Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NLRB’

SCOTUS Is on the Verge of Decimating Public-Sector Unions—But Workers Can Still Fight Back

Thursday, October 12th, 2017

On Thursday, the Supreme Court agreed to hear Janus vs. AFSCME, the case that will likely turn the entire public sector labor movement into a “right-to-work” zone. Like a lazy Hollywood remake, the case has all the big money behind it that last year’s Friedrichs v. CTA did, with none of the creativity.

In Friedrichs, the plaintiffs argued that interactions between public sector unions and government employers are inherently political. Therefore, the argument went, mandatory agency fees to reimburse the union for the expenses of representation and bargaining were forced political speech, violating employees’ purported First Amendment right to not pay dues.

The case ended in a 4-4 deadlock in March 2016, following the death of Justice Antonin Scalia, who had appeared poised to vote against the unions’ interests.

Much like Friedrichs, the Janus case has rocketed through the federal courts. The National Right to Work Foundation, which represents the plaintiffs, petitioned the Supreme Court to hear the case in early June. All briefs will likely be submitted by mid-January 2018, meaning SCOTUS could hold hearings almost exactly a year to the date that the Court last heard the same arguments.

The defendants may argue for procedural delays, which could potentially kick the decision into the following court term in 2018-2019. And it’s possible that in the meantime Justice Anthony Kennedy could die of a heart attack, or Sam Alito could forget to look both ways while crossing First St. and get run over by a bus. And the Democrats might take back the Senate next year, preventing the Trump administration from naming any more conservatives to the Court.

That’s the kind of magical thinking we’re left with, because the conservative majority on the Supreme Court is clearly determined to tilt the power of the country in favor of big business and against unions for at least a generation, and they care little about how just or fair their decisions appear to the public.

“Right to work” laws, currently on the books in 27 states, strip the requirement that union members pay union dues. Unions claim this creates a “free rider” problem, allowing workers to enjoy the benefits of union membership without contributing a dime. This deprives unions of crucial funding, but also—and this is no small consideration for the right-wing—every union family that drops their membership becomes one less door that union members can knock come election season.

Most national unions have been preparing for this eventuality since the first time the Roberts court took up the issue of public sector union fees in 2014’s Harris Vs. Quinncase. (If you’re keeping score, yes, the conservative justices on the Supreme Court have spent three years in a row trying to break the backs of unions).

Much of this preparation has focused on making sure that unions have a shop steward in every department and that every new hire is asked by a living breathing human being to actually join the union. But, as I wrote earlier this month, the bigger threat once workers have the right to evade union fees is the direct mail and phone-banking campaign that is already being run by Koch Brother-funded “think tanks” to encourage workers to drop their union membership and “give yourself a raise.”

As I wrote then, “The slick ‘give yourself a raise’ pamphlets will do the most damage in places where members think of the union as simply a headquarters building downtown. … But where members are involved in formulating demands and participating in protest actions, they find the true value and power of being in a union. That power—the power of an active and involved membership—is what the right-wing most fears, and is doing everything in its power to stop.”

There is a certain irony in conservatives applying the First Amendment to collective bargaining, a principle that conservative jurists have studiously avoided for two centuries. If every interaction that a union has with the government is a matter of speech, then we have a stronger argument for instituting a Bill of Rights for labor to protect workers and their right to demand fair treatment on the job.

Unions are already oppressively regulated. They are told by the National Labor Relations Board whom they can picket, when they may march and what they might say on a flyer. And they face steep fines if they disobey. Workers are forced to attend endless hours of anti-union presentations before a union election with no right to respond or boycott.

If every interaction the government has with a union is a matter of political speech—as a ruling in favor of Janus would imply—unions must respond by forcefully arguing that the rules of the system have been unfairly holding workers back, violating of our rights to free speech, due process and equal protection.

This blog was originally published at In These Times on October 18, 2017. Reprinted with permission.

About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.

Trump’s Justice Department Is Trying to Turn Back the Clock on Workers’ Rights 100 Years

Thursday, October 5th, 2017

On Monday, the Supreme Court heard oral arguments in a trio of cases, captioned as NLRB v. Murphy Oil, that examined whether management commits an unfair labor practice when it requires employees to sign arbitration agreements that waive their right to wage class-action lawsuits. The question of whether an employee can give up her right to act in concert with other workers may seem technical, but it implicates the very core of collective action.

During the hearing, Trump’s Department of Justice clearly sided with employers, who are calling for significant cutbacks to workers’ rights to take collective action.

The significance of this case was evident throughout the oral arguments. On one side the National Labor Relations Board (NLRB) and a University of Virginia Law Professor argued that the issue implicates the basic employment rights of tens of millions of U.S. workers. On the other side, the Principal Deputy U.S. Solicitor Jeff Wall (“Solicitor”) and an attorney for the companies argued that these are technical issues related to contract and civil procedure.

The case revolves around a key question: Do forced arbitration agreements that ban collective or class legal actions violate Section 7 of the National Labor Relations Act (NLRA)? That section permits employees “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The employers’ and Solicitor’s position is that Section 7 only protects workers’ rights to get to the “courthouse door.” According to the line of reasoning this side presented in the courtroom, the NLRA gives workers the right to act together at work, but the moment their workplace concerns get to a legal forum, they have no right to continue together. Once they enter the courtroom or arbitrator’s chambers, the argument went, all parties must abide by the rules of the forum, be it the NLRB, the federal courts or the arbitrator. They argued that this principle applies even if those rules require workers to proceed individually.

The problem, of course, is that there is a long history of employers using forced contracts to require employees to waive their rights as a condition of employment.

Justice Ruth Bader Ginsburg invoked this history when she asked the attorney for the employers whether forced arbitration agreements are simply “yellow dog” contracts by another name. This was a reference to contracts where employees agree not to join a union as a condition of employment. (“Yellow dog” contracts were made illegal in the 1932 Norris LaGuardia Act.)

Justice Stephen Breyer put an even finer point on the matter when he expressed his concern that the employers’ position “is overturning labor law that goes back to, for [Franklin D. Roosevelt] at least, the entire heart of the New Deal.”

Nonetheless, the arguments of the management-side attorneys appeared to gain traction with conservative Justices. This iss despite the fact that the employers’ side consistently failed to address a key problem: the rules of the forum that they said everyone has to follow are not made by some neutral third party. They are written by the employer, who then makes participation in the forum a condition of employment for the employee to sign the agreement. Research shows that almost 25 million non-union workers have been forced to sign such arbitration agreements.

Yet, some Justices bought the management-side argument. At one point, Justice Anthony Kennedy, who seemed to be the swing vote in this case, insisted that workers can still engage in collective action because they can simply go to the same attorney and ask her to represent them each individually.

Presumably, Justice Kennedy did not intend to imply that the attorney could share the details of each of the cases with each worker, because that would violate the confidentiality clause in many of these agreements. And presumably, he did not mean that the attorney could share confidential information, because then there would be no attorney-client privilege protection.

The employers’ counsel agreed with Justice Kennedy, and said that even though the confidentiality clause would prohibit the attorney from sharing information among the workers, it couldn’t “stop the same lawyer from thinking about the three cases in conjunction.” In Justice Kennedy’s words, “that is collective action.”

In reality, forced arbitration agreements that prohibit class or collective action have grown exponentially in recent years through a tactical decision by corporations to strip Americans of their rights to litigate their claims together. The NLRB responded in 2012 to the growing use of these forced arbitration agreements by finding that these agreements violate federal labor law.

The liberal Justices repeatedly demonstrated that this case is not about neutral rules of a forum, or technical issues of civil procedure, but about basic concepts of power.

Justice Ginsburg asked the Solicitor, “What about the reality? I think we have in one of these cases, in Ernst & Young, the individual claim is $1,800. To proceed alone in the arbitral forum will cost much more than any potential recovery for one. That’s why this is truly a situation where there is strength in numbers, and that was the core idea of the NLRA. There is strength in numbers. We have to protect the individual worker from being in a situation where he can’t protect his rights.”

Justice Ginsburg was making the point that if workers cannot bring class or collective actions, many who have low-dollar claims will be denied justice because it would be more expensive to bring their cases than they could possibly win.

The Solicitor’s response was telling. He claimed that the different arbitration agreements have different clauses, which deal with issues of costs and fees. In essence, he insisted, the contract takes care of those concerns. And, in the final analysis, the employers’ attorney and Solicitor explained that the contract—even if it is a forced contract—should trump any possible rights workers may have to bring their actions collectively.

In a sense, this position answered Justice Breyer’s initial question: Yes, this case does bring us back to a pre-New Deal framework, and the employers and Trump administration are comfortable with that.

This case is poised to have a far-reaching impact. When the Supreme Court struck down a California law prohibiting consumer arbitration agreements that waive consumers’ rights to file a class action, such arbitration agreements ballooned. If the Court similarly holds that workers do not have a substantive right under the NLRA to vindicate their labor and employment rights collectively, then it is likely that soon almost every non-union worker will face even more limitations to real justice.

This blog was originally published at In These Times on October 4, 2017. Reprinted with permission. 

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

Divide and Conquer: Employers' Attempts to Prohibit Joint Legal Action Will be Tested in Court

Thursday, September 28th, 2017
On Monday, October 2, the U.S. Supreme Court will hear arguments in the most consequential labor law cases to come to the Court in a generation, which could fundamentally alter the balance of power between millions of American workers and the people who employ them.

So why are so few people paying attention?

At first glance, the cases may seem dry and complex, as they involve 80-year-old laws that most people have never heard of. But the issue at stake is actually quite simple: should your employer be able to force you to give up your right to join your coworkers in a lawsuit challenging working conditions as a condition of getting or keeping a job?

The federal courts of appeals for the Seventh and Ninth Circuits say the answer should be no. They point to the National Labor Relations Act (NLRA), a law passed by Congress in 1935 to end “industrial strife and unrest” and restore “equality of bargaining power between employers and employees.” The NLRA gives workers the right to join unions and to “engage in other concerted activities” for “mutual aid or protection,” and it makes it illegal for employers to “interfere with, restrain or coerce employees in the exercise” of those rights.

But in recent years, more and more employers are requiring their employees to agree, as a condition of working for that employer, that they must resolve any disputes that might come up in the future in a private arbitration proceeding, and not in court. Many of these so-called arbitration agreements also prohibit the arbitrator from hearing more than one employee’s claim at a time—in other words, they ban employees from taking legal action together, either in court or in arbitration. A recent study from the Economic Policy Institute found that 23.1% of private sector, non-union workers, or 24.7 million Americans, work for employers that impose such a concerted legal action ban.

Sheila Hobson was one such employee. She worked at a gas station in Calera, Alabama that was run by Murphy Oil. When she applied to work there, she had to sign an agreement stating that she would not participate in a class or collective action in court, “in arbitration or in any other forum” and that her claim could not be combined “with any other person or entity’s claim.” Two years later, she joined with three coworkers to file a lawsuit under the Fair Labor Standards Act. She and her coworkers claimed that they were routinely asked to clean the station, stock shelves, check prices at competitors’ stations and perform other tasks while “off the clock” and without pay. Murphy Oil moved to dismiss the lawsuit, pointing to their arbitration agreement and arguing that each employee had to pursue their claims individually.

The National Labor Relations Board, a federal agency created by Congress to enforce the NLRA, stepped in to defend Ms. Hobson and her coworkers. The NLRB ruled that Murphy Oil’s arbitration agreement interfered with its employees’ right to engage in concerted activity for their mutual aid or protection in violation of the NLRA. But the Court of Appeals for the Fifth Circuit agreed with Murphy Oil, leading to this showdown before the Supreme Court.

The crux of Murphy Oil’s position, which is shared by the employers in the cases out of the Seventh and Ninth Circuits that are also being argued on Monday, is that the employers’ bans have to be enforced because of the Federal Arbitration Act. This law, passed back in 1925 at the request of businesses who wanted to be able to resolve commercial disputes privately under specialized rules, says that agreements to arbitrate should be treated the same as any other contracts. And because their concerted action bans are found in arbitration agreements, the employers argue, the FAA requires their enforcement.

But the FAA includes a “saving clause” that allows arbitration agreements to be invalidated on any “grounds as exist at law or in equity for the revocation of any contract.” One such ground for revoking a contract is that it is illegal, and the Seventh and Ninth Circuit opinions pointed out that a contract that interferes with employees’ rights under the NLRA is illegal and thus unenforceable under the FAA’s saving clause. Moreover, as the NLRB explained, the Supreme Court has repeatedly held that the FAA cannot take away anyone’s substantive rights; it merely allows those rights to be pursued in arbitration rather than in court. But the concerted action bans in these cases, and those like them that other employers force employees to sign, do take away the very substantive right to join with coworkers that the NLRA guarantees. By preventing workers from banding together in court or in arbitration, these agreements deprive employees of the ability to pursue their concerted action rights in any forum whatsoever.

Given the high stakes these cases present, both employer and employee positions have garnered a large number of friend-of-the-court briefs before the Supreme Court. The Chamber of Commerce has weighed in on the employers’ side, as have other groups representing industry and the defense bar. The Justice Department, which had originally represented the NLRB, switched sides with the change in presidential administration and is also supporting the employers.

Meanwhile a group of ten labor unions pointed out that given the economic power employers wield over employees who need jobs to support their families, “few workers are willing to put a target on their back by bringing legal claims against their employer on an individual basis.” The NAACP Legal Defense Fund and more than 30 other civil rights groups, including Public Justice, explained how joint legal action has unearthed patterns of discrimination and brought about systemic changes in workplace policies that individual cases could never have achieved, listing 118 concerted legal actions challenging discrimination based on race, gender, age, disability and sexual orientation that would not have been possible under concerted action bans like Murphy Oil’s. The National Academy of Arbitrators disputed the employers’ premise that joint or collective claims can’t proceed in the more streamlined forum of arbitration, noting that labor arbitrators have been resolving group claims in unionized workplaces for decades and that requiring each case against the same employer – with the same evidence – to proceed separately would actually be far less efficient and more costly. Finally, the Main Street Alliance argued that concerted action bans reduce enforcement of minimum wage and employment discrimination laws, which disadvantages responsible businesses relative to corporations that mistreat employees and break the law.

With nearly a quarter of U.S. non-union employees already subject to concerted action bans, a green light from the Supreme Court telling employers to continue this practice will no doubt cause that figure to soar. But Public Justice is hopeful that the Court will follow the plain meaning of the NLRA and find these bans to be the illegal acts that they are—attempts to coerce employees into giving up their right to join forces to increase their bargaining power. That right applies equally whether employees want to join a union, join a lawsuit or join a boycott or picket line. The Supreme Court should stop this employer power grab and reaffirm the right to concerted activity, which is just as important for workers now as it was when Congress established it over 80 years ago.

This article was originally published at Public Justice on September 28, 2017. Reprinted with permission.

About the Author: Karla Gilbride joined Public Justice in October 2014 as a Cartwright-Baron staff attorney. Her work focuses on fighting mandatory arbitration provisions imposed on consumers and workers to prevent them from holding corporations accountable for their wrongdoing in court.

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

Friday, September 22nd, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When the Parades Are Over, Who Stands With Unions?

Wednesday, September 6th, 2017

The Labor Day parades are over. The bands have packed up. The muscular speeches celebrating workers are finished. The trash is getting collected from parks across the country.  And now conservative politicians from Trump on down will revive their systematic efforts to weaken unions and undermine workers.

Trump – despite all the populist bunting that decorates his speeches – sustains the deeply entrenched Republican antipathy to organized workers. Their attack is relentless.

Trump’s budget calls for deep cuts in the Labor Department, eviscerating job training programs and cutting – by 40 percent – the agency that does research on workplace safety. It would eliminate the program that funds education of workers on how to avoid workplace hazards. It even savages money for mine safety enforcement for the miners Trump claims to love.

Trump is systematically reversing any Obama rule that aided workers. He signed legislation scrapping the rule that required federal contractors to disclose violations of workplace safety and employment and anti-discrimination laws. His Labor Secretary has announced his intention to strip millions of workers of the overtime pay they would have received under Obama DOL regulations.

Trump is creating a pro-business majority at the National Labor Relations Board, which will roll back Obama’s efforts to make it easier for workers to organize, and make it possible to hold home companies responsible for the employment practices of their franchisees.

The GOP’s Anti-Union Strategy

This is simply standard operating procedure for today’s Republican party. Long ago, Republicans realized that organized labor was a central “pillar,” as Grover Norquist described it, of Democratic Party strength. Now Republican office holders at every level – from county officials to statehouses to judges – know that their job is to weaken labor unions. From right to work laws to administrative regulations to court challenges, Republicans sustain an unrelenting attack.

And aided by our perverse globalization strategies, they’ve been remarkably successful. Unions are down to about 7 percent of the private workforce. Public employee unions, a relative stronghold, are facing court challenges – essentially allowing workers to enjoy the benefits of union negotiations without paying dues — that will decimate their membership.

True conservatives would embrace unions. They are a classic “mediating institution,” a voluntary civic organization between government and the individual. Unions increase the voice and power of workers in the workplace, helping to keep executive accountable, and to protect workers from abuse. They also educate their members, teach democracy, and are central to community volunteer and service efforts. They teach and practice democratic citizenship.

The modern Republican Party, of course, is the party of big business and big money. It isn’t conservative; it is partisan. And weakening unions is a constant target.

While Republicans understand how important unions are to Democrats and to workers, Democrats don’t seem to get it. Sure, they line up to get union donations; most will vote to defend unions and worker programs. But as the money in politics has gotten bigger and the unions have gotten weaker, the Wall Street wing of the Democratic Party has become more powerful.

The result is clear. When Republicans get control, they attack unions relentlessly. When Democrats gain control, as they did in 2012 with the election of Barack Obama and Democratic majorities in both houses, labor law reform, empowering workers to organize is not a priority. Obama essentially told unions that if they could get the votes, he’d sign the law, but he wasn’t leading the charge. And so as under Carter and Clinton, changing the law to make it easier for workers to organize and bargain collectively didn’t happen.

Unions Under Siege

Now unions are under siege. Yet it is hard to imagine how a small “d” democracy can be robust, or a large D Democratic Party can regain its mojo without a revived movement of workers. It’s time for Democrats at every level to realize: strengthening workers and their unions isn’t an elective; it’s a requirement and a first priority.

The loop works like this: Unions are in decline. As a result, unions lose influence inside the Democratic Party. The Democrats then feel no pressure to stem unions’ decline, and the economically disadvantaged lose what was once their most powerful advocate. Then the cycle continues. We cannot revive unions, and we have no template for egalitarian politics without them.

Unions aren’t simply economic actors. They’re political actors. Labor still needs the Democrats. The Democrats, more than they realize, still need labor. But most of all, all those who want to build a fairer society need their partnership.

Republican elites understand the doom loop. Big business, small business, and Tea Party alike have pushed hard against unions. As the parties have polarized, Republicans have taken the gloves off, risking the votes of the 40 percent of union members who back Republicans in order to crush a pillar of the Democratic coalition. Even President Bernie Sanders would have real trouble rebuilding unions in the face of a Republican Congress and a federal judiciary eager to swat down pro-labor executive action.

Even without Republican politicians digging their graves, labor unions face deep challenges. In the private sector, unions must sign contracts workplace by workplace. Gawker writers here and home-care workers there will continue to organize their workplaces, but the barriers remain dauntingly high. In the public sector, unions have stood steady. But cops and teachers alike face blowback for putting their own prerogatives above the public interest. And if the Supreme Court bans the collection of agency fees in the public sector (thus imposing “right to work”), public-sector union membership could halve in a decade.

This blog was originally published at OurFuture.org on September 5, 2017. Reprinted with permission. 

About the Author: Robert Borosage is the founder and president of the Institute for America’s Future and co-director of its sister organization, the Campaign for America’s Future. The organizations were launched by 100 prominent Americans to develop the policies, message and issue campaigns to help forge an enduring majority for progressive change in America. Mr. Borosage writes widely on political, economic and national security issues. He is a Contributing Editor at The Nation magazine, and a regular blogger at The Huffington Post. His articles have appeared in The American Prospect, The Washington Post,Tthe New York Times and the Philadelphia Inquirer. He edits the Campaign’s Making Sense issues guides, and is co-editor of Taking Back America (with Katrina Vanden Heuvel) and The Next Agenda (with Roger Hickey).

Employees are not fully protected by the First Amendment

Monday, August 21st, 2017

Private employment is at will. The most productive or most loyal worker is subject to termination at any time. Employers are not required to show cause or pay severance. The only exception is getting fired for a discriminatory reason that violates state or federal law.

Recent developments have people wondering if they can be fired for speaking their mind or expressing political views, especially off the clock and away from work. In many cases, the answer is yes, when “free speech” activities reflect poorly on the company or violate company policy or employment agreements.

What happens in Vegas does not stay in Vegas

In the wake of the protests and counterprotests in Charlottesville, Virginia, some attendees were “outed” on social media and subsequently fired by their employers. Companies quickly cut ties with employees photographed in Ku Klux Klan or Nazi regalia.

But what about carrying a Confederate flag or a tiki torch to protest removal of a statute? Or conversely, what about antifa or Black Lives Matter supporters depicted in clashes with alt-right marchers?

Courts have generally upheld the right of private employers to terminate employees for conduct in their private lives that is detrimental to the company’s goodwill, such as drunken debauchery or photo ops with hate groups.

For public employees, the standard is higher – does the private conduct compromise the ability of the employee or the agency to serve the public?

Don’t bite the hand that feeds you

Employees who badmouth their employers, especially on Facebook or Twitter, should not be surprised to get pink slips. Whistleblowers are protected from retaliation for reporting criminal activity or rights violations, but within limits.

In a recent case in Minnesota, the 8th U.S. Circuit Court of Appeals upheld the firing of six Jimmy John’s employees who complained about the company’s lack of sick leave. Rather than discussing labor law, which is protected speech, they insinuated via posters and press releases that the company’s sandwiches might be tainted by workers with contagious illness.

As the fired workers were involved in a unionization effort, the National Labor Relations Board and a three-judge appeals panel ruled that the firings were essentially retaliation. The full 8th Circuit appeals court disagreed, reinforcing that employees do not have a First Amendment right to disparage their employer’s products or services.

On the other hand, some experts say James Damore may have grounds for wrongful termination after Google fired him for posting a “manifesto” about gender diversity. Despite questionable science – asserting women are biologically more “neurotic” than men – his opinion was posted on an internal forum that Google created to discuss workplace issues.

Google asserts that Damore was let go because his incendiary treatise was derogatory and discriminatory, in violation of company policy and perhaps federal law. Damore has filed a complaint with the National Labor Relations Board, saying that he acted within his rights to discuss his working environment and his employer’s discriminatory practices.

Discrimination is not a business reason

The First Amendment is a smaller shield within the context of employment. Employers have some latitude to separate from employees for objectionable speech. But terminations cannot be based on a worker’s race, national origin, gender or religion.

These cases are always dependent on legal precedent, new interpretations, enforcement priorities or recent changes in the law itself. If you believe an employer has unfairly punished or fired you for protected speech, an employment law attorney can explore your legal remedies.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on August 18, 2017. Reprinted with permission.

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.

Elon Musk May Be a “Visionary,” But His Vision Doesn’t Seem To Include Unions

Friday, August 11th, 2017

Tesla CEO Elon Musk has been making more headlines than usual lately. Shortly after the business magnate claimed he had received governmental approval to build a hyperloop from New York to Washington, D.C., he got into a public argument with Facebook CEO Mark Zuckerberg about the future of artificial intelligence. Musk also recently made comments regarding the production of Tesla’s new Model 3, a battery-electric sedan. “We’re going to go through at least six months of manufacturing hell,” he told journalists.

It’s hard to know exactly what constitutes “manufacturing hell,” but it might also be difficult to ever find out. That’s because, since last November, Tesla has required employees to sign confidentiality agreements which prevent them from discussing workplace conditions. This policy has faced increased criticism since February, as workers at Tesla’s Fremont, Calif. plant have expressed concern over wages, safety and their right to unionize. They have reached out to the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) union, which is now intervening.

Last week, some of those workers made specific demands. A group called Tesla Workers’ Organizing Committee sent a letter to the company’s board members seeking safety improvements and a clearer promotion policy. The letter cites 2015 data from the Bureau of Labor Statistics, the last full year for which such information is available. “For that year, data from the Bureau of Labor Statistics indicates that our injury rate was higher than that of sawmills and slaughter houses. Accidents happen every day,” reads the letter. The committee also addressed Tesla’s resistance to workplace organizing: “We should be free to speak out and to organize together to the benefit of Tesla and all of our workers. When we have raised this with management we have been met with anti-union rhetoric and action.”

Attention was originally drawn to the factory’s organizing fight after Tesla employee Jose Moran published a Medium post on February 9. Moran raises safety concerns, writing that, a few months ago, six of the eight people on his work team were on leave due to workplace injuries. He also breaks down problems with the factory’s wages. According to Moran, workers at the Tesla factory make between $17 and $21 in Alameda county, an area where the living wage is more than $28 an hour. Moran wrote that some of his coworkers make a two-hour commute to work because they can’t afford to live near the factory.

“Tesla’s Production Associates are building the future: They are doing the hard work to build the electric cars and battery packs that are necessary to reduce carbon emissions. But they are paid significantly below the living wage for one adult and one child in our community,” Maria Noel Fernandez, campaign director of the local worker advocacy group Silicon Valley Rising, told In These Times via email. “We believe that green jobs should be good jobs, and that they have a right to organize and advocate for themselves and their families.”

The day after Moran published his post, employees passed out literature containing the piece during a shift change at the factory. According to an unfair labor practice charge with the National Labor Relations Board (NLRB) made by workers, and obtained by Capital and Main, this prompted management to schedule a meeting where workers were told they couldn’t pass out information unless it was pre-approved by the employer. The same NLRB charge accuses Tesla of illegal surveillance and intimidation.

Moran’s piece, and the subsequent accusations, were taken seriously enough to be addressed by Elon Musk directly. In an email to employees, obtained by Buzzfeed, Musk declared that safety concerns ignored vast improvements established in 2017. Tesla also put out a statement echoing Musk’s claims. The company’s data points to a 52 percent reduction in lost time incidents and a 30 percent reduction in recordable incidents during the company’s first quarter.

Musk promised a “really amazing party” for workers after the Model 3 reached volume production. In addition to the party, the factory would eventually include free frozen yogurt stands and a roller coaster. “It’s going to get crazy good,” he wrote. As for Moran, Musk claimed he was a paid UAW plant and that he had looked into his claims and discovered they weren’t true. The UAW, he explained, “does not share our mission” and their “true allegiance is to the giant car companies, where the money they take from employees in dues is vastly more than they could ever make from Tesla.”

This wouldn’t be the last time Musk would use such language in regards to a union. Six months after Tesla acquired Germany’s Grohmann Engineering, Musk found himself clashing with the country’s dominant metalworkers’ union, IG Metall. The union intervened to insist that Tesla straighten out a wage discrepancy that had some workers claiming they were making 30 percent less than union rates. Musk sent a letter to Grohmann employees offering a one-time bonus—an extra 150 Euros a month—and Tesla shares instead of a pay increases that the employees desire. “I do not believe IG Metall shares our mission,” reads the letter.

“We’re a money-losing company,” Musk told The Guardian in May. “This is not some situation where, for example, we are just greedy capitalists who decided to skimp on safety in order to have more profits and dividends and that kind of thing.” Two months after that interview, Automotive News reported that Musk had been the highest paid auto executive of 2016, exercising stock options worth $1.34 billion. Musk’s incredible economic success hasn’t exactly been generated via an unfettered free market. According to data compiled by the Los Angeles Times in 2015, Musk’s companies have benefited from billions in government subsidies.

Whether or not Tesla’s board members are receptive to employee demands, it seems clear that the workers’ struggle is not going away anytime soon.

This article was originally published at In These Times on August 10, 2017. Reprinted with permission.

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

Trump is about to make America much crueler to unionized workers

Wednesday, August 2nd, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As Media Focuses on Russia Collusion, Trump Is Quietly Stacking the Labor Board with Union Busters

Thursday, July 20th, 2017

It might not get as much press coverage as other Donald Trump administration calamities, but the U.S. president is set to appoint a known union buster to the National Labor Relations Board (NLRB), push the body to a Republican majority and reverse Obama-era protections that rankle Big Business.

On July 13, the Senate Health, Education, Labor and Pensions (HELP) Committee held hearings on Trump’s two NLRB selections and his deputy labor secretary pick. All three of these men are expected to be confirmed.

William Emanuel, one of Trump’s NLRB appointees, is a management-side attorney and a member of the conservative Federalist Society. He is also a shareholder of Littler Mendelson, an infamous union busting firmthat was most recently brought in by Long Island beer distributor Clare Rose to negotiate a contract full of pay cuts.

After being selected, Emanuel disclosed 49 former clients and declared he would recuse himself for up to a year if any of the companies found themselves in front of the NLRB. The list included multiple businesses that have clashed with the labor board, including JPMorgan Chase Bank, MasTec Inc, Nissan and Uber.

Uber’s ongoing skirmishes with the NLRB have, perhaps, been the most publicized. At the end of 2016, the ride-share company battled with the NLRB after the agency sent out subpoenas aimed at gleaning information about whether Uber drivers were statutory employees.

In 2016, Emanuel authored an amicus brief that defended class-action waivers in employment contracts. Workers often depend on class actions to fight sexual and racial discrimination, and their existence is an important part of upholding wage laws. The NLRB ruled that such waivers were illegal under Obama.

Emanuel was asked about Littler Mendelson’s anti-union work by Massachusetts Senator Elizabeth Warren. “You have spent your career at one of the country’s most ruthless, union-busting law firms in the country,” she said. “How can Americans trust you will protect workers’ rights when you’ve spent 40 years fighting against them?”

In response, Emanuel claimed that he would be objective whenever making decisions for the agency.

Emanuel is not the only appointee raising concern among workers’ rights advocates. Marvin Kaplan, another Trump nominee to the NLRB, is a public-sector attorney and current counsel to the commissioner for the Occupational Safety and Health Review Commission. The Kaplan pick excites business executives and their advocates, who envisioned him helping overturn Obama-era labor regulations.

At the time of the announcement, Kristen Swearingen, chair of the anti-union group Coalition for a Democratic Workplace, declared that “Marvin Kaplan will begin to restore balance to an agency whose recent and radical decisions and disregard for long standing precedent have injected uncertainty into labor relations to the detriment of employees, employers and the economy.”

The excitement is well-founded. Kaplan served as counsel for Republicans on the House Committee on Education and the Workforce. The New York Times reports, “The committee held hearings during his tenure scrutinizing prominent NLRB actions in which the witnesses skewed toward business representatives and other skeptics.” Kaplan also helped develop the The Workforce Democracy and Fairness Act, legislation that would kill a labor board rule that shortened the amount of time between when the board authorizes a workplace unionization vote and when the vote actually takes place. Since 2014, the number has been set at 11 days. But this act would increase it to at least 35, thus allowing more time for union efforts to be squashed. The legislation hasn’t passed in congress yet.

Concerns do not stop at the NLRB. Trump’s Labor Department nominee is Patrick Pizzella, a Federal Labor Relations Authority Member who was grilled by Minnesota Senator Al Franken on his ties to the infamous lobbyist Jack Abramoff. Pizzella worked with Abramoff during the 1990s to exempt the Northern Mariana Islands from federal labor regulations.

The Senate has only been in session for 10 days since the Pizzella and Kaplan nominations, and only four days since Emanuel’s. A group of civil rights and labor organizations sent the committee a letterasking for the hearings to be postponed. During her opening remarks, Sen. Patty Murray called Trump’s attempt to jam through the nominees without proper oversight “unprecedented.”

Roughly 10 workers representing the pro-labor organization Good Jobs Nation stood up during Thursday’s hearing, put blue tape over their mouths and walked out of the room in silent protest. Groups like Good Jobs Nation are concerned about a pro-business majority in the agency amidst Trump’s proposed cutsto the Labor Department.

Trump is putting the NLRB in the position to undo a number of important Obama-era labor decisions. His NLRB could potentially reverse rulings that made it easier for small groups of workers to unionize, established grad students as employees, put charter school employees under NLRB jurisdiction, and held parent companies jointly liable for with franchise operators who break labor laws. Writing about the imminent anti-union crackdown on this website in May, Shaun Richman wrote, “Unions and their allies should be convening research teams to plot out a campaign of regulatory and judicial activism. That work should begin now.”

Early in the hearing, Washington Senator Patty Murray asked Emanuel if he had ever represented a union or a worker. Emanuel explained that he worked exclusively for management for his entire career. “You just don’t do both,” he told her. “It’s not feasible.”

This piece was originally published at In These Times on July 14, 2017. Reprinted with permission.

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

Working People Need to Know If We Can Trust Donald Trump’s NLRB Nominees to Protect Our Freedoms

Monday, July 17th, 2017

President Donald Trump chose two nominees for the National Labor Relations Board whose commitment to the freedom of working people to come together and negotiate is seriously in doubt. These two men, Marvin Kaplan and William Emanuel, have records of actively trying to strip working people of their freedoms.

Republicans are rushing to get these nominations through, but it is imperative that the Senate uses upcoming hearings and meetings to find out whether these nominees will side with working people or the richest 1% of Americans. NLRB decisions and actions have a real impact on the lives of working people, particularly the ability to join together with co-workers to advocate for positive change.

Of the nominations, AFL-CIO President Richard Trumka said:

Marvin Kaplan has never practiced labor law, and his experience comes from crafting legislation for politicians that rigs the rules against working people. William Emanuel has a long record of practicing labor law on behalf of employers, most recently at one of the most infamous union-busting law firms in the country. On their face, the resumes of both nominees appear to be in direct conflict with the mission of the NLRB.

Emanuel, a member of the staunchly anti-working people legal organization,  the Federalist Society, has extensive experience representing employers in collective bargaining, union elections and unfair labor practice proceedings under the National Labor Relations Act. Recently, he filed a brief before the U.S. Supreme Court arguing that employers should be allowed to require employees to waive their right to file class-action lawsuits or any other method of joining with others in seeking relief for rights violations. Emanuel has directly worked on numerous issues currently before the NLRB, raising serious questions about his ability to be impartial on those cases.

Kaplan hasn’t ever practiced labor law. His only related experience is in staffing a couple of Republican, anti-worker committees in Congress and helping run a series of oversight hearings criticizing the NLRB under President Barack Obama. He drafted legislation to overturn several NLRB actions that strengthened the freedom of working people join together. Like Emanuel, Kaplan has actively worked on numerous issues he would have to rule on if confirmed to the NLRB, calling into question his own impartiality on those cases.

This blog was originally published at AFLCIO.org on July 11, 2017. Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars. Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History. His writings have also appeared on Daily KosAlternet, the Guardian OnlineMedia Matters for AmericaThink ProgressCampaign for America’s Future and elsewhere.

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