Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Trump’

Federal Judge Rules Trump’s Anti-Worker Executive Orders Unconstitutional

Tuesday, August 28th, 2018

When Donald Trump issued a series of executive orders attacking the rights of federal government workers, he wasn’t prepared for the response from working people. Our response, led by AFGE, included filing lawsuits to stop the orders and rallying across the country in support of federal workers. Now a federal judge has agreed with working people that these executive orders are illegal.

Judge Ketanji Brown Jackson ruled that key provisions of the three executive orders are either unconstitutional under the First Amendment, violate congressional intent or exceed the president’s authority.

AFGE National President J. David Cox Sr. lauded the ruling:

President Trump’s illegal action was a direct assault on the legal rights and protections that Congress specifically guaranteed to the public-sector employees across this country who keep our federal government running every single day.

We are heartened by the judge’s ruling and by the huge outpouring of support shown to federal workers by lawmakers from both parties, fellow union workers and compassionate citizens across the country. Our members go to work every single day to serve the American people, and they deserve all the rights and protections afforded to them by our Founding Fathers.

Now that the judge has issued her decision, I urge all agencies that have attempted to enforce this illegal executive order to restore all previously negotiated contracts and to bargain in good faith with employee representatives on any future changes as required under the law.

Regardless of what attacks on working people corporate interests and their allies dream up next, the labor movement will continue to stand up against any attempts to weaken our rights.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars

This blog was originally published at AFL-CIO on August 27, 2018. Reprinted with permission. 

Trump's war on workers is flying under the radar, but it's relentless

Thursday, August 23rd, 2018

It’s no secret that Donald Trump is not exactly out serving as the champion of workers he suggested he’d be during the 2016 campaign. But the scope of the attack he’s mounted on working people is staggering … and mostly under the radar.

Steven Hill rounds up some of the damage at Working In These Times: The Trump administration killed the Obama-era rule requiring federal contractors to disclose violations of labor law when they bid for contracts. They stopped the Obama administration’s effort to expand overtime eligibility so that millions more people would get overtime when they work more than 40 hours a week.

Then there’s the string of damaging National Labor Relations Board decisions, including a ruling against small unions within larger workplaces, the decision that got McDonald’s off the hook for workers in its franchise restaurants, and:

— Reversing a 2004 decision bolstering workers’ rights to organize free from employer interference.

— Reversing a 2016 decision safeguarding unionized workers’ rights to bargain over changes in employment terms.

— Overturning a 2016 decision that required settlements between employers and employees to provide a “full remedy” to aggrieved workers, instead of partial settlements.

Over at the Occupational Safety and Health Administration, meanwhile, they’ve delayed three important workplace safety rules. And, of course, the Supreme Court has said that employers can force workers into mandatory arbitration, denying them their day in court, and has also attacked public unions in the Janus decision.

These haven’t been high-profile issues, for the most part—they haven’t gotten the attention of the Muslim ban or family separation or Trump’s hostility to allies—but they stand to affect tens of millions of workers’ lives, and even to end some of those lives.

This blog was originally published at Daily Kos on August 25, 2018. Reprinted with permission.
About the Author: Laura Clawson is labor editor at Daily Kos.

A Rundown of All the Ways Trump Is Overseeing an All Out, Under-the-Radar Attack on Workers

Friday, August 17th, 2018

Amidst headlines about porn stars and bromance with Russian President Vladimir Putin, it can be hard to track the many ways the Trump administration is hurting workers in the United States. The Supreme Court’s Janus ruling that struck a blow to unions’ ability to collect membership dues held a brief spotlight in the national news churn. But in a more-quiet fashion, the Trump administration already has been slowly dismantling worker protections, especially those enacted under the Obama administration.     

During his presidential campaign, Donald Trump repeatedly proclaimed that he would help workers. He even boasted, “I have great relationships with unions.” But actions speak louder than words, and the policies pursued by the Trump administration have directly targeted middle and lower-income workers and labor unions.

The anti-labor attack gained momentum in the last weeks of 2017. President Trump had to wait until his two nominees to the five-member National Labor Relations Board (NLRB) were confirmed. Those new members flipped the board’s majority from Democratic to Republican. The NLRB, which oversees collective bargaining law and enforcement of U.S. labor laws and standards, then quickly issued a slew of key decisions that rolled back a number of worker- and union-related reforms.

In one of the most important changes, the NLRB reversed a 2011 ruling that helped workers form smaller unions within a single workplace. The precedent set under Obama allowed the holding of a union election without including all the different types of jobs within that business that don’t share similar job duties, wages and working conditions. Employers complained that it led to “micro unions.” In a specific case, after 100 welders unionized at a large manufacturing plant, the NLRB ruled that the smaller organizing unit was illegitimate since any union election would have to include all 2,500 workers at the company, spanning 120 job classifications. The NLRB ruled 3-2 along partisan lines.

Another consequential case decided under Trump will hurt low-income fast food workers. The Trump board overturned a major 2015 decision that ruled employers are responsible for bargaining with workers, even if they have only indirect control over those workers’ employment. Fast-food companies like McDonald’s license smaller franchise businesses to run most of their restaurants. McDonald’s instructs these franchises on how to operate but leaves them to control many aspects of their day-to-day business. For decades, franchise employees who wished to bargain collectively were caught in a vicious trap. Their boss, the franchise operator, could insist that McDonald’s controlled the terms of their employment. But if they tried to bargain with McDonald’s, the company would insist that the franchise operator was their true employer.

Obama’s NLRB solved this problem by clarifying that companies like McDonald’s are, jointly with franchise operators, employers of these workers and can be forced to the bargaining table. This new standard permitted much more meaningful collective bargaining among millions of low-wage workers. Longer term, that ruling on joint employers would have dramatically improved collective bargaining rights in the fast-food industry. But the GOP majority on the NLRB scrapped this standard, returning to an old, stringent policy that requires employers to exercise “immediate and direct” control in order to be liable under labor law.

Other damaging decisions by Trump’s NLRB include:

— Reversing a 2004 decision bolstering workers’ rights to organize free from employer interference.

— Reversing a 2016 decision safeguarding unionized workers’ rights to bargain over changes in employment terms.

— Overturning a 2016 decision that required settlements between employers and employees to provide a “full remedy” to aggrieved workers, instead of partial settlements.

All of these were 3–2 decisions, with Republicans in the majority and Democrats dissenting.

Beyond the NLRB

But the NLRB is only one federal agency. Trump’s Labor Department has also rolled back several rules and executive orders that the Obama administration issued to protect workers. Those include the Fair Pay and Safe Workplaces rule, which required companies bidding for large federal contracts to disclose and correct past labor and safety violations. Another rescinded rule had established guidelines for when states can drug-test applicants for unemployment insurance benefits. Also rescinded was the “persuader rule,” which required law firms to publicly disclose any work they do for employers trying to fight against union organization efforts.

Meanwhile, the Occupational Safety and Health Administration (OSHA) has delayed three workplace safety rules issued during the last year of Obama’s presidency. Those rules required certain employers to submit injury and illness data electronically to OSHA for publication on the agency’s website; tightened exposure standards for silica dust, which is often breathed in by certain construction workers and linked to lung disease; and weakened workplace exposure limits for beryllium, an industrial mineral linked to lung cancer.

The Supreme Court also ruled to allow employers to require workers to sign arbitration agreements that waive their rights to file class or collective action lawsuits. Last June, Trump’s acting solicitor general filed a brief with the Court that took the opposite stance from the Obama administration, asserting that mandatory arbitration agreements do not violate the National Labor Relations Act and are enforceable under the Federal Arbitration Act.

Another important ruling made under the Obama administration regarded which workers were eligible to receive overtime pay. The Obama-era rules required nearly everyone paid less than $47,476 a year to be eligible for time-and-a-half overtime pay when they worked more than 40 hours a week. That was a big jump from the $23,660 threshold in place since 2004, and a cornerstone of the Obama administration’s efforts to lift wages. But a federal judge in Texas blocked that rule a week before it was scheduled to take effect, and Obama’s Labor Department appealed. However, Trump’s Labor Department filed a brief in federal appellate court indicating it will not advocate for these overtime changes.

In addition to all that, the Trump administration has proposed $2.6 billion in budget cuts—an enormous 21 percent—to the Department of Labor. Those cuts include a proposed elimination of four department programs and their services, such as training for worker-safety and for migrant farmworkers. The budget also seeks to significantly slash funding for Job Corps, a program that provides job training to disadvantaged youth, by $407 million, or 24 percent. Dimitri Iglitzin, a labor attorney in Seattle, says that “Of all of the ways that the Trump administration has been crushing labor, the most important has been the neutering of the Department of Labor. On a day-to-day basis, the agency that should be fighting for working people is doing so no longer.”

Typically, when the U.S. government shifts from a Democratic presidential administration to a Republican one, a certain level of pro-business policies and erosion of labor rights is expected. However, many labor experts say that the presidency of Donald Trump has led to a repeal of Obama administration regulations that is unprecedented, and is proceeding faster than is typical under a new GOP administration. Celine McNicholas, labor counsel at the Economic Policy Institute in Washington D.C., says the Trump rollbacks of various pro-labor rules and regulations, in addition to deep cuts to the Labor Department’s budget, have been devastating to U.S. workers and “are not business as usual.”

In just over a year and a half as president, Donald Trump has wiped away a number of the modest policy gains that organized labor made during the Obama years. The nominees he chose to fill crucial regulatory roles already are making it more difficult for workers. Taken together, this blizzard of decisions will hurt millions of workers and weaken their abilities to unionize and bargain collectively.

Another way forward

But it does not have to be like this. Germany, Sweden and other EU member states show another path that is better for workers and that creates a stronger relationship between businesses, employees and trade unions.

Countries like Germany and Sweden have stronger labor laws than in the United States, and consequently more influential trade unions. In addition, many EU member states benefit from what is known as “co-determination,” which includes works councils at every job site and worker-elected boards of directors for the biggest of businesses, including Fortune 500 companies. Imagine if Walmart and Amazon were legally required to allow its workers to elect up to 50% of the members of its board of directors? It’s unimaginable to most Americans, yet this is standard practice throughout Europe. Co-determination fosters a “culture of consultation” and a degree of economic democracy. As a result, there is more broadly shared prosperity, with social supports like universal health care, child care, affordable university education, affordable housing, job training/re-skilling, workplace protections, a decent retirement and more.

In an age of growing inequality, the European practice of co-determination has broken with a strictly “shareholder model,” and has set a standard for corporate governance that holds great potential for the digital age if used in a widespread fashion.

Labor attorney Thomas Geoghegan has proposed that U.S. states should try out codetermination. Geoghegan says states should offer tax breaks to companies that allow rank-and-file employees to elect a third to a half of its corporate board of directors. Doing so, says Geoghegan, would allow U.S. companies to test drive an alternative model to the current dysfunctional stockholder model. Also, states could try out this model by requiring that nonprofits, NGOs and universities allow their employees to elect a portion of its board of directors or trustees.

Three senators (Democrats Tammy Baldwin, Elizabeth Warren and Brian Schatz) have introduced legislation that would require that companies allow workers to elect one-third of their corporate board. The bill is not expected to pass, and while the AFL-CIO has endorsed this legislation, historically unions and labor advocates have not taken up this cause. Yet labor leaders don’t seem to have any other proposals that might stop the hemorrhaging of union members.

Certainly such progressive proposals are going nowhere at the federal level under the administration of Donald Trump. So the landscape for political change has shifted to states and to cities where Democrats and progressives are more dominant. Still, even when Democrats have been in control, whether at the federal level under President Obama or in heavily Democratic states like California, Maryland and Massachusetts, there has been little appetite to push the boundaries of ways to support labor unions or progressive labor reform.

Which is surprising, since the unionization rate in the United States has fallen to fewer than 7 percent in the private sector and 11 percent of all workers. And future prospects don’t look too bright.

In an age when many workers are becoming freelancers and contractors who supposedly are the “CEOs of their own business” (whether driving for Uber, or being a hotelier for Airbnb, or a freelancer for Upwork and dozens of other online platform companies), the fate of labor unions hasn’t been this threatened in nearly a century. The Trump administration is just the latest nail in a slowly closing coffin that has been in process for decades. It’s time for U.S. labor unions to try new tactics.

This article was originally published at In These Times on August 17, 2018. Reprinted with permission.

About the Author: Steven Hill is a senior fellow at FairVote, a former senior fellow and political reform program director with the New America Foundation, and former Holtzbrinck fellow at the American Academy in Berlin. For more information, visit Steven Hill’s website at www.Steven-Hill.com and follow him on Twitter @StevenHill1776.

Trump's Supreme Court pick is eager to take the war on workers up a notch

Tuesday, July 17th, 2018

Another week, another bout of Supreme Court-related horror for workers. Up this week, Donald Trump’s nomination of Brett Kavanaugh. It’s bad. It’s really, really bad—a reminder that, even following a disastrous-for-workers Supreme Court session, things can get worse.

  • Daily Kos’ own Meteor Blades wrote about Kavanaugh’s awful SeaWorld dissent, noting that Kavanaugh’s demeanor as he makes the rounds of the senators he needs to vote to confirm him is surely a sharp contrast with “the snarls and sneers and outright contempt contained in his judicial record when he talks about workers.”
  • Brett Kavanaugh once sided with an anti-union company that scapegoated undocumented workers, Ethan Miller writes. Oh, and the son of the owner of that company? Was sentenced to prison, the company’s violations were so egregious … and then Donald Trump pardoned him.
  • Moshe Marvit writes that Trump’s Supreme Court pick could spell a fresh hell for workers, citing repeated cases in which Kavanaugh ruled against the most basic exercises of the right to organize, like wearing t-shirts critical of the employer or displaying pro-union signs in parked cars.
  • And while I haven’t come across any allegations that Kavanaugh has a history of sexual harassment—and in fact the execrable Amy Chua wrote in the Wall Street Journal that he’s been a good mentor to women (I’m not linking, the piece is so disgusting and such an indictment of the elite legal world)—it’s worth noting that Kavanaugh clerked for and remained notably close to Judge Alex Kozinski, who was forced to retire due to a well-established pattern of harassment. Did he know? It’s a question worth asking. And if he didn’t know, how didn’t he know?

This blog was originally published at Daily Kos on July 14, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

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.

Workplace Deaths Are Rising. Trump-Era Budget Cuts Could Make It Worse.

Monday, June 18th, 2018

In an alarming development in the world of workplace safety, the latest statistics reveal that the number of accidental deaths on the job in America is on the rise, reversing the longer-term trend toward fewer fatal incidents.

The number of deaths hit a total of 5,190 in 2016, up from 4,836 in 2015, according to an April 2018 report by the AFL-CIO. That’s about 14 deaths each day from preventable worker accidents. It’s also the third year in a row that the number has inched up, and the highest death rate since 2010, the labor federation reported.

Workplace safety systems are “definitely in the failure mode,” says Peter Dooley, a consultant with the National Council for Occupational Safety and Health who was worked closely with labor unions over the years. “In the last two years it is getting dramatically worse. It’s just outrageous.” 

The precise reasons for the rise are not simply stated, adds Peg Seminario, AFL-CIO’s long-time director of occupational safety and health. Overall patterns such as very high rates of injury in the logging and construction industries are consistent over time, she says, and there is no single employment trend that accounts for the recent rise. “The numbers are actually down in construction, but they are up almost everywhere else,” she says.

Inadequate enforcement of existing safety rules is the most commonly cited explanation for the rise, Seminario tells In These Times. A Jan. 8 report from NBC News estimates that the Labor Department’s Occupational Safety and Health Administration (OSHA) employs only about 1,000 inspectors to cover all workplaces in America—and that the number of inspectors has declined four percent since President Donald Trump took office. The number of inspectors is far too low to be effective, Seminario suggests, and OSHA has been “under resourced” for years, including during the Obama administration years.

“Construction is a good example. OSHA has a big focus on construction and construction deaths are down. The areas where OSHA has less interest are up,” she says

The figures cited by Seminario and Dooley are taken from the Census of Fatal Occupational Injuries published annually by the Bureau of Labor Statistics. The way the figures are compiled is a problem in itself, Dooley says, because it zealously protects the anonymity of employers. That diverts attention from specific workplace behavior that needs close examination and corrective action to reduce accidental deaths over time, he says. 

The National Council’s answer to this problem is to publish its own “Dirty Dozen” list of employers notable for health and safety problems among their workforces. The Council uses a standard of measurement that includes non-fatal injuries and other factors, but the list stands out in that it names some very well-known companies. For example, the online retailer Amazon is on the list because it has seen seven of its warehouse workers killed since 2013. Lowe’s Home Improvement operations have seen a total of 56 deaths associated with paint stripping chemicals. And the largest garbage disposal company in the United States, Waste Management, has had an excessive number of OSHA citations and fines. Other companies on the list are Tesla Motors and Dine Brands Global (owner of IHOP and Applebee’s restaurants).

“There is injustice in the Bureau of Labor Statistics as a totally anonymous database. There is no public record of who is dying and who the employers are,” Dooley says. The information actually does exist deep in the Labor Department files, he adds, but government policy is to keep this information out of public hands, or for use by safety experts. “This needs to be changed,” he says.

Seminario and Dooley agree that the worker safety signals coming from the Trump administration are troubling, even if the statistics are not up-to-date enough to make a direct link to increased workplace deaths. Trump’s budget proposal last year called for a 21 percent cut in Department of Labor spending, and the initial proposal for this year call for a 9 percent cut. Congress pared back last year’s proposed cut, and is expected to do so again this year, but it is clear that current Labor Department officials have no plans to take the initiative against the rise in workplace deaths, Dooley charges.

In issuing its report, the AFL-CIO noted: “The Trump administration has moved to weaken recently issued rules on beryllium and mine examinations and has delayed or abandoned the development of new protections, including regulations on workplace violence, infectious diseases, silica in mining and combustible dust.”

“At the same time, Congress is pushing forward with numerous ‘regulatory reform’ bills that would require review and culling of existing rules, make costs the primary consideration in adopting regulations, and making it virtually impossible to issue new protections.”

The reference to workplace violence represents one of the most troubling statistics buried in the government reports. According to a press release from the Bureau of Labor Statistics, “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since the National Census of Fatal Occupational Injuries began reporting data in 1992.”

“It’s a very complicated problem,” observes Seminario. “You can devise safety regulations to avoid common and predictable accidents. But how do you do that with a homicide?”

This article was originally published at In These Times on June 18, 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 administration sued after trying to gut federal workers’ union rights

Thursday, May 31st, 2018

The Trump administration is being sued by the largest union representing federal workers, which claims a new executive order that restricts union representation during work hours is unlawful and violates the First Amendment rights of its members.

The executive order was among three that Trump issued last Friday that rolled back union protections and the latest anti-union measures imposed by the administration. The lawsuit was filed by the American Federation of Government Employees (AFGE) at U.S. District Court in Washington D.C. on Wednesday.

“These changes will effectively deny thousands upon thousands of federal employees union representation,” AFGE General Counsel David Borer told ThinkProgress on Thursday. “It’s all part of an effort to destroy the unions and shrink the size of the government, in the words of some Republicans, down to the size of where you can drown it in a bathtub.”

Among a number of limitations, the “Official Time” executive order bars union representatives from spending more than 25 percent of their work hours providing representation for employees and, in the aggregate, no more than one hour per employee in their bargaining unit per year, Borer said. In other words, if there are 1,000 employees in a unit, a representative cannot spend more than 1,000 hours representing employees, he said.

Allowing union representation during work hours is common practice in the private sector and unions are required by law to represent all employees, both paying members and non-members, said Borer. Historically, the rationale for allowing union representatives to use “official time” to represent employees is because the law requires the union to provide the free service to non-members that don’t pay dues, he said.

In its lawsuit, the union argues the executive order violates the First Amendment because it does not provide valid justification for the regulations and singles out labor organizations and their representatives for “disparate, negative treatment as compared to individuals.” Because of this, it “restrains and retaliates” against the union and its employee representatives for exercising their rights to expressive association.

It also violates the Separation of Powers in the Constitution because it attempts to give agencies unilateral authority to determine whether a particular amount of official time is reasonable, necessary, and in the public interest, according to the suit.

Chemical Safety Board Dodges Trump’s Bullet Again

Friday, May 18th, 2018

But is the agency selling its soul?

The House Interior and Environment Appropriations Committee has not only (again) defied President Trump’s proposal to eliminate the Chemical Safety Board, but the committee actually plans to add a million dollars to the agency’s Fiscal Year 2019 budget.  The Committee’s bill, released Monday, funds the CSB at $12 million, $1 million above the fiscal year 2018 level.  This is the second year in a row that Trump has proposed eliminating the CSB and the House has defied him.

That’s the good news. But in other news-of-the-weird, the CSB and the Chlorine Institute (CI) have issued a joint statement that, while providing some good advice (e.g. don’t scrimp on preventive maintenance), reads like an advertisement for the Institute:

CI regularly updates its written guidance for chlorine producers and users by working with its member companies to determine best practices and contracting external scientific expertise. Additionally, members share best practices during in-person meetings throughout the year. Typically, industry colleagues review highly detailed, technical, and specific safety best practices and together improve their own safety performance and that of the entire chlor-alkali industry. Similarly, there are numerous other industry conferences, classes, and organizations focused on particular issues such as corrosion, non-destructive testing or rupture disc replacement frequency among other topics.

Now, we all love these Kumbaya moments and everything, but remember, the mission of the CSB is to “drive chemical safety change through independent investigation to protect poeple (sic) and the environment.” This is not to say that the CSB shouldn’t praise an organization for its consensus standards or corporate practices — and the CSB often does — but usually based on evidence resulting from an investigation about an incident that is addressed by that standard or practice.

Will this joint statement make future CSB investigations appear to be less independent and less objective in the wake of an incident that involves the use of Chlorine Institute standards?  The impact of Board investigations rests largely on the perceived objectivity of its recommendations and anything that detracts from that objectivity — or even the appearance of objectivity — will undermine the CSB’s effectiveness.

To my knowledge, this is the first time the CSB has issued this type of joint statement and it’s unclear whether the full Board even voted on it.

Agencies charged with conducting objective investigations need to maintain objectivity and the appearance of objectivity at all times.  Joint statements like this endorsing an organization’s practices that may in the future be subject to an investigation, do not generate confidence in the process.

Meanwhile, in other news, CSB staff voted last month to organize a union with the American Federation of Government Employees. The vote was 10 to 5 out of a total of 19 eligible. The CSB has been plagued by internal issues over its entire lifetime and many employees are reportedly concerned about deskilling of their jobs, dumbing down of reports with a focus on the technical causes of an incident, rather than the root causes and recommendations related to the flawed regulatory and public policy environment that can more effectively address the ongoing serious industry incidents.  Close to one-third of CSB investigators left the agency in the last year mostly due to management issues, and no investigators have been hired to replace those that have left.  Perhaps the House budget bill will encourage the CSB to begin hiring again.

Bloomberg’s Occupational Safety and Health Reporter wrote about the CSB’s organizing issues last year.

This blog was originally published at Confined Space on May 16, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Is Acosta Being Kicked Upstairs?

Monday, May 7th, 2018

If you read last Monday’s Punching In by Bloomberg Law crack reporters Benn Penn and Chris Opfer, you know that there are some management attorneys who are less than enamored of Alex Acosta’s less-than-stellar deregulatory accomplishments and wish President Trump would kick him upstairs to a judgeship, which (rumor has it) is where the 49 year old former federal prosecutor would like to end up eventually.

After all, 15 months after Trump’s inauguration and one year after Acosta was sworn in, construction workers are still breathing air free from cancer causing silica dust, thanks to the efforts of the dreaded Obama administration.  Never mind that the court unanimously rejected the industry’s attempt to overturn the rule (which Acosta’s Labor Department vigorously and successfully defended.)

But hope springs eternal. The general industry Silica standard has not yet taken effect, so the Administration could theoretically still succeed in giving foundry workers the right to get cancer at work.

Taking Acosta’s place in these corporate fever dreams would be the newly appointed and allegedly less cautious Deputy Secretary of Labor Pat Pizzella. It seems that for some people there aren’t enough Trump Cabinet agencies embroiled in scandal and the Jack Abramoff-tainted Pizzella would undoubtedly be a much better fit with the rest of Trump’s ethically challenged cabinet members than the boring, straight-laced, and (so-far) ethically untainted Acosta.

Presumably, the climax of these management attorneys’ fantasies would be the appointment of a Scott Pruitt type to head the Labor Department — without the daily scandals of course.  But this raises some issues.

First, as former OMB analyst (and current Rutgers professor) Stuart Shapiro wrote last week, Pruitt’s deregulatory “accomplishments” have been more rhetoric and failure than actual accomplishment.

The reality is that he’s made less headway than advertised. To date, Pruitt’s EPA has been taken to court repeatedly over efforts to delay or repeal regulations finalized near the end of the Obama administration. His record in court on these issues is not good. The courts have struck down six attempts to delay or roll back regulations on pesticides, lead paint and renewable-fuel requirements, The New York Times reported.

The main reason for Pruitt’s failures is that he is no better at complying with regulatory rules than his is with ethics rules.

Repealing a regulation is hard. In fact it is just as hard as enacting one. In his haste to dismantle President Obama’s environmental legacy, Pruitt has skirted the procedural requirements necessary to defend his actions in court.  Those procedures are not easy to follow, but failure to follow them means near-certain defeat in the courts. The best way to make sure that the i’s are dotted and t’s are crossed is to rely on the experts, the civil servants within EPA.

And EPA’s civil servants are fleeing. (See “Rats,” “Sinking Ship.”)

Acosta, to his credit, seems to understand that problem, aside from the momentary lapse when he neglected to include the economic analysis of his tipping rule. But with the help of Congress, everyone pretty much kissed and made up over that too.

Yes, in theory, Acosta could ride into the sunset to be replaced with a Scott Pruitt/Andy Puzder Frankenstein’s monster at DOL who would try to rape and pillage worker protections without passing go — and without complying with the Administrative Procedures Act, the OSH Act or the many other laws that lay out rulemaking procedures based on the tiresome requirements of evidence, science and public input.

But as we’ve seen in this administration, undermining an agency’s mission and cutting corners on administrative procedures tends to go hand-in-hand with cutting corners on ethics — as well as the law.  Not a very good combination if your goal is to actually get something accomplished.

Alex Acosta may not my my ideal Labor Secretary by a long shot — and he will certainly never live down his infamous naming of Ronald Reagan to the Labor Hall of Honor (a deed that will be as hard to live down as Mitt Romney heading out on the family vacation with his dog strapped to the top of this car,) but he’s about the best we could expect in a Trump administration that sports such Cabinet luminaries as Scott Pruitt, Ben Carson, Jeff Sessions, Ryan Zinke, Steve Mnuchin and Betsy DeVos.

After all, he actually defended his failure to slash the budgets of DOL’s enforcement agencies before Congress by making the shockingly un-Republican argument that “Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced.”

Which is probably why this cabal of one-martini-over-the-line corporate attorneys would like to show him the door.

This blog was originally published at Confined Space on May 5, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Corporate America’s Stealth Campaign to Stop Worker and Environmental Protections

Thursday, March 29th, 2018

Admit it. If they could, Trump and most Republicans would like to just get rid of OSHA, EPA the Consumer Product Safety Commission and any other agency — or law — that protects workers, consumers or the environment.

This is all part of Steve Bannon’s goal of “deconstructing the Administrative State” — making sure that corporate America’s quest for ever higher profits and control over our lives is not hindered by any of these damn government agencies that Congress created when the liberals ruled the earth.

But simply repealing the Occupational Safety and Health Act or the Clean Water Act probably wouldn’t play well even in Trump-America where people still like to come home alive at the end of the day and hate the idea of their kids drinking poisoned water.

So what to do, what to do?

How about just making sure the government can’t issue any new protections: the standards and regulations that put teeth into the laws?

The thriving New York Times has described two of their clever strategies that would do just that.

Get Rid of the Science: “Weaponized Transparency”

The Times reports that EPA Administrator Scott Pruitt is proposing to “no longer consider scientific research unless the underlying raw data can be made public for other scientists and industry groups to examine.” Pruitt is doing this in the name of “transparency.” After all, what could be wrong with only allowing science where the raw data is available for other scientists to critique?

Well, here’s the problem.

Opponents and supporters agree that the proposed new policy has its roots in the fossil fuel industry’s opposition to a groundbreaking 1993 Harvard University study that definitively linked polluted air to premature deaths. The “Six Cities” study, widely considered one of the most influential public health examinations ever conducted, tracked thousands of people for nearly two decades and ultimately formed the backbone of federal air pollution regulations.

The problem is that this study used the private medical and occupational histories of more than 22,000 individuals.  And if this private data were made available for public review, EPA “would have to spend hundreds of millions of dollars, according to a federal estimate, to redact private information.”

The bottom line, critics say, is that if the E.P.A. is limited to considering only studies in which the data is publicly available, the agency will have a narrower and incomplete body of research to draw on when considering regulations.

It’s not like no one has ever looked at this data critically. It’s all peer reviewed by other specialists in the field.

It’s “weaponized transparency,” according to Former OSHA head Dr. David Michaels, currently a professor at George Washington University and author of Doubt Is Their Product:  How Industry’s Assault on Science Threatens Your Health.

This is not just an academic debate. Not only would this policy chill scientific study and make it more difficult to protect workers and the environment, it would cost lives — thousands of lives:

Opponents of the proposed E.P.A. policy say the effort all comes back to the fossil fuel industry’s decades-long frustration over the Six Cities study and a related one sponsored by the American Cancer Society. Those studies, which have been independently evaluated and have had their findings confirmed, underpinned the first Clean Air Act regulations on fine particulate matter. Based on the research, the E.P.A. in 1997 estimated the rule would prevent 15,000 premature deaths annually and hundreds of thousands of cases of asthma and bronchitis.

So who’s behind this nefarious, and not so subtle plot? Who else but the Koch brothers, as well as Exxon Mobil, Peabody Energy and the American Chemistry Council.

Oh, and there’s also a bill in Congress that would mandate the same thing: The “Honest and Open New E.P.A. Science Treatment Act,” also known as the “Honest Act.”

Honestly.

Weaponizing the Judiciary

Just in case restricting the data that forms the basis of protective regulations doesn’t work, the Trump administration, Republicans in Congress and corporate American have another card up their sleeve: making sure the courts reject any regulations that manage to slip through.

One area that the Trump administration has seen great success has been in the selection and confirmation of conservative judges who have passed a critical “litmus test.” Usually, when we hear the words judicial “litmus test” it’s related to the debate over abortion.

But according to an article in this morning’s New York Times, the Trump administration is applying another litmus test: reining in what conservatives call “the administrative state” by limiting the discretion that agencies like OSHA or EPA have when they issue complex regulations.

What does that mean? When Congress passes a law like the Occupational Safety and Health Act, they give OSHA the authority to issue specific standards, and the law provides some guidance for the criteria the agency has to follow. For example, OSHA has to ensure that their standards are economically and technologically feasible.  But Congress doesn’t have the time or expertise to issue the specific standards — like those to protect workers against silica exposure, trench collapses or falls. They leave that lengthy and complex work to the agency.

When the new standards are inevitably challenged in court by the affected industries, the business associations argue that the agency didn’t evaluate the science properly, or didn’t ensure feasibility in the affected industries. The judges, who like your local Congresspersons, are not experts in toxicology or risk assessment, have traditionally deferred to the agencies’ expertise: “You’ve got some science here; you’ve got some science there. Congress says that the agencies have the expertise, so we defer to their decision.”

But not for much longer, if Trump and corporate America have their way. He is appointing federal judges who are “devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations.”

Are you scared? If not, you should be:

This approach has shaped what could be one of Mr. Trump’s most enduring legacies, with the potential to dramatically shrink the body of federal regulations and programs that touch almost every aspect of American life — like workplace safety, environmental protection and health care.

If it is successful, the Trump administration could come closer than any Republican White House has to achieving a goal conservatives have longed for since the New Deal: curtailing the reach of a federal government they say has grown far too large and invasive.

According to Senator Richard Blumenthal (D-CT), these ideas have been around for a long time, “but have never been weaponized in the way that Trump is doing now with his judicial nominees.”

This blog was originally published at Confined Space on March 28, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME). 

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