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Archive for May, 2018

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.

Tesla expands worker injury list 1 week after Elon Musk criticizes media for reporting on it

Wednesday, May 30th, 2018

Tesla has expanded its list of worker injuries following a report published in Reveal from The Center for Investigative Reporting, which flagged under-counting and safety problems at the company’s Fremont, California facility last month.

The move also comes one week after CEO and founder Elon Musk blasted the media for reporting on the discrepancies and threatened to start a Yelp-like site to rate journalists.

“Tesla disputed our reporting showing that it left worker injuries off the books,” Reveal tweeted Tuesday. “Now, it’s begun adding some of the injuries that had been missing.

The original Reveal report, published on April 16, claimed that Tesla officials were under-reporting work-related injuries sustained by employees in order to make the company’s safety numbers appear more favorable to industry critics. The company instead wrote many complaints off as “personal medical issues or minor incidents requiring only first aid,” according to internal company records. In May, pressure on the company doubled after an unfavorable review by Consumer Reports found troubling flaws in the Tesla Model 3’s braking system, the second critical report from the austere publication.

Responding to the criticism last week, Musk went on a Twitter rant, claiming that the negative press was part of “a calculated disinformation campaign.”

“The holier-than-thou hypocrisy of big media companies who lay claim to the truth, but publish only enough to sugarcoat the lie, is why the public no longer respects them,” he tweeted.

A short while later, after several followers accused him of emulating President Trump’s media bullying tactics, he added, “Thought you’d say that. Anytime anyone criticizes the media, the media shrieks ‘You’re just like Trump!’ Why do you think he got elected in the first place? Because no ones believes you any more. You lost your credibility a long time ago.”

Musk then claimed he would “create a site where the public can rate the core truth of any article & track the credibility score over time of each journalist, editor & publication.”

“Thinking of calling it Pravda,” he tweeted, the name borrowed from the state-run newspaper of Soviet Russia. When asked if the site would work like Yelp, where users can rate local businesses and leave reviews, Musk added, “Exactly.”

(As science and tech reporter Mark Harris noted, Musk may be planning to follow through on his tweets: in October 2017, one of Musk’s associates, Jared Birchall, incorporated a “Pravda Corp” in the state of California. After Harris tweeted the incorporation documents, Musk simply replied with a smiling emoji.)

Reveal’s criticisms appear to have some merit, however. As the outlet noted on Tuesday, following Musk’s Twitter rant and the earlier media reports, Tesla officials allegedly quietly revised the company’s books to add more names to the company’s list of worker injuries, including at least “13 injuries from 2017 that had been missing when Tesla certified its legally mandated injury report earlier this year.”

“Alaa Alkhafagi, for example, smashed his face and arm in the paint department last fall. He said he had been asked to perform a task for which he had no training,” reporter Will Evans wrote. “At the time of the injury, Tesla didn’t put Alkhafagi on official injury logs, even though the accident caused him to miss work. …By late April, Tesla had added him to the 2017 logs, dating his injury Oct. 1 and noting that he missed three days of work because of it.”

Evans flagged that the company “has yet to record all of the 2017 injuries it should have by law…[and] might not face a penalty for it.”

Tesla has claimed it was simply complying with state laws in adding the new cases to its list. “[W]e’ve added only a small fraction…to our 2017 logs, amounting to less than 2 percent of our 2017 injuries,” the company said in a statement to Reveal. “This is a normal part of ensuring our records are accurate. In fact, this is precisely what OSHA regulations require that companies do.”

Musk has not yet personally responded to the latest Reveal report on Twitter.

This article was originally published at ThinkProgress on May 29, 2018. Reprinted with permission.
About the Author: Melanie Schmitz is an editor at ThinkProgress. She formerly worked at Bustle and Romper.

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.

Senators are letting themselves off the hook with sexual harassment bill, women's rights groups say

Friday, May 25th, 2018

Sexual harassment in Congress is a scandal—and it would probably be a lot more of one if Congress hadn’t written its own rules for dealing with allegations in secret. But since the #MeToo movement has shined a light on sexual harassment, the House of Representatives has managed to pass a decent bill. The Senate … hasn’t, and the bill it has coming up for a vote is not the answer. The American Civil Liberties Union, Equal Pay Today, the Leadership Conference on Civil and Human Rights, National Women’s Law Center, and Public Citizen are calling on the Senate to strengthen its bill.

Their letter points to serious weaknesses in the Senate bill, including that it doesn’t call for an independent investigator, instead putting approval of settlements in the hands of the ethics committees of both the House and the Senate to sign off on if the settlement is because of a member of Congress’s own actions:

“This provision appears to provide an opportunity for a Member who has settled a claim to avoid personal accountability and to be absolved from reimbursing the taxpayers,” the groups wrote in the letter.

Additionally, the Senate bill fails to hold members liable for discrimination settlements:

“A Member who has committed wrongdoing should be liable for all damages negotiated in a settlement or awarded by a court; they should not be shielded from the consequences of their actions,” they wrote.

Seriously. Time for Congress to be held accountable—and the way for that to happen is for Congress to write its own rules to demand accountability.

This blog was originally published at Daily Kos on May 25, 2018. Reprinted with permission.

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

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

Thursday, May 24th, 2018

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

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

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

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

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

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

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

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

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

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

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

The sinister history underlying Neil Gorsuch’s decision lashing out at American workers

Wednesday, May 23rd, 2018

The ink was barely dry on Neil Gorsuch’s opinion in Epic Systems v. Morris before Ogletree Deakins — a management-side employment law firm that earned nearly three-quarters of a million dollars in profits per equity partner last year — started hawking an “innovative new product” that would enable employers to enrich themselves at the expense of their most vulnerable workers.

Epic Systems held that employers may force their employees, under pain of termination, to sign away their right to bring a class action lawsuit against their employers. It is an invitation — if not an incentive — for wage theft, as class actions are often the only recourse available to someone robbed of a few hundred, or even a few thousand, dollars by their boss.

Employment lawyers have known this decision was coming for months. And many of them are going to cash in.

Yet, while this Epic Systems decision became inevitable the minute Gorsuch claimed ownership of a Supreme Court seat that Senate Republicans held open more than a year until Donald Trump could fill it, the Court’s decision would shock the lawmakers who actually enacted the laws at issue in this case.

Gorsuch’s opinion is a mix of willful historical ignorance, ideological blindness, and a smug insistence that he has a special window into the law that many of his more experienced colleagues lack. Now, it threatens to revive one of the Supreme Court’s most disgraceful chapters.

The new Lochnerism

The conceit of Gorsuch’s Epic Systems opinion is that workers and their bosses sit down like equal bargaining partners to hash out their terms of employment. “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?” Gorsuch begins his opinion with a question framed as if it could only have one answer. “Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?”

In reality, the facts of Epic Systems bear little resemblance to the civilized negotiation presented by Gorsuch. Workers at one of the companies at issue in this case received an email one day informing them that they must give up their right to bring class actions. Employees who “continue[d] to work at Epic,” according to the email, would “be deemed to have accepted” this agreement. A similar email was sent to the employees of one of the other companies that prevailed in Epic Systems.

These employees, in other words, only “agreed” to the terms proposed by their bosses in the same sense that a person accosted by a gunman in a dark alley “agrees” to give up their wallet. Their choice was to give up their rights or to immediately lose their jobs.

This is not the first time the Supreme Court ignored the fairly basic fact that employers typically have far more bargaining power than their workers — and can use this greater share of power to exploit their employees.

In its anti-canonical decision in Lochner v. New York, the Supreme Court struck down a late nineteenth century law prohibiting bakeries from overworking their bakers. Such a law, Justice Rufus Peckham wrote for the Court, “interferes with the right of contract between the employer and employes [sic],” adding that “there is no contention that” bakery workers were unable “to assert their rights and care for themselves without the protecting arm of the State.”

In reality, bakers faced horrific working environments before the “protecting arm of the State” intervened to improve these conditions.

At the time, the overwhelming majority of New York City bakeries were basement operations located in the same tenements in which their customers lived. “’Filth, cobwebs and vermin’ filled these basements,” according to a city inspector’s report. Sewer pipes ran through many such bakeries, leaking their raw contents onto the workers, their workplaces, and the dough. In one such bakery, “’the water closet walls were literally black’ with roaches from floor to ceiling.”

Bakeries often had no windows and little ventilation, filling the air with irritating flour dust and fumes. Ovens heated the workplaces into infernos. Low ceilings required many workers to crouch, and the floors were typically either dirt or rotten wood filled with rat holes.

The average bakery worker labored at least 13 hours a day in these conditions, though some worked as much as 126-hours a week. Workers, moreover, were often required to sleep on the very same tables where they prepared the dough, and the cost of these makeshift beds were then deducted from their wages.

These were the sorts of conditions that the free market offered workers who, without the law to protect them, were forced to bargain alone with their employers. Perhaps, in some narrow sense, these workers “agreed” to work countless hours among the roaches, the heat, and the raw sewage. But only a judge blinded by their own ideology could conclude that these workers had any real choice in the matter.

“Concerted activities”

By the mid 1930s, Congress understood what men like Peckham and Gorsuch refused to see. As Justice Ruth Bader Ginsburg explains in her Epic Systemsdissenting opinion, Congress enacted the National Labor Relations Act (NLRA) on the premise that “employees must have the capacity to act collectively in order to match their employers’ clout in setting terms and conditions of employment.”

The law may not have the power to equalize bargaining power between workers and their bosses, but, by enabling those workers to join together, it could give them a fighting chance.

One provision of the NLRA — a provision that Gorsuch refused to honor in his Epic Systems opinion — provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Class actions are precisely this — a form of “concerted activity” that workers may use for their own “mutual aid or protection.”

The idea behind a class action is that multiple workers with the same legal claim against their employer can join together under a single lawsuit. Such concerted activity is necessary for the simple reason that litigation is often prohibitively expensive. As Ginsburg notes in her dissent, employers at one of the companies at issue in Epic Systems “would likely have to spend $200,000 to recover only $1,867.02 in overtime pay and an equivalent amount in liquidated damages.”

Only a truly fanatical worker — and one with very deep pockets — might be willing to spend such an exorbitant sum for such a small amount of money. The only real hope for such a worker is to join a class action lawsuit with colleagues who were also cheated out of their fair pay.

Except that workers will soon be unable to seek this remedy. An estimated “23.1% of nonunionized employees are now subject to express class-action waivers in mandatory arbitration agreements,” according to Ginsburg’s dissent. Now that the Supreme Court has endorsed such illegal agreements, this number will skyrocket. Law firms are already lining up to show employers how to draft such agreements, and workers throughout the country will soon be left powerless against wage theft.

Twisted commerce

Gorsuch concludes his Epic Systems opinion with a flourish. “The policy may be debatable but the law is clear,” Trump’s Supreme Court nominee claims. “Congress has instructed that arbitration agreements like those before us must be enforced as written.”

As it turns out, Gorsuch is half correct. The law is, indeed, clear. It just doesn’t say what he wants it to say.

The contracts at issue in Epic Systems are “forced arbitration” contracts, meaning that they not only strip employees of their right to bring a class action, they also require employment disputes to be resolved in a privatized arbitration system that tends to favor employers more than real courts of law. Though a law known as the Federal Arbitration Act protects arbitration agreements in certain contexts, that very same law explicitly exempts employment contracts.

Nevertheless, in its 2001 decision in Circuit City v. Adams, the Supreme Court wrote this safeguard for workers out of the law.

Circuit City turned on two interlocking provisions of the Federal Arbitration Act. The first provides that “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable” except under limited circumstances. The second exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

To understand the scope of these two provisions, it’s important to understand some of the history surrounding the Federal Arbitration Act, which was enacted in 1925.

In the late nineteenth and early twentieth century — the same period when the Court handed down Lochner — the Supreme Court also imposed strict limits on Congress’ constitutionally granted power to “regulate commerce with foreign nations, and among the several states.” During this period, the Court defined the word “commerce” narrowly, to encompass little more than the transit of goods across state lines. Manufacture of goods to be sold, mining of raw materials, and the farming of commodities were all deemed to be beyond Congress’ power to regulate.

Among other things, the Court relied on this stingy definition of the word “commerce” to strike down a federal law banning the interstate sale of goods manufactured by child labor.

In the 1930s, a little more than a decade after the Federal Arbitration Act became law, the Supreme Court abandoned this narrow understanding of Congress’ power to regulate commerce. Under modern precedents, Congress’ power over “commerce” now includes broad authority to regulate economic matters of nearly all kinds.

Which brings us back to the text of the Federal Arbitration Act. When Congress wrote this law, it understood phrases like “a transaction involving commerce” or “any other class of workers engaged in foreign or interstate commerce” to use the narrow, pre-New Deal understanding of the word “commerce.” As the law was originally understood, it only protected arbitration agreements involving the transit of goods for sale.

Contracts involving manufacture, mining, or agriculture were beyond the scope of Congress’ authority, according to the Supreme Court at the time, and therefore beyond the scope of the Arbitration Act. Similarly, when the Act exempts “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” Congress sought to exempt all employment contracts that it believed that it had the power to regulate at the time.

Of course, the Arbitration Act could also be read anachronistically. If the modern definition of the word “commerce” is inserted into the law, that would mean that nearly all contracts are governed by the law, but all employment contracts are exempt. Thus, under either plausible reading of the statute, contracts between workers and their employers are exempt.

Circuit City, however, read the statute a third way. It reads the phrase “a transaction involving commerce” using the modern definition, while reading the phrase “any other class of workers engaged in foreign or interstate commerce” using the 1925 definition. Thus, the policy favoring forced arbitration is given the broadest scope, while the exemption favoring workers is read exceedingly narrowly.

It’s a sick double-standard — the kind that should make anyone who reads the Court’s Circuit City opinion doubt the good faith of the justices in the majority.

Without Circuit City, there could not be a decision like Epic Systems. Gorsuch’s opinion builds upon Circuit City‘s holding that the word “commerce” can mean one thing in one provision of the law and something completely different in another provision of the same law. Circuit City is one of the Supreme Court’s greatest sins against the English language, and the text of the law itself is entirely at odds with Gorsuch’s claim in Epic Systems that “Congress has instructed that arbitration agreements like those before us must be enforced as written.”

So the law, as Gorsuch condescendingly asserts, is indeed clear. The Federal Arbitration Act exempts all employment contracts, and any claim to the contrary requires the Court to turn a blind eye to history.

Which, of course, is exactly what Gorsuch did in Epic Systems. He ignored the way the law was originally understood, ignored the text of the National Labor Relations Act, ignored the law’s hard-won understanding that employees and employers do not have equal bargaining power, and ignored Congress’ explicit efforts to strike a different balance of power between workers and their bosses.

It is a great day for law firms that profit off the exploitation of workers. And it is an even greater day for their clients.

The rest of us can either sign away our rights or lose our jobs.

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

This article was originally published at ThinkProgress on May 23, 2018. Reprinted with permission.

The Supreme Court’s Latest Anti-Worker Decision Deals a Major Blow to the #MeToo Movement

Tuesday, May 22nd, 2018

After months of sustained public pressure targeting sexual harassment in workplaces across the United States, the U.S. Supreme Court on Monday significantly undermined the power of workers to collectively challenge discrimination and abuse at the hands of their employers. In a 5-4 decision on the Epic Systems Corp. v. Lewis casethe Court ruled that private-sector employees do not have the right to enter into class-action lawsuits to challenge violations of federal labor laws.

“[T]he Supreme Court has taken away a powerful tool for women to fight discrimination at work,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center, in a press statement. “Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft and more, employees may now be forced behind closed doors into an individual, costly—and often secret—arbitration process. This will stack the deck in favor of the employer.”

The case concerns tens of thousands of employees at three companies—Epic Systems Corp., Ernst & Young LLP and Murphy Oil USA Inc.—who were forced to sign away their right to join class-action lawsuits against their employers as a precondition to being hired.

The workers argued that their right to file class-action lawsuits over alleged wage and hours violations is protected by the National Labor Relations Act (NLRA), which was passed in 1935 to offer employees greater leverage to collectively challenge unjust treatment on the job. But, echoing the employers’ arguments, Justice Neil Gorsuch—who was appointed by Trump—wrote in the majority opinion that the 1925 Federal Arbitration Act supersedes the NLRA.

The ruling means that workers do not have the right to take bosses to court over alleged violations of federal labor laws. It also means bosses can force workers to arbitrate complaints individually instead of collectively, which overwhelmingly slants in favor of employers. This ruling is poised to impact a large swath of the U.S. workforce, where 41 percent of private-sector employees have already signed away their right to class-action legislation.

These workers include those who are pushing against wage and hour violations, as well as fighting patterns of racism, sexism and other forms of harassment in the workplace. Workers’ rights advocates say they are concerned that the ruling could potentially be detrimental to the #MeToo movement, which has relied on power in numbers to confront sexual assault in workplaces from Hollywood to tomato fields. Some warn that, for those facing sexual harassment in the workplace, the choice between employer-controlled arbitration or continuing on in silence is a choice between two bad options.

“#MeToo has shown us that the abuse of power is not one ‘rotten apple in a barrel’: It is widespread and systemic, especially in low-wage industries,” Palak Shah, social innovations director for the National Domestic Workers Alliance, told In These Times. “We need checks on power—like collective action—to counter abuses of power when they happen. While unchecked power imbalances exist between employers and workers, we can be sure abuses like sexual harassment will continue.”

Arbitration is often kept secret and, employees frequently foot the bill for the arbitration process. Experts warn that this secrecy would protect employers responsible for harmful work environments by not allowing space for workers to collectively address widespread patterns of harassment.

“In the case of sexual harassment, say there was a group of employees who claimed that they’d been sexually harassed, they can’t proceed together. They’d have to go individually [to arbitration] and they can’t go to court,” Alexander Colvin, a labor relations scholar at Cornell University, told In These Times.

According to Graves, the stakes are “particularly high” for women who “often face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it.”

Writing the dissenting opinion, Justice Ruth Bader Ginsburg argued that the 1925 law exemplified a different age for labor relations, and that employees should not be forced into “take-it-or-leave-it” agreements in order to find gainful employment.

The case is one of several currently being considered by the Supreme Court that could severely undermine workers’ rights. Much like the pending decision in Janus v. AFSCME, which could prevent unions from collecting union dues from non-union members, it furthers the ongoing anti-worker agenda pushed by the Trump administration.

“As mandatory arbitration is forced on growing numbers of employees as a condition of employment,” Graves added, “the Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.”

 About the Authors: Rima Parikh is a summer 2018 editorial intern at In These Times and an incoming MSJ candidate at Northwestern University. Tanner Howard is a freelance journalist and In These Times editorial intern. They’re also a member of the Democratic Socialists of America.

Executive Paywatch 2018: The Gap Between CEO and Worker Compensation Continues to Grow

Monday, May 21st, 2018

CEO pay for major companies in the United States rose nearly 6% in the past year, as income inequality and the outsourcing of good-paying American jobs have increased. According to the new AFL-CIO Executive Paywatch, the average CEO of an S&P 500 Index company made $13.94 million in 2017—361 times more money than the average U.S. rank-and-file worker. The Executive Paywatch website, the most comprehensive searchable online database tracking CEO pay, showed that in 2017, the average production and nonsupervisory worker earned about $38,613 per year. When adjusted for inflation, the average wage has remained stagnant for more than 50 years.

“This year’s report provides further proof that the greed of corporate CEOs is driving America’s income inequality crisis,” said AFL-CIO Secretary-Treasurer Liz Shuler. “Too many working people are struggling to get by, to afford the basics, to save for college, to retire with dignity while CEOs are paying themselves more and more. Our economy works best when consumers have money to spend. That means raising wages for workers and reining in out of control executive pay.”

Here are eight key facts you need to know about from this year’s Executive Paywatch report:

  1. America is the richest country in the world at its richest point in history. And once again, CEOs got richer this year. CEO pay for major U.S. companies was up more than 6% in 2017 as income inequality and outsourcing of good-paying American jobs increases.

  2. Total compensation for CEOs of S&P 500 Index companies increased in 2017 to $13.94 million from $13.1 million in 2016.

  3. The CEO-to-worker pay ratio grew from 347 to 1 in 2016 to 361 to 1 in 2017.

  4. For the first time this year, companies must disclose the ratio of their own CEO’s pay to the pay of the company’s median employee. This change was fought for by the AFL-CIO and its allies to ensure investors have the transparency they deserve.

  5. In 2017, the CEO-to-worker pay ratio was 361. In 2016, the ratio was 347. In 1990, it was 107. And in 1980, it was 42. This pay gap reflects widening income inequality in the country.

  6. Mondel?z is one of the most egregious examples of companies that are contributing to inequality. The company, which makes Nabisco products including Oreos, Chips Ahoy and Ritz Crackers, is leading the race to the bottom by offshoring jobs. New CEO Dirk Van de Put made more than $42.4 million in total compensation in 2017—more than 989 times the company’s median employee pay. Mondel?z’s former CEO Irene Rosenfeld also received $17.3 million in 2017, 403 times its median employee’s pay.

  7. So far for 2017, the highest-paid CEO in the AFL-CIO’s Executive Paywatch database is E. Hunter Harrison, CEO of CSX Corporation. He received more than $151 million in total compensation. In contrast, the lowest-paid S&P 500 company CEO was Warren Buffett who received $100,000 in total pay in 2017.

  8. The toy-maker Mattel had the highest pay ratio of any S&P 500 company. Mattel’s median employee is a manufacturing worker in Malaysia who made $6,271, resulting in a CEO-to-employee pay ratio of 4,987 to 1. Buffett’s company Berkshire Hathaway Inc. had the lowest pay ratio of all S&P 500 companies, just 2 to 1.

Our economy works best when consumers have money to spend. That means raising wages for workers and reining in out of control executive pay. Executive Paywatch is a tool that helps the U.S. pursue those goals.

Learn more at Executive Paywatch.

This blog was originally published at AFL-CIO on May 21, 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.

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).

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