Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NLRA’

Want To Speak Out About Politics at Work? Here Are 3 Things You Need to Know.

Tuesday, May 16th, 2017

In the past several months, there’s been a noted uptick in political speech at work. That speech has often made national news, from Sally Yates’ dismissal as interim attorney general to IBM workers organizing against their employer’s support of Donald Trump. In the early days of the Trump administration, the New York Taxi Workers Alliance’s strike against the Muslim ban at John F. Kennedy International Airport stood out as an impressive act of resistance and solidarity. And even before Trump’s election, Colin Kaepernick, then a quarterback for the San Francisco 49ers, sparked a national discussion when he refused to stand during the national anthem in protest of racism against African-Americans and other people of color.

Protests against the administration are building quickly, with diverse groups organizing mass protests against the administration’s policies. This month, on May Day—otherwise known as International Workers’ Day—thousands of workers across the country took to the streets to challenge Trump’s draconian and unconstitutional immigration policies. In all likelihood, political activity at work will only increase throughout the Trump administration, all of which begs the question: How protected are workers who talk politics on the job?

As it turns out, not very, at least legally. Though more than 40 percent of participants in a 2014 YouGov poll believed that the First Amendment protected them from retaliation for their workplace political speech, the truth is that workers have, at best, a patchwork of rights to talk politics at work.

Most private sector workers have no Constitutional protections to engage in political speech at work. However, they do have rights as workers. (Government workers have some limited First Amendment rights because the First Amendment applies to government action, but those rights aren’t always consistently defined.)

Though it can be difficult to navigate the maze of laws that regulates employment, there are some simple things to keep in mind that can help private sector employees ensure they have maximum protection at work. These tips are not foolproof ways to protect your job, but they provide some cover in the face of the risks and challenges ahead. Of course, you’re safest keeping your protests outside of work, but building the resistance against Trump will require shop floor leaders to be vocal and visible. While speaking out at work is inherently risky, the rewards measured in collective strength and tangible gains cannot be overestimated.

Step 1: Bring a buddy

The National Labor Relations Act (NLRA), the main law governing relations between workers and employers in the private sector, is unique: It mostly protects groups, not individuals. This means that whenever you stand up to improve the conditions at your workplace with at least one other worker, you are engaging in “protected concerted activity” under the NLRA, and you can’t lawfully be fired or disciplined for that activity. Solidarity at work is protected under federal law. This protection applies to regular workplace complaints and grievances—for instance, joining with your coworkers to form a union or ask for a wage increase—but can also apply to political activity.

Usually, even talking to coworkers about your problems at work is “protected concerted activity.” The National Labor Relations Board (NLRB) recently broadened the meaning of the term in a 2014 case. In that case, the NLRB held that a worker who talked to her coworkers about serving as witnesses in her individual sexual harassment complaint was protected under the NLRA because she was enlisting coworkers in her aid. This suggests that a worker can invoke the protections of the NLRA just by talking with coworkers.

It’s always a good idea to act with at least one other coworker. The best defense is building strong ties with coworkers and the community. The more the boss fears pushback, the less likely he is to retaliate. At the very least, make sure to talk to a coworker before engaging in any action at work, political or otherwise, to bring that action under the NLRA’s protection. But keep in mind that not all political protest is protected—as Step 2 explains.

Step 2: If you’re talking or protesting politics, find ways to tie your protest to issues your employer can control

If you decide to engage in political activity at work, the most important action you can take to protect yourself and your coworkers is to tie your speech or protest to an “employment related concern.” With some limited exceptions, the NLRA protects you from discipline for discussing anything having to do with your pay, occupational safety, the policies at your job, and other terms and conditions of employment with coworkers and third parties, whether the news media or a government agency. In a famous labor law case from 1962, NLRB v. Washington Aluminum, the Supreme Court found that labor law protected a group of workers who spontaneously walked off the job because the shop was too cold to work, though there was a rule against leaving work without the supervisor’s permission and the employees didn’t plan or know they were engaging in a workplace action.

Problems that your employer can’t affect or control are not employment related. For example, in 2006, hundreds of workers were terminated for walking off the job to join massive protests against anti-immigrant legislation proposed in Congress. In response to the terminations, the NLRB came up with some guidelines for political activity. While the protests were found to have been done for “mutual aid and protection”—workers standing together in solidarity—walking off the job against employer rules was unprotected, since the employers could not control immigration policy.

Sometimes an employer does have power over a government policy—for instance, if the employer is actively involved in lobbying over that policy, like in a recent case where taxi drivers protested against their employer, a Las Vegas cab company, for lobbying for more medallions, which would put more drivers on the road and reduce their pay. Still, the takeaway is that you should always try to make sure your protest is about a tangible workplace policy. For instance, if you want to protest the Trump administration’s immigration policies, you could center your protest around a demand that the employer not conduct voluntary I-9 audits.

One last thing to remember is that if an employer has a rule that limits political speech at work, it has to be neutral on its face and neutrally applied. If you are fired for violating an employer attendance policy to attend a rally against Trump’s immigration policies, but another coworker who also violated the attendance policy to attend a Trump rally is unscathed, then the boss has violated the law by failing to apply work rules neutrally and you should contact an attorney or the NLRB to report the violation.

Step 3: Build solidarity at work and in the community

Nothing protects you more than the support and solidarity of your coworkers and community. Collective action is a time-honored and battle-tested tactic. The more people support you, the more the boss will be afraid to retaliate against you. In the Fight for $15 campaign, organizers perfected the art of the “walk back.” After one of their now famous strike days, community members, including clergy and local politicians, would walk striking worker back to fast food restaurants in a show of community power. Build relationships at work and in your community to prepare for the fight ahead. Nothing is stronger than people power.

This article originally appeared at Inthesetimes.com on May 15, 2017. Reprinted with permission.

About the Authors: Leo Gertner is a labor lawyer in Washington, D.C., who previously worked as a grievance representative for janitors in Boston. Sam Wheeler is a Pennsylvania labor lawyer who has previously worked in electoral politics and in the legal departments of several national unions.

NLRB Judge Rules Walmart Wrongly Fired Strikers

Monday, February 1st, 2016
Kenneth Quinnell

An administrative law judge at the National Labor Relations Board has ruled that Walmart retaliated against workers for participating in strikes. Walmart claimed that the workers’ actions were not protected under the National Labor Relations Act and that it was legitimate to fire the employees for violating the company’s attendance policy. Judge Geoffrey Carter ruled against Walmart.

The ruling says that Walmart must reinstate 16 former employees with back pay and must hold meetings in 29 stores to inform workers of their right to strike and that strikes are protected under the NLRA.

Jess Levin, communications director for Making Change at Walmart, applauded the ruling:

Today’s decision proves beyond doubt that Walmart unlawfully fired, threatened and disciplined hardworking employees simply for speaking out. Not only is this a huge victory for those workers and Walmart workers everywhere who continue to stand up for better working conditions, but it sends a message to Walmart that its workers cannot be silenced. We will continue to fight to change Walmart for the better.

Read the full ruling.

This blog originally appeared in aflcio.org on January 29, 2016. Reprinted with permission.

Kenneth Quinnell is a long time blogger, campaign staffer, and political activist.  Prior to joining AFL-CIO in 2012, he worked as a labor reporter for the blog Crooks and Liars.  He was the past Communications Director for Darcy Burner and New Media Director for Kendrick Meek.  He has over ten years as a college instructor teaching political science and American history.

The End of Jobs?

Monday, March 24th, 2014

sarah jaffeIn a major victory for a long-running campaign,  port truck drivers at Pacific 9 Transportation in California have won the right to be considered employees under the National Labor Relations Act, and to form a union.

That ruling, by Region 21 of the National Labor Relations Board, that the truckers had been misclassified as “independent contractors”   comes after months of sustained actions, including strikes, by port truckers.  It comes in an industry where union jobs were the standard until deregulation turned all workers into “free agents.” Free agency, they quickly found, didn’t come with much freedom, as they still had their hours and working conditions dictated by the company for whom they worked–but it came with a price tag. The cost of gas, truck maintenance and licenses landed on their shoulders instead of their employers’.

It’s in this context that I’m thinking about the “end of jobs as we know them.”

This Wednesday I attended a conference with that provocative title at the Open Society Foundation, and I’ve long been mulling the idea.

In 2011, I wrote at AlterNet that a future beyond jobs, where we all work less, used to be a major goal of the U.S. labor movement. More freedom, less production for its own sake, would actually create a more sustainable world. (Alyssa Battistoni compellingly made this argument recently at Jacobin.) Lowering the amount of hours worked by each person would help distribute jobs better among the people who still don’t have them, as economist Dean Baker has repeatedly argued.

But I noted that moving beyond jobs would necessitate tackling issues of inequality and concentration of power in the hands of the wealthy. At the moment, the “end of jobs” has meant sustained high unemployment and low wages, not more freedom. The disappearance of jobs in America has as much to do with the power of global capital to move where and when it wants and the ability, post-crisis, of businesses to squeeze more and more productivity out of the few workers they keep, as it does with technology making certain professions obsolete. And the rise of the “free agent” worker has at least as much to do with the desire of businesses to have an easy-hire, easy-fire, just-in-time workforce (as I wrote about in some detail recently) that absorbs—as the port truckers do—most of the labor costs, as it does with workers who simply enjoy the freedom of not having a boss. Power is as big or bigger a force as technology in shaping the labor landscape today.

Fast forward to 2014. The economy has improved only slightly. Unemployment remains high, and the jobs that do exist are often low-wage and part-time. Since 2011, we’ve seen not only Occupy but the rise of a movement of Walmart and fast-food workers demanding better wages and, often, more hours, so they can take home a full-time paycheck. A shorter hours movement has not materialized, nor has a meaningful jobs program, despite the promises of a bipartisan clutch of politicians. The minimum wage has risen in some states and cities, but workers are still struggling, and the long-term unemployed have seen their benefits cut off by a Congress that continues to squabble about whether or not they deserve to be able to pay bills.

Jobs have not yet ended or become obsolete. Yet, without question, they are changing. Research from Kelly Services (which, being a temporary agency, certainly has a vested interest in the subject) finds that 44 percent of workers in the U.S. classify themselves as “free agents.” According to the Freelancers Union, 42 million people are freelancers. The full-time job itself is only a fairly recent development in human history, spanning a couple hundred years or so, and the attendant expectation that a job be “good,” paying a living wage and providing healthcare and retirement benefits, with a union and some security, is a peculiar historical development of the New Deal era in the United States—an era that is almost without question over.

Power created that era—the power of organized workers in unions demanding better conditions. But the bosses, it’s worth noting, never stopped trying to dismantle the deal. Since the Taft-Hartley Labor Management Relations Act of 1947, conservatives have been pushing to limit the power workers were granted by the NLRA in 1935, and the conversion of decent jobs into no-security temp gigs should rightly be seen in that context. The port truck drivers at Pacific 9 and elsewhere realize that despite the promises of freedom and liberation, they have more power when their relationship with the boss is explicit and when they can come together as a union.

We should carefully consider what comes next, whether that be high-end freelancers hopping from gig to gig, disdaining a full-time job, or more likely, the further fragmentation into piecework that we see happening in digital spaces like Amazon’s Mechanical Turk, and the conversion of formerly full-time union jobs such as port trucking or auto manufacturing into low-security independent contracting or temp labor. Moshe Marvit wrote at The Nation of Amazon’s human “crowdworkers” who perform the tiny tasks that are “helping to power the parts of the Internet that most of us take for granted” and who are paid a pittance for their work.

Technology is often blamed for displacing workers and eliminating jobs. Those doing the blaming are sometimes correct, as when supermarkets move to automatic checkout or ports move to automated cargo hauling. And yet the story of the Mechanical Turkers is a good cautionary tale for those who assume that all jobs are disappearing into the mechanical ether. One doesn’t have to be a Luddite to point out that many jobs—including ones, like those done by Turkers, that we think are fully automated—are still being done by people, either because we don’t have the technology to do them yet, or because those people remain cheaper than machines. Whether jobs are disappearing for good reasons—because they simply aren’t socially necessary anymore—or because they are being fragmented, made temporary or shifted to freelancers, these are not processes that are happening outside of human control, but rather because of it.

Carl Benedikt Frey of the Oxford Martin Programme on the Impacts of Future Technology was a keynote speaker at Wednesday’s event. His recent study, with Michael Osborne, found that nearly half of U.S. jobs are “at risk of computerization.” These include positions in a wide variety of sectors, from transportation to the service industry.

The positions that are least likely to be automated, this study found, were those that relied on “creative and social intelligence”—for example, preschool teaching. It concludes, “For workers to win the race, however, they will have to acquire creative and social skills.”

What is social intelligence but another word for what sociologist Arlie Russell Hochschild called “emotional labor”? And that emotional labor has been devalued and indeed not considered a skill at all, largely because it has been done by women. One study found that “interactive service jobs,” which include care work and service work, get paid less even if you control for education levels, rate of unionization, cognitive and physical skill, and the amount of women doing the job.

If those social-skilled jobs are the only ones that will be left to us, will we learn to value them more? Or will this just be another excuse to pay workers less? The question, like the question of what is a skill in the first place, is one of power.

The end of jobs doesn’t have to be a dystopian nightmare. There is some truth to the rosy picture painted by Kelly Services about the “free agent” workforce. I once left a full-time job to be a freelancer, and I enjoyed the experience: writing for a variety of outlets, learning from new editors, sharpening different styles, working when I wanted. The pleasure came to a grinding halt, though, when a client who owed me what amounted to more than two months of my rent didn’t pay for several months, and I had few other financial options. I needed a way to pay the bills if the work didn’t come through, and our current so-called social safety net didn’t offer one. It remains designed, as Sara Horowitz of the Freelancers’ Union points out, for a workforce that has full-time jobs with benefits. And that was never everyone, to begin with.

Women, black workers and immigrants were mostly left out of that design in the first place; what’s happened is that the conditions in the sectors where they typically work (temporary work, no labor protections, informal workplaces) have caught up with the rest of us. This means instead of clinging to a safety net that was designed for white male breadwinners in manufacturing jobs, we need a system designed for workers who are doing less work, doing it from home or the neighborhood coffee shop, and where the human resource in demand is care as much as it is cognitive skill or brute strength.

The subject of a universal basic income is coming up a lot these days; former Labor Secretary Robert Reich endorsed it last week in a talk at San Francisco State University, calling it “almost inevitable” in the face of technologically-induced job loss. A basic income would serve as something more than a safety net in troubled times—it would be a firm line below which no one, employed or unemployed, skilled or unskilled, could fall. Perhaps most importantly, it would help workers who do retain jobs (or gigs) increase their bargaining power by giving them the option of leaving rather than clinging to a job out of desperation.

That’s a large redistribution of income, of course, and it will take a lot of political power to make such a thing a reality. Political power for working people has come in the past and will come in the future through worker organizing—particularly, as has been the case with the port truckers, organizing outside of the old NLRB framework. It took workers coming together to challenge their bosses’ idea of “freedom” to win fair pay at the ports, and it will take workers coming together on a massive scale to really get workers some freedom.

Along with that idea of freedom, it’s time to consider a call for shorter working hours—a redistribution of work and leisure to go along with the redistribution of wealth. There will always to be some work that cannot be automated away, and much of that work, as Frey and Osborne found, will likely rely on social skills that have been presumed to be women’s domain. If we don’t want a world where women do most or all of the work for little pay, we’ll have to start valuing those social skills more, and ensuring that the jobs that requires them are done by all.

But most importantly, we should be working to ensure that a future without jobs is a future where we all get to enjoy the benefits of free time.

This article was originally printed on Working in These Times on March 21, 2014.  Reprinted with permission.

About the Author: Sarah Jaffe is a staff writer at In These Times and the co-host of Dissent magazine’s Belabored podcast. Her writings on labor, social movements, gender, media, and student debt have been published in The Atlantic, The Nation, The American Prospect, AlterNet, and many other publications, and she is a regular commentator for radio and television.

Fourth Circuit joins D.C. Circuit in striking down the NLRB's embattled Notification of Employee Rights

Thursday, June 20th, 2013

maria-greco-danaher_1The 4th U.S. Circuit Court of Appeals has affirmed an April 2012 decision of the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12), striking down the National Labor Relations Board’s (NLRB) controversial notice posting rule. The rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. Under the proposed regulation, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, then further postponed until April 30, 2012, and was effectively suspended by the federal court’s April 13, 2012 ruling, which now has been upheld. Chamber of Commerce of the United States v. NLRB, 4th Cir., No. 12-1757, 6/14/13.

Pointing out that the NLRB does not have authority to enforce the Act proactively, the 4th Circuit agreed with the lower court that “the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice [ULP] charges and conducting representation elections upon request.” The Court stressed that “[a]lthough the Board is specifically empowered to ‘prevent’ unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act.” In a thorough and well-reasoned opinion, the Court reviewed the NLRA’s plain language, structure, and legislative history, along with the history of subsequent labor legislation, in holding that the Board was not empowered to promulgate the rule. “Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so.”

The 4th Circuit’s opinion is even more favorable for employers than the recent decision by the D.C. Circuit Court of Appeals,National Association of Manufacturers v. National Labor Relations Board (D.C. Cir. May 7, 2013), which struck down the notice posting rule on the grounds that it violated Section 8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus,” when, in fact, Section 8 allows employer to express their views about unions and unionization, as long as the communications contained no threat or promise.

At this time, it looks as if the notice posting requirement is out of commission for the time being, with two federal appellate courts taking the position that the NLRB is without authority to require posting. However, it remains to be seen whether this phoenix will rise out of the ashes of these opinions and, if so, in what form it will return.

This article was originally printed on Employment Law Matters on June 14, 2013.  Reprinted with permission.

About the Author: Maria Greco Danaher is a shareholder in Ogletree Deakins.  She regularly represents and counsels companies in employment related matters.  She specializes in representing management in labor relations and employment litigation, and in training, counseling, and advising human resource departments and corporate management on these topics.  Maria has first chaired trials in both federal and state courts since 1986, and regularly instructs attorneys and students in issues related to trial tactics.

What Workers Apparently Don't Have a Right to Know

Wednesday, May 15th, 2013

seiu-org-logoIn most workplaces, it’s common to see a poster somewhere public – like a shared lunchroom – notifying employees of their workplace rights on issues such as equal opportunity and health and safety. Most workplaces don’t, however, have posters notifying employees of their rights (e.g. to form a union) under the National Labor Relations Act. And after a D.C. Circuit Court ruling this week, this seems depressingly unlikely to change anytime soon.

The NLRB tried to fix this in 2011 with a rule requiring employers to post an informational notice in the workplace. Not surprisingly, the U.S. Chamber of Commerce of other corporate-backed groups challenged the rule and delayed its implementation.

On Tuesday, the D.C. Circuit Court (known for its pro-business bias) put the final nail in the coffin and struck down the rule.

This decision is undoubtedly bad for workers.

For a sliver of optimism about the future of the labor movement, check out Harold Myerson’s May 8th op-ed in the Washington Post.

This article was originally posted on SEIU on May 10, 2013.  Reprinted with Permission.

Author: SEIU Communications

Labor Law Loses Its Watchdog

Wednesday, March 27th, 2013

Bruce VailThe day-to-day application of key federal protections for workers’ collective bargaining rights is becoming paralyzed, say legal experts and union organizers, as employers across the country realize that a recent federal court decision effectively allows them to ignore the enforcement of the landmark National Labor Relations Act.

The implementation of the New Deal-era law—which protects the right of most workers in private industry to form unions and negotiate collectively with employers—is reported to be slowly grinding to a halt as result of a January 25 court decision in Noel Canning v. NLRB [PDF]. The U.S. Court of Appeals for the District of Columbia ruled that President Barack Obama improperly employed the recess appointments clause of the constitution to name new members of the National Labor Relations Board (NLRB). This means, in effect, that almost 800 NLRB actions taken since the January 2012 recess appointments are unenforceable and that the current board is powerless to implement new orders. Or, as former NLRB Chairman William B. Gould IV tells In These Times: “Compliance with NLRB enforcement is voluntary for employers at this point.”

“There is plenty of evidence that it is having a huge impact on the ground,” says Lynn Rhinehart, co-general counsel of the AFL-CIO. She describes the decision’s effect on union organizing campaigns across the country as “deep and problematic.”

Because of the Canning decision, Rhinehart explains, any employer can now go to a federal appeals court and be granted an indefinite delay in enforcement of any NLRB action taken in the last 14 months. More than 60 employers have filed such cases since the January 25 decision, NLRB spokesperson Nancy Cleeland confirms, and more are expected. All of these cases are officially being held in abeyance pending U.S. Supreme Court action to either affirm or overturn the Canning ruling. That could take up to a year, Cleeland estimates.

Many employers aren’t bothering to formally request delays, but simply ignoring the NLRB rulings that remain in legal limbo. A March 23 story in the Huffington Post details how West Virginia union members mistreated at the hands of anti-union coal operators must now wait indefinitely to see their jobs and backpay restored. Similarly, some Connecticut nursing home workers are being deprived of their legal wages and benefits, says Deborah Chernoff, a spokesperson for the New England division of the healthcare workers union 1199SEIU. In a case notable for both its bitterness and complexity, strikers at five nursing homes operated by HealthBridge are back at work, but not at the compensation levels ordered by the NLRB last year. Instead, they are receiving lower wages and reduced benefits ordered by a bankruptcy judge, and the NLRB is powerless to enforce its order or challenge the bankruptcy court’s decision, Chernoff says.

Meanwhile, the decision has stopped some organizing campaigns in their tracks. Ann Twomey, president of the New Jersey-based Health Professionals and Allied Employees union, says that about 200 nurses fighting for a union at Memorial Hospital of Salem County are “on hold” because of the legal uncertainty at the NLRB. The employer—notoriously anti-union Community Health Systems (CHS)—is stalling talks toward a first contract, despite the union’s 2010 victory in a representation election, Twomey says. Normally in such a case, the union could call on the NLRB to order the employer to the negotiating table. But that’s not an option until the legal authority of the NLRB is re-asserted, says Twomey. “The nurses are functioning as a union and are doing their best,” she says, “But they don’t have a contract, and there isn’t a way forward” without the NLRB.

Resolution of outstanding legal issues in older cases is even affected, says Michael Beranbaum, organizing director of Washington state-based Teamsters Joint Council 28. A Teamsters strike against Oak Harbor Freight Lines in 2008 created legal issues around pensions and healthcare benefits, he tells In These Times, but resolution is being further stalled because the trucking company went to federal court seeking new delays under the Canning decision. “This is an example of the pitiful mess in Washington, D.C.,” resulting from Republican Party obstruction of President Obama’s legitimate appointment powers, he says.

According to a March 11 story in the Wall Street Journal, high-profile employers such as Starbucks, Time Warner, Laboratory Corporation of America Holdings, Domino’s Pizza and McDonald’s are entering the courts in efforts to hamper the actions of the NLRB. In addition to requests for enforcement delays, cases have been filed as a preemptive step to discourage NLRB involvement in workplace disputes at those companies, the newspaper reports.

A common element in many of these cases is that employers are being aided and abetted by the U.S. Chamber of Commerce, according to Rhinehart and other worker advocates. The Chamber assisted the managers of the Noel Canning Corp. in advancing their court case and the Chamber’s Litigation Center is currently maintaining a Web-based “resource page” for employers to coordinate action against the NLRB. The Chamber is also said to be mobilizing Republican members of the Senate to prevent the confirmation of any new NLRB appointees in its ongoing efforts to immobilize the board, Rhinehart indicates.

“It looks like they [the NLRB] are just out of business for the next nine months, at least,” says former NLRB chairman Gould, who teaches at Stanford Law School and is the author of Labored Relations: Law, Politics, and the NLRB–A MemoirIt will take at least that long for the Supreme Court to act,” he says, and an anti-union ruling could very well create even more delay and confusion.

“They [the NLRB] are trying to march right along, issuing new decisions and acting as if the D.C. Circuit Court will inevitably be overturned, but employers don’t see it that way at all,” Gould says. “I can tell you right here in the Bay Area that NLRB subpoenas are not being enforced. Employers are just refusing to honor their subpoenas.”

NLRB’s Cleeland confirms Gould’s report about the agency’s subpoenas. “We’ve seen challenges at every level” of the legal process, she says.

Gould says the current situation is reminiscent of the first two years following the 1935 enactment of the original law, also known as the Wagner Act (after its chief sponsor Sen. Robert Wagner, D-N.Y.). Employers actively resisted the new law on a large scale, Gould says, and many refused to cooperate in any way until the Supreme Court ruled on its validity.

“Back in those days there was something called the Liberty League that cheered the employers on. The Chamber of Commerce is playing that role today,” Gould says. “So this is not new. Their antipathy to labor law and to the NLRB is longstanding. The only thing that’s new is that they [NLRB opponents] are sitting pretty ….They don’t have to do anything” to comply with the Wagner Act until the Supreme Court clarifies the situation.

Not all union organizing is affected by the Chamber of Commerce’s efforts to neuter the NLRB. For example, railroad and airline workers are not covered by the Wagner Act, and campaigns in those sectors are going forward unaffected because they are under the aegis of the separate National Mediation Board. Likewise, public sector employees are not covered by the 1935 law, so the Canning decision does not impact their union initiatives at local, state and federal levels.

AFL-CIO’s Rhinehart says the mess at the NLRB could best be cleared up if the U.S. Senate simply confirmed the new NLRB nominations submitted this year by the Obama Administration. A new board could then re-certify the decisions already made and return to work as normal, she says. But that doesn’t seem likely anytime soon, Rhinehart reluctantly concedes, and thus some action by the Supreme Court seems required to get labor law back on track. Until then, it appears that the Chamber of Commerce has succeeded in effectively preventing the NLRB from doing its job.

This article was originally posted on the Working In These Times on March 26, 2013. 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.

Proposed NLRB Rule Requires Employers to Post Workers’ Rights

Wednesday, December 22nd, 2010

Image: Mike HallMost workers have seen notices about their right to a minimum wage or safe workplace posted in the company break room or elsewhere on the job. Employers are required to post those notices by federal law.

But there is no requirement for employers to post any sort of notice about workers’ rights under the National Labor Relations Act (NLRA), including the right to form a union. Now, the National Labor Relations Board (NLRB) is proposing a rule that would require employers to post such notices in the workplace.

AFL-CIO President Richard Trumka says the proposed rule is “a common sense policy needed in today’s workplace.”

Every working person in America deserves to know his or her rights… [The rule]…ensures that workers’ rights are effectively communicated in the workplace. It is necessary in the face of widespread misunderstanding about the law and many workers’ justified fear of exercising their rights under it.

According to the proposed rule, published in the Federal Register, the NLRB believes that

many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.

Federal contractors must post such notices and the new proposed rule mirrors that requirement. The NLRB says notices would inform workers that they have

the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Says Trumka:

When workers know their rights, they can make the best decisions for themselves and their families.

Click here for the proposed rule and here for a fact sheet and more information about the proposed rule from the NLRB.

This article was originally posted on AFL-CIO Now Blog.

About The Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

FedEx Threatens to "Destroy" Members of Congress

Tuesday, June 9th, 2009

FedEx CEO Fred Smith’s arrogant campaign of threats and intimidation continued this week when his top spokesman threatened to take down members of Congress who oppose FedEx’s position on a key piece of legislation.

When asked about FedEx’s multi-million dollar ad campaign against the legislation that is reported to launch on Tuesday, June 9, top FedEx flack Maury Lane told U.S. News and World Report in a story posted in The White House Bulletin, “I’m going to try to destroy them.”

This follows Smith’s repeated threats to cancel a $10 billion contract to purchase Boeing 777 planes if FedEx Express workers were moved under the National Labor Relations Act (NLRA).

FedEx clearly threatened in a March 24, 2009 SEC filing, and Smith reiterated in testimony before Congress in May, that its contract to purchase additional aircraft from Boeing is contingent upon its labor relations for all of its employees being governed by the Railway Labor Act (RLA). Under this provision, if Congress dares to grant even a portion of its workers the rights enjoyed by most American private sector employees under the NRLA, FedEx has the right to cancel those purchase orders.

“Fred Smith and FedEx breed a culture of arrogance,” said Teamsters General President Jim Hoffa. “First, they cut wages, increase medical insurance premiums and eliminate pension benefits for its employees. Then they try to blackmail Congress with threats to pull the Boeing contract. Now they threaten to destroy the political careers of those who oppose them.”

Currently, all workers at FedEx Express are covered by the RLA regardless of whether they have any direct relationship with the operation or maintenance of the air fleet. This includes package delivery drivers, workers at sorting facilities and truck mechanics.

The House of Representatives overwhelmingly passed legislation on May 21 that is a part of the Federal Aviation Administration reauthorization and would place those workers under the NLRA, the statute that protects virtually all other private sector workers. Under the NLRA, workers may organize by individual terminals while the RLA requires a more difficult path to unionization that requires a national vote by every worker at FedEx Express. The reauthorization bill is currently awaiting action in the Senate.

“It’s astonishing that Fred Smith and his flacks will go to any length to boost FedEx’s profits at the expense of American workers and the economy,” said Ken Hall, Director of the Teamsters Package Division. “By threatening to destroy members of Congress, FedEx’s efforts to manipulate the American system of government have crossed the line.”

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

This article originally appeared in Union Review on June 5, 2009. Reprinted with permission by the author.

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