Posts Tagged ‘NLRB’
Friday, November 18th, 2016
In 63 days, organized labor is going to find itself in a new political reality, which it seems totally unprepared for. Donald Trump will be president; the Republicans will control the House and Senate and one of Trump’s first tasks will be to nominate a new Supreme Court justice. Though Trump was tight-lipped about specific policy proposals, his campaign and the current constitution of the Republican party do not bode well for labor.
Trump’s actions will largely fall into one of four categories: judicial, legislative, executive and at the level of federal agencies. Each potential move will take various levels of cooperation from other branches of government and varying amounts of time to complete.
On Day 1 of his new administration, President Trump can simply rescind many of Barack Obama’s executive orders that benefited large groups of workers. Chief among these were EO 13673, which required prospective federal contractors to disclose violations of state and federal labor laws, and helped protect employees of contractors from wage theft and mandatory arbitration of a variety of employment claims. Similarly, EO 13494 made contractor expenses associated with union busting non-allowable, thereby helping to ensure that workers can exercise their labor rights.
At the agency level, Trump will have the opportunity to fill vacancies on the five-person National Labor Relations Board (NLRB), effectively turning what has been one of the most pro-worker boards in recent memory into one that is more concerned with employers’ interests. The NLRB is one of the more politicized federal agencies, and it is not uncommon for a new NLRB to overturn a previous board’s rulings. A conservative board would put into jeopardy recent gains, including the requirement of joint employers to bargain with workers, the rights of graduate students to form unions, the rights of adjuncts at religious colleges to form unions and the protections from class action waivers in employment arbitration agreements, which effectively block access to justice for too many.
Similarly, Trump can immediately dismiss the entire Federal Service Impasses Panel (FSIP) and appoint his own members. The FSIP is a little-known federal agency that functions like a mini-NLRB to resolve disputes between unionized federal employees and the government.
Donald Trump may be able to not only roll back many of Barack Obama’s accomplishments, but also change the face of labor law for decades to come. (AFL-CIO/ Facebook)
At the legislative level, various anti-worker bills sit ready for a GOP-led push. Perhaps chief among them is the National Right to Work Act, which would place every private sector employee (including airline and railway employees currently under the Railway Labor Act) under right-to-work. Right-to-work is the misleading law that prohibits unions from requiring that workers represented by the union pay their fair share. Such a bill was introduced last year by Sen. Rand Paul, and it had 29 co-sponsors, including Senate Majority Leader Mitch McConnell. Trump announced on the campaign trail that his “position on right-to-work is 100 percent,” so this will likely be an area where he has common cause with the GOP-controlled Congress.
At the judicial level, there is also a strong possibility that we will see a sequel to the Friedrichs case at the Supreme Court. Friedrichs was widely anticipated to bar fair share fees and place all public sector employees under right-to-work, but ended in a deadlock after Justice Antonin Scalia’s death. It is likely that any Supreme Court justice that Trump chooses will be as critical of fair share fees as Justices Samuel Alito and John Roberts, and would provide a critical fifth vote in changing long-standing precedent regarding the allowance of such fees. Groups like the National Right to Work Committee and Center for Individual Rights often have cases in the pipeline that could be pushed to the Supreme Court when the opportunity arises.
Similarly, at the judicial level, Trump will likely have his Department of Labor drop appeals to court decisions that enjoined or overturned pro-worker rules, such as the rule requiring union-busters to disclose when they are involved in an organizing campaign. Dropping the appeals would be an easy route to kill the rules, rather than going through a more time consuming rulemaking process to rescind them.
All indications are that labor has been caught unprepared for a President Trump and a GOP-controlled Congress and Supreme Court. With such broad control over every branch of government, Trump may be able to not only roll back many of Obama’s accomplishments, but also change the face of labor law for decades to come.
This post originally appeared on inthesetimes.com on November 17, 2016. Reprinted with permission.
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.
Monday, September 12th, 2016
December 5 fell on a Friday in 2014; in New York City, the air was crisp. At Columbia University, about 200 graduate student-workers pulled on hats and scarves to gather on the imposing steps of Low Library, which houses the university president’s office. While most stood in a block formation, holding signs declaring their department names, a small delegation went inside to deliver a letter to the president. It asked that he voluntarily recognize their union, the Graduate Workers of Columbia (GWC-UAW Local 2110), which a majority of graduate employees supported.
When the administration declined to reply, GWC and the United Auto Workers (UAW), with which it is affiliated, petitioned the National Labor Relations Board (NLRB) to certify their union. A complicated legal process ensued.
For more than a decade, the NLRB considered graduate employees to be students, not workers. As such, they did not have the same legal rights of most employees, including the right to organize. All that changed two weeks ago when the NLRB decision on the Columbia case finally came back, siding with the student-workers and their right to collective bargaining.
“Obviously, it’s a huge push for us and it’s caused a lot of excitement and enthusiasm,” says Ian Bradley-Perrin, a PhD student in sociomedical sciences and history, who has worked as both a teaching and research assistant.
After months of approaching people with hypotheticals, he says that he and his fellow organizers can now speak in concrete terms: “We’re going to have an election. We are now recognized as workers. So it’s just been talking to people about what a union actually means, how the union is organized democratically, how people’s interests will be represented in the union.”
Graduate teaching and research assistants at a handful of private universities have been working towards unionization for years. Their administrations have largely been able to ignore their actions, citing the NLRB’s designation of them as students. Now, however, their efforts can finally move forward. They have the legal right to hold union elections and then negotiate contracts, providing them a collective voice in the terms of their employment. Already, the NLRB’s ruling is invigorating existing campaigns and inspiring new ones.
Graduate employees at many public universities have long enjoyed the right to unionize, but their peers at private universities have faced a long, serpentine route to achieve that same right. (Rebecca Nathanson)
Path to recognition
Graduate employees at many public universities have long enjoyed the right to unionize, but their peers at private universities have faced a long, serpentine route to achieve that same right. In 2001, graduate employees at New York University (NYU) became the country’s first to form a union and negotiate a contract at a private university, providing teaching assistants with wage increases and improved working conditions.
Three years later, graduate employees at Brown University attempted to do the same, but the NLRB, which had then shifted to a Republican majority, ruled that graduate employees were primarily students, not workers. In 2005, the NYU union’s contract expired and, using the 2004 Brown decision as precedent, the administration refused to negotiate a new one.
NYU’s administration kept firm to that stance until fall 2013, when it offered to voluntarily recognize the union. More than 98 percent of graduate employees voted in favor of the union, making it, once again, the only graduate employee union at a private university.
Organizers across the country were anxious to follow in their footsteps. Last month’s NLRB ruling gives them a shot in the arm.
At Harvard University, graduate student organizer Abigail Weil is particularly excited by the expansive way in which the NLRB defined a graduate employee in its ruling: “It’s broader and more inclusive than even we had hoped for. That’s just that many more people that we can talk to and fold into the bargaining unit as we create it.”
In its decision, the NLRB writes, “It is appropriate to extend statutory coverage to students working for universities covered by the (National Labor Relations) Act unless there are strong reasons not to do so.” It continues, “We will apply that standard to student assistants, including assistants engaged in research funded by external grants.” Not only does this include research assistants in addition to teaching assistants, but, Weil posits, it could also be interpreted as including working Masters students—and possibly even working undergraduates.
According to Weil, the Harvard Graduate Students Union (HGSU-UAW) plans to file a petition for an election. She can already see a change in campus support.
“We’re thrilled at how many people were following the NLRB story,” she says. “Since that decision has come out, probably two-thirds of the people that we talk to now bring (it) up without us having to bring that up or explain it.”
Organizers at The New School, in New York City, are experiencing a similar phenomenon.
Like at Columbia, graduate employees at The New School asked their administration to voluntarily recognize their union. When that didn’t work, they too petitioned the NLRB for certification, only to hit the wall created a decade earlier by the Brown decision.
“We had our first meeting of the year on Monday and we had probably three times as many people show up,” says Eli Nadeau, a Masters student in the politics department at The New School. “We’re planning for an election because Columbia’s ruling covers us.”
Graduate workers at Cornell University took a slightly different approach to winning collective bargaining rights. While biding their time until the NLRB ruled on the Columbia case, they negotiated and signed a code of conduct with their administration in May. The document outlines the mechanisms by which a union election would take place and the behavior expected of both sides.
“Our next steps are really just working on the union. We are building outreach and finding out what our members’ concerns are,” explains Ben Norton, a PhD student in the music department and the communications and outreach chair of Cornell Graduate Students United, the university’s graduate employee union affiliated with the American Federation of Teachers and the National Education Association.
“We wasted no time”
Campaigns on numerous campuses have been galvanized by the Columbia decision, but graduate employees at Yale University took perhaps the swiftest action in its wake. Less than a week after the ruling, they filed a petition to hold an election to certify their union with the NLRB.
“We wasted no time. It was really exciting for the path to victory to open up and for us to really take advantage of it,” says Aaron Greenberg, a PhD student in the political science department and chair of Local 33-UNITE HERE, which represents Yale’s graduate teaching and research assistants.
In filing their petition, UNITE HERE and organizers at Yale are creating yet another variation on a graduate employee union. Rather than file as an entire unit of employees across the university, they did so department-by-department, starting with 10 departments.
“We really want a process that reflects how our work is organized. How much you get paid, what kind of work you do, what kind of hours you do really depend on the department,” explains Greenberg. Plus, he adds, “We’re hoping that by filing each department separately and starting with departments where the desire to unionize is overwhelmingly clear, we can avoid wasteful legal gamesmanship, unnecessary delays, and that the university will respect the democratic will of the members of these departments, who have made clear, time and time again, that they want a union.”
One of the next steps for graduate employees at many of the private universities hoping to take advantage of the recent NLRB decision will be working out the exact parameters of the bargaining unit: who it covers and who it excludes is not yet completely clear. But in the meantime, they will, for the first time in more than a decade, be able to move closer towards unionization without legal barriers—barriers which, organizers believe, were knocked down by the force of the organizing that took place in those intervening years.
“Labor law follows organizing, not the other way around,” says Weil. “We have been organizing to the full extent of our abilities, not the full extent of our legal rights. We’re happy to have those rights restored.”
This article was originally posted at InTheseTimes.com on September 9, 2016. Reprinted with permission.
Rebecca Nathanson is a freelance writer in New York City. She has written for Al Jazeera America, n+1, The Nation, NewYorker.com,The Progressive, RollingStone.com, and more.
Monday, July 18th, 2016
Until now, if temp workers wanted to unionize into the same bargaining units as permanent workers, both bosses—the one running the workplace, and the staffing agency “employing” the temps—had to agree. Which: Ha ha ha ha ha, yeah, no. That requirement dates back to the George W. Bush administration, of course, but now President Obama’s National Labor Relations Board has called for a return to an earlier standard:
In this new ruling from Miller & Anderson, Inc., the Board returns to a standard set in 2000, during the Clinton administration, in a case called M.B. Sturgis, Inc., which was overruled in Oakwood.
Under Sturgis, and now Miller & Anderson, permanent and jointly employed workers can negotiate in the same unit if they are employed by the same primary employer, and if they share a “community of interest.”
In a statement announcing the ruling, the NLRB said, “requiring employer consent to an otherwise appropriate bargaining unit desired by employees, Oakwood has … allowed employers to shape their ideal bargaining unit, which is precisely the opposite of what Congress intended.”
In short, this is undoing an obstacle in the way of workers organizing, taking a piece of power away from employers and giving it to workers. And it is, Erik Loomis writes, “why I have zero patience with anyone voting for Jill Stein.”
This blog originally appeared at DailyKos.com on July 16, 2016. Reprinted with permission.
Laura Clawson has been a Daily Kos contributing editor since December 2006. Labor editor since 2011
Monday, February 1st, 2016
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.
Tuesday, January 26th, 2016
Seven years after Republic Windows & Doors workers occupied a recently-shuttered factory in Chicago, making international news, and three years after they opened their own window company, they are receiving a $295,000 payout in bankruptcy court that is both a symbolic and pragmatic victory.
When a company goes bankrupt, workers are usually at the end of the line to get paid, as they are considered “unsecured creditors” behind various secured creditors who are owed money. That means workers often never get money they are owed.
But the Republic Windows workers have broken the mold in many ways, starting when they occupied the factory on Goose Island in the Chicago River, receiving massive community and political support and convincing Bank of America and JP Morgan Chase to hand over the severance and vacation pay due them.
They became a poster child of the American Recovery and Reinvestment Act (or the “stimulus”) after the company was bought by a California-based maker of highly energy efficient products. Then they occupied the factory again when that owner threatened to close it. Finally in spring 2013 they opened their own factory, New Era Windows.
In January 2009, not long after the occupation, the United Electrical Workers (UE) union, which represented Republic workers, filed a complaint with the National Labor Relations Board charging that the company violated the union contract by closing abruptly without negotiating over the closure terms. Two years later, the board ruled in favor of the workers and decided they were due two weeks’ wages, the estimated amount of time that bargaining over a closure would have taken.
The company was in bankruptcy proceedings by then, however, and it wasn’t until this week that the bankruptcy court ordered the release of the funds. The NLRB will distribute the money to individual workers.
A release from the NLRB this week noted:
The Board found that the employer violated the National Labor Relations Act when they closed their Goose Island facility and moved operations to an alter ego operation in Iowa. However, ongoing bankruptcy procedures made full or partial compliance with the order unlikely until a successful suit against the employer’s insurer made additional assets available for the repayment of debts.
The board continued that: “Bankruptcy proceedings often prevent compliance with Board-ordered remedies as employer’s assets are liquidated through Chapter 7 processes. While the employees did not receive full back pay, obtaining partial compliance in this case is a victory for workers who have been waiting for a remedy since 2008.”
“Some people feel like it’s not enough, but it’s symbolic,” said Armando Robles, one of the New Era worker-owners and a leader of the occupation and ensuing efforts. “It’s a huge victory.”
UE organizer Leah Fried noted that the payout is thanks to “the constant haranguing we had do to. We had to wait until everyone else came out of the woodwork, but the fact we kept pressuring the court” paid off.
“It’s great that seven years later, [the workers are] still winning money,” she says.
The former Republic Windows CEO, Richard Gillman, was sentenced to four years in prison for fraud charges related to the closing of the factory and the purchase of another window factory in Iowa. He was released after serving significantly less time than the sentence.
New Era has been growing, with 14 worker-owners and four new hires, Robles said. This is the slow season, however, when few people are ordering windows. Robles said the bankruptcy payment should mean about $1,200, helping him pay rent and bills until New Era business picks up in the spring.
“It hasn’t been easy, obviously,” said Fried. “But they’ve shown you can run a company without bosses, and do well.”
This blog originally appeared in inthesetimes.com on January 25, 2016. Reprinted with permission.
Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist and instructor who currently works at Northwestern University. Her work has appeared in the New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Mayor 1%: Rahm Emanuel and the Rise of Chicago’s 99 Percent. She is also the co-author of Shoot an Iraqi: Art, Life and Resistance Under the Gunand the author of Revolt on Goose Island: The Chicago Factory Takeover, and What it Says About the Economic Crisis.Look for an updated reissue of Revolt on Goose Island in 2014. In 2011, she was awarded a Studs Terkel Community Media Award for her work.
Wednesday, December 9th, 2015
Happy news for workers … and news I really, really want a Donald Trump quote on:
After two days of voting in a National Labor Relations Board election, a majority of workers at the Trump International Hotel Las Vegas have voted “YES” to be represented by the Culinary Workers Union Local 226 and the Bartenders Union Local 165 of UNITE HERE. Over 500 employees of the hotel are in the union’s bargaining units and were eligible to vote.
Trump Las Vegas workers voted in the NLRB election on December 4 and 5 at their hotel. This victory for workers at the luxury non-gaming hotel co-owned by businessman Donald Trump and casino owner Phillip Ruffin, comes nine months after workers at the Trump International Hotel Toronto voted to join UNITE HERE, and one week after the Trump Toronto workers ratified their first contract.
During the organizing drive, 86 percent of workers signed union cards, but they faced opposition from management:
According to NLRB charges filed by the union, five hotel workers were “unfairly suspended for exercising their legal right to wear a union button and organize their coworkers” last year (they were eventually reinstated with back pay, along with an agreement to post workers rights publicly and not interfere with future organizing). Last June, the union filed new charges alleging the management “violated the federally protected rights of workers to participate in union activities” including “incidents of alleged physical assault, verbal abuse, intimidation, and threats by management.” The workers charged the managers with blocking organizers from distributing pro-union literature in the workers’ dining room, while stealthily allowing anti-union activists to campaign during work hours.
So, Donald: Here are some workers in your own hotel fighting to make American jobs better. Tell us how you feel.
This blog originally appeared at DailyKOS.com on December 7, 2015. Reprinted with permission.
About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.
Wednesday, August 5th, 2015
Union busting has become big business in America. It’s so common that the run-of-the-mill variety hardly raises an eyebrow. Employers regularly hire anti-union consultants and hold captive audience meetings laced with subtle and not-so-subtle threats of disciplinary action or firings.
But every once in a while, employers try a novel union-busting tactic. In Pittsburgh, in a case that some have suspected is destined for the Supreme Court, Duquesne University has pushed the boundaries of employer intimidation.
On April 29, adjunct professors Clint Benjamin and Adam Davis testified under oath at a hearing at the National Labor Relations Board (NLRB). The topic was Duquesne University’s unwillingness to recognize the union that their colleagues overwhelmingly voted for three years ago. After the hearing, the regional director of the NLRB held that Duquesne had to negotiate with the union the adjuncts voted to represent them, United Steelworkers (USW). (Full disclosure: I teach a course at Duquesne Law School, which is a part of Duquesne University, but was not part of this bargaining unit.)
As expected, Duquesne appealed the decision, prolonging the NLRB process and delaying bargaining. However, deep in Duquesne’s appeal—footnote 16 on page 42, to be exact—Duquesne did something radical: It used the brief as a means to openly union-bust by sending out a clear message that anyone who opposes the University in this organizing campaign risks losing their jobs.
The brief read, “Today, Duquesne reserves the right not to rehire both professors and replace them with professors willing and/or better able to incorporate Duquesne’s Catholic, Spiritan mission into their courses.”
As the bottom rung of the faculty, adjuncts have virtually no job protections, so Duquesne would be free to terminate any adjunct for any legitimate reason. It appears, then, that this threat of firing was meant to serve a different purpose than merely preserving some abstract right to fire them: It seems clear the comment was meant to threaten them and all other adjuncts that dare to stand against Duquesne in its anti-union efforts.
Such comments, made informally by a supervisor or anti-union consultant, are fairly common in the workplace during a union drive, though they may be illegal. The fact that Duquesne would feel brazen enough to submit them in a legal document to the NLRB is a slap in the face to the workers and a dare to the federal agency tasked with protecting labor rights.
When asked how he read the Duquesne’s footnote, Benjamin responded, “The threat was pretty bone-chilling.”
I reached out to Duquesne’s attorneys to inquire as to what legitimate explanation they could have had for the threatening footnote, and they did not respond to the request for comment.
There’s a reason the brief specifically cited the university’s religious mission. The NLRB hearing was to determine whether Duquesne, as an institution affiliated with the Catholic Church, was under NLRB jurisdiction. After initially agreeing to the union election in 2012, Duquesne changed course and argued that the NLRB had no jurisdiction over the university. The case has been going up and down the NLRB for three years now, raising significant issues about the Board’s jurisdiction.
The specific question at the hearing was whether the university “holds out the petitioned-for faculty as performing a specific role in creating or maintaining the university’s religious educational environment.” Benjamin and Davis’s testimony was critical. Benjamin testified that he teaches two core English composition courses at Duquesne, and Davis testified that he teaches a history of science course in the History Department. Both testified that they have never been asked about their faith, never been told how to promote Duquesne’s religious mission and never been disciplined for failing to live up to Catholic teachings. Benjamin, who also teaches a composition course at a community college, testified that the way he teaches his course at both institutions is identical.
Benjamin’s and Davis’s testimony that as adjuncts they had no role in Duquesne’s religious mission, and that they were never expected to help promote that mission, was damning to Duquesne’s case at the NLRB. Their testimony revealed that they answered advertisements for the adjunct positions, were hired without any questions about religion, and have never been given any religious directions. Benjamin explained that aside from the various crucifixes adorning the campus, religion is not a concern in his class.
Therefore, they were taken aback by Duquesne’s assertion in the brief professors must “incorporate Duquesne’s Catholic, Spiritan mission into their courses.”
In an interview with In These Times, Benjamin said that he is not even sure how he would incorporate religion into a basic composition course. “I guess we’d involve more reading of scripture?” he says. “The mission itself is to serve God by serving students. It’s pretty open-ended as to what that means.”
University of Wyoming College of Law Professor Michael Duff explained that Duquesne would have trouble arguing that it was simply reaffirming its rights to fire adjuncts who did not adhere to its religious mission. “The problem with the footnote, however, is its superfluity: there was simply no reason to make the declaration,” Duff explained, “and in the context of the footnote you could make a pretty strong argument that it was targeted specifically to the employee witnesses.” The footnote’s only purpose, in other words, was to intimidate the two professors and any other professors who may consider taking a stand in the future.
Duff, who worked at the Board for nine years, further explained that such statements in a legal filing are extremely rare.
“Typically this would occur before an employer had retained a lawyer and had gone off kind of “half-cocked” in anger,” Duff explained. “In my experience, it would be very unusual for a sophisticated law firm to make statements in a formal legal document that even arguably violated the law.”
Duquesne’s attorney, Memphis-based Arnold Perl, is indeed sophisticated in his labor practice. He has been involved in a variety of “union avoidance” (often code for union busting) for decades, and until shortly after he became Duquesne’s counsel in May 2012, he bragged in his bio that he had “extensive experience counseling organizations on remaining union free.” (In late 2012, he changed his bio to read that he has “extensive experience counseling organizations on positive employee relations.”)
Dan Kovalik, the USW attorney who has been representing the Duquesne adjuncts, explained that the purpose of the footnote was immediately apparent.
“It really is tantamount to them threatening to fire them for testifying,” he says. “Because as we showed at the hearing, adjuncts aren’t told they have to incorporate the mission in their teaching, and these guys certainly weren’t told to do that. And now because they testified truthfully about that, they’re being threatened to be fired.”
Reflecting on the irony of including this threat in a brief that is filled with so much religious doctrine and sanctimony, Kovalik said, “They’ve carved out the moral low ground in the name of carving out the moral high ground.”
Duquesne’s case is filled with such ironies. It is arguing that Catholic doctrine—which has traditionally been supportive of labor rights—provides the university an excuse not to recognize the employees’ duly elected union. And, in case that argument stalls, it has decided to use, as a vehicle for union busting, a legal filing to the federal agency tasked with protecting employees’ labor rights.
The techniques that everyone has come to expect in anti-union campaigns did not appear all at once, fully formed. Rather, some employer, management-side attorney, or anti-union consultant decided to test the waters with a new approach If the NLRB does nothing in response to Duquesne’s use of the Board’s proceedings to intimidate workers, then the message to other employers will be clear—and it won’t be long until this approach becomes the norm.
This blog originally appeared in InTheseTimes.com on August 3, 2015. Reprinted with permission.
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.
Thursday, March 19th, 2015
A judge at the National Labor Relations Board (NLRB) yesterday found T-Mobile U.S. guilty of engaging in nationwide labor law violations against workers. The unprecedented ruling comes after a rare move last year by the NLRB consolidating multiple complaints against T-Mobile U.S. for illegal actions and policies in Albuquerque, N.M.; Wichita, Kan.; Charleston, S.C., and New York City.
At issue were illegal corporate nationwide policies that block workers from organizing or even talking to each other about problems at work. Workers throughout the T-Mobile U.S. system were subjected to and effectively silenced by these illegal policies; the judge’s order to rescind them covers 40,000 workers.
Communications Workers of America (CWA) President Larry Cohen said:
“This decision exposes the deliberate campaign by T-Mobile U.S. management to break the law systematically and on a nationwide scale, blocking workers from exercising their right to organize and bargain collectively. This behavior can only be changed by a nationwide remedy to restore workers’ rights. Deutsche Telekom, the principal owner of T-Mobile U.S., has claimed that its U.S. subsidiary follows the law. Now we have the official word: T-Mobile U.S. is a lawbreaker. Bonn, the headquarters of DT, no longer can hide behind the false statements made by T-Mobile U.S. executives. These behaviors would be almost unimaginable in Germany or any other democracy in the world.”
The decision by NLRB Judge Christine Dibble focused on T-Mobile U.S.’s illegal employment policies and restrictions that prohibited workers from discussing wages with each other or criticizing working conditions or seeking out assistance to blow the whistle on unlawful behavior.
The decision finds that the corporate policies “would chill employees in the exercise of their…rights” or would be construed “as restricting [an employee’s] rights to engage in protected concerted activities, including unionizing efforts.”
Judge Dibble found that T-Mobile U.S.’s Wage and Hour Complaint Procedure, for example, “tends to inhibit employees from banding together.” She writes that the corporate procedure’s requirement that an employee notify management of a wage issue first, “in combination with the threat of discipline for failing to adhere to the rule, would ‘reasonably tend to inhibit employees from bringing wage-related complaints to, and seeking redress from, entities other than the Respondent, and restrains the employees’…rights to engage in concerted activities for collective bargaining or other mutual aid or protection.”
Carolina Figueroa, a T-Mobile U.S. call center worker from Albuquerque, said:
“We are happy and relieved. We are finally being heard. My co-workers and I at T-Mobile U.S. will have the right to speak out against unfair treatment and should not be muzzled or retaliated against—and with today’s decision, the company has to declare this to all of its employees nationwide.”
This blog originally appeared in aflcio.org on March 19, 2015. Reprinted with permission.
About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.
Thursday, January 29th, 2015
Conservatives in Congress this week launched a renewed effort to weaken the ability of workers to get justice in the workplace against anti-labor behavior by businesses.
Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Lamar Alexander (R-Tenn.) announced a bill Wednesday that would cripple the National Labor Relations Board (NLRB), an agency that is instrumental in solving labor disputes and helping workers who have been treated unfairly by their employers. It’s the same bill that was introduced last year by McConnell and Alexander but was held up in committee when the Senate was controlled by Democrats.
Among its recent actions, the NLRB has filed multiple complaints against McDonald’s and its franchisees for illegally punishing workers who were involved in protesting fast-food labor practices.
The board currently seats five members – three Democrats and two Republicans. The proposed “National Labor Relations Board Reform Act” would increase the number of sitting members to six and require that each party have equal representation. All decisions would require a four-vote agreement, essentially guaranteeing partisan gridlock.
Republican members would have no incentive to compromise with Democrats when it comes to resolving disputes that reach the NLRB. When no agreement is reached, big business wins and workers’ treatment is left to the wills of corporations. Sen. Alexander claims that this bill would turn the NLRB “from a partisan advocate to a neutral umpire.” But what’s an umpire with no ability to make calls, much less the right ones?
The bill furthers Republican goals in advancing business interests at a high cost to workers. Party officials dislike the board because, they claim, it advances union interests and is bad for business. In reality, the NLRB allows workers to file claims of unfair management tactics and holds businesses accountable for the treatment of their employees.
Unions oppose the bill, as should every worker in the country. The President of the Communications Workers of America, Larry Cohen, in reaction to the introduction of this bill in 2014, called it “the worst revisionism on an economic issue I’ve ever heard.” He cited the preamble to the National Labor Relations Act, which – far from being neutral – states that “we must promote collective bargaining.” He called on senators to enforce that law.
Partisan gridlock would worsen a backlog of cases, undermining workers’ ability to seek justice, returning the board to the state of near-paralysis it was left in at the end of the George W. Bush administration. If the GOP can’t compromise with Democrats in the legislature, what’s to say they will on the NLRB – given their persistent antipathy against unions and worker empowerment? Unless workers unite and demand that Congress reject this bill, this will end up being a huge win for business and yet another kick in the gut of hard-working Americans.
This blog originally appeared in ourfuture.org on January 29, 2015. Reprinted with permission.
About the Author: Meghan Byrd is a student at Bucknell University studying political science and Spanish. In 2015 she spent a semester at American University. She is originally from Palo Alto, California in the San Francisco Bay Area and center of Silicon Valley. She is interested in public policy and the intersection between government and technology.
Wednesday, December 17th, 2014
This week, the National Labor Relations Board (NLRB) issued a decision and a rule that could make organizing a union significantly easier for American workers.
First, yesterday the Board recognized that email is one of the primary ways that workers communicate, and that its case law and election rules needed to reflect this reality. The NLRB issued a landmark decision in Purple Communications which opens the door to allowing workers to use employers’ email systems for union purposes—and admitted that it had misunderstood in previous cases how email works. In doing so, it overturned a Bush-era Board decision, Register Guard, which allowed employers to prohibit use of company email for non-work related purposes, including organizing and union purposes, unless the employer can show special circumstances that justify specific restrictions.
In the 2007 decision, the Labor Board analogized email to other employer equipment—such as bulletin boards, telephones, photocopiers and televisions—and found that the employer had a “basic property right to regulate and restrict employee use of company property.” In dissent, Members Liebman and Walsh criticized the Board, stating that the decision “confirms that the NLRB has become the Rip Van Winkle of administrative agencies. Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.”
Recognizing the changing nature of the workplace, Liebman and Walsh explained that email was becoming the new water cooler, and that the Board fundamentally misunderstood how email systems work. In a passage that reads almost as if written by a millennial to her out of touch grandparents, the two members explained in basic terms to the Board majority the difference between emails and more traditional communication media: “If a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced. If an employee is using a telephone for Section 7 or other nonwork-related purposes, that telephone line is unavailable for others to use.”
Emails, they explained, were different, because many employees could use the system simultaneously, subject lines clue the employee into whether to read or dispose of the message, and the marginal cost for an email is almost zero.
Yesterday, the Board vindicated Liebman and Walsh’s dissent and held that the majority’s 2007 decision was “clearly incorrect,” and that it “undervalued employees’ core Section 7 [of the National Labor Relations Act] right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights.” Therefore, employees who have access to work email can use the email system on nonwork time to discuss the terms and conditions of their employment and engage in other organization activity.
In correcting itself yesterday, the Labor Board finally recognized the central place that digital communications has in workers’ lives. The Board recognized that email is different than other employee equipment, and that most employers tolerate the personal use of employer email. Furthermore, the number of employees that “telework” has grown exponentially, with an expected 63 million employees teleworking by 2016. Recent surveys have found that approximately one third of employees report that their employer expects them to stay in touch outside of working hours and 69% frequently or occasionally check their email outside of normal working hours.
Taking these new realities to heart, the Board concluded that email was less like a photocopy machine as it was a “new natural gathering place and a forum in which coworkers who share common interests will seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” In shifting from an equipment analysis to an analysis that recognizes emails as a basic form of communication, the Board finally recognized the ubiquity of emails and the ways in which employer limitations effect workers’ associational rights.
And the Board doubled-down on recognizing the realities of modern communications this morning in a much-anticipated final rule that significantly changes union election procedures. The new rule includes a number of significant benefits for workers who are organizing, including postponing employer litigation over union election issues until after the election takes place to eliminating the waiting period between the time when an election is ordered and when it occurs (the time when many bosses carry out their union-busting campaigns through tactics like firings or threats of closing down a workplace).
But perhaps the most overdue change is the modernization of the “Excelsior List” rules. Prior to today’s rule, employers were required to turn over to the union an Excelsior List, which contained the names and home addresses of workers within seven days after a union election is ordered, so that the union can effectively communicate with all the workers it seeks to represent.
The new rule requires the employer to also turn over any employee email addresses and telephone numbers it possess, and shortens the amount of time management has to turn over the list to two days.
The week’s decisions are two long overdue correctives and will hopefully restore some of workers’ basic rights on the job. Given the bad news for workers from the Supreme Court earlier this week, the correctives are certainly welcome.
This blog originally appeared in Inthesetimes.com December 12,2014. Reprinted with permission. http://inthesetimes.com/working/entry/17442/company_email_union
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.