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#MeToo Hits Fast Food: Why McDonald’s Workers Are Out on a Historic Strike Today

Wednesday, September 19th, 2018

Workers at McDonald’s are set to walk out of work today in ten U.S. cities: Chicago, St. Louis, Durham, Kansas City, Los Angeles, Miami, Milwaukee, New Orleans, Orlando and San Francisco.

While a string of fast food strikes has hit chains in recent years, this time workers aren’t walking out for higher wages, but for respect and freedom from harassment in an industry known for rampant abuse.

In the non-unionized fast food industry, marked by high turnover, low wages, and poor to non-existent benefits, sexual harassment is endemic. A recent study of fast food restaurants such as Taco Bell and McDonald’s found that 40 percent of workers reported experiencing sexual harassment at work. A full 60 percent of the women who reported multiple occurrences of harassment said they felt pressure to accept the abuse because they could not afford to quit their job.

McDonald’s has faced a slew of lawsuits related to sexual harassment in recent years. In October 2016, Fight for $15, the group advocating for minimum-wage increases in the service sector, filed 15 sexual harassment claims with the Equal Employment Opportunity Commission, accusing the McDonalds corporation and franchisees of failing to protect—and sometimes retaliating against—workers reporting harassment.

According to the National Women’s Law Center, an organization supporting the striking workers, McDonald’s management routinely “initiated or disregarded” instances of sexual harassment. Among the incidents reported by the Center: A 15-year-old cashier in St. Louis who was asked by an older male employee: “Have you ever had white chocolate inside you?” When the 15-year-old reported the harassment to her manager, she was told, “you will never win that battle.” In New Orleans, a female worker complained about a co-worker groping her, to which her manager responded that she should “take it to the next level” with him. This same worker also endured an attempted sexual assault, which she did not report because of her past experiences.

“By funding the legal representation in these cases, we hope to help ensure that these charges will be a catalyst for significant change,” Sharyn Tejani, Director of the TIME’S UP Legal Defense Fund, said in a statement. “Few women working in low-wage jobs have the means or the financial security to challenge sexual harassment. As shown by these charges and thousands of intakes we have received at the Fund from women in every industry, those who report their abuse are often fired, demoted or mocked—and since nothing is done to stop the harassment, nothing changes.”

The TIME’S UP Legal Defense Fund is the latest example of the #MeToo movement’s solidarity with low-wage workers. The Fund, which arose as a response to the sexual harassment faced by women in Hollywood, has now amassed over 200 volunteer lawyers, and has pledged to support “the factory worker, the waitress, the teacher, the office worker.” The organization was also led to this cross-class alliance in part by expressions of solidarity from workers across sectors, including a letter signed by 700,000 female farmworkers associated with the Alianza Nacional de Campesinas, and a 2017 “Take Back the Workplace” march in Los Angeles.

The strike is historic. While labor organizing campaigns have often made sexual harassment a focal point, this strike marks the first multi-state action devoted solely to the issue. 

Workers organizing against sexual harassment at McDonald’s can draw from a long tradition. In the 1830s, one of the first labor struggles in the early phases of American industrialization centered around addressing the sexual harassment and assault faced by female mill workers in Lowell, Massachusetts.

In one of the first efforts to organize workers at a restaurant chain, the Hotel Employees and Restaurant Employees International Union (HERE) launched a six-year campaign during the 1960s to organize Playboy Bunnies. The campaign centered around combating the sexist workplace of the Playboy Clubs, an environment rooted in Hugh Hefner’s ethos that “women should be obscene and not heard.”

In the book Feminism Unfinished, Dorothy Sue Cobble writes that tenacious HERE organizer Myra Wolfgang told reporters the Bunnies would “bite back” against Playboy’s sexist working conditions.  And that’s just what they did. According to Cobble, management ultimately agreed to a “national contract promising to pay wages to Bunnies (previously the women relied solely on tips) and allow Bunnies more discretion over uniform design, customer interactions, and company appearance standards.”

While historically unions have (albeit sometimes unsuccessfully) been a bulwark against sexual harassment, fast-food empires like McDonald’s have always been closed off to unions. Without the protection of a union, fast food workers are particularly vulnerable to harassment. But, according to sexual harassment expert Lin Farley, the equation can also be reversed: Harassment can be a tool to prevent unionization and collective worker struggle. “You have fast-food managers systematically using sexual harassment to keep turnover high, so they don’t have to unionize, they don’t have to give higher wages,” Farley told On the Media.

That might be changing, however. With a more class-conscious #MeToo movement, a wave of militant teachers’ strikes, anti-sexual harassment campaigns and strikes in the majority female hotel industry, it’s clear that women are fed up with abuse in the workplace. The McDonald’s strike shows that this increased organizing may soon translate into more wins for labor in the most exploited sectors like the fast food industry, where class struggle is now on the menu.

This article was originally published at In These Times on September 18, 2018. Reprinted with permission. 

About the Author: Rachel Johnson is a writer based in Chicago. She holds a master’s degree in U.S. history from Northwestern University.

The Fight Against Racism Starts in the Union

Thursday, September 6th, 2018

“In your union or workplace, what’s a situation where you’ve observed or experienced racism?” That’s the first question we ask people to discuss, in groups of three, as part of a Race and Labor training that our state labor council has offered for 29 local unions and labor councils so far in Washington state.

Some stories are dramatic, like the member of color who was threatened with physical violence after winning union office. Other are more subtle, the kind of incidents that can weigh on you when they’re repeated over and over. A Black union staffer often interacts with members by phone or email; when she later meets them in person, she is told, “Oh, you’re not how I pictured you.”

After one or two people share powerful stories, other hands start shooting into the air.

This workshop isn’t simply a diversity training. It’s designed to look at the history of racism in our country and in our labor movement. We talk about how racism shows up in our workplaces, our family and community life, and even our unions; how racial categories historically have served the interests of employers; and how divide-and-conquer hampers organizing today.

Once we’ve accepted those truths, the next question is, what can leaders do to change them? The workshop is very practical. We want folks to leave with real ideas for what they can do.

Participants brainstorm solutions in four areas: bargaining, organizing, union culture, and community connections. We also discuss how to answer union sisters and brothers who aren’t convinced racial justice has anything to do with union politics. One small-group activity is to write a persuasive speech you might give to your executive board.

People leave feeling hopeful. One older gentleman told me he’d been through a number of diversity and racial equity workshops, but this was the only one that made him feel he could do something about it. Another person said she’d been afraid even to talk about racism, for fear of saying the wrong thing. Now she knew how to start.

How we started

Our state isn’t very diverse—and its labor leaders are even less so. Out of 15 central labor councils in Washington, only one has a principal officer who is a person of color. Only a handful of the 600 affiliate union locals do, either.

The project started with a resolution that passed our convention in 2015. It called on the state labor council president to take up AFL-CIO President Trumka’s call to have “a serious and open-ended conversation about what we can do, about what we should do” about race and the labor movement.

The resolution made clear that we should discuss how racism affects not just our individual beliefs, but also the policies and practices that shape our unions. For instance, who gets into the union—is it tough unless your father or uncle was a member? Who is considered for leadership roles?

A special committee convened in 2016. With the help of longtime labor activist Bill Fletcher and our state’s Labor Education Research Center, the committee developed a seven-hour Race and Labor workshop.

Get leaders on board

Some of our largest affiliates have sent leaders and staff through the training, including Food and Commercial Workers (UFCW) Local 21, the state AFSCME federation, and the state Teachers (AFT).

It’s not easy to sell a seven-hour workshop to union officers. But we ask them to resist the urge to modify the workshop to fit a 90-minute conference schedule. Real conversations take time.

Some leaders have a natural inclination to stick to lunchbox issues: wages, benefits, and working conditions. But here’s one argument why this topic matters to a union’s self-interest: Before the Janus decision, a large public sector union did a national member survey. It found that union favorability was the highest among African American workers—but also that, given the opportunity, they were the most likely to leave the union.

To me that suggests that many African-American workers recognize the value of the labor movement, but don’t see a place for themselves in our institutions. I suspect other people of color may feel the same way.

It’s personal for me. As I often tell people, it was my mom’s union job that got us off welfare and gave her the dignity that comes from being able to pay bills and provide for your family. So I believe in the labor movement. I know what a difference it can make. If we continue not addressing racism, we create a weakness in our movement. I don’t want to let that happen.

Goal: 100 percent

In 2017 we offered our first two-day train-the-trainer workshops with 100 union leaders and staff. We did it twice more this spring.

The first day, participants go through the Race and Labor workshop. We ask union principal officers to attend this first day, so that they “buy in” to the process. The second day, principal officers may leave, while the facilitators assigned from their locals (usually union staffers) stick around to learn the curriculum, including the goals of each section, and to discuss how adults learn.

Labor council delegates passed our Race and Labor 2.0 resolution in 2017, moving into wider implementation. They set ambitious goals—by the end of 2018, half our union affiliates’ executive board and staff members should have attended the workshop; by 2019, threequarters; and by 2020, all of them.

They also resolved that we should train 30 “certified trainers” ready to take the workshop around the state. We’re developing that training now.

The next step is a Race and Labor summit in September. We’ll be bringing together 100 young workers of color plus allies to develop a toolkit that might include contract language, sample policies, and plans for additional training. We’ll ask, “If we didn’t have to deal with institutional racism in our movement, what would that look like—and how do we get there?”

This article was originally published at In These Times on September 5, 2018. Reprinted with permission.

About the Author: April Sims is the political and strategic campaigns director of the Washington State Labor Council. She presented a version of the Race and Labor workshop at the 2018 Labor Notes Conference.

Why the Thrillist strike is so important for digital media unions

Thursday, August 16th, 2018

Workers at Thrillist, a website that covers travel, culture, and food, went on the first known work stoppage at a digital media publication this week. Thrillist’s unionized staff voted to authorize a strike “should we not make sufficient progress at the table.”

On Monday, workers overwhelmingly voted in favor of going on strike, at 91 percent of union members, and they did not report to work. Workers were back on the job on Tuesday but are ready for another work stoppage if necessary.

On Monday, Thrillist workers said their Slack accounts and emails had been deactivated and one worker said their card to get into the building would not work. An hour and a half later, staff had their Slack and email reactivated, according to Splinter.

Thrillist workers voted to unionize last year and are still trying to negotiate a contract with the publication’s parent company, Group Nine Media.

Thrillist staffers said in statement that “livable salary minimums and fair annual increases” are at issue and that Group Nine Media has only put “scant, inadequate economic terms” on the table in response.

In February of last year, workers said that reasons for unionizing included increasing diversity of staff, having “common-sense standards for judging performance,” and more transparency about job responsibilities. Writers Guild of America, East is its collective bargaining representative. The publication had over 80 percent of its writers, editors, and social media staff sign cards choosing Writers Guild of America, East.

But Group Nine Media has resisted unionization efforts, with its founder and CEO Ben Lerer saying he is concerned about “the effect the union would have on our unique culture,” according to Deadspin and made some statements about union contracts that were just plain false. Lerer described unions as necessary for some industries and businesses but suggested that it did not make sense for workers at Thrillist or in journalism, with the “new types of personal career growth that we traditionally have.”

Talking about a “unique” culture and how a particular industry may not benefit from unionization is par for the course for anti-union rhetoric, including in journalism.

Last year, Slate Group Chairman Jacob Weisberg wrote that Slate’s “flexibility and fluidity” would be hampered by unionization, according to Splinter. He added that a union is “filled with bureaucracy and procedure,” and “That world is just not Slate-y….A union fosters a culture of opposition, which is antithetical to our way of doing things.”

Vox Media’s publisher, Melissa Bell, wrote a letter last year in response to unionization at Vox Media. Bell wrote, “… we are still in a precarious industry, and we want to ensure that our business remains strong and competitive by maintaining the flexibility necessary to adapt and innovate. Doing so is imperative to our ability to provide jobs and career paths to employees.”

Last year, BuzzFeed CEO Jonah Peretti responded to a question about unions in a companywide meeting. He said he is not against unions personally but does not believe that unionization is right for BuzzFeed, BuzzFeed News media and politics reporter Steven Perlberg tweeted at the time.

But many journalists and other media professionals have decided to unionize precisely because they work in a precarious industry. Journalists are concerned about low pay and long hours and mass layoffs.

Nastaran Mohit, organizing director of the NewsGuild of New York, told Columbia Journalism Review, “Looking at previously non-union digital publications, I think younger journalists recognize the instability and precarity of the industry, and they see the value of coming together to secure a seat at the table.”

Group Nine Media hired Proskauer Rose LLP, a law firm with 13 offices that represents major sports organizations and had 14 of its lawyers named in a 2018 guide on the top 100 “leading corporate, defense-side employment lawyers.”

A number of digital media outlets began unionization efforts in the past few years, including ThinkProgress, The Intercept, Vice Media, HuffPost, MTV News, The New Yorker, Salon, Los Angeles Times, Jacobin, Fast Company, Mic, The New Yorker, and Gawker, which is now defunct.

Fast Company’s union announced plans to unionize in June and was recognized at the end of July. The New Yorker staff had a similar timeline. It announced plans to unionize in June and and received recognition in July. CNN reported that in their letter to management, New Yorker staff said, “Salaries often vary significantly among people who hold the same position, and we have seen a steady stream of our colleagues leave for jobs that provide more tenable wages. Some of us have worked for years as subcontracted employees, without health insurance and other basic benefits, though we do the same jobs as the staff members who sit beside us.”

In June, Slate staffers said management insisted on an open shop so that union members can decide not to pay union dues and that 94 percent of the unit had signed onto a letter opposing an open shop. Unlike in the cases of The New Yorker and Fast Company, Slate took a lot longer to recognize the union: 10 months.

Thrillist workers said they decided on a work stoppage and called a meeting to authorize a strike now because, after a series of negotiations in July, Group Nine Media appeared to be dragging its feet in negotiations and workers were losing patience. There is a bargaining meeting set for September.

This article was originally published at ThinkProgress on August 15, 2018. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

Brett Kavanaugh dissent shows how far he'll go to side with the boss over workers

Wednesday, August 15th, 2018

It’s starting to look like a requirement of being nominated to the Supreme Court by Donald Trump is having at least one gratuitously, ludicrously anti-worker dissent in your record. Neil Gorsuch had the frozen trucker, and as for Brett Kavanaugh, Dave Jamieson offers a candidate. Kavanaugh was the lone dissenter on a case in which a company was found to have created a spin-off company solely for the purpose of busting its union.

In the case, Island Architectural Woodwork, a unionized company, created Verde Demountable Partitions, which was non-union. Verde operated from an Island-owned building, used the same equipment, and was run by the daughter of Island’s chief executive. It was a thin fiction:

According to court filings, Island provided Verde with free equipment and rent but didn’t even bother to document its dealings with the supposedly separate company until after it was subpoenaed.  

As the appellate court later noted, “Island made no formal valuations of its assets before handing them off to Verde” ? an unusual move if the two companies were disconnected as they claimed.

On top of all that, Island’s president, Edward Rufrano, tried to make it a condition of a new contract for Island’s workers that their union sign away its right to organize the Verde workers. But to Kavanaugh, this wasn’t enough to show that Verde existed to avoid worker organizing:

“The Board … seems to have found something shady in the fact that Verde was started and primarily owned by two daughters of Island’s primary owner,” Kavanaugh wrote, making it clear he saw no such shadiness.

What would make Kavanaugh see something done by a business owner as shady? 

This blog was originally published at DailyKos on August 15, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

Trump's NLRB Is Back in Action After Its Ethics Scandal. And It's Not Good for Workers

Tuesday, August 14th, 2018

The Trump-dominated National Labor Relations Board has been mostly quiet this summer, largely as the result of an ethics scandal that has tainted some of its earlier anti-union work. But NLRB initiatives are quietly underway to restart attacks on labor rights, including an effort disclosed August 1 that could restrict how workers can use email on the job.

The ethics scandal, in which Board member William Emanuel was judged to have violated a pledge not to vote in cases involving his former law firm, prompted the agency’s chairman to order an internal review. The “ethics and recusal requirements” review has been underway since early June.

Both Emanuel and Board Chairman John Ring are Trump appointees, approved by narrow margins in the U.S. Senate over united opposition from union-friendly Democrats. One of those Democrats, Sen. Elizabeth Warren of Massachusetts, has been an especially harsh critic of Trump’s NLRB appointees. One of her associates, who requested anonymity, tells In These Times that Senate Democrats are skeptical about Ring’s review. “It looks to me like a public relations dodge,” he says. 

Warren’s assistant press secretary told In These Times over email, “Any attempt to weaken the ethics standard…would be a betrayal of the working Americans the NLRB is meant to serve.”

Ring can expect close scrutiny of the ethics review, but is nevertheless moving forward with the Trump agenda to roll back pro-worker decisions issued by the labor board when it was controlled by Democrats during the Obama administration. In the latest example, the NLRB announced on August 1 that it intends to re-examine the 2014 Purple Communications case that upheld the limited right of workers to use workplace email systems for union-related communications.

According to an official statement, “the National Labor Relations Board invites the filing of briefs on whether the Board should adhere to, modify, or overrule Purple Communications, Inc., 361 NLRB 1050 (2014).” In Purple Communications, the Board ruled that workers have a limited right to use the email systems provided by their employers to promote union activities, even if the employer opposed the union. 

Going beyond email, Ring indicated the NLRB wants to re-examine existing rules on the use of all “employer-owned computer resources.” 

Ring telegraphed the expected outcome of the re-examination of Purple Communications by reporting that the decision to move ahead was approved by a narrow 3-2 vote of the five-member board. The split in the vote was strictly along partisan lines, with the three Trump Republicans (Ring, Emanuel and Marvin Kaplan) voting to go forward and the two Obama Democrats (Mark Pearce and Lauren McFerran) opposed. The two Democrats actually were both NLRB members back in 2014 when Purple Communications was decided, and had voted to protect union rights at that time. 

In further plans to attack the pro-labor decisions from the Obama era, Ring has  made clear that he is not done with the Browning-Ferriscase, which was at the center of the Emanuel ethics scandal. Forced to withdraw its 2017 decision to reverse Browning-Ferris because of Emanuel’s ethics violation, the NLRB now intends to attack the same issue of how the term “joint employer” will be defined under labor law by different means, according to Ring.

In a June 5 letter to Warren and other senators, Ring stated, “Candor requires me to inform you that the NLRB is no longer merely considering joint-employer rulemaking. A majority of the Board is committed to engage in rulemaking and the NLRB will do so. Internal preparations are underway, and we are working toward issuance,” of public notices required to establish the new rules. The board will act to issue the notices “as soon as possible, but certainly by this summer,” Ring wrote.

What Ring did not say is that the joint employer issue has taken on a special resonance for conservatives and business lobbyists, who view the Obama NLRB’s action as a dangerous step that could lead to increased unionization. The fast food sector took particular interest, as the franchise model for food outlets as pioneered by the McDonald’s hamburger chain was seen as newly vulnerable to union organizing under the Obama NLRB.

Ring declined a request from In These Times for a telephone interview to answer questions about the ethics review and other developments at the NLRB.   

Union members and labor activists shouldn’t expect any positive result from the NLRB’s ethics review, or from further action on Browning-Ferris, says Michael Duff, a law professor at the University of Wyoming who worked at NLRB earlier in his career. The ethics review is “window dressing, an attempt to salvage credibility,” he says, and the board’s hostility to Browning-Ferris is already “abundantly clear.”

“It’s going to be a tough road at NLRB for unions as long as there as a Republican in the White House, and especially with Trump,” he says.

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.

This article was originally published at In These Times on August 14, 2018. Reprinted with permission. 

Labor Department becomes latest Trump agency to take interest in 'religious freedom'

Monday, August 13th, 2018

The Department of Labor issued a directive Friday that makes it easier for federal contractors to claim their religious beliefs as a defense against anti-LGBTQ discrimination charges.

On August 10, the Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) issued an enforcement directive that says investigators should consider recent U.S. Supreme Court decisions and recent executive orders relating to issues of religious freedom. The directive wouldn’t directly have an effect on the 2014 executive order that says government contractors can’t discriminate against employees or applicants in the LGBTQ community, according to Bloomberg. It does mean, however, that auditors in this office can, under certain circumstances, allow for religious exemptions in situations relating to discrimination against the LGBTQ community.

The directive reads, “Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law. … Recent Executive Orders have similarly reminded the federal government of its duty to protect religious exercise-and not to impede it.”

It referred to the U.S. Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a baker who refused to make a wedding cake for a same-sex couple. The Court reversed the Colorado Civil Rights Commission’s decision and said it showed bias during its consideration of the religious freedom defense, but that these concerns were unique to the case. The directive also referred to the 2017 case from Missouri, Trinity Lutheran Church of Columbia, Inc. v. Comer, where the Court decided that it is a violation of the First Amendment’s guarantee of free exercise of religion to deny religious organizations the ability to apply to a neutral and secular aid program.

Although Missouri’s constitutional language is very broad on the issue of providing government services to churches, as ThinkProgress’ Ian Millhiser wrote last year, the case was “an ideal vehicle for conservative lawyers to ask a conservative Supreme Court to endorse an expansive reading of the Constitution’s protections for churches.” The church was represented by the Alliance Defending Freedom (ADF), which supports recriminalization of homosexuality in the United States and has defended the state-sanctioned sterilization of transgender people.

Trump has signed many executive orders stressing religion. In May 2018, an executive order established a White House Faith and Opportunity Initiative, which consults with faith leaders. It also notifies the Attorney General of concerns from faith based and community organizations “about any failures of the executive branch to comply with protections of Federal law for religious liberty” as the Attorney General described in October of last year, when the Justice Department released its memorandum on religious freedom.

That memorandum was part of a broader effort that resulted from a May 2017 executive order that asks for agencies to work on “promoting free speech and religious liberty.” This order contained the words “deeply held beliefs,” words that have been used in bills and in cases fighting to enable discrimination against women and the LGBTQ community.

“We are giving our churches their voices back,” Trump said as he signed the order near two nuns who were from Little Sisters of the Poor, a plaintiff that took issue with the ACA’s contraception mandate, saying it would violate their religious beliefs to cover birth control as an employer.

Friday’s directive said that OFCCP staff can’t “condition the availability of [opportunities] upon a recipient’s willingness to surrender his [or her] religiously impelled status,” referring to the 2017 Trinity case, and must allow “faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for . . . [Federal] contracts,” referring to the establishment of a White House Faith and Opportunity Initiative. The directive will go through the normal rulemaking process, which includes public comment.

This directive is part of a string of agency decisions this year to focus on religious freedom. On Monday, the Labor Department appointed Steven Begakis as Wage and Hour Division policy adviser. Begasi has affiliations with the ADF, according to Bloomberg. He once wrote that the United States isn’t a free society for religious people and gave an example of “a Catholic business owner who refuses to pay for your employee’s abortion procedures.” 

On July 30, Attorney General Jeff Sessions announced that the Justice Department formed a task force to implement religious liberty guidance it introduced last year. In his announcement, Sessions referred to nuns being “ordered to buy contraceptives.”

In January, the Department of Health and Human Services announced the creation of a Conscience and Religious Freedom Division. In May, the People For the American Way and Right Wing Watch brought a lawsuit against The Department of Housing and Urban Development, who said administration officials are trying to imperil efforts to protect LGBTQ people, according to Newsweek. Activists said they want to know the reasoning behind why HUD removed a guidebook on training people on how to provide equal access to homeless shelters for transgender people and its elimination of pilot programs on decreasing LGBTQ homelessness.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

This article was originally published at ThinkProgress on August 13, 2018. Reprinted with permission.

Will the Left Get Fooled Into Abandoning Worker Pensions?

Friday, August 10th, 2018

The ideological blinders of some on the left are aiding and abetting the right’s final assault on labor. Workers and their allies should be appalled, and they need to act quickly.

In the past decade, one of the few hopeful developments in an often bleak labor landscape has been the rise of a new form of activism built on the power of labor’s $3.5 trillion pensions. A new class of activists at the AFL-CIO Office of Investment, the American Federation of Teachers, the National Education Association, the American Federation of State County and Municipal Employees, the North America’s Building Trades Union, the Service Employees International Union, UNITE HERE, the California Public Employees’ Retirement System, the New York state and New York City and Illinois and Chicago and Los Angeles pension funds—and smaller state, county and municipal pension funds across the country—have begun to mobilize these funds to advance the interests of the workers who contribute to them.

Under their leadership, these pensions have invested to create union jobs for workers, who then strengthen the funds by contributing to them. They have fought privatization of public sector jobs, pushed back on outrageous Wall Street fees, attacked obscene executive compensation, forced disclosure of the CEO-worker pay ratio, resisted hedge fund attacks on pensions and in some cases divested from them entirely, and sued companies like Enron, Worldcom, and now Wells Fargo for fraud. They have divested from gun companies, demanded companies account for their environmental impact, hammered companies over sexual harassment and assault, and attacked pharmaceutical companies that fueled the opioid crisis. For all these reasons, these funds have come under withering attack from the right—empowered by the recent Janus case—which is using a controversy about the funding status of public pensions to ram through crippling reforms to undermine them. The left’s response has been silence and concessions. The left’s pension paralysis can be traced to its entirely ideological and outdated discomfort with what these pensions really are: labor’s own source of capital.  

The best example of this aiding and abetting of attacks on pensions is Doug Henwood and Liza Featherstone’s In These Times piece, “Wall Street Isn’t the Answer to the Pension Crisis. Expanding Social Security Is.” They then double down on their claims here. According to Henwood and Featherstone, pension funds are dead anyway because of systematic underfunding. In support of this conclusion, they cite the research of Joshua Rauh, a Stanford economist affiliated with the conservative Hoover Institution. Rauh is indeed a credible economist. But so is Alicia Munnell of the Boston College Center for Retirement Research, as is Dean Baker of the Center for Economic and Policy Research, and as are others who dispute the conclusion that these pensions are necessarily doomed nationwide, including Max Sawicky, who responded to the Henwood and Featherstone arguments here and here.

Wherever one stands on underfunding, there are cures for it that are worse than the disease itself. The conservative solution is to smash and scatter these pensions into millions of individually managed 401ks. The number one priority on the left should be to stop that from happening, not undermine resistance to this grim fate by scaremongering about the perils of pensions or comparing them to a nonexistent alternative. Turning all these funds into 401ks will do more than just subject workers to a retirement vehicle that has been renounced by its inventors and itself has its own indisputable underfunding crisis. It would also silence worker shareholder voice. This aspect of the argument is repeatedly misunderstood, dismissed, or ignored by parts of the Left.

The necessary precondition for these funds to be able to act on behalf of the workers who contribute to them is to be collective. A pension fund is like a union and a 401(k) is like right to work. Just as an individual worker has little say negotiating pay, benefits or working conditions alone, so an individual shareholder in a company has little say over the fees they are charged or how much the CEO makes. Just as workers are empowered through the collective voice of the union, so they are empowered in their retirement investments through the collective voice of the pension. Divide and conquer the pensions and you kill the shareholder voice that has enabled them to engage in the very activism that promotes their contributors’ interests.

And yet, Henwood and Featherstone’s substitution of Social Security for these pension funds would silence that worker-shareholder voice as surely as 401ks would. They blithely dismiss the power vested in these pension funds by citing three examples of how it has been used against workers. Indeed, this power has been abused, and more than three times. But a more balanced account of this power would also consider the stunning ways in which it has been used to advance worker interests. Ironically, one of the examples Henwood and Featherstone use in their article—KKR profiting off its investment in Safeway supermarkets while laying off workers—ended in a way that demonstrates the very shareholder power they deride and ignore, in which fed up worker pension funds like the California Public Employees Retirement System flipped the script, using their shareholder power to oust several KKR board members from Safeway, demote others, and punish its management for its attack on workers and their benefits. We are seeing echoes of that revolt today in the furious reaction of public pensions to KKR’s handling of the Toys R Us debacle, in which many labor’s capital institutions have pushed hard for Toys R Us workers to receive severance and are reconsidering their KKR investments, as Henwood and Featherstone acknowledge here. What other investors would do that?

On the other hand, they are quite correct to condemn outrageous investments by pension funds in businesses that kill workers jobs, particularly the jobs of the very workers who contribute to these funds. I agree and have argued against that practice here and here. But they make an unjustifiable logical leap in arguing that the solution to this problem is widespread divestment and ultimately abandonment of these pensions in favor of a larger Social Security system.

First, divestment. The left has fallen madly in love with divestment. When it comes to investment issues, we have just one move: Divest. But divestment is only one tool in the toolkit, and anyone who has looked carefully at the evidence must conclude that it is often not the best of the lot. Divestment from publicly held companies is often utterly pointless— pure political theater. Consider the Vice Fund (formerly the Barrier Fund), which invests in tobacco companies, casinos and alcohol companies because they sell addictive products and are often targeted for divestment. How many divesters have sold their shares to the Vice Fund? There’s no way to know. But if the shareholders buying your shares are indifferent to the concerns that prompted your divestment, it will have no effect, other than to make yourself look conscientious in a press release. As shareholder advocate Nell Minow has put it, “the day an activist shareholder divests is the day the CEO pops the champagne and breaks out the caviar.” Investors that stay and fight have had a significant impact, like prompting corporate action on the environment or reining in excessive CEO pay practices.

Yes, divestment can be appropriate at times. I applauded CalPERS’s divestment from hedge funds. I researched and told the story of how Dennak Murphy, a quiet SEIU capital strategist, helped to make that happen. Hedge funds have underperformed the market for over a decade and charge outrageous fees, making divestment from them as an asset class often a logical thing to do, though a report from the American Federation of Teachers Capital Strategies group illustrates how pensions could do better by cutting the fees they pay hedge funds. And it is also true that pensions that have stayed in hedge funds have been able to use their investments to push the funds to stop undermining teacher pensions.

Similar issues present themselves with private equity funds, particularly those engaging in practices that undermine labor. Divesting from private equity might undermine the industry. But it might not. It might instead result in the industry proceeding much as before, but without the only investors who care about labor and have any interest in protecting it. That would be KKR and Toys R Us but with no one pushing for worker severance packages. Alternatives exist. For years, ULLICO—founded by Samuel Gompers to provide life insurance policies for industrial workers when the insurance industry wouldn’t write such policies—has been making investments that require companies to use union labor. The AFL-CIO Housing Investment Trust similarly uses union capital to finance housing built with union labor. New York City recently adopted a responsible contractor policy for real estate and infrastructure investment requiring the hiring of responsible contractors who pay workers fair wages and benefits, inducing private equity fund Blackstone to adopt the policy for its infrastructure projects. In fact, the only reason we know about private equity’s many abuses is because the AFL-CIO’s Office of Investment pushed for the adoption of private fund registration in Dodd-Frank. In short, if properly deployed, labor’s capital can be utilized to advance the interests of workers, not just undermine them.

The spread of worker-friendly investment policies may be a far more powerful tool than divestment. It may, in fact, be critical to the future of labor if and when a national infrastructure spending project materializes, which is highly likely to contain some incentives for private sector funding. Scaling up New York City’s responsible contractor policy for private infrastructure investment could make the difference between whether America gets rebuilt using union or nonunion labor. But for such worker-friendly policies to succeed, you’ve got to have pooled investment funds that can implement them, not 401ks. And not just Social Security either.

There are several practical objections to the pursuit of a single-minded plan to expand Social Security. First, it is politically impossible in the near term; if anything, we will be lucky if we complete the year 2018 without it being cut back. Second, going all-in on Social Security implies that our retirement is more secure in the Washington of Trump, McConnell, and Ryan, or their future incarnations, than it is in Sacramento, Boston, or Albany. Third, if pension critics favoring this approach were being intellectually consistent, they would have to describe Social Security the same way they describe public pension funds. That means describing Social Security as zero-percent funded, since there are no funds actually set aside for it, anywhere. That’s a misleading description, but no more misleading than the arguments made about public pensions that Henwood and Featherstone so credulously accept. The federal government can pay for Social Security—even if it is technically zero-percent funded—just as all fifty states can pay for their pensions. Fourth, there is no good reason why we should not simultaneously pursue a policy of expanding Social Security while also fighting to protect worker pensions in collective form. But setting these aside, it’s wrong to argue that Social Security alone is the right ideal, because it entails forfeiting the shareholder power of pooled, collectively managed retirement funds.

One problem with Social Security is that workers contribute to it over a lifetime of work but have absolutely no say over how that money is used in the interim. In contrast, vehicles that set aside those contributions into actual funds with worker representation and often political representation on boards—like public pension funds, and like some sovereign wealth funds—have say over whether, for example, their funds should be invested in apartheid South Africa, not to mention giving workers say over CEO pay, corporate governance or labor practices. Such funds give workers voice in capital markets, arguably the most powerful force on the planet today. They are the 21st century model for retirement security, because they retain that shareholder voice. Social Security gives away all that power for nothing.

The only plausible argument for forfeiting this massive shareholder power is that it taints workers by making them complicit with the power structures of capital. (“Investing in the stock market achieves the opposite [of guaranteeing future security through social and physical investments]; it expands the wealth and power of Wall Street,” Henwood and Featherstone write.) And indeed, to an extent, participating in the market can make labor complicit in power structures that work against it. So does participating in electoral politics. So does bringing lawsuits. So does organizing into a union that negotiates, and compromises with, management. When running for office, suing, or organizing, you create and enter into power structures that may at times compromise you. The question is not whether this will happen—it will. The question is, would you be better off not voting, suing, organizing? In my view, the answer is no. That same “no” applies just as much to capital markets. Overall, you are worse off if you make no effort to exercise voice within them.

Henwood and Featherstone style their argument as a wake-up call to progressives to “get real” about the purportedly parlous state of pensions. Here is another “get real” wake up call to progressives: capital markets are going nowhere. When corporations operate globally, when capital can flee overnight or starve government functions through punishing bond yields, you cannot rely on the nation state alone to solve all your problems. If it’s the market that is causing those problems, you must have some say inside the market to solve them. You do not empower yourself in the 21st century by unilaterally surrendering your own shareholder voice any more than you empower yourself politically by not voting. Instead, you exercise that shareholder voice, learn to amplify it, organize it to advance the interests of the workers who contribute it, resist the hostile legal interpretations designed to choke it. You engage with it and you fight for it and you push to move it in the right direction. What you definitely do not do is walk away from it in favor of some fantastical, outdated, and nonexistent alternative that keeps you ideologically pure and powerless.

About the Author: David Webber is a law professor at Boston University and author of The Rise of the Working Class Shareholder: Labor’s Last Best Weapon (Harvard University Press 2018).

This blog was originally published at In These Times on August 9, 2018. Reprinted with permission. 

Employee Success Stories from the OSC

Thursday, August 9th, 2018

The Office of Special Counsel keeps federal agencies in check by holding them accountable for practices that violate the employment rights and civil rights of federal employees.

In its recap of Fiscal Year 2017, the OSC highlighted successful resolution of complaints about whistleblower retaliation, prohibited selection practices and other abuses.

Actions against federal whistleblower retaliation

In the fiscal year just ended in June, the OSC received more than 3,800 new complaints of Prohibited Personnel Practices (PPP). The highest number of cases that were favorably resolved involved whistleblower retaliation, which are top priority for the Office of Special Counsel.

Here are a sampling of whistleblower cases from the OSC’s FY 2017 report:

  • An employee was severely demoted after reporting suspected theft by an agency official. The OSC obtained a formal stay of the adverse action, and eventually she was reinstated with back pay plus compensatory damages. Facing suspension and reassignment, the official resigned from service.
  • An employee who raised red flags about overtime abuse was reassigned to menial work and received a poor performance appraisal. OSC intervention resulted in significant restoration: back pay and damages, an increased appraisal rating and rescission of Letters of Counseling.
  • A supervisor was subjected to a hostile work environment and a lowered appraisal after disclosing widespread corruption in her agency. The complaint to OSC resulted in full corrective action on her behalf, plus suspension for one official and suspension and demotion of another official.
  • An employee was slated for demotion and the dismantling of her program for disclosing that wait times for new patients were falsified. The OSC found no grounds for the adverse action. She maintained her position and program, and received substantial compensatory damages.

The retaliation list goes on. Revealing contract fraud. Calling attention to security lapses. Assisting union members in filing grievances. Affiliating with a known whistleblower. In each case, supervisors or high-level officials tried to punish or intimidate the whistleblower.

Prohibited practices in hiring, assignment and advancement

Another big category of OSC complaints is improper selection, failure to promote and related employment practices. Here are a few more success stories:

  • A supervisor who sat on an interview panel provided a favored applicant with the questions — and suggested answers — in advance. The supervisor received a 14-day suspension.
  • Two deputy assistant directors were asked to withdraw from consideration for advancement. When they declined, the vacancies were re-posted with new qualifications that the candidates did not possess. The OSC obtained a stay against the rigged hiring actions and took disciplinary action against the upper officials.
  • A supervisor who didn’t want to lose a valued employee to a different division promised a promotion in exchange for withdrawing from consideration for the other job. The promotion never happened. In a settlement, the employee was granted a promotion and back pay.

Not every PPP case ends so well for employees

The importance of legal counsel cannot be overstated. The OSC does not always side with the aggrieved employee or reach a favorable outcome. At the first sign of trouble, especially if your employment status or security clearance is in jeopardy, speak with an attorney who specializes in federal employment law.

There is a right way and a wrong way to assert your rights and seek redress. Depending on your agency and your circumstances, your case may proceed through the OSC, the MSPB, the EEOC or another investigatory body.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on August 8, 2018. Reprinted with permission. 

Voters Just Killed Right to Work in Missouri, Proving Labor Still Has Power Under Janus

Wednesday, August 8th, 2018

After a string of victories across the country in recent years—including this summer’s Janus v. AFSCME Supreme Court ruling—the anti-union “right-to-work” movement has met its match in Missouri. 

In Tuesday’s primary election, Missouri voters overwhelmingly rejected Proposition A, a ballot measure that would have made the state the 28th in the nation to adopt a “right-to-work” (RTW) law. Designed to bankrupt organized labor, the deceptively named legislation would have prohibited private sector unions from collecting fair share fees from workers they are legally required to represent. 

With the defeat of Prop A in Missouri, the U.S. labor movement has passed its first major test since the Janus decision in June, in which the Supreme Court’s conservative majority essentially imposed “right-to-work” on the nation’s entire public sector.

“The timing of this is essential. I think everyone wants to write the labor movement’s obituary,” AFL-CIO Secretary-Treasurer Liz Shuler recently said. “It’s going to energize and activate us and show that we fight back.”

“It’s going to be the shot heard round the world,” AFL-CIO President Richard Trumka said last month, anticipating Prop A would lose. “It’ll make waves in Wisconsin and Pennsylvania and Ohio and Washington D.C. And it will provide a powerful rebuke of the Supreme Court’s disgraceful ruling in Janus.”

Since 2012, more states have passed RTW legislation than at any time since the 1950s. Even traditional union strongholds like Michigan and Wisconsin have gone “right-to-work.” Meanwhile, House Republicans have introduced a national RTW bill, which President Trump has promised to sign.

In states with “right-to-work” laws, median household incomes are $8,174 less than in non-RTW states, people under 65 are 46 percent more likely to be uninsured, infant mortality rates are 12 percent higher and workplace deaths occur 49 percent more often.

Missouri’s RTW legislation was initially signed into law last February by the state’s disgraced, now-former governor, Eric Greitens. A Republican backed by the Koch brothers and various “dark money” groups, Greitens served only 16 months as governor before resigning earlier this year amid a series of scandals and criminal allegations.

Greitens’ RTW law was supposed to take effect last August, but a coalition of labor groups led by the Missouri AFL-CIO gathered 310,567 hand-written petition signatures to block its implementation and force a statewide referendum on the legislation—Prop A.

Prop A was originally scheduled for this November’s general election, but this spring, the state’s Republican lawmakers moved it to the primary, worried that a high union turnout in November would be a boon to Democrats in hotly contested races. Described by Missouri AFL-CIO President Mike Louis as a “devious ploy,” the change marked the first time a referendum in the state has been moved to a primary election.

To defeat Prop A, union members and allies waged an aggressive get-out-the-vote campaign across the state, reaching some 500,000 voters through door-to-door canvassing and phone banking. They got help from actor and Missouri native John Goodman, who narrated a radio ad declaring that RTW “will not give you the right to work. Instead, it gives big business and out-of-state corporations the right to pay you less than they do now.”

All told, organized labor raised $15 million for the campaign to stop RTW in Missouri, outspending pro-RTW groups nearly 5 to 1.

This is not the first time Missouri voters have rejected RTW. In 1978, a similar state ballot initiative was defeated by a 60 to 40 margin, despite early polling suggesting an easy victory for “right-to-work” forces. That victory, however, was followed by a precipitous decline in the power of organized labor nationwide from the 1980s to today. Whether or not Tuesday’s defeat of Prop A signals a larger shift in labor’s fortunes remains to be seen.

If nothing else, Missouri voters’ rejection of RTW shows that the eulogies for organized labor post-Janus are premature. As Trumka says, “We’ve taken their best shot, and we’re still standing.”

This article was originally published at In These Times on August 7, 2018. Reprinted with permission. 

About the Author: Jeff Schuhrke is a Working In These Times contributor based in Chicago. He has a Master’s in Labor Studies from UMass Amherst and is currently pursuing a Ph.D. in labor history at the University of Illinois at Chicago. He was a summer 2013 editorial intern at In These Times. Follow him on Twitter: @JeffSchuhrke.

Proposition A: The right-to-work referendum on Missouri’s ballot, explained

Tuesday, August 7th, 2018

In February 2017, then-governor of Missouri Eric Greitens (R) signed a right-to-work bill drafted by the state’s GOP-controlled legislature. The bill made Missouri the 28th right-to-work state in the country and the sixth state to pass such legislation since 2012.

But the bill isn’t yet law, thanks to petitioners who gathered over 250,000 signatures to place the measure before voters as a referendum.

Missouri voters will head to the polls Tuesday to cast ballots on Proposition A, an up-or-down referendum on the right-to-work bill. If “no” votes prevail, the bill will die, giving unions a much-needed win during an administration that has made it their priority to cede power away from the workers in order to reward those at the top.

It also would be the first chance for voters to weigh in on union power since the U.S. Supreme Court ruled in Janus v. AFSCME last June that public sector employees cannot be compelled to pay union dues.

Right-to-work laws allow workers to opt out of paying union dues while still enjoying the benefits of a union contract, like higher wages, benefits, and protection against arbitrary discipline. The result is a “free-rider” problem, which drives down union membership rates, because if workers can get something for nothing, many of them will choose to do so.

Supporters of right-to-work legislation argue that the laws simply ensure that no worker is forced to be a member or pay fees to a political group with which they do not agree. That, however, is already forbidden by federal law. Unions are required to bargain on behalf of every worker in a unionized shop, regardless of whether or not a particular worker joins the union.

In order to avoid the free-rider problem, many union contracts provide for “agency fees” or “fair share fees,” which require non-members to contribute their share of   costs of negotiating and overseeing union representation.

State right-to-work laws make it more difficult to collect these fees, restricting union resources and hindering a union’s ability to negotiate for better wages, benefits, and working conditions for workers.

According to the Economic Policy Institute, there will be roughly 60,000 fewer union members in the Missouri private sector if the state adopts this law.

“Without collective bargaining we’re at risk of losing our health benefits, our retirement savings and being forced to take a pay cut,” Quiema Spencer, a 39-year-old pipe-fitter from Kansas City, Missouri told The Wall Street Journal. “I can’t afford that with the cost of living going up.”

The decline of union membership harms workers, both union and nonunion alike. Right-to-work states have lower rates of employer-sponsored health insurance and lower employer-sponsored pensions.

Right-to-work laws are also responsible for creating an atmosphere that forces families who work full-time jobs to live paycheck-to-paycheck or work multiple jobs in order to make ends meet.

In states where right-to-work laws are currently on the books, wages are roughly 3.1 percent lower — equal to about $1,560 less per year — than those in states without right-to-work laws. Multiple studies have confirmed that the decline of collectively bargained union contracts has led to the hollowing out of workers earnings. In one long term study from Princeton University, researchers found that unions have consistently “provided workers with a 10- to 20-percent wage boost over their non-union counterparts over the past eight decades.”

“What we’re simply trying to do in this study is to be able to say something systematic, historically, whether there seems to have been an inverse relationship between unionization and inequality, so that when unions were strong, inequality tended to be lower,” one of the researchers wrote. “A strong lesson is that when unions were strong and they were growing, they were organizing the less-skilled workers and raising their wages, and that tends to reduce inequality.”

Luckily for Missouri workers, union support against the proposition has been particularly strong. We Are Missouri, an anti-right-to-work group, has spent $15.2 million in an effort to block the bill from becoming law. That is roughly five times the amount two groups who support the law have spent, according to The Wall Street Journal.

About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant on the NPR Business Desk. She has also worked for NPR member stations WFSU in Tallahassee and WLRN in Miami.

This article was originally published at ThinkProgress on August 7, 2018. Reprinted with permission.

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