Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NLRB’

Duquesne’s NLRB Filing Reads as a Brazen Threat To Adjunct Union Organizers

Wednesday, August 5th, 2015

photo_321703[1]Union busting has become big business in America. It’s so common that the run-of-the-mill variety hardly raises an eyebrow. Employers regularly hire anti-union consultants and hold captive audience meetings laced with subtle and not-so-subtle threats of disciplinary action or firings.

But every once in a while, employers try a novel union-busting tactic. In Pittsburgh, in a case that some have suspected is destined for the Supreme Court, Duquesne University has pushed the boundaries of employer intimidation.

On April 29, adjunct professors Clint Benjamin and Adam Davis testified under oath at a hearing at the National Labor Relations Board (NLRB). The topic was Duquesne University’s unwillingness to recognize the union that their colleagues overwhelmingly voted for three years ago. After the hearing, the regional director of the NLRB held that Duquesne had to negotiate with the union the adjuncts voted to represent them, United Steelworkers (USW). (Full disclosure: I teach a course at Duquesne Law School, which is a part of Duquesne University, but was not part of this bargaining unit.)

As expected, Duquesne appealed the decision, prolonging the NLRB process and delaying bargaining. However, deep in Duquesne’s appeal—footnote 16 on page 42, to be exact—Duquesne did something radical: It used the brief as a means to openly union-bust by sending out a clear message that anyone who opposes the University in this organizing campaign risks losing their jobs.

The brief read, “Today, Duquesne reserves the right not to rehire both professors and replace them with professors willing and/or better able to incorporate Duquesne’s Catholic, Spiritan mission into their courses.”

As the bottom rung of the faculty, adjuncts have virtually no job protections, so Duquesne would be free to terminate any adjunct for any legitimate reason. It appears, then, that this threat of firing was meant to serve a different purpose than merely preserving some abstract right to fire them: It seems clear the comment was meant to threaten them and all other adjuncts that dare to stand against Duquesne in its anti-union efforts.

Such comments, made informally by a supervisor or anti-union consultant, are fairly common in the workplace during a union drive, though they may be illegal. The fact that Duquesne would feel brazen enough to submit them in a legal document to the NLRB is a slap in the face to the workers and a dare to the federal agency tasked with protecting labor rights.

When asked how he read the Duquesne’s footnote, Benjamin responded, “The threat was pretty bone-chilling.”

I reached out to Duquesne’s attorneys to inquire as to what legitimate explanation they could have had for the threatening footnote, and they did not respond to the request for comment.

There’s a reason the brief specifically cited the university’s religious mission. The NLRB hearing was to determine whether Duquesne, as an institution affiliated with the Catholic Church, was under NLRB jurisdiction. After initially agreeing to the union election in 2012, Duquesne changed course and argued that the NLRB had no jurisdiction over the university. The case has been going up and down the NLRB for three years now, raising significant issues about the Board’s jurisdiction.

The specific question at the hearing was whether the university “holds out the petitioned-for faculty as performing a specific role in creating or maintaining the university’s religious educational environment.” Benjamin and Davis’s testimony was critical. Benjamin testified that he teaches two core English composition courses at Duquesne, and Davis testified that he teaches a history of science course in the History Department. Both testified that they have never been asked about their faith, never been told how to promote Duquesne’s religious mission and never been disciplined for failing to live up to Catholic teachings. Benjamin, who also teaches a composition course at a community college, testified that the way he teaches his course at both institutions is identical.

Benjamin’s and Davis’s testimony that as adjuncts they had no role in Duquesne’s religious mission, and that they were never expected to help promote that mission, was damning to Duquesne’s case at the NLRB. Their testimony revealed that they answered advertisements for the adjunct positions, were hired without any questions about religion, and have never been given any religious directions. Benjamin explained that aside from the various crucifixes adorning the campus, religion is not a concern in his class.

Therefore, they were taken aback by Duquesne’s assertion in the brief professors mustincorporate Duquesne’s Catholic, Spiritan mission into their courses.”

In an interview with In These Times, Benjamin said that he is not even sure how he would incorporate religion into a basic composition course. “I guess we’d involve more reading of scripture?” he says. “The mission itself is to serve God by serving students. It’s pretty open-ended as to what that means.”

University of Wyoming College of Law Professor Michael Duff explained that Duquesne would have trouble arguing that it was simply reaffirming its rights to fire adjuncts who did not adhere to its religious mission. “The problem with the footnote, however, is its superfluity: there was simply no reason to make the declaration,” Duff explained, “and in the context of the footnote you could make a pretty strong argument that it was targeted specifically to the employee witnesses.” The footnote’s only purpose, in other words, was to intimidate the two professors and any other professors who may consider taking a stand in the future.

Duff, who worked at the Board for nine years, further explained that such statements in a legal filing are extremely rare.

“Typically this would occur before an employer had retained a lawyer and had gone off kind of “half-cocked” in anger,” Duff explained. “In my experience, it would be very unusual for a sophisticated law firm to make statements in a formal legal document that even arguably violated the law.”

Duquesne’s attorney, Memphis-based Arnold Perl, is indeed sophisticated in his labor practice. He has been involved in a variety of “union avoidance” (often code for union busting) for decades, and until shortly after he became Duquesne’s counsel in May 2012, he bragged in his bio that he had “extensive experience counseling organizations on remaining union free.” (In late 2012, he changed his bio to read that he has “extensive experience counseling organizations on positive employee relations.”)

Dan Kovalik, the USW attorney who has been representing the Duquesne adjuncts, explained that the purpose of the footnote was immediately apparent.

“It really is tantamount to them threatening to fire them for testifying,” he says. “Because as we showed at the hearing, adjuncts aren’t told they have to incorporate the mission in their teaching, and these guys certainly weren’t told to do that. And now because they testified truthfully about that, they’re being threatened to be fired.”

Reflecting on the irony of including this threat in a brief that is filled with so much religious doctrine and sanctimony, Kovalik said, “They’ve carved out the moral low ground in the name of carving out the moral high ground.”

Duquesne’s case is filled with such ironies. It is arguing that Catholic doctrine—which has traditionally been supportive of labor rights—provides the university an excuse not to recognize the employees’ duly elected union. And, in case that argument stalls, it has decided to use, as a vehicle for union busting, a legal filing to the federal agency tasked with protecting employees’ labor rights.

The techniques that everyone has come to expect in anti-union campaigns did not appear all at once, fully formed. Rather, some employer, management-side attorney, or anti-union consultant decided to test the waters with a new approach If the NLRB does nothing in response to Duquesne’s use of the Board’s proceedings to intimidate workers, then the message to other employers will be clear—and it won’t be long until this approach becomes the norm.

This blog originally appeared in InTheseTimes.com on August 3, 2015. Reprinted with permission.

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

T-Mobile Guilty of Violating Labor Law Workers’ Rights, NLRB Judge Rules

Thursday, March 19th, 2015

Image: Mike HallA judge at the National Labor Relations Board (NLRB) yesterday found T-Mobile U.S. guilty of engaging in nationwide labor law violations against workers. The unprecedented ruling comes after a rare move last year by the NLRB consolidating multiple complaints against T-Mobile U.S. for illegal actions and policies in Albuquerque, N.M.; Wichita, Kan.; Charleston, S.C., and New York City.

At issue were illegal corporate nationwide policies that block workers from organizing or even talking to each other about problems at work. Workers throughout the T-Mobile U.S. system were subjected to and effectively silenced by these illegal policies; the judge’s order to rescind them covers 40,000 workers.

Communications Workers of America (CWA) President Larry Cohen said:

“This decision exposes the deliberate campaign by T-Mobile U.S. management to break the law systematically and on a nationwide scale, blocking workers from exercising their right to organize and bargain collectively. This behavior can only be changed by a nationwide remedy to restore workers’ rights. Deutsche Telekom, the principal owner of T-Mobile U.S., has claimed that its U.S. subsidiary follows the law. Now we have the official word: T-Mobile U.S. is a lawbreaker. Bonn, the headquarters of DT, no longer can hide behind the false statements made by T-Mobile U.S. executives. These behaviors would be almost unimaginable in Germany or any other democracy in the world.”

The decision by NLRB Judge Christine Dibble focused on T-Mobile U.S.’s illegal employment policies and restrictions that prohibited workers from discussing wages with each other or criticizing working conditions or seeking out assistance to blow the whistle on unlawful behavior.

The decision finds that the corporate policies “would chill employees in the exercise of their…rights” or would be construed “as restricting [an employee’s] rights to engage in protected concerted activities, including unionizing efforts.”

Judge Dibble found that T-Mobile U.S.’s Wage and Hour Complaint Procedure, for example, “tends to inhibit employees from banding together.” She writes that the corporate procedure’s requirement that an employee notify management of a wage issue first, “in combination with the threat of discipline for failing to adhere to the rule, would ‘reasonably tend to inhibit employees from bringing wage-related complaints to, and seeking redress from, entities other than the Respondent, and restrains the employees’…rights to engage in concerted activities for collective bargaining or other mutual aid or protection.”

Carolina Figueroa, a T-Mobile U.S. call center worker from Albuquerque, said:

“We are happy and relieved. We are finally being heard. My co-workers and I at T-Mobile U.S. will have the right to speak out against unfair treatment and should not be muzzled or retaliated against—and with today’s decision, the company has to declare this to all of its employees nationwide.”

This blog originally appeared in aflcio.org on March 19, 2015. Reprinted with permission.

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

Labor Relations Board Under Renewed Attack

Thursday, January 29th, 2015

Meghan-Byrd_avatar_1422562197-140x140[1]Conservatives in Congress this week launched a renewed effort to weaken the ability of workers to get justice in the workplace against anti-labor behavior by businesses.

Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Lamar Alexander (R-Tenn.) announced a bill Wednesday that would cripple the National Labor Relations Board (NLRB), an agency that is instrumental in solving labor disputes and helping workers who have been treated unfairly by their employers. It’s the same bill that was introduced last year by McConnell and Alexander but was held up in committee when the Senate was controlled by Democrats.

Among its recent actions, the NLRB has filed multiple complaints against McDonald’s and its franchisees for illegally punishing workers who were involved in protesting fast-food labor practices.

The board currently seats five members – three Democrats and two Republicans. The proposed “National Labor Relations Board Reform Act” would increase the number of sitting members to six and require that each party have equal representation. All decisions would require a four-vote agreement, essentially guaranteeing partisan gridlock.

Republican members would have no incentive to compromise with Democrats when it comes to resolving disputes that reach the NLRB. When no agreement is reached, big business wins and workers’ treatment is left to the wills of corporations. Sen. Alexander claims that this bill would turn the NLRB “from a partisan advocate to a neutral umpire.” But what’s an umpire with no ability to make calls, much less the right ones?

The bill furthers Republican goals in advancing business interests at a high cost to workers. Party officials dislike the board because, they claim, it advances union interests and is bad for business. In reality, the NLRB allows workers to file claims of unfair management tactics and holds businesses accountable for the treatment of their employees.

Unions oppose the bill, as should every worker in the country. The President of the Communications Workers of America, Larry Cohen, in reaction to the introduction of this bill in 2014, called it “the worst revisionism on an economic issue I’ve ever heard.” He cited the preamble to the National Labor Relations Act, which – far from being neutral – states that “we must promote collective bargaining.” He called on senators to enforce that law.

Partisan gridlock would worsen a backlog of cases, undermining workers’ ability to seek justice, returning the board to the state of near-paralysis it was left in at the end of the George W. Bush administration. If the GOP can’t compromise with Democrats in the legislature, what’s to say they will on the NLRB – given their persistent antipathy against unions and worker empowerment? Unless workers unite and demand that Congress reject this bill, this will end up being a huge win for business and yet another kick in the gut of hard-working Americans.

This blog originally appeared in ourfuture.org on January 29, 2015. Reprinted with permission.

About the Author: Meghan Byrd is a student at Bucknell University studying political science and Spanish. In 2015 she spent a semester at American University. She is originally from Palo Alto, California in the San Francisco Bay Area and center of Silicon Valley. She is interested in public policy and the intersection between government and technology.

Thanks to Labor Board Ruling, You Can Now Use Company Email to Organize a Union

Wednesday, December 17th, 2014

This week, the National Labor Relations Board (NLRB) issued a decision and a rule that could make organizing a union significantly easier for American workers.

First, yesterday the Board recognized that email is one of the primary ways that workers communicate, and that its case law and election rules needed to reflect this reality. The NLRB issued a landmark decision in Purple Communications which opens the door to allowing workers to use employers’ email systems for union purposes—and admitted that it had misunderstood in previous cases how email works. In doing so, it overturned a Bush-era Board decision, Register Guard, which allowed employers to prohibit use of company email for non-work related purposes, including organizing and union purposes, unless the employer can show special circumstances that justify specific restrictions.

In the 2007 decision, the Labor Board analogized email to other employer equipment—such as bulletin boards, telephones, photocopiers and televisions—and found that the employer had a “basic property right to regulate and restrict employee use of company property.” In dissent, Members Liebman and Walsh criticized the Board, stating that the decision “confirms that the NLRB has become the Rip Van Winkle of administrative agencies. Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.”

Recognizing the changing nature of the workplace, Liebman and Walsh explained that email was becoming the new water cooler, and that the Board fundamentally misunderstood how email systems work. In a passage that reads almost as if written by a millennial to her out of touch grandparents, the two members explained in basic terms to the Board majority the difference between emails and more traditional communication media: “If a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced. If an employee is using a telephone for Section 7 or other nonwork-related purposes, that telephone line is unavailable for others to use.”

Emails, they explained, were different, because many employees could use the system simultaneously, subject lines clue the employee into whether to read or dispose of the message, and the marginal cost for an email is almost zero.

Yesterday, the Board vindicated Liebman and Walsh’s dissent and held that the majority’s 2007 decision was “clearly incorrect,” and that it “undervalued employees’ core Section 7 [of the National Labor Relations Act] right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights.” Therefore, employees who have access to work email can use the email system on nonwork time to discuss the terms and conditions of their employment and engage in other organization activity.

In correcting itself yesterday, the Labor Board finally recognized the central place that digital communications has in workers’ lives. The Board recognized that email is different than other employee equipment, and that most employers tolerate the personal use of employer email. Furthermore, the number of employees that “telework” has grown exponentially, with an expected 63 million employees teleworking by 2016. Recent surveys have found that approximately one third of employees report that their employer expects them to stay in touch outside of working hours and 69% frequently or occasionally check their email outside of normal working hours.

Taking these new realities to heart, the Board concluded that email was less like a photocopy machine as it was a “new natural gathering place and a forum in which coworkers who share common interests will seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” In shifting from an equipment analysis to an analysis that recognizes emails as a basic form of communication, the Board finally recognized the ubiquity of emails and the ways in which employer limitations effect workers’ associational rights.

And the Board doubled-down on recognizing the realities of modern communications this morning in a much-anticipated final rule that significantly changes union election procedures. The new rule includes a number of significant benefits for workers who are organizing, including postponing employer litigation over union election issues until after the election takes place to eliminating the waiting period between the time when an election is ordered and when it occurs (the time when many bosses carry out their union-busting campaigns through tactics like firings or threats of closing down a workplace).

But perhaps the most overdue change is the modernization of the “Excelsior List” rules. Prior to today’s rule, employers were required to turn over to the union an Excelsior List, which contained the names and home addresses of workers within seven days after a union election is ordered, so that the union can effectively communicate with all the workers it seeks to represent.

The new rule requires the employer to also turn over any employee email addresses and telephone numbers it possess, and shortens the amount of time management has to turn over the list to two days.

The week’s decisions are two long overdue correctives and will hopefully restore some of workers’ basic rights on the job. Given the bad news for workers from the Supreme Court earlier this week, the correctives are certainly welcome.

This blog originally appeared in Inthesetimes.com December 12,2014. Reprinted with permission. http://inthesetimes.com/working/entry/17442/company_email_union

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

Big Victory at Northeastern University Powers Fast Growing Adjunct Action Campaign

Wednesday, June 4th, 2014

seiu-org-logoYes. Yes to a union. Yes to a collective voice for adjunct faculty. Yes to a better education for students. Yes to forming the biggest adjunct union in Boston.

That’s what happened on May 15 in a small room filled with a lot of excitement at the National Labor Relations Board in Boston, as adjunct faculty from Northeastern University (NU) and representatives from the National Labor Relations board gathered to count the votes for Northeastern adjuncts’ union election. And the adjuncts won, a huge victory in the ongoing adjunct organizing campaigns in Boston and across the country.

After applause and hugs, Ted Murphy, an adjunct faculty member for 8 years at Northeastern, had one word to describe his feelings about the victory: “Ecstatic.”

“It’s been a long time coming,” Murphy added.

The adjuncts at Northeastern are now part of a group of more than 21,000 adjunct and contingent faculty who have organized under the banner of Adjunct Action/SEIU. Today’s vote count for Northeastern University, one of the largest private universities in the U.S., is the fourth time in a month adjuncts across the nation have voted to join SEIU and to improve conditions and draw attention to higher education’s increasing reliance on contingent faculty.

Adjunct Organizing Demonstrates Democracy In Action

On May 14, adjuncts at Mills College in Oakland, California voted to form a union with SEIU/Adjunct Action. In late April, adjuncts at the Maryland Institute College of Art in Baltimore, MD, and Howard University in Washington, D.C. voted to form a union and join SEIU Local 500.

It was a focused democracy in action as ballots were counted at the NLRB after a strong campaign by the adjunct faculty at NU, who worked tirelessly over the past several months to fight for some basic, but important changes: job security, more equitable pay, professional development opportunities, and the chance to give their students the best education they can.

The ballots are checked, the numbered ballots read off the names list. Ballots 451, 477, 146. “Is the ballot in the blue envelope?” “We’re still 45 minutes from the ballots being counted.” Quiet chatter, focused counting. Democracy in action. A group gathered around the table as the green ballots were counted in batches of 50. Yes. Yes. More yes votes.

Cal Ramsdell, an adjunct faculty member in School of Business who has taught for 15 years, watched closely as the count progressed. “I got involved because Northeastern University’s mission is student-centered education, and adjuncts are a major part of this mission,” said Ramsdell, who served on the organizing committee. “Adjuncts are a major part of the day in day out of the university; we’re working with students, and are devoted to our work, but at the same time make a lower salary and have higher course load than full-time faculty.”

EmpowerAdjuncts.jpgAnd so it went. Months of passionate conversations, meetings, emails, and advocacy distilled into piles of simple paper ballots. And in the end, the yeas had it.

Ramsdell hugged her fellow adjunct faculty when victory was announced, tears in her eyes. “At first I was afraid, and then there was just one day when I decided this was a good fight,” she said. “Sometimes there are times in life when it’s just a good fight to fight. And I put my name out there, and that was the turning point.”

Bill Shimer, an adjunct in the School of Business said the campaign started as a series of individual stories and experiences that once strung together formed a powerful narrative and a force of change.

Talking to fellow adjuncts throughout the campaign Shimer said he began to realize “that my story is their story. My concerns were their concerns, and there was a sense of a solidarity building. We grew from a nucleus into an entire community.”

Troy Neves a sophomore at NU and the campus worker justice co-chair of the Progressive Student Alliance (PSA) came to the vote count to show his support for the adjunct faculty. The PSA and other students showed strong support for NU adjuncts throughout the campaign. “It’s been amazing to see this from the beginning of the year,” Neves said. “It has been truly inspiring, and I’m really excited to continue to working with our adjuncts.”

Many of the adjuncts emphasized how the union would benefit their students and the larger educational community at Northeastern. “The better adjunct faculty are treated, the better we can serve the students,” said Abby Machson-Carter, a contingent faculty who teaches writing at NU.

“I work at a couple of different schools, and this effort is going to raise standards for adjuncts all over the city. Instructors like me are going to work with dignity and feel like we’re part of the university and that our voice matters,” Machson-Carter added.

Part-time faculty at dozens of schools are working to unite with their colleagues in SEIU, and many are scheduled to vote soon or have filed for union elections, including adjuncts at the University of the District of Columbia (DC), the San Francisco Art Institute in the Bay Area, Laguna College of Art and Design in Los Angeles, Seattle University in Washington State, Marist College in New York State and Hamline University and Macalester College in Minnesota. The Northeastern adjunct faculty join their colleagues at Tufts University and Lesley University in forming a group of 2,000 adjuncts in Boston who are unionized with SEIU/Adjunct Action.

Ramsdell emphasized the sense of community the experience of forming a union has created, for the entire university. “A stable Northeastern adjunct faculty can only strengthen Northeastern, and benefit the entire community,” she said “It’s a win-win all around.”

Join the Adjunct Action Network

The Adjunct Action Network is an online platform and community for all adjuncts — union members or not — to organize and fight for improvements on campus and advocate for policies that raise standards in higher education.

Sign up here to join and help build a movement for educational justice across America.

Keep up with the Adjunct Action campaign by following them on Facebook and Twitter.

This article was originally printed on SEIU on May 27, 2014.  Reprinted with permission.

Author: Mariah Quinn, Adjunct Action

The End of Jobs?

Monday, March 24th, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Honeywell Workers Get Rare Good News for Christmas

Tuesday, December 31st, 2013

Mike ElkFor the past several Christmases, workers at Honeywell’s uranium plant in Metropolis, Ill., have had little to celebrate. Most of the workers at the plant have spent the best part of four years in a series of labor struggles with the company: first a tense 13-month lockout ending in 2011, then post-lockout disputes in which the union alleged that the company failed to abide by the new contract, and then, in July of 2012, a yearlong shuttering of the plant that led to temporary layoffs of almost the entire union workforce.

This holiday season, however, the workers are finally getting something to cheer about—all of their jobs back, two days before Christmas.

Earlier this month, Honeywell’s new plant manager Jim Pritchett recalled the final 11 of the nearly 200 laid-off union workers—including the union local president, Stephen Lech. The last of the workers restarted their jobs on Monday, December 23. The union, United Steelworkers (USW) Local 7-699, is hoping that the recalls may be a sign of improved relations with Honeywell.

That relationship grew even more strained this summer, after Honeywell reopened the renovated plant in May. While the company began bringing back laid-off union workers in an order determined by lists negotiated with the union, it stopped with 21 workers still left on the list. Local 7-699 alleges that this was an attempt to avoid rehiring Lech, who was next in line.

Out of solidarity with the laid-off workers, some union workers refused to work overtime, saying the plant was understaffed and that Honeywell was using overtime to avoid filling the needed positions. In turn, Pritchett (then the plant’s operating manager), sent a memo in July canceling summer vacations for all workers because not enough overtime shifts were being filled.

On October 25, Local 7-699 filed an unfair labor practice charge with the National Labor Relations Board, saying that Honeywell had “unlawfully, disparately, and discriminatorily failed and refused to reinstate from layoff, union president, Stephen Lech, because he engaged in protected, and concerted, and union activities.”

The NLRB was getting ready to hear the case when Honeywell settled. If the board had ruled in favor of the local and found that the refusal to reinstate was in retaliation for union action, Honeywell would have been legally liable for the back pay for the 21 workers who were not recalled during that six-month period. Lech estimates that the payment could have totaled more than a half a million dollars.

Some union activists say that the threat of legal action over the layoffs propelled Honeywell to finally readmit the last 21 workers to the plant. Honeywell did not return Working In These Times’ request for comment.

While Honeywell’s motives are unclear, what is clear is that this Christmas Eve, a lot of Honeywell workers in Metropolis, Ill., have reason to smile. The news of a victory gives union workers a much-needed morale boost as they head into what are expected to be contentious negotiations over their contract, which is set to expire this June.

“I’m excited about it,” says Lech of the rehirings. “We’ve fought hard against Honeywell for the last four years, and this is a huge victory for us.”

This article was originally printed on Working In These Times on December 23, 2013.  Reprinted with permission.

About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.

It’s the Final Countdown: How the Government Shutdown Affects Labor and Employment Law

Tuesday, October 1st, 2013

HymanJonathanTIn case you haven’t heard, as of 12:01 a.m. this morning, the federal government is closed. Your business will feel this shutdown in many ways, including in your interactions with the federal agencies that enforce the various labor and employment laws. Each has posted on its website a contingency plan for operations during the shutdown.

For example, the Equal Employment Opportunity Commission:

  1. Will accept and docket new charges, and examine if immediate injunctive relief is necessary.
  2. Will not conduct any investigations.
  3. Will not mediate any charges.
  4. Will not have staff available to answer questions or respond to correspondence.
  5. Will not litigate, unless a court denies a request for extension of time.
  6. Will not process any FOIA requests.

The Department of Labor and the National Labor Relations Board have each posted their own detailed shutdown plans. The bottom line, however, is that except for services that are absolutely essential, federal agencies will be closed until Congress works out its financial issues.

Federal courts, meanwhile, will remain open for business as usual for at least 10 business days, after which the Judiciary will reassess the situation.

Other federal services impacting employers that will be temporarily shuttered include e-Verify and the IRS.

While it difficult to predict how long this shutdown will last.The last shutdown of the federal government, spanning the end of 1995 to the beginning of 1996, lasted 28 days.

For now, if you have active matters with any federal agencies, expect for them to be on hold. Please remember is that while the EEOC and other agencies might be temporarily out of business, the laws that they enforce are not.

This article was originally printed on Ohio Employer’s Law Blog on October 1, 2013.  Reprinted with permission.

About the Author: Jonathan Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz.

A “Like” is a Like, Court Says, and is Protected Free Speech

Wednesday, September 25th, 2013

portrait-schwartzIn a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss.  The WSJ Law Blog has some additional details and you can download the decision here.

The Court said that a “like” is the internet equivalent of a candidate yard sign:

 In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech

While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:

The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.

“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.

The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.

Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1? on Google+? Or a Heart on Instagram?

It can go on and on.  All these questions will continue to arise as long as social media continues its growth.

For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances.   Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.

And, of course, if you like this post, feel free to “like” it below.  Though let’s agree that sometimes a “like” is really just something else entirely.

This article was originally printed on Connecticut Employment Law Blog on September 19, 2013.  Reprinted with permission.

About the Author: Daniel Schwartz is an experienced employment law attorney, a Bar leader, an award-winning author, and a noted speaker. He is a partner at Shipman & Goodwin LLP.

Pizza-Making Strikers Win Small Slice of Justice in Milwaukee

Monday, August 5th, 2013

Roger BybeeThe 14-month-long strike at Palermo’s Pizza in Milwaukee produced a small slice of justice this week for the Mexican immigrant workers who have been fighting for higher wages, safer conditions and a union voice at the frozen-pizza maker.

Last Tuesday, Palermo’s finally agreed to comply with a finding by the National Labor Relations Board and re-hire eight workers with back pay, which will cost the pizza chain tens of thousands of dollars. The eight had been illegally fired for trying to unionize, the NLRB ruled.

Palermo’s has also agreed to post a notice announcing that the firm will no longer violate federal labor law. “This agreement confirms that Palermo’s used threats, intimidation, surveillance, discrimination, and retaliation to deny the freedom to choose a union voice,” says Raul de la Torre, an organizing committee member of the Palermo’s Workers Union. Fully 75 percent of the workers signed cards seeking union recognition prior to the strike, but Palermo’s management responded only with threats and other illegal tactics.

But Palermo’s decision to comply with the NLRB ruling does not reflect a softening of the intransigence that has driven about 125 workers, almost all immigrants from Mexico, out on strike for over a year. Palermo’s has refused for months to even engage in bargaining, said spokesperson Brian Rothgery of the United Steelworkers (USW) union, which has been assisting the Palermo’s strikers since they walked out on June 1, 2012.

Low pay, hazardous working conditions and arbitrary management decisions drove workers to form a union with the help of the immigrants-rights group Voces de la Frontera, which has been vocal and visible force in Wisconsin for the rights of immigrant workers.

Voces, the Palermo’s Workers Union and the USW are preparing to intensify their boycott of Palermo’s frozen pizzas at stores and institutions across the nation, said Rothgery. This escalation of the boycott will mean a focus on getting Palermo’s products removed from universities and on the Costco chain, which accounts for half of Palermo’s sales.

USW District 2 Director Mike Bolton called the settlement for the eight workers a positive development, but expressed exasperation with U.S. labor laws that allow a firm like Palermo’s to thwart the democratic choice of workers to form a union.

“It took much too long to get even this small bit of justice for these workers,” Bolton tells Working In These Times. “And unfortunately, they will be going back to jobs where union busters have created such an atmosphere of fear and intimidation that a democratic election is not possible.”

“The American system of labor laws has failed for most of the Palermo’s workers,” says Rothgery. “But that doesn’t mean we’re going to stop. The boycott is continuing, and we’ll keep fighting until there is justice for all the workers at Palermo’s.”

The workers and their allies will need to puncture the stone wall that has been Palermo’s response to the onslaught of community protests and legal challenges. Palermo’s refused to accept a letter from clergy and other community leaders following their 18-mile pilgrimage from Palermo’s plant to the palatial suburban home of Palermo’s co-owner Giacomo Falluci on June 1, 2013, the one-year anniversary of the strike.

Meanwhile, Palermo’s still faces various federal charges of both tolerating safety hazards and breaking labor-relations laws. Palermo’s is contesting seven “serious” charges filed May 7 by the Occupational Safety and Health Administration that its handling of nearly 30,000 pounds of anhydrous ammonia—used in freezing food—was unsafe and posed a severe safety hazard. Palermo’s faces $38,500 in fines from OSHA.

The penalties reflect the threat posed by a potential accident. The Environmental Protection Agency estimates that a one-minute accidental release of 1,000 pounds of ammonia would spread toxic fumes 1.2 miles in an urban area.  A release of the full 29,500 pounds could travelsix miles. The Milwaukee Brewers’ major-league baseball stadium, with a seating capacity of 42,200, is just 1.3 miles west of the Palermo’s plant.

OSHA also requested that the frozen-pizza company turn over uncensored records of worker injuries and other safety problems, after Palermo’s submitted information with key information redacted.

Unfair labor charges

Until finally conceding on the one NLRB complaint, Palermo’s had refused to comply with the NLRB order issued last November. Palermo’s management and its advisors—which include the Chicago-based anti-union Jackson Lewis law firm and the PR firm of prominent local Democrat Evan Zeppos–seemingly want to project a message that the firm is impervious to any form of pressure, and thereby demoralize the workers and their supporters, say supporters of the strikers.

“They want to flaunt their impunity, “ explained Christine Neumann-Ortiz, director of Voces de la Frontera, the influential immigrants-rights group which has reinvigorated Milwaukee’s long tradition of May Day marches—dating back to 1886–by assembling tens of thousands of immigrant workers and supporters. Zeppos has attacked Neumann-Ortiz in harsh terms for supposedly discouraging business development: “I’ve talked to businesses who say, ‘Why should I move to the valley when that’s happening?’ She has hurt the city, she has hurt those workers, and she has hurt herself. She’s become toxic property.”

Palermo’s has managed to replace the striking workers with “scab” replacement workers. Many of these replacement workers were hired through the BG temporary agency, which faces its own set of charges issued by the NLRB—including a contingent of refugees from Myanmar (until recently, a nation wracked by dire poverty ruled by an extraordinarily brutal military dictatorship). A 21 year-old refugee suffered the loss of three fingers in an accident at the plant.

Big subsidies for low-wage jobs

Palermo’s stance has been reinforced by the overtly pro-corporate and anti-unionadministration of Gov. Scott Walker, especially the scandal-wracked Wisconsin Economic Development Agency, which has been willing to overlook the company’s failure to provide family-sustaining wages as promised in exchange for state grants. Wages at Palermo’s have fallen far short of the $12 an hour target set a full decade back in 2003 by the Menominee Valley Partners, a joint public-private initiative, when a plan was laid out for the area, which had been vacated by many large employers. One Palermo’s worker reported that she made just $9.30 an hour after 10 years at the plant.

Total taxpayer subsidies to Palermo’s—from city, state, and federal sources—have totaled $48 million, according to an updated version of an AFL-CIO report called “Too Much Pork in the Pepperoni.”

Allies and foes

Despite Palermo’s failure to meet its obligations to taxpayers, the company has found allies in the Milwaukee area’s top Democratic leaders. County Executive Chris Abele, who both gained office with labor support, openly aligned himself with Palermo’s in an op-ed shortly after the dispute started. For his part, Mayor Tom Barrett issued a deceptively neutral-sounding call for a “fair and timely” union representation election late last November, in a statement describing Palermo’s as “a valued corporate citizen.” But holding elections under the prevailing conditions would mean that the Palermo’s strikers would be shut out of the election while replacement workers would constitute the voters, noted Neumann Ortiz.  “They [Palermo’s and Barrett] only want an election where the voters would be hand-picked,” she pointed out.

But has been extensive support for the workers around the state and in the local community—as exhibited by the clergy-led 18-mile walk to protest Palermo’s practices. At UW-Madison, students held a sit-in ON April 29 at the office of Chancellor David Ward and won a halt to the university’s licensing deal with Palermo’s, under which the UW receiveD about $200,000 for promoting Palermo’s pizzas with a “Bucky Badger” logo.

Some Wisconsin Democrats, like state Rep. Jon Richards, have been actively demanding records on Palermo’s failure to provide the quality jobs needed to comply with the terms of its subsidies. Several County Board and City Council members have also been outspoken in their support of the strikers.

Meanwhile, labor activists nationwide are pressuring chains like San Diego-based Costco to stop carrying Palermo’s pizzas until workers’ rights are honored. While Costco has marketed itself as a humane alternative to Wal-Mart’s infamous low-wage and unashamedly brutal disregard of worker suffering, as with victims of factory disasters in Bangladesh for whom Wal-Mart has denied any responsibility, Costco has thus far refused to budge on selling Palermo’s pizzas  produced under harsh conditions closer to home.

With Palermo’s concession n the rehiring of the eight workers and acknowledgement of labor-law violations, the Palermo’s strikers and their allies see a small step forward. The boycott campaign gains ammunition at universities with strong policies on labor rights.

But until a breakthrough occurs to cut significantly into Palermo’s sales, Palermo’s seems intent on maintaining a hard line against the strikers. Image-conscious Costco, with 449 warehouse-style stores across the U.S., may prove to be the crucial target if Palermo’s workers are ever to win justice.

This article originally posted on Working In These Times on August 5th, 2013.  Reprinted with permission.  

About the Author:Roger Bybee is a Milwaukee-based freelance writer and University of Illinois visiting professor in Labor Education. Roger’s work has appeared in numerous national publications, including Zmagazine, Dollars & Sense, The Progressive, Progressive Populist, Huffington Post, The American Prospect, Yes! and Foreign Policy in Focus.

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