to remake the NLRB into an agency more responsive to the anti-union demands of conservative Republicans and business interests, says William B. Gould IV, a former NLRB chairman now teaching law at Stanford University. “He looks to be seizing control of the complaint process,” at the regional level, Gould tells In These Times. “That’s terribly important because it is the regional offices that are the great strength of the NLRB … The regional offices are where a union shop steward or a legal practitioner can go to have complaints handled in a professional way.”

Robb, appointed by Trump in September of last year and sworn in Nov. 17, comes to the post with strong anti-union credentials. As described by The New York Times, he was appointed “after a career largely spent representing management, including handling part of the Reagan administration’s litigation against the air traffic controllers’ union that waged an illegal strike in 1981. Most labor historians say the government’s hard line in firing the controllers contributed to organized labor’s decline…”

Robb’s proposal comes on the heels of recent decisions by the five-member board to roll back some Obama-era initiatives that favored unions. Those decisions were more explicitly political, coming after votes by board members in which Republican Party appointees narrowly prevailed over Democratic appointees. As general counsel to the agency, Robb is not a board member, but rather a White House appointee in charge of administering the day-to-day affairs of the agency under the general direction of the Board members.

According to Michael C. Duff, a professor at the University of Wyoming College of Law, the NLRB votes and the actions by Robb are “of a piece with the Trump agenda to downgrade the agency as a defender of labor rights as spelled in the National Labor Relations Act.” A former NLRB staff lawyer himself, Duff tells In These Timesthat “I don’t have a good feeling about what is going on. There is a sense that the agency is being hollowed out.”

“You get a sense that they [Republican appointees] are going to reverse everything,” in NLRB policy that is favorable to workers, Duff continues. As a former staffer who is still in regular contact with some of his NLRB colleagues, Duff says “the situation is probably more dramatic than it looks … [The trend] is essentially a repudiation of labor law as we know it.”

Part of the “hollowing out” process is cutting the budget of the agency. Daily Labor Report’s Laurence Dubé reported last year that a 6-percent proposed cut would mean the elimination of 275 jobs from the agency’s staff. The budget has not been finalized, but staff cuts are expected in the coming year, and may  continue throughout the Trump administration, predicts Duff.

Burt Pearlstone, president of the National Labor Relations Board Union, says the staff union has no comment on Robb’s proposal at this time. He tells In These Times that the executive committee of the staff union may take  up the issue at its next scheduled meeting, by may also wait until Robb’s proposals are more formalized

The staff union represents more than 700 NLRB employees in the regional offices and a second independent union, the National Labor Relations Board Professional Association (NLRBPA), represents many staff members at Washington, D.C., headquarters. No representative of the NLRMPA could be reached for comment.

Robb’s proposal to demote employees and consolidate regional offices was outlined in a conference call Jan. 11, in which Robb described the plan to NLRB mid-level administrators. According to Gould, the administrators were not provided with a written version of Robb’s proposal, but were alarmed enough to respond with a written objection that has been published by Daily Labor Report.

“As you can imagine, the information you provided to the Regional Directors has created much uncertainty and has disheartened us … It was unclear to us how many Districts you envision, how many Regional Offices would remain, how many Regional Directors would remain in that position, what the supervisory ratio would be, and when you envision removing Regional Directors from the Senior Executive Service … However, any anticipated changes must be thoughtfully considered so that the great work of the Agency remains. We would like to work with you in developing changes that would be appropriate to meet our challenges,” the NLRB staffers wrote.

“The NLRB has a lot of problems as an agency. The number of cases they handle is way down from when I started work at the Philadelphia regional office (in 1997), but there are still not enough people to handle the work load,” comments Duff.

“Pay freezes and government shut downs have an effect [on morale],” Duff continues. “From what I am hearing now, things are actually worse than you think.”

This article was originally published at In These Times on January 31, 2018. Reprinted with permission.
About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Trump NLRB Appointee Behind Major Anti-Union Ruling Accused of Corruption

Thursday, January 25th, 2018

An anti-union policy decision from President Donald Trump’s National Labor Relations Board (NLRB) appointees appears to be tainted by a violation of ethics standards, and Sen. Elizabeth Warren (D-Mass.) is joining unions in demanding answers.

The Trump policy decision came on December 14 when the NLRB reversed an Obama-era ruling in the Browning-Ferris case—a pro-worker decision from 2015 that has been loudly decried by business lobbyists and conservative Republicans. The case turned on the issue of how the NLRB would define the term “joint employer” in union organizing cases—and was broadly viewed as a blow to McDonald’s and other fast food companies that exploit the franchise business model as a tool to help defeat unions. Last month, the five-member NLRB voted 3-2 in the Hy-Brand Industrial Contractors case to reverse Browning-Ferris, with recent Trump appointee William J. Emanuel providing the margin of victory for the anti-union forces.

Emanuel now stands accused by Warren and others of violating ethical standards by voting on the case even though he appears to have a conflict of interest. The conflict is said to arise from Emanuel’s former status as part owner (or “shareholder”) of the labor law firm Littler Mendelson, a business that specializes in representing employers against their own workers. The firm represented a party in Browning-Ferris, so standard government ethics rules indicate Emanuel should have recused himself from voting, according to critics.

“It looks really bad,” says Susan Garea, a California attorney representing Teamsters Local 350. Emanuel’s violation of ethics rules taints the NLRB vote, she tells In These Times, so the decision in Hy-Brand Industrial should be voided, and the validity of Browning-Ferris evaluated in an atmosphere free of conflicts of interest. Garea detailed her charges in a Jan. 4 court filing in the U.S. Court of Appeals for the District of Columbia Circuit. “It’s clear Emanuel should not participate,” in any vote on Browning-Ferris, she says

The Teamsters have been fighting the case for years. In 2013, Local 350 tried to organize workers at a recycling center in Milpitas, Calif., that was owned and operated by Browning-Ferris. But the union found itself blocked by a legal strategy that asserted the workers were actually employees of an outside staffing agency, Garea explains. The union fought the case before the NLRB, prevailed with the Board’s 2015 pro-union decision, and has been working ever since to fend off legal attempts to overturn the ruling. Garea, of the law firm Beeson, Tayer & Bodine, proclaims the case is far from over and the union is intent on blocking Emanuel’s improper action.

Warren entered the picture when Trump nominated Emanuel for the NLRB in mid 2017. She opposed him from the start, arguing that a lawyer who has represented only bosses in a 40-year-plus legal career was a bad choice for the NLRB, which is supposed to be a fair arbiter of labor disputes. She demanded a commitment from Emanuel to recuse himself from NLRB cases involving a long list of former clients (which he agreed to do) and voted against him in the final confirmation on the Senate floor.

“Emanuel is the opposite of what Senator Warren would like to see in an NLRB member. His conflicts of interest are a mile long, and he spent decades fighting against workers’ efforts to join together and stand up for themselves,” Warren’s Deputy Press Secretary Saloni Sharma tells In These Times.

The Senate floor vote on Emanuel reflected the deep party-line divide over Trump’s nominations to the NLRB. All the Democratic Party senators present voted against Emanuel, and all the Republicans voted for him. AFL-CIO chief lobbyist Bill Samuel tells In These Times that Trump’s appointments to government labor posts have been strongly anti-union, but Emanuel is one of the most extreme. “We didn’t make a fight about Emanuel. We just didn’t have the votes,” he says. “But we are very much behind Sen. Warren in her efforts to hold them [the NLRB members] accountable.”

In a letter dated Dec. 21, Warren posed questions to Emanuel raising concerns about potential misconduct in the Hy-Brand vote. “Given that your former partners at Littler Mendelson P.C. represented a party in [Browning-Ferris] before the board, did you recuse yourself from the board’s decision to move to remand the [Browning-Ferris] case from the U.S. Court of Appeals for the D.C. Circuit back to the board? If not, why not?” she writes. The letter, also signed by several other top Congressional Democrats, requests that Emanuel commit to additional recusals from pending NLRB cases in the future.

An unsigned email message stated that Emanuel “respectfully declines” a telephone interview to discuss the Warren allegations. Messages left directly with Emanuel were not returned.

Sen. Warren and other congressional Democrats are awaiting a formal response to the questions before deciding on the next step against Emanuel. Meanwhile, the White House is expected to announce it is nominating Washington, D.C., management-side attorney John Ring to fill an open seat on the five-member NLRB, as former Chairman Philip Miscimarra’s term on the Board expired just days after the Hy-Brand decision.

This article was originally published at In These Times on January 23, 2018. Reprinted with permission. 

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Workers’ rights dealt major blow as GOP-led labor board sides with McDonald’s

Friday, January 19th, 2018

In September, the National Labor Relations Board tilted to a 3-2 GOP majority for the first time in ten years. Thus began a series of Obama-era policy reversals that previously strengthened worker protections.

By December, the NLRB overturned the Obama-era “Browning-Ferris” rule. The landmark rule had made it easier for employees to hold companies liable for labor violations committed by franchise owners or contractors. Before Browning-Ferris, a company needed to have direct and immediate control over their employees. Overturning the rule had implications for a 2014 case brought against McDonald’s, one of the biggest franchises in the country.

The Trump Labor Board Just Made It Harder for Fast-Food Workers to Hold Corporate Bosses Accountable

Wednesday, December 20th, 2017

On December 14, the National Labor Relations Board (NLRB) overturned a 2015 policy that had made it easier for workers—particularly fast-food workers—to unionize and challenge their employers over unfair labor practices.

The Obama-era standard sprung from a 2013 case involving workers attempting to unionize at a recycling plant in Milpitas, Calif. The recycling company, Browning-Ferris Industries, owned the building but used a small staffing agency called Leadpoint to provide and manage workers. The local Teamsters union was trying to organize the employees, but it didn’t want to merely negotiate with Leadpoint: It wanted Browning-Ferris to be considered a joint employer and party to any labor contract. A regional director determined that Leadpoint was the sole employer, but the Teamsters requested a review, and the NLRB’s general counsel sided with union in a 3-2 vote.

The vote was hailed by unions and labor advocates for making it more difficult for corporations to distance themselves from certain legal violations—and for strengthening the bargaining power of subcontracted gig-economy workers.

The Browning-Ferris decision was also good news for fast-food workers and organizations like Fight for $15. Most fast-food companies use a franchising model, and Browning-Ferris made it easier for workers to hold corporations responsible for wage theft and union busting at individual locations. In 2014, the NLRB’s general counsel had already ruled that the McDonald’s Corporation could be considered a joint employer in various labor cases brought against the company’s franchises. But Browning-Ferris provided an entirely new legal dimension to the proceedings.

The Browning-Ferris decision was predictably criticized by industry groups, which immediately launched an all-out assault on the new rule. International Franchise Association lobbyist Matt Haller declared that the decision was “a knife-to-the throat issue,” pro-business organizations pressured Congress to block its implementation in their subsequent spending bill, and Browning-Ferris Industries challenged the decision in a federal appeals court.

Industry nervousness ended up being alleviated by the surprising election of Donald Trump, who successfully tipped the NLRB back to a Republican majority in September—and has sought to overturn the labor victories which occurred under his predecessor. The Trump administration recently ended Obama’s extension of federal overtime pay, and it’s preparing to eradicate a 2011 rule which protects the tips of wait staff. All of Trump’s NLRB appointees were connected to anti-union policies at their previous positions, but the confirmation process was fast-tracked, and they easily made it through GOP-controlled Senate. In overturning the Browning-Ferris precedent, the board claimed that the 2015 decision was responsible for “upending decades of labor law precedent and probably centuries of precedent in corporate law.”

In a statement, National Employment Law Project executive director Christine Owens called the reversal “just one more example of the Trump Administration favoring corporations over working people.”

“In this economy, employers are increasingly subcontracting out vital parts of their business to other contractors and/or using temporary employment agencies to fill vital positions,” said Owens. “The Browning-Ferris decision recognized that in these arrangements, companies that contract out work may still retain control over the conditions and standards that govern the work and how the workers doing the jobs are treated … the Trump NLRB has decided to let them off the hook.”

While there is no evidence that Trump was directly involved in the case, we do know that one his companies was impacted by the 2015 decision. In May 2016, catering workers at the Trump National Doral golf resort in Florida won a $125,000 settlement after suing for unpaid wages. As a result of the joint-employer liability, the workers were able to hold Trump Miami Resort Management responsible, even though an outside staffing agency had hired them.

It is likely that the Trump administration will soon work to overturn a number of additional Obama-era NLRB decisions. To the surprise of many, the board ended up adapting to the complexities of a changing economy under Obama and forcefully asserted the rights of workers in a number of important votes. Recent NLRB decisions have given graduate students the right to unionize at private universities, increased the bargaining power of workers at charter schools and made it easier for smaller groups of workers to unionize at companies. However, the term of the NLRB’s Republican chairman, Philip A. Miscimarra, ended just days after the board’s vote. Trump will at least have to wait until the Senate confirms his next nominee and reestablishes the Republican majority before he’s able to undo any of these changes.

This article was originally published at In These Times on December 21, 2017. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

This Lawyer Helped Reagan Bust the Air Traffic Controllers Union. Now Trump Wants Him on the NLRB.

Friday, September 22nd, 2017

Former President Ronald Reagan had a long history of clashing with organized labor, but his most infamous moment came in 1981, when he busted the Professional Air Traffic Controllers Organization (PATCO) and fired more than 11,300 air traffic controllers who were on strike. This act weakened the power of U.S. unions and set the stage for an all-out assault on organizing rights.

Thirty-six years later, Reagan’s lead attorney in the air traffic controllers case is poised to make decisions about thousands of unfair labor practices throughout the country.

As anticipated, President Donald Trump has nominated the management-side labor attorney Peter Robb, of Downs Rachlin Martin in Vermont, to serve as general counsel for the National Labor Relations Board (NLRB). This is a four-year position, and the individual who holds it is responsible for investigating unfair labor practices. Obama administration general counsel Richard Griffin’s term expires this November and, if confirmed, Robb would take over the position.

In 1981, Robb filed unfair labor practice charges against PATCO on behalf of the Federal Labor Relations Authority (FLRA) after a court ruled that the air traffic controllers’ strike was illegal. The FLRA case led to the decertification of PATCO, and Reagan subsequently banned most striking workers from federal service for their rest of their lives.

Reagan’s move set a new precedent for employers, emboldening them to attack labor more openly. In an interview with The Real News Networkfrom 2014, Joseph McCartin, Georgetown history professor and author of Collision Course: Ronald Reagan, the Air Traffic Controllers, and the Strike that Changed Americaexplained the long-term impact. “When Ronald Reagan replaced the air traffic controllers [in] 1981, it was still not common for American employers in the private sector to deal with strikes by trying to break them and by permanently replacing workers who’d gone out on strike,” said McCartin, “Employers saw that Reagan was able to do this and, in effect, get away with it. Many private-sector employers took a similarly hard line when workers went out on strike in the private sector.”

Robb’s connections to union busting certainly don’t end with the landmark PATCO case. In 2014, he was hired by the Dominion Nuclear power plant when the International Brotherhood of Electrical Workers (IBEW) began organizing workers. The Downs Rachlin Martin website contains a blurb boasting that Robb “represented a major national corporation in a National Labor Relations Board representation case proceeding, which had 34-days of hearing over 3 months to resolve 80 contested classifications covering hundreds of employees.”

In an interview this September, John Fernandes, a business manager for IBEW Local 457, told Bloomberg BNA that Robb represented used “scorched earth” tactics to thwart the organizing efforts. Fernandes says the plant added workers to the proposed unit in order to water down the union vote and sent videos of managers explaining the dangers of unionizing to the homes of employees. Ultimately, the plant was able to add more than 150 workers to the original petition and defeat the organizing drive.

“[Robb] handled most of the direct examinations, and his witnesses were well-schooled in advance—he’d ask one question and they’d go on forever,” Fernandes told Bloomberg BNA. “I was at a disadvantage, not being an attorney, but [the legal fees] would’ve been overwhelming for our local to pay … we certainly viewed it as union busting—it was a very long case.”

Robb also has previous connections to the NLRB. He worked as an NLRB field attorney in Baltimore during the late 1970s. He returned to the agency in 1982 as a staff lawyer and chief counsel for former member Robert Hunter. As a Republican, Hunter was an important ally to then-Chairman Donald Dotson, a staunchly anti-union member. In 1985, Rep. Barney Frank (D-Mass.) told The Washington Post that Hunter had been the, “most loyal supporter of Donald Dotson in the transformation of the NLRB into a fundamentally anti-union entity.”

More recently, Robb’s firm harshly criticized the Obama-era NLRB, as captured in a slideshow compiled by Robb and Downs Rachlin attorney Timothy Copeland Jr. The presentation took aim at some of the pro-labor positions made by the NLRB under the previous administration. “The [Democratic] NLRB majority continues to narrowly define NLRB supervisory status, sometimes defying all common sense,” one slide reads. New Republican members are “likely to agree that the Obama board went too far,” the slideshow explained.

One of the decisions that Robb objects to is a 2014 rule that cuts back the amount of time between the filing of a unionization petition and the union vote to 11 days. The GOP has been attempting to extend the number of days to at least 35. This move would give businesses more time to construct a plan to stomp out union activity, like the aforementioned Dominion Nuclear strategy.

“The NLRB has made it clear that the intent of the new regulations is to run an election as quickly as possible which, of course, will give the employer the shortest period of time to respond to a union election petition,” Robb and three other Downs Rachlin lawyers wrote in a 2015 advisory.

The Trump administration has already quietly laid the groundwork for the NLRB to emerge as a much more business-friendly entity. This reality was underscored in August, when Labor Secretary Alexander Acosta announced that Ronald Reagan would be inducted into the department’s hall of fame. Trump’s previous NLRB nominees all have connections to union-busting, and the expected nomination of Robb would effectively make the NLRB—responsible for enforcing labor law—an anti-labor agency.

This article was originally published at In These Times on September 21, 2017. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

Trump is about to make America much crueler to unionized workers

Wednesday, August 2nd, 2017

Since Election Day, unions have lived on borrowed time. The National Labor Relations Board (NLRB), which has exclusive authority over many key questions of labor law, is still controlled by Democrats?—?thus shielding workers and their unions from attacks that became far likelier the moment Donald Trump was declared the winner of the 2016 election.

But this period of interregnum is about to end. Senate Majority Leader Mitch McConnell (R-KY) began the process of confirming the first of Trump’s two nominees to the NLRB on Monday. When both nominees sit on the Board, a swift rollback of union rights is likely.

As soon as this week, the Senate is likely to vote on Marvin Kaplan, the first of these two nominees. A former GOP Hill staffer, Kaplan drafted legislation—strongly supported by business lobby groups—which would have made it easier for employers to fight unionization campaigns.

Trump’s other nominee, William Emanuel, is a veteran management-side lawyer who touts his “particular expertise with laws concerning union access to the private property of employers.” He’s also filed briefs in three cases claiming that employers can force workers to waive their right to bring class actions and similar lawsuits.

The NLRB is an unusual agency that functions very much like a judicial body. It is the only agency that can enforce certain portions of federal labor law, which protects the right to unionize, to engage in collective action within the workplace, and to have one’s employer actually bargain with a union in good faith.

While the NLRB employs lawyers who investigate and prosecute certain violations of labor law, the board members themselves function much like judges?—?sitting on individual cases and handing down precedential opinions interpreting the rights of workers, unions, and employers.

In recent years, however, the Board has grown increasingly partisan. By design, it has five board members, and three of those seats are typically controlled by the party that also controls the White House. For this reason, the Board’s understanding of labor law often lurches to the left and then to the right as control of the presidency changes hands.

During the second Bush administration, for example, the NLRB determined that workers with fairly minimal authority over their co-workers count as “supervisors” under federal labor law?—?and thus do not enjoy a legal right to unionize. The Board’s current Democratic majority, by contrast, appears much less eager to strip employees’ collective bargaining rights by declaring them “supervisors.”

Yet, while partisanship has shaped the NLRB’s decisions for quite a while, if Kaplan and Emanuel are confirmed, the Board will have a Republican majority for the first time in the post-Tea Party, take-no-prisoners era of GOP politics that began shortly after the Obamas moved into the White House.

The new majority on the board is likely to confront, and possibly reverse, a number of Obama-era decisions on important matters such as whether graduate students with significant work responsibilities should be allowed to unionize.

But the GOP’s recent approach to unions suggests that the party will not be satisfied with simply rolling back union rights to where they stood in the Bush era. Last year, the Supreme Court came within a hair of defunding many public sector unions based on an aggressive reading of the First Amendment?—?the suit failed only due to Justice Antonin Scalia’s death, and a similar suit is likely to prevail soon now that Neil Gorsuch occupies Scalia’s seat.

Republican governors like Scott Walker crusaded against unions in their states. Senate Republicans even attempted to shut down the NLRB entirely during the Obama presidency?—?an action that would have rendered much of federal labor law unenforceable?—?by refusing to fill vacancies on the Board.

It is likely, in other words, that the NLRB’s incoming majority will push much harder against the right to organize than even President Bush’s appointees to the Board. They are creatures of a very different era.

This blog was originally published at ThinkProgress on August 2, 2017. Reprinted with permission.
About the Author: Ian Millhiser is Justice Editor for ThinkProgress and author of Injustices: SCOTUS’ History of Comforting the Comfortable and Afflicting the Afflicted. 
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