Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NLRB’

Trump reversal of Obama-era labor rule is great news for corporations

Friday, June 23rd, 2017

A transgender woman is suing McDonald’s and the owner of the franchised restaurant she worked for after allegedly experiencing sexual harassment and discrimination.

La’Ray Reed said a coworker asked if she were a “boy or girl,” “top or bottom,” or what her “role” was “in the bedroom.” She said she was groped and spied on while using the public toilet.

But for Reed to hold McDonald’s responsible for her alleged mistreatment, her lawyers have to prove that McDonald’s should be held responsible as a joint employer—not just the owners of the franchised restaurant. There is a question of whether the Labor Department’s recent decision to rescind the standard for determining who is a joint employer will hinder her ability to seek justice. The Obama administration’s standard went beyond simply looking at who sets wages and hires people, and considered a worker’s “economic dependency” on the business.

McDonald’s has resisted this legal responsibility for many years, and says it does not have control over things like pay and working conditions at franchised restaurants. In 2016, McDonald’s settled a wage-theft class action through a $3.75 million payment that allowed it to dodge responsibility. McDonald’s released a statement that said it “reconfirms that it is not the employer of or responsible for employees of its independent franchisees.”

Industry groups have been pushing against efforts to call businesses like McDonald’s joint employers for many years now. In 2015, Matt Haller, a lobbyist at the International Franchise Association called a 2015 National Labor Relations Board ruling on whether a recycling company could be called a joint employer, “a knife-to-the throat issue for the franchise model.” He told the Washington Post, “You’d be hard pressed to find a business that shouldn’t be concerned about the impact of this joint employer standard.” Haller said IFA was “pleased” at the department’s decision to rescind guidance this month.

But there is certainly hope for La’Ray Reed, and other workers like her who are experiencing discrimination or issues such as wage theft at work. Since the joint employer guidance does not have the full force of law, it is not as important to these cases as existing tests for determining if an employer relationship exists. Under the economic realities test, applied under Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act, among other laws, a relationship exists if someone is economically dependent on that business. Paul Secunda, professor of law at Marquette University, who teaches on employment discrimination law, said this test will play a much bigger role in determining whether an employee can hold McDonald’s responsible for discrimination.

“Just the Trump administration withdrawing this guidance does not mean in any way that these claims are doomed to failure or are otherwise are not plausible,” Secunda said. “Because what matters the most with employment law is focusing on employment discrimination under Title VII and what other state laws apply there.”

‘This control standard is the standard that has been in place since the 1950s and ‘60s, and so it doesn’t make sense to have different standards under different laws. It only makes sense to hold liable those who control what happens in the workplace,” Secunda added.

Representatives of Fight for $15, a group of fast food workers, teachers, and adjunct professors advocating for better pay backed by the Service Employees International Union, said McDonald’s has failed to enforce its own policies.

“The growing number of allegations suggests a failure by McDonald’s to enforce the zero-tolerance policy against sexual harassment outlined in its Operations and Training and Policies for Franchisees manuals,” the labor group told BuzzFeed.

“There are terms and conditions that are set by the national parent McDonald’s,” Secunda said. “It has a policy on sexual harassment and equal opportunity that all its franchisees have to meet: that it will not tolerate sexual harassment whether based on transgender status or otherwise in the workplace. [The argument is] that McDonald’s parent company exercises meaningful control—that is being free from sexual harassment and demeaning conduct in the workplace.”

None of this means that any parent corporation is responsible for any franchisees’ lability, Secunda said, since every case must be decided on its facts, but where employers do exercise meaningful control over employees, there should be a possibility that they will be held responsible.

The decision to rescind this joint-employer guidance will by no means kill any possibility of holding a corporation, such as McDonald’s, responsible, and a judge would be more likely to consider the rule of law first, Secunda said, but the joint employer guidance would still be a helpful resource for the defendant to have in its arsenal.

“If I were a conservative jurist who wanted it to come out on the corporate conservative side of the world, I see that they could use this. ‘You know they’re the expert agency, so they can’t be wrong,’” Secunda said. “But I just think that would be disingenuous, because the agency has obviously changed its position based on the politics on the administration. And this should be an answer that has nothing to do with politics. It should be based on rule of law.”

This blog was originally published at ThinkProgress on June 22, 2017. Reprinted with permission. 

About the Author: Casey Quinlan is a journalist covering education, investments, politics, crime, and LGBT issues.

Yale: Negotiate with Your Graduate Teachers

Thursday, May 18th, 2017

In February, the graduate teachers voted to be represented by UNITE HERE. But Yale University has refused to negotiate with them. If they stall long enough, more appointees by President Donald Trump will be seated at the National Labor Relations Board. How quickly do you think those appointees would vote to roll back the rights of graduate workers?

Graduate teachers are teachers. Once they walk into the classroom, their job becomes indistinguishable from that of a tenured faculty member. When they counsel students outside of class, they aren’t giving them only part-time counseling. When they spend endless hours grading papers and tests, their work benefits the university and helps create the environment that attracts students and investors in the school.

Eight UNITE HERE Local 33 members are fasting to protest the university’s refusal to bargain with graduate teachers. The teachers also have marched, picketed and committed acts of civil disobedience. They’ve done all this because they want a seat at the table, something they have earned with their hard work:

We’ve done all this for a simple reason. We want a voice and a seat at the table. Our members, like many young workers in this economy, have to deal with intense economic insecurity. We face punishing competition in a declining career track. Women experience an epidemic of sexual harassment in academia. People of color are systemically marginalized. We want change, and we’ve been told to wait for too long.

Take action today, and send a message to Yale demanding it negotiate with its graduate teachers.

This blog originally appeared at AFL-CIO on May 15, 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 Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

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

Tuesday, May 16th, 2017

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

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

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

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

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

Step 1: Bring a buddy

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

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

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

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

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

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

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

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

Step 3: Build solidarity at work and in the community

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

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

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

Despite Some Union Support, Trump’s New Labor Pick Would Be Terrible for Workers

Tuesday, March 14th, 2017

President Donald Trump’s new pick to head the Labor Department is getting an early boost from a “divide-and-conquer” strategy against labor unions and their allies, even before his qualifications and background as a civil servant are scrutinized in a Senate confirmation hearing.

The nomination of R. Alexander Acosta was announced by Trump less than 24 hours after the president’s first choice for the job, hamburger-chain executive Andrew Puzder, dropped out of consideration. Puzder faced mounting Senate opposition, even from some conservative Republicans, because of disclosures that he had personally broken labor law by hiring an undocumented household servant, and also that he had been accused of spousal abuse many years ago.

Labor unions and Democratic Party leaders in Washington, D.C., had maintained a unified front against the Puzder nomination but that unity dissolved almost immediately with the announcement of Acosta’s nomination February 16. His first confirmation hearing, which was scheduled for this week, has been moved to March 22.

The first endorsement came from the International Union of Operating Engineers, followed by one from the International Association of Fire Fighters and then the Laborers International Union of North America (LIUNA) got on board. AFL-CIO President Richard Trumka even offered lukewarm praise, telling MSNBC News: “Well, we’re going to vet him, but he does have a history of enforcing the laws that protect workers, which is a real plus, whereas Puzder had a history of violating the rules.”

Acosta, 48, is currently dean at the Florida International University’s law school, a position he has held since 2009. A Harvard-trained lawyer, he held several appointed positions in the administration of George W. Bush. Before that, he was a labor lawyer at the giant law firm Kirkland & Ellis LLP, known for representing large multinational corporations.

Pro-labor Democrats in the Senate have been conspicuously quiet on Acosta’s nomination—at least thus far. Sen. Elizabeth Warren, a Democrat from Massachusetts, for example, was an outspoken opponent of Puzder but spokeswoman Alexis Krieg tells In These Times that the senator has no comment on Acosta.

Not so shy is Erik Loomis, assistant professor of history at the University of Rhode Island and a labor commentator at the progressive blog Lawyers, Guns & Money. He said:

“The selection of Alexander Acosta should provide no comfort for those who worked to reject Andy Puzder. Acosta has a lifetime of anti-union and anti-worker positions. Appointed to the National Labor Relations Board by George W. Bush, Acosta consistently decided with employers during his term. His support of Ohio’s attempt to suppress black voting in 2004 is deeply disturbing. That the AFL-CIO seems to think Acosta is as good as they are going to get under Trump is depressing, but perhaps realistic.”

William B. Gould IV, a law professor at Stanford University, agrees with Loomis’ analysis of Acosta’s tenure at the National Labor Relations Board (NLRB). He says Acosta had “a short, and for the most part uninspiring record” at the NLRB. Acosta served at the board for just eight months in 2003, a time when anti-union Republicans were in control.

Gould, a former NLRB chairman during the President Bill Clinton administration, cites several cases as examples of Acosta’s anti-worker positions:

  • Alexandria Clinic, P.A., 339 NLRB No. 162 (2003). Acosta voted that hospital strikers could be legally fired because they delayed the beginning of an otherwise legal job action by several hours.
  • Curwood Inc., a division of Bemis Company Inc., 339 NLRB No. 148 (2003). Acosta voted to ignore otherwise illegal threats made by the employer against workers trying to form a union. He also sanctioned otherwise illegal promises of new benefits to workers who would vote against the union.
  • Beverly Health, 339 NLRB No.161 (2003). Acosta voted against a corporate remedy in spite of the fact that the company had been found guilty of extensive misconduct on other occasions. His vote was in the minority.

“Curiously, one opinion of Acosta’s, while laudable and appropriate, will give him problems with the anti-immigrants,” among conservative Republicans, Gould adds.

In the case of Double D Construction, 339 NLRB No.48 (2003), Acosta stated that a worker who used a false social security number should not be considered guilty of committing a crime. Such misrepresentations are just part of the workday reality for undocumented workers, Acosta argued. This was the correct decision, according to Gould, but will likely be viewed differently by Republicans favoring a hard line against immigrants.

Equally problematic for worker rights advocates is Acosta’s tenure at the Department of Justice, where Acosta held appointed positions starting in 2003, says Saru Jayaraman, co-director of the pro-worker Restaurant Opportunities Center United.

There are at least two “troubling” episodes in Acosta’s Department of Justice career, Jayaraman says. First, Acosta is on record supporting efforts to restrict voting rights for African Americans in Ohio in 2004. In that case, Acosta was accused of exerting political pressure to help suppress voter turnout. “Voting rights are essential to labor rights, so I see this as important,” Jayaraman says.

So does the Lawyers’ Committee for Civil Rights Under Law, an advocacy group that has been fighting attempts to restrict voting laws. Committee President Kristen Clarke stated:

Mr. Acosta led the Civil Rights Division at a time that was marked by stark politicization, and other improper hiring and personnel decisions that were fully laid to bare in a 2008 report issued by the Office of Inspector General (OIG). The OIG found that actions taken during Mr. Acosta’s tenure violated Justice Department policy and federal law. Political and ideological affiliations were used as a litmus test to evaluate job candidates and career attorneys, wreaking havoc on the work of the Division. This egregious conduct played out under Mr. Acosta’s watch and undermined the integrity of the Civil Rights Division. It is hard to believe that Mr. Acosta would now be nominated to lead a federal agency tasked with promoting lawful hiring practices and safe workplaces.

A second troubling incident was a plea deal that Acosta negotiated while he was the U.S. Attorney for the Southern District of Florida in 2005, Jayaraman says. In that case, a man accused of having sex with underage girls and soliciting prostitution received a light sentence, apparently because the man was a wealthy businessman who could afford expensive lawyers, she claims.

“This was a sexual predator. This is very relevant to workers in the restaurant sector because sexual harassment and sexual abuse in the restaurant industry is just rampant,” Jayaraman tells In These Times. “Acosta does not take the issue seriously.”

But in the final analysis, “it doesn’t matter whether it’s Puzder or this guy (Acosta). The agenda is the same … The secretary of labor doesn’t set the policy, the president does,” says Jayaraman.

Loomis concurs.

He says: “Trump’s selections, both Puzder and Acosta, are inherently anti-worker. But so is Donald Trump, despite the unusual level of support he received from union members.”

This blog originally appeared at Inthesetimes.com on March 13, 2017. Reprinted with permission.

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

Postal Service Drops Staples Privatization Effort

Wednesday, January 11th, 2017

The Postal Service’s experimental “pilot program” in privatizing the retail end of the USPS using Staples outlets has failed and ended. The “Grand Alliance to Save Our Postal Service” has forced the USPS to back off from partnering with Staples in their effort to privatize and undermine the wages and jobs of USPS employees.

The American Postal Workers Union (APWU) reports that the “Approved Shipper” program will end operations in Staples stores by the end of February,

Postal management informed the APWU in writing that the “Approved Shipper” program in Staples stores will be shut down by the end of February 2017. This victory concludes the APWU’s three-year struggle. The boycott against Staples is over!

“I salute and commend every member and supporter who made this victory possible,” said APWU President Mark Dimondstein. “I never doubted that if we stayed the course, stuck together and kept the activist pressure on, we would win this fight.”

Bloomberg has the story, in U.S. Postal Service Drops Service at Staples Amid Union Pressure,

Following union-backed boycotts and an adverse labor board ruling, the United States Postal Service has agreed to curb a controversial arrangement allowing private employees to provide its services at Staples Inc. stores.

USPS spokeswoman Darlene Casey told Bloomberg that the Postal Service would end its relationship with Staples in order to comply with a National Labor Relations Board judge’s ruling.

NLRB Ruling Came On Top Of Labor And Public Opposition And Boycott

The immediate cause of the USPS decision was an order from the National Labor Relations Board, but the bigger picture was labor and public opposition to privatization, including a “Stop Staples” Staples boycott. The Washington Post explains, in U.S. Postal Service to halt retail sales at Staples stores after union complaints,

The move resulted from a National Labor Relations Board (NLRB) order issued on Wednesday. The board adopted an administrative law judge’s ruling from November. It “requires the Postal Service to discontinue its retail relationship with Staples,” said Darlene Casey, a Postal Service spokeswoman. “The Postal Service intends to comply with that order.” USPS could have appealed, but decided not to fight.

APWU initiated the NLRB complaint against the Postal Service for improperly subcontracting work to Staples that could have been done by postal employees. But while the NLRB order was the direct link to the program’s downfall, APWU President Mark Dimondstein said that legal tactic was just one part of a larger strategy that included demonstrations, educating customers and attending company stockholder meetings.

A Big Win

The Washington Post story quotes APWU President Mark Diamond stein, explaining that this is a “big win”,

“This is a big win,” Dimondstein said. “Staples is out of the mail business which they should never have gotten into. Our members take great pride in their training and their responsibilities; they swear an oath; they perform a public service. The quality of service at a Staples store isn’t comparable. The public should have confidence in the mail. Important letters, packages and business correspondences shouldn’t be handled like a ream of blank paper.”

“This is also a win for those who care about the neighborhood post office,” his statement continued, “and for all those in our society who think that workers should earn a fair living wage with decent health care and a pension, rather than the Staples model of minimum wage, part-time hours and no benefits.”

Postal Professionals vs Low-Age Retail Employees

One of the objections to Staples stores handling mail was the need for well-trained professionals to handle mail services. An Inspector General conducted an audit of the “Approved Shipper Program” and as the Bloomberg report put it,

The audit found that the Postal Service lost revenue due to participants incorrectly accepting boxes with insufficient postage, that clerks at the private retailers often didn’t complete certified mail forms correctly, and that “shippers are still not complying with mail security requirements.”

It Takes A Coalition

This victory for postal workers shows how coalitions like the “Grand Alliance to Save Our Postal Service” can achieve things for working people. According to APWU,

Many national unions endorsed the boycott including large teacher unions, the American Federation of Teachers (AFT) and the National Education Association (NEA). The other postal unions enthusiastically supported the campaign. The 12 million worker-strong AFL-CIO added Staples to their official boycott list. UNI the Global Union, an international union association, endorsed the Staples boycott urging all of the affiliated unions throughout the world to put pressure on Staples, since the company does business in 26 countries. Dozens of state AFL-CIO federations, local unions, Central Labor Councils, community allies and city councils passed resolutions endorsing the boycott.

This post originally appeared on ourfuture.org on January 9, 2017. Reprinted with Permission.

Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.

 

Think It’s Tough for Labor Now? Just Wait Until Trump Takes Office in January

Friday, November 18th, 2016

photo_321703[1]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)

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.

It’s Game On for Grad Students After NLRB Rules They Can Unionize

Monday, September 12th, 2016

rebeccanathanson

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)

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.

This week in the war on workers: Temps win back a labor right stripped by Bush administration

Monday, July 18th, 2016

LauraClawsonUntil 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

NLRB Judge Rules Walmart Wrongly Fired Strikers

Monday, February 1st, 2016
Kenneth Quinnell

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

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

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

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

Read the full ruling.

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

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

Chicago Window Workers Who Occupied Their Factory in 2008 Win New Bankruptcy Payout

Tuesday, January 26th, 2016

kari-lydersenSeven 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.

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