Outten & Golden: Empowering Employees in the Workplace

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After Janus, Should Unions Abandon Exclusive Representation?

Tuesday, May 29th, 2018

The Supreme Court is set to issue a ruling on Janus vs. AFSCME, which could have far-reaching consequences for the future of public-sector unions in the United States. The case has sparked a wide-ranging debate within the labor movement about how to deal with the “free-rider problem” of union members who benefit from collective bargaining agreements but opt-out of paying dues. We asked three labor experts to discuss what’s at stake in the case and how they each think unions should respond.

Kate Bronfenbrenner is director of labor education research at Cornell University, Chris Brooks is a staff writer and organizer with Labor Notes and Shaun Richman is a former organizing director at the American Federation of Teachers.

Chris Brooks: The way I see it, right-to-work presents two interlocking problems for unions. The first is that unions are legally required to represent all workers in a bargaining unit that the union has been certified to represent, and in open shops the Duty of Fair Representation (DFR) requires unions to expend resources on non-members who are covered by that contract. This is commonly known as the free rider problem and it gets a lot of attention, for good reason.

The second problem is that open shops also undermine solidarity by pitting workers who pay their fair share to support the union against those who do not. This is the divide-and-conquer problem.

So the free rider problem is institutional: the union has to expend all these resources fighting on behalf of workers who are not members and do not pay dues. And the divide-and-conquer problem is interpersonal: when workers do not all support the union this results in union and non-union members developing adversarial attitudes toward each other which undermines the ability for collective action.

If you believe that the source of a union’s strength is its ability to unite workers in common fights to better their conditions on the job and in the community, then the divide-and-conquer problem is a real impediment to union power. Yet, the free rider problem gets far more attention from union leaders and activists than the divide-and-conquer problem. This is especially true in the discussion around whether unions should ditch exclusive representation and pursue a members-only form of unionism.

In my opinion, most arguments in support of kicking out free riders actually reinforces the employers’ logic—turning union membership into a personal choice and unions themselves into competing vehicles for individualized services rather than vehicles for broad class struggle. So by focusing on the free rider problem to the exclusion of the divide-and-conquer problem, unions run the danger of turning inward and representing a smaller and smaller number of workers rather than seeking to constantly expand their base in larger fights on behalf of all workers in an industry.

Shaun Richman: I had an article published in The Washington Post and I admit it was too cute by half partly because I was trying to amplify what I think was actually the strongest argument that AFSCME is making in the case itself, which is that the agency fee has historically been traded for the no strike clause and if you strike that there is the potential for quite a bit of chaos. So I wanted to put a little bit of fear to whoever might potentially have the ear of Chief Justice Roberts, as crazy as that may sound. But I also wanted to plant the seed of thinking for a few union rebels out there. If the Janus decision comes down as many of us fear then the proper response is to create chaos.

If the entire public sector goes right to work, unions will never look the same. So, then, the project of the left should be “what do we want them to look like?” and “what will drive the bosses craziest?” I’ve written about this before and Chris has respondedat In These Times. There are three things that I am suggesting will happen—two of which, and I think Chris agrees, are sort of inevitable and not particularly desirable. The third part is notinevitable and depends a lot on what we do as activists.

If we lose the agency fee, some unions will seek to go members-only in order to avoid the free rider problem, and that’s a lousy motivation. I’m not encouraging that, but I think it’s also inevitable. Once you have unions representing these workers over here but not those workers over there, it’s also inevitable that you wind up with competitor unions vying for the unrepresented. And the first competitor unions are going to be conservative. These already exist. They’re all over the South and they compete against the American Federation of Teachers (AFT) and National Education Association (NEA) in many districts and they offer bare bones benefits and they promote themselves on “we’re not going to support candidates who are in favor of abortions and we’ll represent you if you have tenure issues.” That’s also bad but also inevitable.

The third step, which is not inevitable but we need to consider in this moment, is at what point do new opposition groups break away from the existing formal union?  When do we just break the exclusive model and compete for members and workplace leadership? Can we get to a point where on the shop floor level you’ve got organizations vying for workers’ dues money and loyalty based on who can take on the boss in a better fight or who can win a better deal on the basis of we’re going to be less confrontational (which, I think, there are a lot of workers whom that appeals to as much as I don’t like that idea)? But the chaos of the employer not being able to make one deal with one union that settles everything for three or five years—that’s just the sort of chaos that the boss class deserves for having pursued this whole Friedrichs and now Janus strategy.

Kate Bronfenbrenner: I have a different perspective that has to do with having looked at this issue over a longer period of time and also having witnessed the UK labor movement wrestle with exclusive representation when their labor law changed. First, I believe there is a third thing that right to work does that is missing from your analysis. Right to work gives employers another point to intimidate, coerce, and threaten employees about being part of the union, all of which employers find much more difficult to do in a union or an agency shop.

My research suggests that employers will act the same way now they do in the process of workers becoming members as they do during an organizing drive. The historical trade-off for unions was that the price of exclusive representation was Duty of Fair Representation (DFR) and unions saw DFR as a burden.

Those of us who were progressives saw that Duty of Fair Representation was the best thing that ever happened to unions because DFR said that unions had to represent women, people of color, the LGBT community, and you couldn’t discriminate against part time versus full time. Historically it was used to force the old guard had to give up domination of unions and to fight for for union democracy because the simplest basis of DFR is the concept of good faith. If used effectively it would be the thing that could break the hold of the mob, or the old guard, or just white men. So you have to remember when you give up exclusive representation you could lose DFR. I can tell you that women and people of color are not going to want to give it up. And I think the fact that the two of you didn’t think of that is probably because you have not been using that in your roles, but it is central to those who are fighting if you are dealing with members who are fighting discrimination in your union, the whole DFR exclusive representation is absolutely critical.

Brooks: Kate, am I wrong that the actual court case establishing the DFR in exclusive representation comes out of the Railway Act, where a local was refusing to represent Black workers?

Bronfenbrenner: Historically, but it kept being reinforced over and over again in cases involving most collective bargaining laws. It’s been reinforced over and over again that the trade-off for exclusive representation that the DFR is tied with exclusive representation.

Richman: Yeah, it was the entire thrust of the NAACP workplace strategy before the 1960’s—that the labor law could be a civil rights act as long as we could win DFR. Herbert Hill wrote a great book about it (Black Labor and the American Legal System). I would also recommend Sophia Z. Lee’s The Workplace Constitution, which explores that history and makes a compelling argument for returning to a strategy of trying to establish constitutional rights in the workplace through the labor act.

Bronfenbrenner: Right. So union workers had protection for LGBTQ workers under DFR long before any other workers did because you could not discriminate on the basis of any class under duty of fair representation. Now whether workers knew that, whether their unions would represent them, is another matter but if you were a union worker or a worker who knew about it, this was where you fought it. So that was very important.

And the third thing that I wanted to say that related to this was that there is a long history in the public sector of independent unions, of company unions, acting as if exclusive representation didn’t exist, where there would only be one member and employers would recognize the “union” establishing a contract bar so no other union could come in.

In the 1980s and 1990s, public sector unions assumed that they were winning decertification elections rather than the independent unions and discovered that they weren’t. Soon enough they realized that the problem was that they weren’t doing a good enough job of representing their members. Workers were not voting for the company unions, which were little more than law firms or insurance companies. They were voting against the poor representation.

The prevalence of these independents is a long running problem that existed before and after exclusive representation, and it exists when there are agency fees and when there are not. Poor enforcement by the NLRB and the difficulty of tracking down these front groups that are not really unions is a much bigger issue that comes out of a divided public sector, and exclusive representation has nothing to do with it.

Brooks: I think right-wing groups are trying to capitalize on the history of company unions and fragmentation in the public sector. The State Policy Network (SPN) has a nationally coordinated strategy that builds on right-to-work laws to further bust unions. One of the tactics their member organizations, which exist in all fifty states, are pursuing is so-called “workers’ choice” legislation. This legislation allows unions to maintain a limited form of exclusivity, but with no duty of fair representation. Unions must still win a certification election to be the sole organization bargaining with the employer, but workers can opt out of the union and seek their own private contract with the boss outside of the collective bargaining agreement.

Requiring a certification election for collective bargaining also saves employers from having a situation where multiple unions can simultaneously pursue separate bargaining agreements for the same group of workers, a legal can of worms that corporations don’t want to open. SPN affiliates tout this legislation as a solution to the free rider problem for unions, since they have no duty to represent non-members, but it also incentivizes employers to bribe and cajole individual workers away from the union.

Employers could offer bonuses to workers if they drop union membership and call it “merit pay.” I don’t think that corporate advocacy groups like the SPN would be promoting this legislation unless they believed it would further weaken unions and fragment the labor movement.

The SPN is also actively organizing these massive opt-out campaigns, where they encourage workers to “give themselves a raise” by dropping union membership. They even have a nationally coordinated week of action called National Employee Freedom Week that eighty organizations participate in. In fact, the SPN think tanks work hand-in-glove with a host of independent education associations—which are basically company unions, purporting to represent teachers while advancing the privatization agenda. In Georgia, Mississippi, Missouri and Texas, these independent education associations claim to be larger than the AFT and NEA affiliates.

So in those places where unions are really strong, there is a high likelihood that we will see an increase in company unions that are working closely with State Policy Network affiliates to further divide workers on the job.

Richman: Chris, what you’re describing are things that are mostly going to happen anyway, if we lose Janus. That SPN opt-out campaign is going to happen. The legislation you describe is not inevitable. I agree we dig a hole for ourselves if the only reason we want to “kick out the scabs” is so we don’t have to represent them in grievances. Because that lays the groundwork for making a union-busting bill seem like a reasonable compromise.

If we lose Janus, unions will never look the same. It’s at moments like this when we have to critically evaluate everything. What do we like about unions and our current workers’ rights regime? What don’t we like and what opportunities has this created for us to at least challenge that?

For me, the opportunity is to think about having multiple competitive unions on the shop floor. I don’t think of this as a model that will lead to multiple contracts. It might lead to no contracts. Everything that I’ve written on this subject so far has been with the assumption that ULP protections against discrimination remain in place so that the boss can’t give one group of workers a better deal because they picked one union over another (or no union at all). If a boss makes a deal with any group of workers or imposes new terms because a union got bargained to impasse, everybody gets the same thing.

Under a competitive multiple union model, I think no strike clauses become basically unenforceable. And these no strike clauses have become really deadly for unions in ways we don’t want to acknowledge. Currently, the workers who should be the most emboldened at work, because they’re protected by a union, have a contract that radically restricts their ability to protest. It’s not just strikes. It curtails the ability to do slow down actions, and malicious compliance, and it forces the union rep to have to rush down to the job and tell their members, you have to stop doing this. And they end up feeling bitter toward the union leadership as much—if not more—than the boss for the conditions that were agitating them still being in place. And then their “my union did nothing for me” stories carry over to non-union shops. Every organizer has heard them.

We need to bring back the strike weapon. And that’s far easier said than done. But it’s really hard to do when you’re severely restricted in your ability for empowered workers to set an example for unorganized workers in taking action and winning.

And, Kate, I have considered the DFR. I can’t imagine a world of multiple competitive unions in a workplace where there wouldn’t be at least one union that says we’re going to be the anti-racist union, we’re going to be the feminist union, and we’re the union for you. Without DFR, you’re right, there’s no legal guarantees. But someone steps into the vacuum and my hope is that at least creates the potential for militancy when militancy is called for in the workplace. With all the other messiness.

There’s going to be plenty of yellow unions and the boss is going to bring back employee representation programs and company unions and all of that. But that mess is exactly what they deserve. They’ve forgotten that exclusive representation is the model that they wanted—we didn’t, necessarily—in the 1940s and 1950s.

Bronfenbrenner: I wouldn’t be ready to throw out DFR. I think that there is too little democracy, and too much discrimination in the labor movement. At this time, we already have right to work in most of the public sector and most of the public sector doesn’t allow strikes, but workers still strike. We see that workers are willing to strike even if they are not allowed to strike, as evidenced by all these teachers, and we have to remember the strike statistics in this country only report strikes that are over 1,000 workers and most workplaces are under 1,000. We have a lot more strikes than are reported.

The labor movement is not going to strike more just because you get rid of no strike clauses. Teamsters had the ability to strike as the last step of their grievance procedure for decades and they never went on strike. I think what is more important is the question of what is going to change the culture and politics of the labor movement. I don’t think changing the right to strike is going to do it.

What is going to make unions actually fight back even on something like fighting on Janus? They’re not even getting in the streets on Janus, so what makes you think they’re actually going to strike on issues in the workplace? We need to think about why workers and unions are so hesitant to strike. I do not believe that chaos necessarily is going to happen. I think employers are much more prepared for this. I think what will happen is that the unions that have been effective and have been working with their members and educating their members and involving their members will be fighting back and the ones that have been sitting back and not doing anything will continue to sit back and not do anything and some will die.

The problem with getting rid of exclusive representation is that some unions are going to think “aha this is what I’m going to do, this is an easy way out,” the same way people used to think “oh it’s easier to organize in health care, oh it’s easier to organize in the public sector, so rather than organize in my industry, which is hard, I’m going to go try health care or the public sector.” But they found that “why can’t I win organizing teachers the same way that AFT does” or “why can’t I win organizing in health care the same way SEIU is doing” and they discovered that it’s not quite as easy as it looks.

Brooks: Yeah, I think Kate’s point is really important: in a right-to-work setting, the employer anti-union campaign never ends. The boss is constantly trying to convince and cajole workers into dropping union membership. And employer anti-union campaigns are really effective, which is why unions don’t win them very often.

If the Supreme Court rules against unions in Janus, anti-union campaigns are only going to gain strength. So, my fear, Shaun, is that you are being overly romantic. I just don’t think left-wing unions are going to suddenly emerge and step into the void left by business-as-usual unionism. If that was the case, then why hasn’t that already happened with the 90 percent of workers that don’t have any union at all?

Richman: The structure is a trap, and exclusive representation is part of that. I don’t think we have a crisis of leadership. I want to turn to the private sector because most of the potential hope in abandoning exclusive representation is in the private sector. Look at the UAW and their struggles at Volkswagen and at Nissan, which Chris is intimately familiar with. I think all three of us could find fault in their organizing strategy and tactics. Kate, I think you have more grounds than anyone in the country to be frustrated because you’ve scientifically proven what it takes to win and most unions have ignored that research for decades! But a third of the workers at Nissan want to have a union. To do so, they have to win an exclusive representation election where the entire power structure of the community comes down on their heads arguing keep the UAW out of the South.

If they had eked out an election win and managed to win a contract a year down the line, at the end of the day they get the obligation of having to represent everyone and probably the one-third of the workers who wanted the union all along are the only ones that join. That’s insane. Charles Morris threw out this theory a decade ago, in The Blue Eagle at Work, about how the NLRA was not intended to have these winner-take-all exclusive representation elections. The point of the NLRA was merely to say to employers anywhere there’s a group of workers that say hey we’re a union you must bargain with them in good faith. He argues that pathway is still open to unions. To the best of my knowledge a few unions politely asked the NLRB for their opinion on that a couple of times rather than all of us demanding that should be a valid pathway for union representation.

If you can win that exclusive representation election, you should win it, and you should also be saddled with the burdens of DFR. But why can’t, and why shouldn’t, the UAW file a petition at every auto factory in the country right now and say we have members here and you need to bargain with us over their working conditions? And why shouldn’t other unions jump into the fray and claim to represent their portion of the workers and drive those non-union companies nuts with a bunch of unions placing demands on them, and organizing to take action?

I think the work that Organization United for Respect (OUR) is doing at Wal-Mart is a good example of that. They by no means have a majority of the workers at Wal-Mart. They are in a few strategic locations. They are a nuisance to the company. They just won a right that workers are allowed to wear union buttons on the shop floor. Wal-Mart has given workers raises in response to their agitation. I’m not suggesting that that model is perfect or what we should all be doing, but I am saying that this should be an avenue open to us. And it only becomes open to us if we’re willing to experiment more with abandoning exclusive representation where it doesn’t work for us.

I would argue that in 90% of private sector workplaces where winning these elections is not possible it’s not working for us currently.

Bronfenbrenner: The comprehensive campaign-organizing model should be part of every organizing effort. Workers are protected under the NLRA when they engage in concerted activity and, as I say in all my organizing research, the union should be acting like a union from the beginning of the campaign. Unions should also be organizing around workplace problems and going to the employer and engaging in actions during the organizing campaign. I’ve been saying for 30 years that you don’t wait to start acting like a union until you win. But there is serious pushback against that element of my model from many organizers.

Unions are very hesitant to start taking on the employer before they win the majority. But there are unions that do that. It’s not just OUR. It’s Warehouse Workers United, SEIU 32BJ, RWDSU, Communications Workers, the Teamsters. All have run campaigns where they begin taking on the employer before the union has been recognized or certified. The unions that have been doing comprehensive campaigns are doing it in bargaining and it’s being done in organizing by the unions who are winning in organizing. So they’re not waiting until they win.

Richman: Thirty or forty years into people getting really serious about organizing as a science and as a craft, the fact that most unions still haven’t embraced an organizing model…

Bronfenbrenner: People have been serious about organizing as a craft from the beginning. It’s just that no one wrote very good books about what they did. The IWW and the UAW organizers, and the textile organizers, they were organizing using the same strategies that are being done now. No one wrote good books about what they did.

Richman: Sure, that’s fair. But the fact that unions are not following an organizing model that’s informed by your researchand other unions’ best practices suggests it’s not a matter of culture but the legal framework that we find ourselves trapped in. Most of the pressure on a union leader is to bring back good contracts for the members you currently represent and keep winning re-election. So that puts more resources into grievance handling and bargaining and it leads to the cost cutting in organizing campaigns.

Bronfenbrenner: I disagree. For the last three decades servicing and education budgets have been cut while huge amounts of the labor movement’s financial and staff resources have been shifted into labor law reform. And I can tell you because I’m part of the debate they don’t want to have about what they they need to do to change to organize. But most either think they are doing everything they can, or it is too hard to do anything different. It is the law that is the problem.

Either way the shared understanding is that unions should put resources into politics and in getting labor law reform because trying to do comprehensive organizing campaigns we’re asking them to do is “too difficult.” But they’re not putting resources into grievance handling anymore. They are putting it into politics and  labor law reform.

Richman: The approach to labor law reform has been too much about trying to preserve the system. The opportunity of the moment is to think beyond the boundaries of the workplace. Enterprise level bargaining has been killing us since the 1970s. As long as union membership is tied to whether or not some group of workers voted to form a union sometime in the past within the four walls of your workplace, that just incentivizes the offshoring and contracting out that’s really what has decimated the labor movement.

Humpty Dumpty is sitting on the wall and if Neil Gorsuch and John Roberts kick him off I am not particularly interested in being one of the king’s horses and men trying to put him together again. At that point the system is fundamentally broken and we need new demands about what kind of system we want and new strategies about how we exploit the brokenness of the system to make them regret what they have done.

Exclusive representation—combined with agency fee and DFR—worked for a long time. But if you knock one piece out, it all falls apart. We shouldn’t be pining for bygone days. We need to be thinking forward about what opportunities this creates. I hope that some people get inspired to try something as crazy as the IWW saying fuck it, we’re going to organize in different workplaces and agitate for work slowdowns and try to gain a few members in a few places we don’t care about expenditures of resources and dues. We’re going to create some chaos.

Brooks: I share Kate’s concerns, I believe that many unions have devolved into highly legalistic organizations. So the solutions they are pursuing to our current problems are highly technical and legal in nature, which means that lobbying and electing Democrats often becomes their top priority. Laws are important, but unions should spend far more time and resources on organizing comprehensive campaigns that build support among large majorities of workers, winning them over to a plan for collective action that can change conditions on the job and in the community.

Instead of this kind of organizing, what we’ve seen over the past few decades is the increasing confinement of class struggle to smaller and smaller segments of workers. Few unions these days aim to represent all workers in an industry. How many unions are engaged in pattern bargaining and setting contract standards across an industry or openly organizing toward a master agreement? To your point, Shaun, unions have become limited to firm-level representation. Or even just a bargaining unit within a firm, since many do not even try to organize everyone who works for the same employer.

Members-only unionism just continues this trend as unions move to represent an even smaller fraction of workers, not as a stepping stone to building a majority, but as a strategy to get out of providing services to workers who don’t pay dues. Ultimately, I believe this is a capitulation to the employers’ right-to-work framework and a retreat from the kind of broad-based organizing that the labor left has been historically committed to.

Bronfenbrenner:  We can no longer talk about the workplace solely through a U.S. framework. Ownership structures are so large, diffuse, and complex that what we should be doing is organizing and bargaining and building relationships between workers across the entire corporation world-wide, company-wide, and industry-wide. That requires getting workers to understand that they need to build power to take on whomever the decision-makers in the company are. It is not the boss that they see once a year at the annual holiday party. It is whoever has the money and really makes the decisions in the ultimate parent company. And that requires building alliances locally, nationally, and internationally, and building a much broader labor movement.

It also means understanding that the person who doesn’t pay union dues in their shop is not the problem. The problem for workers is that now what they have is the chamber of commerce fighting against their right to bargain and the state at all levels is interfering with economic and union rights. Their boss is now some investor somewhere who has decided to buy and sell their company and their jobs who does not care what they make or whether they stay open or not.

You have to figure out what they care about because that is what gives unions  leverage. That’s why workers in America have to get to know workers in Mexico and workers in Europe, those kinds of relationships, that is what the labor movement needs to spend their energy on. That’s what I’m going to spend my energy on.The U.S. labor movement cannot afford to be picking petty fights between workers who are paying dues and workers who aren’t paying dues because they need each other.

Richman: The structure is a trap partly by forcing unions to focus on individual bargaining units, individual workplaces and somehow winning them one-by-one. What we should be doing is not retreating from our bargaining units, but claiming to represent the willing workers in every company in every industry. I’m trying to inspire anyone who is out there reading this to think about an opportunity to spread out wider—in a much more bare bones, scrappier way—but one that puts the union idea in many more workplaces. To get the word out now, rather than we’ll get to you after we somehow win Nissan or Volkswagen. Because that’s not working.

Bronfenbrenner: But you’re not going to get labor law changed unless you have power.  It takes political power to get labor law changed. You can’t get political power until you organize a lot. You’re asking for a labor law change. The point is that focusing on labor law is backwards. We only get labor law reform after we do a great deal of organizing. First you have to organize and build power.

During the whole Employee Free Choice Act (EFCA) fight everyone stopped organizing and spent all their energy on EFCA. That’s the danger of labor law reform.

This article was originally published at In These times on May 25, 2018. Reprinted with permission. 
About the Authors: Kate Bronfenbrenner is director of labor education research at Cornell University, Chris Brooks is a staff writer and organizer with Labor Notes and Shaun Richman is a former organizing director at the American Federation of Teachers.

Ending Gender-Based Violence and Harassment in the World of Work

Monday, May 28th, 2018

No one should have to risk their safety or dignity to put food on the table. Yet every day, workers around the world are subjected to sexual harassment and other forms of gender-based violence. On Monday, May 28, workers, employers and governments will come together at the International Labor Organization to discuss a new global standard on violence and harassment in the world of work. This is the culmination of more than a decade of advocacy by the global labor movement. It’s an exciting opportunity to create a binding international agreement to end gender-based violence and harassment in the workplace.

The AFL-CIO, together with partners from around the world, will be on the ground pushing for a binding convention that empowers workers to take collective action to build safe, respectful workplaces. You can follow the action on our Facebook and Twitter accounts, and check out our partners at the Solidarity Center (@SolidarityCntr) and the International Trade Union Confederation (@ITUC).

Why use the term gender-based violence and harassment?

In the United States, the law protects against sex-based discrimination, including sexual harassment, and public conversations generally use these terms as well. Often, sex and gender are used interchangeably. However, there is an important distinction between the two: a person’s sex is tied to their inherent biological characteristics. Gender, on the other hand, is a social construct built around norms, expectations and stereotypes about what it means to be a man or a woman.

In the U.S., and indeed throughout much of the world, there is an entrenched, gendered power hierarchy that values men and a rigid definition of masculinity. The term gender-based violence and harassment reflects this inherent power imbalance. It recognizes the link between the gendered violence that occurs in society at large and the devaluation of women in the workplace. Both are tied to the way people are socialized, and particularly how men are socialized to feel entitled to women’s bodies and to expect deference and compliance. Every social actor has a role to play in breaking down these harmful stereotypes and creating equitable, respectful communities—and when it comes to addressing how this issue plays out in the workplace, unions have an unique and powerful role to play.

How do unions help stop gender-based violence and harassment?

Unions have a critical role to play in ending gender-based violence and harassment. At base, gender-based violence in the world of work—including unwanted touching, sexual comments, requests for sexual favors and even sexual assault—is not about sex, but about power. Unions are dedicated to shifting power relationships and creating more equitable and fair workplaces. Workers, particularly those who have been subjected to mistreatment, must be empowered to take collective action to enact solutions and demand justice.

Economic insecurity, particularly precarious and low-wage employment, makes workers more vulnerable to harassment. Women comprise the majority of part-time and temporary workers in the United States and most of the world, as well as the majority of low-paid workers and those making minimum wage. Many of these workers live paycheck to paycheck and cannot afford even a brief break in employment, making them less likely to report abuse. Precarious work arrangements, like subcontracting or other contingent arrangements, decrease oversight and accountability. Confronting violence and harassment at work requires addressing the underlying conditions that drive abuse—including worker organizing to win living wages, job security and protection from retaliation.

This blog was originally published at AFL-CIO on May 25, 2018. Reprinted with permission. 

About the Author: Cassandra Waters is the global worker rights specialist at the AFL-CIO.

Federal court deals a blow to Uber, Lyft drivers trying to unionize in Seattle

Wednesday, May 16th, 2018

A two-year legal battle over a Seattle, Washington law allowing Uber and Lyft drivers to unionize was prolonged again this week, after a federal appeals court ruled Friday that it can be challenged under federal antitrust law.

The first-in-the-nation law was unanimously passed by the Seattle City Council in 2015 and sought to give ride-share drivers the opportunity to unionize and bargain for better pay and benefits.

But it was swiftly challenged by business and conservative groups, namely the U.S. Chamber of Commerce, representing Uber and Lyft, the National Right to Work Legal Defense Foundation, and the Freedom Foundation. In a 2016 lawsuit against the city of Seattle, the Chamber of Commerce claimed “the ordinance will burden innovation, increase prices, and reduce quality and services for consumers.”

One legal challenge was dismissed last year, but the law remained on hold until other legal challenges were resolved. On Friday, three judges on the 9th U.S. Circuit Court of Appeals unanimously agreed that Seattle’s law is not exempt from the Sherman Antitrust Act, sending it back to U.S. District Court.

Uber spokesman Caleb Weaver called the decision “a win for rideshare drivers, riders and the entire Seattle community.”

The Teamsters Local 117 and members of the App-Based Drivers Association (ABDA) expressed their frustration and disappointment in the wake of Friday’s ruling.

“Anti-trust laws were put in place to protect the little guy from monopolistic practices from large corporations, not to shield a company like Uber — valued at over $70 billion — from negotiating with its workers over fair pay and working conditions,” said Don Creery, Uber and Lyft driver and member of the ABDA leadership council.

One bright spot for proponents of Seattle’s law: the Ninth Circuit judges agreed in their ruling that the National Labor Relations Act (NLRA) can cover independent contractors, like Uber and Lyft drivers.

This week, Sen. Bernie Sanders (I-VT), along with other Senate Democrats, introduced legislation that would make it easier for people working in the gig economy to prove they are employees and thus be able to organize and collectively bargain. While the legislation doesn’t stand a chance in the current Republican-controlled Congress, Bloomberg notes that it has the backing of potential Democratic presidential candidates and could be a sign of things to come if Democrats are able to regain control of either chamber this fall.

This article was originally published at ThinkProgress on May 13, 2018. Reprinted with permission. 

About the Author: Kiley Kroh is a senior editor at ThinkProgress.

I Work with Mark Janus. Here’s How He Benefits from a Strong Union.

Monday, May 14th, 2018

Like everyone else in the labor movement, I’m nervously awaiting the Supreme Court ruling in Janus v. AFSCME Council 31, which would weaken public sector unions by letting workers receive the benefits of representation without contributing toward the cost.

But I’ve got a unique vantage point: I work in the same building as the plaintiff, Mark Janus.

We’re both child support specialists for the state of Illinois, where we do accounting on child support cases. I do this work because it’s fulfilling to help kids and single parents get the resources they need to support themselves.

What convinced Mr. Janus to join this destructive lawsuit? Your guess is as good as mine. I do know it’s much bigger than him. He’s the public face, but this case is backed by a network of billionaires and corporate front groups like the National Right-to-Work Foundation.

But the truth is, even Mark Janus himself benefits from union representation. Here are a few of the ways:

1. Without our union, Mr. Janus’s job would probably have been outsourced by now.

A drastic provision in the state’s “last, best, and final offer” in 2016 would have given Governor Rauner the right to outsource and privatize state employees’ jobs without accountability. Our union is all that’s preventing critical public services from being privatized.

Our agency would be at particular risk, because Illinois already has a longstanding contract with a scandal-ridden, for-profit corporation called Maximus to perform some of our agency’s functions. They modify child support orders and interact with employers about income withholding—pretty simple tasks, yet state employees regularly have to correct their work. If they were to take over more complex tasks, we can imagine how badly that would go! Their concern is for profit, not kids.

If the governor could get away with it, it’s very likely he would expand the Maximus contract to privatize jobs like mine and Mr. Janus’s. He already did something similar to nurses in the prison system. But our union has to be consulted before the state can outsource anything. And when they do outsource, we monitor the contract and discuss how long it will continue. I go to those meetings for our union. Right now, instead of letting management expand its deal with Maximus, we’ve been pressing to cut that contract.

2. Mr. Janus has received $17,000 in union-negotiated raises.

Over his years working for the state, Mr. Janus has earned general wage increases and steps that would not have been guaranteed if not for the union.

3. The public—including the parents and kids Mr. Janus serves—has access to resources like childcare that our union has fought to defend.

Our union allows us speak up together on matters far beyond money. When Governor Rauner tried to cut childcare benefits for low-income single parents, we teamed up with outraged community members and made him back off. And when the budget impasse was forcing domestic violence shelters to close their doors, we kept pushing for years until a veto-proof budget was passed.

4. Our union blocked the employer from doubling the cost of Mr. Janus’s health benefits.

 

In negotiations the state has pushed to double our health insurance costs and drastically reduce coverage. The employer declared impasse and walked away from the bargaining table. AFSCME took the matter to the Labor Relations Board and the courts—securing a temporary restraining order that prevents the governor from imposing his extreme demands.

5. We make sure Mr. Janus’s office is warm in the winter and cool in the summer.

As a union we deal with health safety issues large and small. In the department that rescues children from household abuse and neglect, we’re continually pushing for sufficient staffing. The stakes are high: one member was killed on the job after she went out on an urgent call alone.

Other matters are less dramatic. In state office buildings we solve problems like flooding, mold, leaky windows, and toxic pigeon feces. One building had someone creeping up on employees in the parking lot, so we worked with management to get better lighting and security patrols.

In the building where Mr. Janus and I work, the heating and cooling system is extremely old. Twice a year they bring in a computer from 1982 to switch from heat to air conditioning for the summer, and vice versa for the winter. So when the weather fluctuates, we work to get portable heating or cooling units deployed where they’re needed.

Many of these are ongoing issues, where our union acts as a watchdog. We have a health and safety chair on the union executive board. Any time a problem comes up, he starts by approaching management to resolve it. If that doesn’t work, he can file an OSHA complaint plus a high-level grievance.

6. Thanks to our union, Mr. Janus will retire with a pension.

Our union has fought to save the defined-pension that Mr. Janus will receive upon retirement. A coalition of unions including AFSCME took the issue to court—and won. The Illinois Supreme Court ruled that employees’ pension benefits cannot be cut.

7. Mr. Janus can get sick and still have a job when he comes back.

Before this job I worked without a union, in the retail industry, where I experienced what it means to be an at-will employee. Three absences would cost an employee their job—even if they called in sick and provided a doctor’s note.

8. Our union ensured that Mr. Janus could be fairly hired, regardless of his politics.

In public service our ultimate bosses are elected officials. There was a time in Illinois when to be hired or promoted, you were expected to make a contribution to the political party in power. But a 1990 Supreme Court case called Rutan v. Republican Party of Illinois put an end to that. Today our union enforces a triple-blind system for fair treatment in hiring and promotions, making sure seniority is followed. It’s one more way that even Mr. Janus benefits from having a union on the job.

This blog was originally published at Labor Notes and In These Times. Reprinted with permission.

About the Author: Donnie Killen is a child support specialist for the state of Illinois and vice president/executive steward of AFSCME Local 2600.

Trump Administration Should Rescind Proposal That Allows Bosses to Pocket Working People's Tips

Thursday, February 15th, 2018

As we previously reported, President Donald Trump’s Labor Secretary Alexander Acosta announced a new proposed regulation to allow restaurant owners to pocket the tips of millions of tipped workers. This would result in an estimated $5.8 billion in lost wages for workers each year?wages that they rightfully earned.

And most of that would come from women’s pockets. Nearly 70% of tipped workers are women, and a majority of them work in the restaurant industry, which suffers from some of the highest rates of sexual harassment in the entire labor market. This rule would exacerbate sexual harassment because workers will now depend on the whims of owners to get their tips back.

In a letter to Congress, the AFL-CIO opposed the rule change in the strongest possible terms, calling for the proposal to be rescinded:

Just days before the comment period for this [Notice of Proposed Rulemaking] closed, an extremely disturbing report appeared indicating that analysis of the costs and benefits in fact occurred, but was discarded. On Feb. 1, 2018, Bloomberg/BNA reported that the Department of Labor “scrubbed an unfavorable internal analysis from a new tip pooling proposal, shielding the public from estimates that potentially billions of dollars in gratuities could be transferred from workers to their employer.” Assuming these reports are correct, the Department of Labor should immediately make the underlying data (and the analyses that the Department conducted) available to the public. We call on the Department of Labor to do so immediately and to withdraw the related Notice of Proposed Rulemaking.

The AFL-CIO strongly urges the Department to withdraw the proposed rule, and instead focus its energies on promoting policies that will improve economic security for people working in low-wage jobs and empower all working people with the resources they need to combat sexual harassment in their workplaces.

The Department of Labor must provide an estimate of its proposed rules’ economic impact. However, while suspiciously claiming that such an analysis was impossible, it turns out that this wasn’t true:

Senior department political officials—faced with a government analysis showing that workers could lose billions of dollars in tips as a result of the proposal—ordered staff to revise the data methodology to lessen the expected impact, several of the sources said. Although later calculations showed progressively reduced tip losses, Labor Secretary Alexander Acosta and his team are said to have still been uncomfortable with including the data in the proposal. The officials disagreed with assumptions in the analysis that employers would retain their employees’ gratuities, rather than redistribute the money to other hourly workers. They wound up receiving approval from the White House to publish a proposal Dec. 5 that removed the economic transfer data altogether, the sources said.

The move to drop the analysis means workers, businesses, advocacy groups and others who want to weigh in on the tip pool proposal will have to do so without seeing the government’s estimate first.

Democrats in Congress quickly responded that the rule change should be abandoned, as the new rule would authorize employers to engage in wage theft against their workers. Sen. Elizabeth Warren (D-Mass.) said:

You have been a proponent of more transparency and economic analysis in the rulemaking process. But if DOL hid a key economic analysis of this proposed rule—and if [Office of Management and Budget] officials were aware of and complicit in doing so—that would raise serious questions about the integrity of the rule itself, and about your role and the role of other OMB officials in the rulemaking.

Take action today and send a letter to Congress asking it to stop Trump’s tip theft rule.

This blog was originally published at AFL-CIO on February 15, 2018. Reprinted with permission. 

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

What #MeToo Can Teach the Labor Movement

Friday, December 29th, 2017

My first #MeToo memory is from the kitchen of the Red Eagle Diner on Route 59 in Rockland County, N.Y. I was 16 years old, had moved out of my home, and was financially on my own. The senior waitresses in this classic Greek-owned diner schooled me fast. They explained that my best route to maximum cash was the weekend graveyard shift. “People are hungry and drunk after the bars close, and the tips are great,” one said.

That first waitressing job would be short-lived, because I didn’t heed a crucial warning. Watch out for Christos, a hot-headed cook and relative of the owner. The night I physically rebuffed his obnoxious and forceful groping, it took all the busboys holding him back as he waved a cleaver at me, red-faced and screaming in Greek that he was going to kill me. The other waitress held the door open as I fled to my car and sped off without even getting my last paycheck. I was trembling.

Although there were plenty of other incidents in between, the next time I found myself that shaken by a sexual assault threat, I was 33 and in a Manhattan cab with a high-up official in the national AFL-CIO. He had structural power over me, as well as my paycheck and the campaign I was running. He was nearly twice my age and size. After offering to give me a lift in the cab so I could avoid the pelting rain walking to the subway, he quickly slid all the way over to my side, pinned me to the door, grabbed me with both arms and began forcibly kissing me on the lips. After a determined push, and before getting the driver to stop and let me out, I told the AFL-CIO official that if he ever did it again I’d call his wife in a nanosecond.

These two examples underscore that behind today’s harassment headlines is a deeper crisis: pernicious sexism, misogyny and contempt for women. Whether in in our movement or not, serious sexual harassment isn’t really about sex. It’s about a disregard for women, and it shows itself numerous ways.

For the #MeToo moment to become a meaningful movement, it has to focus on actual gender equality. Lewd stories about this or that man’s behavior might make compelling reading, but they sidetrack the real crisis—and they are being easily manipulated to distract us from the solutions women desperately need. Until we effectively challenge the ideological underpinnings beneath social policies that hem women in at every turn in this country, we won’t get at the root cause of the harassment. This requires examining the total devaluation of “women’s work,” including raising and educating children, running a home and caring for the elderly and the sick.

It’s time to dust off the documents from the nearly 50-year-old Wages for Housework Campaign. The union movement must step in now and connect the dots to real solutions, such as income supports like universal high-quality childcare, free healthcare, free university and paid maternity and paternity leave. We need social policies that allow women to be meaningful participants in the labor force—more of a norm in Western Europe where unionization rates are high.

Sexist thought is holding our movement back

Sexist male leadership inside the labor movement is a barrier to getting at these very solutions This assertion is sure to generate a round of, “She shouldn’t write that, the bosses will use it against us.” Let’s clear that bullshit out of the way: We aren’t losing unionization elections, strikes and union density because of truth-telling about some men in leadership who should be forced to spend out their years cleaning toilets in a shelter for battered women. And besides, we all know the bosses are far, far worse—and have structural power over tens of millions of women in the United States and beyond.

Some of the sexual harassers who see women as their playthings are men on “our side” with decision-making roles in unions. This mindset rejects real organizing, instead embracing shallow mobilizing and advocacy. It rejects the possibility that a future labor movement led by women in the service economy can be as powerful as the one led by men in the last century who could shut down machines. Factories, where material goods are produced by blue collar men are fetishized. Yet, today’s factories—the schools, universities, nursing homes and hospitals where large numbers of workers regularly toil side by side—are disregarded, even though they are the key to most local economies. Educators and healthcare workers who build, develop and repair humans’ minds and bodies are considered white and pink collar. This workforce is deemed less valuable to the labor movement, because the labor it performs is considered women’s work.

While presenting on big healthcare campaign wins at conferences, I’ve had men who identify as leftists repeatedly drill me with skeptical questions such as, “We thought all nurses saw themselves as professionals; you’re saying they can have class solidarity?” I wonder if these leftists missed which workers got behind the Bernie Sanders campaign first and most aggressively. I’ve hardly ever met a nurse who didn’t believe healthcare is a right that everyone deserves, regardless of ability to pay.

When I began negotiating hospital-worker contracts, which often included the nurses, I routinely had men in the movement say things like, “It’s great you love working with nurses. They are such a pain in the ass at the bargaining table.” These derogatory comments came from men who can’t stand empowered women who actually might have an opinion, let alone good ideas, about what’s in the final contract settlement. Many hold a related but distinct assumption: that the so-called private sector is more manly—and therefore, important—than the so-called public sector, which is majority-women. This belief also contributes to the devaluation of feminized labor.

Capitalism is one economic system, period. The fiction of these seemingly distinct sectors is primarily a strategy to allow corporations to feed off the trough of tax-payer money and pretend they don’t. This master lie enables austerity, which is turning into a tsunami post-tax bill. And yet white, male, highly educated labor strategists routinely say that we need totally different strategies for the public and private sectors. Hogwash.

This deeply inculcated sexist thought—conscious or not—is holding back our movement and contributing to the absurd notion that unions are a thing of the past. These themes are discussed in my book No Shortcuts, Organizing for Power in the New Gilded Age (Oxford, 2016).

The union movement has increased the number of women and people of color in publicly visible leadership positions. But the labor movement’s research and strategy backrooms are still dominated by white men who propagate the idea that organizing once worked, yet not anymore. This assertion is presented as fact rather than what it is: a structuralist argument. The erosion of labor law, relocation of factories to regions with few or no unions, and automation are the common reasons put forth. The argument omits the devastating failure of business unionism, and its successor—the mobilizing approach, where decision-making is left in the hands of mostly white male strategists while telegenic women of color with “good stories” are trotted out as props by communications staffers.

If you think these men are smarter than the millions of women of color who dominate today’s workforce, then an organizing approach—which rests the agency for change in the hands of women—is definitely not your preferred choice. Mobilizing, or worse, advocacy, obscures the core question of agency: Whose is central to the strategy war room and future movement? As for loud liberal voices—union and nonunion—that declare unions as a thing of the past, the forthcoming SCOTUS ruling on NLRB v Murphy Oil will prove most of the nonunion “innovations” moot. Murphy Oil is a complicated legal case that boils down to removing what are called the Section 7 protections under the National Labor Relations Act, and preventing class action lawsuits.

Murphy Oil blows a hole through the legal safeguards that non-union workers have enjoyed for decades, eviscerating much of the tactical repertoire of so-called Alt Labor, such as class-action wage-theft cases, and workers participating in protests called by nonunion community groups in front of their workplaces. The timing is horrific and uncanny: As women are finally finding their voices about sexual harassment at work, mostly in nonunion workplaces (as the majority are), Murphy Oil will prevent class action sexual harassment lawsuits.

Unions can’t win without reckoning with sexism and racism

The central lesson the labor movement should take from the #MeToo movement is that now is the time to reverse the deeply held notion that women, especially women of color, can’t build a powerful labor movement. Corporate America and the rightwing are out to destroy unions, in part, so that they can decimate the few public services that do serve working-class families, including the Children’s Health Insurance Program (CHIP), Medicaid, Medicare, Social Security and public schools. Movements won these programs when unions were much stronger. It makes sense that unions, and the women’s movement, should throw down hardest to defend and grow these sectors, largely made up of women, mostly women of color, who are brilliant strategists and fighters.

The labor movement should also dispense of the belief that organizing and strikes can’t work. It’s self-defeating. Unions led by Chicago teachers and Philadelphia and Boston nurses, to name a few, prove this notion wrong. The growing economic sectors of education and healthcare are key. These workers have structural power and extraordinary social power. Each worker can bring along hundreds more in their communities.

Another key lesson for labor is to start taking smart risks, such as challenging the inept leadership in the Democratic Party by running its own pro-union rank-and-file sisters in primaries against the pro-corporate Democrats in safe Democratic seats, a target-rich environment. As obvious as it might sound, this strategy is heresy in the labor movement. Women who marched last January should demand that gender-focused political action committees, such as EMILY’s list, use support for unionization as a litmus test for whether politicians running for office will get their support. No more faux feminist Sheryl Sandberg types.

It’s time for unions to raise expectations for real gender equality, to channel the new battle cry to rid ourselves of today’s sexual harassers into a movement for the gender justice that women in Scandinavian countries and much of Western Europe enjoy. To think of winning what has become almost normal gains in many countries—year-long paid maternity and paternity leave, free childcare, healthcare and universities, six weeks’ annual paid vacation—is not pie-in-the-sky. To fight for it, people have to be able to imagine it.

The percentage of workers covered by union-negotiated collective agreements in much of Western Europe, the countries with benefits women in this country desperately need, is between 80 percent and 98 percent of all workers. This compares to a paltry 11.9 percent in the United States, as of 2013. This is far beyond a phased-in raise to $15 and hour—still basically poverty, and a wage that most women with structural power in strategic sectors already earn.

Women can’t win without building workplace power

There’s enough wealth in this country to allow the rich to be rich and still eradicate most barriers to a genuine women’s liberation, which starts with economic justice in the workplace. Upper-class mostly white women drowned out working-class women, many of color, in the 1960s and 1970s. The results of second-wave feminism are clear: Even though some women broke corporate and political glass ceilings and won a few favorable laws, individual rights will not truly empower women. Unions—warts and all—are central to a more equal society, because they bring structural power and collective solutions to problems that are fundamentally societal, not individual.

Women in the United States are stuck with bosses who abuse them, because to walk out could mean living in their cars or on the streets—or taking two fulltime jobs and never spending a minute with their kids. Similarly, women are stuck in abusive marriages, because the decision to stop the beating means living on the streets. European women from countries where union contracts cover the vast majority of workers don’t, to the same extent, face the decision of losing their husband’s healthcare plan, or not having money to pay for childcare or so many of the challenges faced by women here. This country is seriously broken, and to fix it we must build the kind of power that comes with high unionization rates, which translate into political—not just economic—power.

Naming and shaming is not sufficient. Women need to translate the passion of this moment into winning the solution that will help end workplace harassment. A good union radically changes workplace culture for the better. The entire concept of a human resources office changes when a union is present. For example, when entering the human resources office, women aren’t alone: They’ve got their union steward. Union contracts effectively allow women to challenge bosses without being fired. Good unions do change workplace culture on these and many issues. Why else would the men who control corporations, and now the federal and most state governments, spend lavishly on professional union busters and fight so damn hard to destroy unions?

It’s going to take a massive expansion of unions again—like what happened in the 1930s, the last time unions were declared dead—before we can translate #MeToo into a demand that raises all workers’ expectations that this country can be a far more equal society. If we commit to this goal, we can achieve it. This time, the people leading the unions will be the same people who saved the nation from Roy Moore, because women of color are already at the center of the future labor force.

I went from sexual harassment in male-heavy restaurant kitchens to sexual harassment as a rare woman allowed into the kitchen cabinet of many successful campaigns. Whether it is union leaders ignoring the experience and genius of workers in today’s strategic employment sectors of education and healthcare, politicians following the corporate line or individual bad bosses harassing their employees, all of it comes down to a disrespect and disregard for women, especially women of color. If we focus on the power analysis, the answer is staring us in the face. There is no time to waste. Everyone has to be all-in for rebuilding unions.

This article was originally published at In These Times on December 27, 2017. Reprinted with permission.
Jane McAlevey is an organizer, author and scholar. Her first book, Raising Expectations (and Raising Hell), published by Verso Press, was named the “most valuable book of 2012” by The Nation Magazine. Her second book, No Shortcuts: Organizing for Power in the New Gilded Age, published by Oxford University Press, was released late in 2016. She is a regular commentator on radio and TV. She continues to work as an organizer on union campaigns, lead contract negotiations, and train and develop organizers. She spent the past two years as a Post Doc at the Harvard Law School, and is presently writing her third book—Striking Back—about organizing, power and strategy, forthcoming from Verso.

The Trump Labor Board Just Made It Harder for Fast-Food Workers to Hold Corporate Bosses Accountable

Wednesday, December 20th, 2017

On December 14, the National Labor Relations Board (NLRB) overturned a 2015 policy that had made it easier for workers—particularly fast-food workers—to unionize and challenge their employers over unfair labor practices.

The Obama-era standard sprung from a 2013 case involving workers attempting to unionize at a recycling plant in Milpitas, Calif. The recycling company, Browning-Ferris Industries, owned the building but used a small staffing agency called Leadpoint to provide and manage workers. The local Teamsters union was trying to organize the employees, but it didn’t want to merely negotiate with Leadpoint: It wanted Browning-Ferris to be considered a joint employer and party to any labor contract. A regional director determined that Leadpoint was the sole employer, but the Teamsters requested a review, and the NLRB’s general counsel sided with union in a 3-2 vote.

The vote was hailed by unions and labor advocates for making it more difficult for corporations to distance themselves from certain legal violations—and for strengthening the bargaining power of subcontracted gig-economy workers.

The Browning-Ferris decision was also good news for fast-food workers and organizations like Fight for $15. Most fast-food companies use a franchising model, and Browning-Ferris made it easier for workers to hold corporations responsible for wage theft and union busting at individual locations. In 2014, the NLRB’s general counsel had already ruled that the McDonald’s Corporation could be considered a joint employer in various labor cases brought against the company’s franchises. But Browning-Ferris provided an entirely new legal dimension to the proceedings.

The Browning-Ferris decision was predictably criticized by industry groups, which immediately launched an all-out assault on the new rule. International Franchise Association lobbyist Matt Haller declared that the decision was “a knife-to-the throat issue,” pro-business organizations pressured Congress to block its implementation in their subsequent spending bill, and Browning-Ferris Industries challenged the decision in a federal appeals court.

Industry nervousness ended up being alleviated by the surprising election of Donald Trump, who successfully tipped the NLRB back to a Republican majority in September—and has sought to overturn the labor victories which occurred under his predecessor. The Trump administration recently ended Obama’s extension of federal overtime pay, and it’s preparing to eradicate a 2011 rule which protects the tips of wait staff. All of Trump’s NLRB appointees were connected to anti-union policies at their previous positions, but the confirmation process was fast-tracked, and they easily made it through GOP-controlled Senate. In overturning the Browning-Ferris precedent, the board claimed that the 2015 decision was responsible for “upending decades of labor law precedent and probably centuries of precedent in corporate law.”

In a statement, National Employment Law Project executive director Christine Owens called the reversal “just one more example of the Trump Administration favoring corporations over working people.”

“In this economy, employers are increasingly subcontracting out vital parts of their business to other contractors and/or using temporary employment agencies to fill vital positions,” said Owens. “The Browning-Ferris decision recognized that in these arrangements, companies that contract out work may still retain control over the conditions and standards that govern the work and how the workers doing the jobs are treated … the Trump NLRB has decided to let them off the hook.”

While there is no evidence that Trump was directly involved in the case, we do know that one his companies was impacted by the 2015 decision. In May 2016, catering workers at the Trump National Doral golf resort in Florida won a $125,000 settlement after suing for unpaid wages. As a result of the joint-employer liability, the workers were able to hold Trump Miami Resort Management responsible, even though an outside staffing agency had hired them.

It is likely that the Trump administration will soon work to overturn a number of additional Obama-era NLRB decisions. To the surprise of many, the board ended up adapting to the complexities of a changing economy under Obama and forcefully asserted the rights of workers in a number of important votes. Recent NLRB decisions have given graduate students the right to unionize at private universities, increased the bargaining power of workers at charter schools and made it easier for smaller groups of workers to unionize at companies. However, the term of the NLRB’s Republican chairman, Philip A. Miscimarra, ended just days after the board’s vote. Trump will at least have to wait until the Senate confirms his next nominee and reestablishes the Republican majority before he’s able to undo any of these changes.

This article was originally published at In These Times on December 21, 2017. Reprinted with permission.

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

How the Canadians Are Trying to Use NAFTA to Raise Your Wage

Tuesday, September 19th, 2017

Finally, after nearly a quarter of a century, the North American Free Trade Agreement (NAFTA) is being renegotiated. This is a good thing. NAFTA is called a “trade deal,” but it’s mostly a collection of rules that give corporations more power over the three economies of North America. It gives companies tools to undermine laws and rules that protect America’s working families. It increased threats by U.S. employers to close workplaces and move to Mexico. And once the companies got there, NAFTA provided strict rules for them, but only vague guidelines to protect working people’s rights and freedoms.

NAFTA negotiations have not progressed very far, and it is too early to say whether the effort will bring a New Economic Deal to working people or simply more crony capitalism. But there was some fantastic, surprising, excellent news recently.

The Canadian negotiating team did something big: They told the U.S. negotiators that U.S. laws that interfere with people’s freedom to negotiate on the job are dragging down standards for Canada and need to be abolished. Guess what? Canada is right.

These laws, known as “right to work,” are another example of the wealthiest 1% rigging the rules to weaken the freedom of people joining together in union and negotiating with employers for better pay, benefits and conditions at work. Not surprisingly, states with these freedom-crushing laws are less safe and have lower wages, dragging down workplace standards for those in other states, and apparently in Canada, too.

Canada gets the obvious: These laws take away working people’s freedom to join together and raise their wages. Canada is pushing the United States to be fairer to working people, just as the U.S. is pushing Mexico to be fairer to its working people. Will the U.S. negotiators see the light and agree to this proposal in NAFTA? We certainly hope so. It will tell us a lot about who the president stands with: Corporate CEOs or working families?

Learn more about laws that take away working people’s freedom.

This blog was originally published at AFL-CIO.org on September 19, 2017. Reprinted with permission. 
About the Author: Celeste Drake is the trade and globalization policy specialist at the AFL-CIO, where she advocates for reforms to U.S. trade policy to create shared gains from trade on behalf of working families. She has testified before the Senate Foreign Relations Committee, various House subcommittees and the U.S. International Trade Commission, and made presentations before the European Union’s Economic and Social Committee.

The Right Wing Has a Vast, Secret Plot to Destroy Unions for Good. Here’s How to Fight Back.

Thursday, September 14th, 2017

The vast right-wing network of Koch brother-funded “think tanks” is now plotting to finish off the public sector labor movement once and for all.

In a series of fundraising documents obtained by the Center for Media and Democracy of Madison, Wis., and published in the Guardian, the CEO of a cartel of 66 well-funded arch-conservative state capitol lobbying outfits promises funders a “once-in-a-lifetime chance to reverse the failed policies of the American left.”

Tracie Sharp, the leader of the States Policy Network (SPN), goes on to explain that the pathway to permanent right-wing victory is to “defund and defang” unions that rely on the legal protections of state labor law.

Though less well-known, the SPN is something of a sister organization to the American Legislative and Exchange Council (ALEC), which writes cookie cutter “model legislation” for right-wing state legislators.

SPN affiliates, like Michigan’s Mackinac Center and Ohio’s Buckeye Institute, promote ALEC’s agenda in the public sphere and attack organizations that are opposed to it. Both networks have effectively nationalized the conservative agenda in state legislatures.

The One Percent Solution

What’s fueling this drive is a combination of the vast sums of money that flow into elections in the Citizens United-era along with the gerrymandering that has helped rig elections in favor of Republicans. The result has frequently been “triple crown” GOP-led state governments that hold little accountability to voters but tremendous debts to their corporate masters.

University of Oregon professor Gordon Lafer has documented the rise of the corporate legislative agenda in all 50 states in his new book, The One Percent Solution: How Corporations Are Remaking America One State at a Time.

Lafer found that state bills pushed by ALEC and the SPN, along with more traditional business lobbyists like the Chamber of Commerce, generally fall into four broad categories.

The first, and most obvious, are efforts to constrain or destroy institutions that empower working people to fight back, such as labor unions.

Second are efforts to privatize public services. Lafer found these efforts were primarily intended to diffuse the responsibility of providing these services. “If no public authority is responsible,” he writes, “demands become customer-service issues rather than policy problems that must be addressed by democratically accountable officials.”

Third are efforts to block—or preempt—rebel cities from passing living wage or fair scheduling laws, thereby foreclosing on the ability for localities to defend and advance progressive goals.

Finally, through tax cuts for the wealthy and austerity-driven cuts to vital public services, Lafer found that this corporate agenda seeks a downward shift in what people come to expect for a basic standard of living.

In other words, the One Percent’s solution is to convince the rest of us, as the Dead Kennedys song goes, that soup is good food; that each new indignity is simply our new standard of living and that we shouldn’t expect more.

“Give yourself a raise”

If the States Policy Network does really strive for this One Percent goal outlined by Lafer, then it’s no wonder that the group has been most dogged in pursuing its union-busting agenda. SPN and ALEC have long understood what many Democratic politicians are only just beginning to realize: strong unions help keep right-wing politicians out of office while protecting the social safety net.

SPN and ALEC have aggressively pursued so-called “right-to-work” legislation as a means of bankrupting unions and knocking out a key component of their opponents’ get-out-the-vote operation. Twenty-eight states now have these anti-union laws on the books. Five of them—all former bedrocks of union power—were passed this decade as a part of the anti-union drive described in the documents released by the Center for Media and Democracy.

That’s hardly the extent of the role of these “think tanks” in busting unions. Flush with cash, they’ve begun volunteering their efforts as union avoidance consultants where no one has asked for their services.

In 2013, I was part of a drive to organize the workers at Chicago’s United Neighborhood Organization Charter School Network, under the terms of a neutrality agreement. The employer was getting rocked by a financial and insider dealing scandal that was a daily cover story in the local media. The schools’ employees joining the Chicago Alliance of Charter Teachers and Staff (ACTS) was the only positive headline they had to look forward to when we launched the card drive.

That didn’t stop an SPN affiliate, the Illinois Policy Institute (IPI), from harvesting teachers’ email addresses and spamming UNO’s e-mail lists with condescending admonitions to “not sign any union petition or authorization card unless you are certain that you want union representation.”

These union busters seemed to assume that the “launch” of our card drive meant a bunch of beefy goons were about to descend on the schools to strong-arm teachers. In fact, the public launch of the card drive was the union organizing equivalent of a touchdown dance. The representative, democratic organizing committee we had spent weeks training, educating and empowering signed up over 90 percent of their colleagues in time for a May Day card count certification.

The Illinois Policy Institute is better prepared for the upcoming Supreme Court case, Janus vs. AFSCME. Originating from Illinois, the case is a blatant do-over of the craven attempt to turn the entire public sector labor movement “right-to-work,” previously pushed in the Friedrichs case.

Should the Supreme Court vote to make union fees voluntary, the IPI and its sister organizations are prepared to run the mother of all “open shop” drives. They will likely FOIA the names and as much contact information as possible of every union-represented public sector worker and inundate them with glossy materials encouraging them to “give yourself a raise” by quitting the union.

How to fight back

The revelation of the SPN’s nakedly partisan agenda should open every one of its affiliates to challenges over their status as tax-deductible educational charities. These challenges are worth pursuing, if only to delegitimize their role in public debates. But this won’t really affect their bottom line—their funders have so much money they hardly need the tax breaks for donating to their favorite political causes.

In preparation for the post-Janus attacks, public sector unions should behave more like Chicago ACTS and confound the SPN’s moldy old assumptions about the source of union power. To do this, we need to greatly increase members’ democratic involvement in their unions. The slick “give yourself a raise” pamphlets will do the most damage in places where members think of the union as simply a headquarters building downtown. If that’s the extent of their interaction, workers could fall for the cheap trick of blaming the union for the stagnant wages and reduction in benefits that are actually the direct result of the GOP’s corporate agenda.

But where members are involved in formulating demands and participating in protest actions, they find the true value and power of being in a union. That power—the power of an active and involved membership—is what the right-wing most fears, and is doing everything in its power to stop.

This article was originally published at In These Times on September 14, 2017. Reprinted with permission.
About the Author: Shaun Richman is a campaign consultant and writer with fifteen years experience as a union organizing director and representative. He is a contributing editor to In These Times magazine.

Canadian Mounties to the Rescue of American Workers

Friday, September 8th, 2017

The Canadian Royal Mounties have offered to ride to the rescue of beleaguered American workers.

It doesn’t sound right. Americans perceive themselves to be the heroes. They are, after all, the country whose intervention won World War II, the country whose symbol, the Statue of Liberty, lifts her lamp to light the way, as the poem at the statue’s base says, for the yearning masses and wretched refuse, for the homeless and tempest-tossed.

America loves the underdog and champions the little guy. The United States is doing that, for example, by demanding in the negotiations to rewrite the North American Free Trade Agreement (NAFTA) that Mexico raise its miserable work standards and wages. Now, though, here comes Canada, the third party in the NAFTA triad, insisting that the United States fortify its workers’ collective bargaining rights. That’s the Mounties to the rescue of downtrodden U.S. workers.

This NAFTA demand from the Great White North arrives amid relentless attacks on labor rights in the United States, declining union membership and stagnant wages. To prevent Mexico’s poverty wages from sucking U.S. factories south of the border, the United States is insisting that Mexico eliminate company-controlled fake labor unions. Similarly, to prevent the United States and Mexico from luring Canadian companies away, Canada is stipulating that the United States eliminate laws that empower corporations and weaken workers.

The most infamous of these laws is referred to, bogusly, as right-to-work. Really, it’s right-to-bankrupt labor unions and right-to-cut workers’ pay. These laws forbid corporations and labor unions from negotiating collective bargaining agreements that require payments in lieu of dues from workers who choose not to join the union. These payments, which are typically less than full dues, cover the costs that unions incur to bargain contracts and pursue worker grievances.

Lawmakers that pass right-to-bankrupt legislation know that federal law requires labor unions to represent everyone in their unit at a workplace, even if those employees don’t join the union and don’t make any payments. These dues-shirkers still get the higher wages and better benefits guaranteed in the labor contract. And they still get the labor union to advocate for them, even hire lawyers for them, if they want to file grievances against the company.

The allure of getting something for nothing, a sham created by right-wing politicians who prostrate themselves to corporations, ultimately can bankrupt unions forced to serve freeloaders. Which is exactly what the right-wingers and corporations want. It’s much easier for corporations to ignore the feeble pleas of individual workers for better pay and safer working conditions than to negotiate with unions that wield the power of concerted action.

Canada is particularly sensitive about America’s right-to-bankrupt laws because they’ve now crept up to the border. Among the handful of states that in recent years joined the right-to-bankrupt gang are Wisconsin and Michigan, both at the doorstep of a highly industrial region in Ontario, Canada.

So now, the governors of Wisconsin and Michigan can whisper in the ears of CEOs, “Come south, and we’ll help you break the unions. Instead of paying union wages, you can take all that money as profit and get yourself even fatter pay packages and bonuses!”

Then those governors will make American workers pay for the move with shocking tax breaks for corporations, like the $3 billion Wisconsin Gov. Scott Walker promised electronics manufacturer Foxconn to locate a factory there. That’s $1 million in tax money for each of the 3,000 jobs that Foxconn said would be the minimum it would create with the $10 billion project.

Right-wing lawmakers like Walker and U.S. CEOs have been union busting for decades. And it’s been successful.  In the heyday of unions in the 1950s and 1960s, nearly 30 percent of all U.S. workers belonged. Wage rates rose as productivity did. And they climbed consistently. Then, one wage-earner could support a middle-class family.

That’s not true anymore. For decades now, as union membership waned, wages stagnated for the middle class and poor, and compensation for CEOs skyrocketed. And this occurred even while productivity rose. By January of 2016, the most recent date for which the statistics are available, union membership had declined to 10.7 percent. The number of workers in unions dropped by nearly a quarter million from the previous year.

This is despite the fact that union workers earn more and are more likely to have pensions and employer-paid health insurance. The median weekly earnings for non-union workers in 2016 was $802. For union members, it was $1,004.

It’s not that labor unions don’t work. It’s that right-wing U.S. politicians are working against them. They pass legislation and regulations that make it hard for unions to represent workers.

It’s very different for unions in Canada. For example, union membership in Canada is growing, not dwindling like in the United States. In Canada, 31.8 percent of workers were represented by union in 2015, up 0.3 percentage points from 2014. That is higher than the all-time peak in the United States.

And it’s because Canadian legislation encourages unionization to counterbalance powerful corporations. In some Canadian provinces, for example, corporations are prohibited from hiring replacements when workers strike; striking workers are permitted to picket the companies that sell to and buy from their employer; labor agreements must contain “successorship” rights requiring a corporation that buys the employer to recognize the union and abide by its labor agreement; and employers must submit to binding arbitration if they fail to come to a first labor agreement with a newly formed union within a specific amount of time.

The second round of negotiations to rewrite NAFTA ended in Mexico this week. The third is scheduled for later this month in Canada. That’s a good opportunity for the northernmost member of the NAFTA triad to showcase its labor laws and explain why they are crucial to defending worker rights and raising wages.

Getting language protecting workers’ union rights into NAFTA is not enough, however. The trade deal must also contain penalties for countries that fail to meet the standards. This could be, for example, border adjustment taxes on exports from recalcitrant countries.

Canada’s nearly 20,000 Royal Canadian Mounted Police only recently filed papers to unionize. That occurred after the Canadian Supreme Court overturned a 1960s era federal law that barred them from organizing.

Canada’s Supreme Court said the law violated the Mounties’ freedom of association, a right guaranteed to Americans in the U.S. Constitution. Now, Canada is riding to the rescue of U.S. and Mexican workers’ freedom of association by demanding the new NAFTA include specific protections for collective bargaining.

This blog was originally published at OurFuture.org on September 8, 2017. Reprinted with permission. 

About the Author: Leo Gerard, International President of the United Steelworkers (USW), took office in 2001 after the retirement of former president George Becker.

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