Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NLRB’

Trump’s Supreme Court Pick Could Spell a Fresh Hell for Workers’ Rights

Tuesday, July 10th, 2018

On Monday, President Donald Trump announced his nomination of conservative Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. If Kavanaugh is confirmed, Chief Justice John Roberts, a fellow conservative, will become the ideological and political center of the Supreme Court, and protections for women, minorities, voting rights, civil liberties and more could come under threat. Workers and labor unions should be particularly concerned about Judge Kavanaugh’s history of siding with businesses against workers and for pushing a deregulatory agenda.

In his 13 years on the Court, Chief Justice Roberts has helped to unleash unlimited corporate money into politics, open the door to mass voter disenfranchisement and lay the groundwork to strengthen the power of corporations over consumers and employees. He has also, in the words of Justice Elena Kagan, led the conservative project of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” This is who will now be the swing vote on the Supreme Court if Kavanaugh is confirmed.

Kavanaugh, who is 53 years old, once clerked for Judge Alex Kozinski, who abruptly retired last year after a long history of sexual harassment was revealed. Previously, Kavanaugh worked with Kenneth Starr to investigate President Clinton and draft the report that lead to Clinton’s impeachment. Over his last 12 years on the D.C. Circuit Court of Appeals,  Kavanaugh has shown himself to be an extraordinarily conservative judge. An analysis by Axios determined that Kavanaugh is just slightly less conservative than the most conservative member of the Court, Clarence Thomas.

A review of Judge Kavanaugh’s decisions regarding workers’ rights shows a disturbing trend of siding with employers on a range of issues.

In Southern New England Telephone Co. v. NLRB (2015), Kavanaugh overruled the NLRB’s decision that the employer committed an unfair labor practice when it barred workers from wearing T-shirts that said, “Inmate” on the front and “Prisoner of AT$T” on the back. Under the law, employees are permitted to wear union apparel to work, and the NLRB found that these shirts were protected under the National Labor Relations Act. The Board rejected the argument that “special circumstances” warranted limiting workers’ rights, because no reasonable person would conclude that the worker was a prison convict.

Kavanaugh rejected the Board’s legal analysis, writing, “Common sense sometimes matters in resolving legal disputes. … No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.’” Kavanaugh was undoubtedly correct in his understanding of the company’s desire not to have workers wear such shirts, which is precisely why the workers did so. What the unions did in wearing the shirts was apply pressure in a labor dispute in a manner that the law has long allowed. However, Kavanaugh criticized the Board’s analysis, writing that “the appropriate test for ‘special circumstances’ is not whether AT&T’s customers would confuse the ‘Inmate/Prisoner’ shirt with actual prison garb, but whether AT&T could reasonably believe that the message may harm its relationship with its customers or its public image.” By shifting the focus to the employer’s public image, Kavanaugh undercut the right of workers to publicly protest and dissent.

In Verizon New England Inc. v. NLRB (2016), Kavanaugh overturned the NLRB’s ruling that workers could display pro-union signs in their cars parked in the company parking lot after the union waived its members’ right to picket. In his decision, Kavanaugh held that “No hard-and-fast definition of the term ‘picketing’ excludes the visible display of pro-union signs in employees’ cars rather than in employees’ hands, especially when the cars are lined up in the employer’s parking lot and thus visible to passers-by in the same way as a picket line.” Therefore, according to Kavanaugh, the union’s waiver of the right to picket also applied to signs left in cars.

Judge Kavanaugh again overruled a pro-worker NLRB decision in Venetian Casino Resort, L.L.C. v. NLRB (2015). The NLRB had determined that the casino committed an unfair labor practice when, in response to a peaceful demonstration by employees (for which they had a permit), the casino called the police on the workers. Citing the First Amendment, Kavanaugh held that “When a person petitions the government in good faith, the First Amendment prohibits any sanction on that action.” Calling the police to enforce state trespassing laws, Kavanaugh concluded, deserved such protection.

In UFCW AFL CIO 540 v. NLRB (2014), Judge Kavanaugh issued an anti-worker decision involving Wal-Mart’s “meat wars.” After 10 meat cutters in Jacksonville, Texas, voted to form the first union at a Wal-Mart, the company closed its meat operations in 180 stores and switched to pre-packaged meats. (The notoriously anti-union Wal-Mart denied that its decision had anything to do with the union vote.) After the switch, Wal-Mart refused to bargain with the meat cutters, arguing that they no longer constituted an appropriate bargaining unit. Judge Kavanaugh agreed with Wal-Mart’s argument, but did write that Wal-Mart must bargain with the union over the effects of the conversion of the employees.

Judge Kavanaugh has consistently sided with employers in labor law cases, to the detriment of workers’ labor rights. He also has argued that the Consumer Financial Protection Bureau, established in 2011, is unconstitutional, and Aaron Klein, director of the Center on Regulation and Markets at the Brookings Institution, has said that his nomination “could reverse over a century of American financial regulation.”

Labor advocates should be extremely concerned about this ideological bent if Kavanaugh becomes a justice on an already very business friendly—and conservative—Supreme Court.

This article was originally published at In These Times on July 10, 2018. Reprinted with permission.

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

Tesla Swears It’s a Fair Employer—Yet It’s Trying to Dodge a Law That Protects Workers

Friday, June 15th, 2018

Since 2013, Tesla has fought unfair-labor-practice complaints from the NLRB, insisting it’s not a union buster and that it maintains a safe factory. However, just a week before the company went in front of a judge to face some of these accusations, Tesla petitioned the state of California to get around a new labor regulation that would require the company to be certified as a “fair and responsible workplace.”

On June 11, Michael Sanchez, a Tesla employee who is currently out on medical leave, testified before an NLRB administrative law judge, claiming that he was asked to leave the company’s Fremont factory by a supervisor and security guards in February 2017 after he attempted to hand out pro-union literature. The hearing is part of a wider complaint that was originally filed against Tesla by the NLRB last August.

Tesla has denied these allegations, insisting that the company is being unfairly targeted by labor groups looking to sow division among workers.

However, just one week before Sanchez’s testimony, the company sent a letter to the California Labor and Workforce Development Agency asking to be exempt from a new state rule that would require the company to be certified as a “fair and responsible workplace” in order for Tesla customers to receive state rebates for buying electric cars. Those rebates are viewed as key enticements in Governor Jerry Brown’s plan to put 5-million zero emission cars on California’s roads by 2030.

Governor Brown stuck the rule into his cap-and-trade legislation from last year, in a move that was perceived as a win for organized labor. However, Tesla believes that the provision effectively means that the state has picked a side in the company’s labor battles and is unfairly singling them out.

“To be sure, Tesla is not perfect–no company is,” reads the letter, dated June 4. “But any objective analysis of our workplace, as opposed to the selective use of unrepresentative anecdotes in a company of almost 40,000 employees globally, demonstrates we are a leader in the workplace. There should be absolutely no question that we care deeply about the well-being of our employees and that we try our hardest to do the right thing.”

On May 23, the state put out a concept paper for public comment, which detailed how the new rule would potentially be enforced. As part of their application process for the customer rebates, companies would have to submit information about their workplace practices to the state. This would include information about the company’s illness and injury prevention program, the recordable worker injury rates, nondiscrimination measures, and policies for investigating workplace complaints, wage violations and safety concerns. Manufacturers would also have to submit a list of citations and charges brought against them by government agencies and any criminal charges that have been brought against them for workplace issues within the last five years.

The concept paper will be revised with the accepted comments, and then the unions will push for the final document to become law. The government agencies have suggested that full certification commence in two years, but the United Auto Workers (UAW) union, which has been pushing to unionize the company’s factory, wants it to take effect by July 2019.

In addition to the aforementioned NLRB complaint, which encompasses a number of different accusations, Tesla is also facing several discrimination lawsuits from former employees. Last November, a former African-American worker named Marcus Vaughn sued the company claiming that coworkers and supervisors consistently referred to him by the n-word. Vaughn alleges that when he complained about the treatment, he was fired for not having a positive attitude.

Tesla CEO Elon Musk has repeatedly defended the company’s safety record publicly. In May, he went on a lengthy Twitter rant attacking the media for covering Tesla negatively, focusing specifically on a Reveal report that detailed how the company left workplace injuries off their books. Musk also criticized the UAW and declared that his employees didn’t actually want a union. “Nothing stopping Tesla team at our car plant from voting union,” Musk tweeted. “Could do so [tomorrow] if they wanted. But why pay union dues & give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.”

When asked to explain what he meant by the stock option comment, Musk shifted to an observation about the Revolutionary War: “US fought War of Independence to get rid of a 2 class system!” Musk wrote, “Managers & workers [should] be equal [with] easy movement either way. Managing sucks [by the way]. Hate doing it so much.” Musk’s net worth is estimated to be about $18.2 billion currently.

The new rule and the NLRB hearing comes amid additional bad news for Tesla and its employees. After misjudging the speed at which they could produce their Model 3 vehicles, the company laid off more than 3,000 people—about 9 percent of their workforce. “We made these decisions by evaluating the criticality of each position, whether certain jobs could be done more efficiently and productively, and by assessing the specific skills and abilities of each individual in the company,” Musk wrote to the company in an email. “As you know, we are continuing to flatten our management structure to help us communicate better, eliminate bureaucracy and move faster.”

The rule could be codified as early as July.

This article was originally published at In These Times on June 15, 2018. Reprinted with permission. 

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

Stop Calling It an Arbitration Agreement—Employers Are Forcing Workers to Give Up Their Rights

Thursday, May 24th, 2018

Trump-appointee Justice Neil Gorsuch begins his decision for the majority in Epic Systems v. Lewis, the landmark arbitration case decided Monday at the Supreme Court, with a simple set of questions: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?” Justice Gorsuch and the rest of the five-Justice conservative majority answered the first question in the affirmative and the second question in the negative. In so doing, the Supreme Court has ushered in a future where almost all non-union private sector workers—nearly 94 percent of the private sector workforce—will be barred from joining together to litigate most workplace issues, including wage theft, sexual harassment and discrimination.

The decision incorrectly holds that because the Federal Arbitration Act requires courts to treat arbitration agreements on equal footing with other contracts, the National Labor Relations Act, which explicitly protects workers who engage in concerted activity for mutual aid or benefit, does not protect workers’ rights to litigate claims at work. But the problem with the ruling goes much further: The entire decision is premised upon a massive fiction: that these arbitration agreements, wherein the worker loses all access to court to bring a collective action with her fellow workers, are the result of an agreement between the workers and the employer. In reality, arbitration agreements are mandatory rules imposed unilaterally by the employer—not two-sided agreements.

On April 2, 2014, Jacob Lewis, who was a technical writer for Epic Systems, received an email from his employer with a document titled “Mutual Arbitration Agreement Regarding Wages and Hours.” The document stated that the employee and the employer waive their rights to go to court and instead agreed to take all wage and hour claims to arbitration. Furthermore, unlike in court, the employee agreed that any arbitration would be one-on-one. This “agreement” did not provide any opportunity to negotiate, and it had no place to sign or refuse to sign. Instead, it stated, “I understand that if I continue to work at Epic, I will be deemed to have accepted this Agreement.” The workers had two choices: immediately quit or accept the agreement. This is not the hallmark of an agreement; it is the hallmark of a mandatory rule that is unilaterally imposed.

When Lewis tried to take Epic Systems to court for misclassifying him and his fellow workers as independent contractors and depriving them of overtime pay, he realized that by opening the email and continuing to work, he waved his right to bring a collective action or go to court. It is estimated that approximately 60 million Americans have already been forced to sign such individual arbitration agreements, and with Monday’s decision, they are certain to spread rapidly.

From the opening questions of the decision to the subsequent analysis, Justice Gorsuch and the conservative majority completely paper over the forced nature of these “agreements.” Gorsuch describes the facts of this case thusly: “The parties before us contracted for arbitration. They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures.” In addressing why it is necessary to honor the waiver of class or collective action, he writes, “Not only did Congress require courts to respect and enforce agreements to arbitrate; it also specifically directed them to respect and enforce the parties’ chosen arbitration procedures.”

But the workers in this case had no meaningful input or opportunity to negotiate the issue of arbitration. Describing the worker’s decision to open an email and not quit his job immediately in this manner is at best delusional and at worst deceitful.

The entire structure of the Supreme Court’s modern jurisprudence on arbitration agreements and class-action waivers is built on the idea that it is proper, appropriate and preferred for those in power to force others to waive their rights. But it wasn’t always this way. In 1925, Congress passed the Federal Arbitration Act (FAA), which sought to address the animosity some judges had towards arbitration, by requiring judges to treat arbitration agreements like other contracts. A 2015 Economic Policy Institute report describes the FAA as something that was  originally intended to be applied “to a narrow set of cases—commercial cases involving federal law that were brought in federal courts on an independent federal ground.” In essence, the FAA was designed so that businesses that negotiate contracts with each other can choose have their claims heard by an arbitrator of their choosing. “But,” the report explains, “in the 1980s, the U.S. Supreme Court turned the FAA upside-down through a series of surprising decisions. These decisions set in motion a major overhaul of the civil justice system. It is no exaggeration to call the Supreme Court’s arbitration decisions in the 1980s the hidden revolution of the Reagan Court.”

The modern case that opened the door to the flood of arbitration agreements was a 2011 Supreme Court case involving a couple that wanted to bring a consumer class action against AT&T to challenge a practice where cell phone companies offered “free” phones, but then charged customers the sales tax on the full value of the phones. Justice Scalia, writing for the five-Justice majority, treated the cell phone contract as something negotiated by the parties. He extolls the virtues of allowing these types of agreements because “affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute.” Scalia finds no issue with the fact that only one party here had power, and that it can be said with certainty that in the history of the world, no one has ever negotiated a cell phone contract with a carrier.

Now, to engage in most activities, from signing on to social media to buying a phone or airline ticket to putting a relative in a nursing home, one is provided a forced contract with an individual arbitration clause hiding inside. After Monday’s decision, it will be unlikely that many will be able to accept or remain at their jobs in the private sector without similarly waiving their right to go to court or act collectively to redress their rights.

This piece was originally published at In These Times on May 23, 2018. Reprinted with permission.

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

Tesla Workers Say Elon Musk is a Union Buster. The NLRB Just Gave Their Case a Boost.

Thursday, April 12th, 2018

Tesla factory workers have been trying for months to win restitution for the company’s alleged union-busting and harassment. Now, a National Labor Relations Board (NLRB) complaint against the company appears to be making strides.

Last August, the NLRB filed a complaint against Tesla after finding merit in a number of accusations from employees at its Fremont, California factory. Some Tesla factory workers say the company engaged in various forms of union-busting, through harassment and surveillance. They also claim that Tesla required them to sign a confidentiality agreement which prohibited them from discussing the details of their working conditions.

On March 30, the NLRB amended the complaint to add new allegations from workers which the board found to have merit. In the new claims, Tesla workers say the company investigated them after they posted information on a pro-union Facebook page.

The case has now been scheduled to go before an NLRB administrative law judge in June. After hearing the case, the judge will issue a decision and recommended order. The fact that the complaints were deemed to have merit, and that workers will have their concerns heard, constitute significant developments in the case.

The amended NLRB complaint comes as Tesla, and its CEO Elon Musk, are being criticized for failing to live up to their production goals. After Tesla shares dropped last month, its engineering chief Doug Field sent an email to staff attacking people who doubted Musk’s vision. “I find that personally insulting, and you should too,” Field wrote in a March 23 email. “Let’s make them regret ever betting against us. You will prove a bunch of haters wrong.”

In an internal memo from March 21, the company also announced that a small number of “volunteers” would be brought in to help assist with Tesla’s Model 3 line. After Bloomberg reported this fact on March 29, Tesla informed the outlet that volunteer shifts would only take place on one day, while production of the company’s Model X and S cars was stopped. Employees who regularly work on those models could either volunteer to work on the Model 3, take paid time off, or take unpaid time off that day.  “The world is watching us very closely, to understand one thing: How many Model 3’s can Tesla build in a week?” Field wrote in his email to staff. “This is a critical moment in Tesla’s history, and there are a number of reasons it’s so important. You should pick the one that hits you in the gut and makes you want to win.”

The working conditions of Tesla employees, and their organizing efforts, were brought to the public’s attention last February when Jose Moran, a production worker at Tesla’s plant in Fremont, published a Medium post criticizing the company’s hourly wages and high number of preventable work injuries. “Tesla isn’t a startup anymore. It’s here to stay,” wrote Moran. “Workers are ready to help make the company more successful and a better place to work. Just as CEO Elon Musk is a respected champion for green energy and innovation, I hope he can also become a champion for his employees.” In his piece, Moran mentions that Tesla workers had reached out to the United Auto Workers (UAW) for assistance with their unionizing efforts.

Workers at the Tesla factory say they were reprimanded by management for printing copies of Moran’s post and attempting to pass them out, along with information about the UAW. Three workers cited this action in the charges that became part of the August complaint from the NLRB. Workers also claim they were harassed for wearing UAW shirts. The updated complaint claims that two workers were investigated and interrogated by Tesla after they posted company information in a private Facebook group called “Fremont Tesla Employees for UAW Representation.” Last October, one of the employees was fired and the other was given a disciplinary warning. Tesla said it fired the employee after he admitted to lying about the incident during their internal investigation.

That same month, Tesla fired 700 of its employees without notice or warning, about 2 percent of its entire workforce. The UAW promptly filed a federal complaint against the company, claiming that some of the employees were fired because they were part of the unionization efforts. On a quarterly earnings call last November, Elon Musk defended the firings and called criticisms of them “ridiculous.” He pointed to Tesla’s supposedly high standards for performance. “You have two boxers of equal ability, and one’s much smaller, the big guy’s going to crush the little guy, obviously,” said Musk. “So the little guy better have a heck of a lot more skill or he’s going to get clobbered. So that is why our standards are high. They’re not high because we believe in being mean to people. They’re high because if they’re not high, we will die.”

Last November, the UAW filed another complaint against Tesla. This one concerned its Gigafactory battery plant in Nevada. The filing, which was obtained by Jalopnik via an FOIA request, charges Tesla with intimidating, surveillance, and interrogating employees who participated in union organizing. The NLRB consolidated these charges into the ongoing complaint.

Earlier this month, Tesla released the following statement regarding the amended NLRB complaint: “These allegations from the UAW are nothing new. The only thing that’s changed since the UAW filed these charges is that many of the allegations have been outright dismissed or are not being pursued by the NLRB. There’s no merit to any of them.”

Legally, Tesla has to respond to the newest round of complaints by April 13. The case will go before an administrative judge on June 11.

This article was originally published at In These Times on April 12, 2018. Reprinted with permission. 

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

Trump Is Making It Harder for Low-Wage Workers to Organize, But This Fast Food Union Could Win

Wednesday, April 4th, 2018

Workers at a Burgerville in Portland, Oregon declared on March 26 that they will file for a federal union election. If union campaigners win, the restaurant will become the first federally recognized fast food union shop in the United States. The local effort, which has a significant chance of victory, offers a powerful antidote to the Trump administration’s aggressive anti-worker agenda.

This move comes after years of worker organizing as part of the Burgerville Workers Union (BVWU), which is an affiliate of the Industrial Workers of the World (IWW). The workers gave Burgerville 48 hours to voluntarily acknowledge the union, which management refused.

BVWU went public in 2016, seeking raises for hourly workers, affordable healthcare, a sustainable workplace and consistent scheduling. In addition to these demands, workers asked Burgerville to stop using the E-Verify system, which they say targets undocumented workers. E-Verify compares employee information with Department of Homeland Security and other federal records to confirm that people can legally work in the United States.

Today, six of the Washington-based company’s 42 stores have publicly active unions, and workers say they’ve been fighting union busting and resistance from management throughout the entire process.

In an interview with the website It’s Going Down, Luis Brennan, an employee at Burgerville’s Portland Airport location, alleged that the company retaliates against organizers by accusing them of minor infractions that wouldn’t otherwise be enforced. He told the story of two Burgerville workers who were recently let go. One of them was allegedly fired for putting a small amount of ice cream in his coffee. The other was allegedly fired for smelling like marijuana. According to Brennan, the latter worker never admitted to smoking marijuana and the company didn’t ask him to take a drug test. The employee, who is black, did have a medical prescription for marijuana because of his epilepsy. “They gave him a week’s suspension and then they fired him,” said Brennan. “He’s an active union supporter, and the combination of racism and anti-unionism in that is pretty transparent to everybody.”

Last year, Jordan Vaandering, a Burgerville-employee who had worked at the store’s Vancouver Plaza location for fourteen months, was allegedly fired for eating a 70-cent bagel without paying for it. Vaandering said a manager gave him the bagel during a paid-break and didn’t ask him for any money. While the bagel was the pretext for Vaandering’s termination, he believes he was let go because he was recruiting co-workers to join the BVWU.

Asked about the alleged retaliations earlier this year, the company released the following statement: “Burgerville does not comment on individual employee matters or internal company policies.”

Earlier this year, in response to management’s refusal to negotiate with the union and its alleged retaliation against organizers, BVWU called on consumers to boycott Burgerville. The boycott call came during a three-day strike that started at the company’s Northeast MLK Boulevard location before spreading to its Southeast Powell and 26th store, two locations in Portland.

Mark Medina, an employee at the Southeast Portland store and a member of BVWU, told In These Times that, while the union campaign has been active for more than 20, now is the perfect time to file for a union election. “It took a lot of work to get where we are right now,” said Medina. “This was all built from the ground up: no money, all volunteers. We’ve had major strikes and many shops, and now we’ll have more leverage during the process. Our level of organization is concrete now. It’s better.”

Burgerville workers’ call for a union election comes on the heels of a potentially major defeat for fast-food workers at the federal level. Trump’s National Labor Relations Board (NLRB) General Counsel Peter Robb recently negotiated a tentative settlement between McDonald’s and the NLRB over a landmark case pushed by the Service Employees International Union (SEIU)-backed Fight for $15 campaign that aimed to hold the company responsible for its individual franchises’ labor violations. The details of the tentative settlement, which is pending approval by an NLRB judge, remain undisclosed. But McDonald’s admits to no wrongdoing, and the settlement allows the company to avoid the “joint employer” designation that would allow groups like Fight for $15 to unionize fast food locations more effectively.

“In a real settlement, McDonald’s would take responsibility for illegally firing and harassing workers fighting to get off food stamps and out of poverty,” said Fight for $15 attorney Micah Wissinger.

“We think a union contract is just one tool to help build the working class we all deserve,” Chris Merkel, who works at the Convention Center Burgervillel, told In These Times, “The NLRB can change all the rules, but we still have to do the work on the floor and in our communities to get our basic needs met.”

Medina said he has “love and affection” for unions like the SEIU and campaigns like Fight for $15. “Fight for $15 is great,” said Medina, “I support raises, but a raise alone doesn’t empower workers to change their own lives and community.”

Despite the fact that the IWW is a rank-and-file union working independently from the bigger labor organizations, Medina said he’s been blown away by the support it has received in Portland. “You see the AFL-CIO at an IWW event,” he explained. “SEIU has turned out. Carpenters 503 has manned our picket lines. We’ve shown we’re here to stay and the community has shown so much support.”

After BVWU announced their call for the election, Burgerville’s Senior VP of Operations Beth Brewer released a statement: “Burgerville respects the right of every employee to support or not support the organization of a union. If there is enough support, we anticipate they will file a petition with the NLRB. Burgerville will abide by the NLRB’s decision and guidance.”

Medina told In These Times that he hopes the Burgerville efforts inspire others throughout the country. “You can organize fast food workers,” he said. “If you put in the effort to organize them, you can. Take what we did and replicate it.”

This article was originally published at In These Times on April 3, 2018. Reprinted with permission. 

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

Inside the Trump Administration’s Plan to Shrink the NLRB

Thursday, February 1st, 2018

Labor rights advocates are alarmed by a proposal to centralize more control of the National Labor Relations Board (NLRB) at the agency’s Washington, D.C., headquarters and shrink its network of regional offices. Widely viewed as another effort by appointees of President Donald Trump to reverse some union-friendly policies promoted by Obama appointees, the proposal is a step toward an even smaller role for the NLRB in protecting workers’ rights, these advocates charge.

News of the proposal leaked out to media outlets in mid-January, first to the Daily Labor Report and then to the The New York Times. The news reports focused on objections to the proposal by NLRB staff members at the agency’s 26 regional offices. Some of those staffers would be demoted, or lose their jobs entirely, if the proposal is implemented by NLRB General Counsel Peter B. Robb.

Trump appointee Robb “is a man in a big hurry” to remake the NLRB into an agency more responsive to the anti-union demands of conservative Republicans and business interests, says William B. Gould IV, a former NLRB chairman now teaching law at Stanford University. “He looks to be seizing control of the complaint process,” at the regional level, Gould tells In These Times. “That’s terribly important because it is the regional offices that are the great strength of the NLRB … The regional offices are where a union shop steward or a legal practitioner can go to have complaints handled in a professional way.”

Robb, appointed by Trump in September of last year and sworn in Nov. 17, comes to the post with strong anti-union credentials. As described by The New York Times, he was appointed “after a career largely spent representing management, including handling part of the Reagan administration’s litigation against the air traffic controllers’ union that waged an illegal strike in 1981. Most labor historians say the government’s hard line in firing the controllers contributed to organized labor’s decline…”

Robb’s proposal comes on the heels of recent decisions by the five-member board to roll back some Obama-era initiatives that favored unions. Those decisions were more explicitly political, coming after votes by board members in which Republican Party appointees narrowly prevailed over Democratic appointees. As general counsel to the agency, Robb is not a board member, but rather a White House appointee in charge of administering the day-to-day affairs of the agency under the general direction of the Board members.

According to Michael C. Duff, a professor at the University of Wyoming College of Law, the NLRB votes and the actions by Robb are “of a piece with the Trump agenda to downgrade the agency as a defender of labor rights as spelled in the National Labor Relations Act.” A former NLRB staff lawyer himself, Duff tells In These Timesthat “I don’t have a good feeling about what is going on. There is a sense that the agency is being hollowed out.”

“You get a sense that they [Republican appointees] are going to reverse everything,” in NLRB policy that is favorable to workers, Duff continues. As a former staffer who is still in regular contact with some of his NLRB colleagues, Duff says “the situation is probably more dramatic than it looks … [The trend] is essentially a repudiation of labor law as we know it.”

Part of the “hollowing out” process is cutting the budget of the agency. Daily Labor Report’s Laurence Dubé reported last year that a 6-percent proposed cut would mean the elimination of 275 jobs from the agency’s staff. The budget has not been finalized, but staff cuts are expected in the coming year, and may  continue throughout the Trump administration, predicts Duff.

Burt Pearlstone, president of the National Labor Relations Board Union, says the staff union has no comment on Robb’s proposal at this time. He tells In These Times that the executive committee of the staff union may take  up the issue at its next scheduled meeting, by may also wait until Robb’s proposals are more formalized

The staff union represents more than 700 NLRB employees in the regional offices and a second independent union, the National Labor Relations Board Professional Association (NLRBPA), represents many staff members at Washington, D.C., headquarters. No representative of the NLRMPA could be reached for comment.

Robb’s proposal to demote employees and consolidate regional offices was outlined in a conference call Jan. 11, in which Robb described the plan to NLRB mid-level administrators. According to Gould, the administrators were not provided with a written version of Robb’s proposal, but were alarmed enough to respond with a written objection that has been published by Daily Labor Report.

“As you can imagine, the information you provided to the Regional Directors has created much uncertainty and has disheartened us … It was unclear to us how many Districts you envision, how many Regional Offices would remain, how many Regional Directors would remain in that position, what the supervisory ratio would be, and when you envision removing Regional Directors from the Senior Executive Service … However, any anticipated changes must be thoughtfully considered so that the great work of the Agency remains. We would like to work with you in developing changes that would be appropriate to meet our challenges,” the NLRB staffers wrote.

“The NLRB has a lot of problems as an agency. The number of cases they handle is way down from when I started work at the Philadelphia regional office (in 1997), but there are still not enough people to handle the work load,” comments Duff.

“Pay freezes and government shut downs have an effect [on morale],” Duff continues. “From what I am hearing now, things are actually worse than you think.”

This article was originally published at In These Times on January 31, 2018. Reprinted with permission.
About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Trump NLRB Appointee Behind Major Anti-Union Ruling Accused of Corruption

Thursday, January 25th, 2018

An anti-union policy decision from President Donald Trump’s National Labor Relations Board (NLRB) appointees appears to be tainted by a violation of ethics standards, and Sen. Elizabeth Warren (D-Mass.) is joining unions in demanding answers.

The Trump policy decision came on December 14 when the NLRB reversed an Obama-era ruling in the Browning-Ferris case—a pro-worker decision from 2015 that has been loudly decried by business lobbyists and conservative Republicans. The case turned on the issue of how the NLRB would define the term “joint employer” in union organizing cases—and was broadly viewed as a blow to McDonald’s and other fast food companies that exploit the franchise business model as a tool to help defeat unions. Last month, the five-member NLRB voted 3-2 in the Hy-Brand Industrial Contractors case to reverse Browning-Ferris, with recent Trump appointee William J. Emanuel providing the margin of victory for the anti-union forces.

Emanuel now stands accused by Warren and others of violating ethical standards by voting on the case even though he appears to have a conflict of interest. The conflict is said to arise from Emanuel’s former status as part owner (or “shareholder”) of the labor law firm Littler Mendelson, a business that specializes in representing employers against their own workers. The firm represented a party in Browning-Ferris, so standard government ethics rules indicate Emanuel should have recused himself from voting, according to critics.

“It looks really bad,” says Susan Garea, a California attorney representing Teamsters Local 350. Emanuel’s violation of ethics rules taints the NLRB vote, she tells In These Times, so the decision in Hy-Brand Industrial should be voided, and the validity of Browning-Ferris evaluated in an atmosphere free of conflicts of interest. Garea detailed her charges in a Jan. 4 court filing in the U.S. Court of Appeals for the District of Columbia Circuit. “It’s clear Emanuel should not participate,” in any vote on Browning-Ferris, she says

The Teamsters have been fighting the case for years. In 2013, Local 350 tried to organize workers at a recycling center in Milpitas, Calif., that was owned and operated by Browning-Ferris. But the union found itself blocked by a legal strategy that asserted the workers were actually employees of an outside staffing agency, Garea explains. The union fought the case before the NLRB, prevailed with the Board’s 2015 pro-union decision, and has been working ever since to fend off legal attempts to overturn the ruling. Garea, of the law firm Beeson, Tayer & Bodine, proclaims the case is far from over and the union is intent on blocking Emanuel’s improper action.

Warren entered the picture when Trump nominated Emanuel for the NLRB in mid 2017. She opposed him from the start, arguing that a lawyer who has represented only bosses in a 40-year-plus legal career was a bad choice for the NLRB, which is supposed to be a fair arbiter of labor disputes. She demanded a commitment from Emanuel to recuse himself from NLRB cases involving a long list of former clients (which he agreed to do) and voted against him in the final confirmation on the Senate floor.

“Emanuel is the opposite of what Senator Warren would like to see in an NLRB member. His conflicts of interest are a mile long, and he spent decades fighting against workers’ efforts to join together and stand up for themselves,” Warren’s Deputy Press Secretary Saloni Sharma tells In These Times.

The Senate floor vote on Emanuel reflected the deep party-line divide over Trump’s nominations to the NLRB. All the Democratic Party senators present voted against Emanuel, and all the Republicans voted for him. AFL-CIO chief lobbyist Bill Samuel tells In These Times that Trump’s appointments to government labor posts have been strongly anti-union, but Emanuel is one of the most extreme. “We didn’t make a fight about Emanuel. We just didn’t have the votes,” he says. “But we are very much behind Sen. Warren in her efforts to hold them [the NLRB members] accountable.”

In a letter dated Dec. 21, Warren posed questions to Emanuel raising concerns about potential misconduct in the Hy-Brand vote. “Given that your former partners at Littler Mendelson P.C. represented a party in [Browning-Ferris] before the board, did you recuse yourself from the board’s decision to move to remand the [Browning-Ferris] case from the U.S. Court of Appeals for the D.C. Circuit back to the board? If not, why not?” she writes. The letter, also signed by several other top Congressional Democrats, requests that Emanuel commit to additional recusals from pending NLRB cases in the future.

An unsigned email message stated that Emanuel “respectfully declines” a telephone interview to discuss the Warren allegations. Messages left directly with Emanuel were not returned.

Sen. Warren and other congressional Democrats are awaiting a formal response to the questions before deciding on the next step against Emanuel. Meanwhile, the White House is expected to announce it is nominating Washington, D.C., management-side attorney John Ring to fill an open seat on the five-member NLRB, as former Chairman Philip Miscimarra’s term on the Board expired just days after the Hy-Brand decision.

This article was originally published at In These Times on January 23, 2018. Reprinted with permission. 

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

Here Are the 10 Worst Attacks on Workers From Trump’s First Year

Wednesday, January 24th, 2018

January 20th marks the one-year anniversary of President Donald Trump’s inauguration. Since taking office, President Trump has overseen a string of policies that will harm working people and benefit corporations and the rich. Here we present a list of the 10 worst things Congress and Trump have done to undermine pay growth and erode working conditions for the nation’s workers.

1) Enacting tax cuts that overwhelmingly favor the wealthy over the average worker

The Tax Cuts and Jobs Act (TCJA) signed into law at the end of 2017 provides a permanent cut in the corporate income tax rate that will overwhelmingly benefit capital owners and the top 1%. President Trump’s boast to wealthy diners at his $200,000-initiation-fee Mar-a-Lago Club on Dec. 22, 2017, says it best: “You all just got a lot richer.”

2) Taking billions out of workers’ pockets by weakening or abandoning regulations that protect their pay

In 2017, the Trump administration hurt workers’ pay in a number of ways, including acts to dismantle two key regulations that protect the pay of low- to middle-income workers. The Trump administration failed to defend a 2016 rule strengthening overtime protections for these workers, and took steps to gut regulations that protect servers from having their tips taken by their employers.

3) Blocking workers from access to the courts by allowing mandatory arbitration clauses in employment contracts

The Trump administration is fighting on the side of corporate interests who want to continue to require employees to sign arbitration agreements with class action waivers. This forces workers to give up their right to file class action lawsuits, and takes them out of the courtrooms and into individual private arbitration when their rights on the job are violated.

4) Pushing immigration policies that hurt all workers

The Trump administration has taken a number of extreme actions that will hurt all workers, including detaining unauthorized immigrants who were victims of employer abuse and human trafficking, and ending Temporary Protected Status for hundreds of thousands of immigrant workers, many of whom have resided in the United States for decades. But perhaps the most striking example has been the administration’s termination of the Deferred Action of Childhood Arrivals program.

5) Rolling back regulations that protect worker pay and safety

President Trump and congressional Republicans have blocked regulations that protect workers’ pay and safety. By blocking these rules, the president and Congress are raising the risks for workers while rewarding companies that put their employees at risk.

6) Stacking the Federal Reserve Board with candidates friendlier to Wall Street than to working families

President Trump’s actions so far—including his choice not to reappoint Janet Yellen as chair of the Federal Reserve Board of Governors, and his nomination of Randal Quarles to fill one of the vacancies—suggest that he plans to tilt the board toward the interests of Wall Street rather than those of working families.

7) Ensuring Wall Street can pocket more of workers’ retirement savings

Since Trump took office, the Department of Labor has actively worked to weaken or rescind the “fiduciary” rule, which requires financial advisers to act in the best interests of their clients when giving retirement investment advice. The Trump administration’s repeated delays in enforcing this rule will cost retirement savers an estimated $18.5 billion over the next 30 years in hidden fees and lost earning potential.

8) Stacking the Supreme Court against workers by appointing Neil Gorsuch

Trump’s nominee to the Supreme Court, Neil Gorsuch, has a record of ruling against workers and siding with corporate interests. Cases involving collective bargaining, forced arbitration and class action waivers in employment disputes are already on the court’s docket this term or are likely to be considered by the court in coming years. Gorsuch may cast the deciding vote in significant cases challenging workers’ rights.

9) Trying to take affordable health care away from millions of working people

The Trump administration and congressional Republicans spent much of 2017 attempting to repeal the Affordable Care Act. They finally succeeded in repealing a well-known provision of the ACA—the penalty for not buying health insurance—in the tax bill signed into law at the end of 2017. According to the Congressional Budget Office, by 2027, the repeal of this provision will raise the number of uninsured Americans by 13 million.

10) Undercutting key worker protection agencies by nominating anti-worker leaders

Trump has appointed—or tried to appoint—individuals with records of exploiting workers to key posts in the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB). Nominees to critical roles at DOL and the NLRB have—in word and deed—expressed hostility to the worker rights laws they are in charge of upholding.

This list is based on a new report out from the Economic Policy Institute.

This article was originally published at In These Times on January 19, 2018. Reprinted with permission.

About the Author: The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions.

Workers’ rights dealt major blow as GOP-led labor board sides with McDonald’s

Friday, January 19th, 2018

In September, the National Labor Relations Board tilted to a 3-2 GOP majority for the first time in ten years. Thus began a series of Obama-era policy reversals that previously strengthened worker protections.

By December, the NLRB overturned the Obama-era “Browning-Ferris” rule. The landmark rule had made it easier for employees to hold companies liable for labor violations committed by franchise owners or contractors. Before Browning-Ferris, a company needed to have direct and immediate control over their employees. Overturning the rule had implications for a 2014 case brought against McDonald’s, one of the biggest franchises in the country.

Republicans Are Taking Voter Suppression to the Workplace

Tuesday, January 16th, 2018

A Republican party that survives through voter suppression may be replicating its model in the workplace. In December, the National Labor Relations Board (NLRB) invited public commentary on a possible revocation of a rule that makes employers provide union organizers with contact information for workers in advance of a representation election.

Ostensibly, the Board, which will almost certainly remain in control of Republicans until 2021, is reconsidering Obama-era rules that sped up the timeline of union elections and added phone numbers and email addresses to the list of contact info that unions must be furnished before an election. But outgoing Board Chairman Phil Miscimarra’s bellyaching about “employee rights of free choice and privacy” implies openness to removing any legal right of union organizers to talk with potential members.

The very fact that Trump’s NLRB is inviting public comment indicates that it is considering reversing a much older precedent: the 52-year-old Excelsior rule that employers should provide a list of names and addresses of eligible voters in an upcoming union certification election. Sharon Block, a former member of the NLRB and current Executive Director of the Labor and Worklife Program at Harvard Law School, has argued that the slew of hastily-decided reversals of second-term Obama precedents “seemed to be a rush to set the clock back on workers’ rights as much as possible.”

The Excelsior rule makes employers provide union organizers with a list of eligible voters and their home addresses a few days before an election. It’s an essential tool in a campaign, and any cut is a blow to unions. However, it is also important to remember that Excelsior was a bad compromise, and a real solution lies in actual free speech in the workplace. That will require that unions wage a free speech fight to regain our voice at work.

Captive-audience meetings versus knocking on doors

As soon as the National Labor Relations Act was passed in 1935, employers were already challenging the legal framework for workers to organize and bargain collectively.

In six short years, the bosses succeeded in demolishing the Act’s mandate of employer neutrality by strenuously appealing to the Supreme Court that the standard restricts bosses’ First Amendment right to inform their workers about just how strongly they oppose unionization. Six years after that, a Republican Congress codified this unequal application of free speech in the Taft-Hartley Act.

For a brief time after Taft-Hartley, the NLRB enforced an equal time standard by granting union organizers access to talk to workers on the job when an employer conducted captive-audience meetings. In an all-too-familiar pattern, the Board ping-ponged back and forth between different legal standards on employer speech and union access, depending on which political party was in the White House, until 1966.

That was the year of Excelsior Underwear, Inc ., the NLRB decision that established the right for unions to be furnished with a list of names and addresses of eligible voters. It was issued on the same day that the Board declined to reinstate the equal time rule. The case that we should have won that day was General Electric Co. and McCulloch Corp.

Loathe to trample on management’s rights and private property, the Democratic majority begged the unions in that case to try visiting workers at home and see if that effectively counter-balanced the boss’s work-time campaigning.

Anyone who has worked as a union organizer will tell you that an Excelsior list is no match for the mandatory round-the-clock campaigns of intimidation that union-busters consider “management’s most important weapon” in beating back an organizing drive.

Kate Bronfenbrenner, director of Labor Education Research at Cornell University, has been documenting employer union-busting tactics for decades. Her most recent study, covering the period of 1999 to 2003, found that 9 out of 10 employers use captive-audience meetings to fight a union organizing drive. Bosses threaten to cut wages and benefits in 47 percent of documented cases, and to shut down entirely in 57 percent of union elections. Incredibly, in one out of 10 campaigns employers hired “consultants” to impersonate NLRB agents.

That report is nearly nine years old. It is likely that when Dr. Bronfenbrenner updates her research, all of these numbers will be even higher—particularly the instances of outright lies and deception.

Within the General Electric Co. and McCulloch Corp. decision, the NLRB explicitly invited unions to press the issue of equal time if experience were to prove that knocking on workers’ doors was no match for mandatory captive-audience meetings. Labor law scholars Charles Morris and Paul Secunda were clever enough to notice this half-century-old invitation. Last year, they organized 106 of their leading peers to sign on to a petition to the NLRB to reinstate the equal time rule.

The right to free speech

We shouldn’t hold our breath waiting for Trump’s NLRB to respond to that petition, but we also shouldn’t be patient about demanding change. This past summer, I proposed that unions wage a constitutional battle to challenge the most unequal aspects of labor law and fight for workers’ constitutional rights on the job. Call it Labor’s Bill of Rights.

At the heart of the problem is that the National Labor Relations Act derives its constitutional authority from the Commerce Clause. That means that when workers’ rights are challenged in the courts, judges are weighing corporations’ First Amendment claims against unions’ claims that workers’ rights to organize and go on strike are good for business.

Under that framework, bosses’ rights and business interests have trumped workers’ free speech and human rights. Consider union certification elections. These are official legal elections conducted by an arm of the federal government. At stake is whether the government will enforce certain statutory rights of the workers who wish to form a union. The rules of the election are determined by the government through court decisions, congressional action and NLRB rule-making.  In this simple “yes” or “no” vote about whether there shall be a union, only an employer—and only one advocating a “no” vote—can force voters to attend speeches where they will tell them how to vote And if any voter declines to attend, she can be fired. This is compelled political speech and a massive violation of workers’ free speech rights.

Perversely, Trump’s NLRB could be doing us a favor if it really does kill Excelsior lists by making the imbalance of free speech rights in union organizing campaigns that much starker. Regardless of what new form of union busting the Trump NLRB endorses, we should start waging a campaign to restore the equal time rule now.

What this free speech fight would look like as a campaign is this: every time an employer stages a captive-audience meeting in advance of a union election, we should file an Unfair Labor Practice charge. And every time a union loses an election where the employer conducted captive-audience meetings (which, again, is almost always), we should file an appeal to have the election results overturned.

We should be filing these cases now, even with a Trump Board that will dismiss them all. If we can file a couple hundred challenges and make enough noise about them, we can turn the free speech fight over captive-audience meetings into an obvious controversy that the next Democratic-majority NLRB must respond to.

A Democratic NLRB with a modicum of decency would—at a minimum—re-establish the rule that conducting captive-audience meetings while providing union advocates no right of response is grounds to void an election and order a re-run. Better would be a rule making the very act of conducting captive-audience meetings an Unfair Labor Practice subject to court injunctions, unless union advocates are granted an equivalent platform—in work locations, on work time—from which to campaign for a union yes vote.

If the NLRB were to rule in our favor, we should expect the first employer to face sanctions to resist and drag the case into the federal courts. And then we’re off to the races with a well-deserved counter-attack to the cynical right-wing HarrisFriedrichs and Janus efforts to use free speech as a cudgel against union rights.

This article was originally published at In These Times on January 16, 2018. Reprinted with permission. 

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

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