Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NLRA’

The Lessons of the Triangle Shirtwaist Fire Are Still Relevant 107 Years Later

Monday, March 26th, 2018

On March 25, 1911, a fire broke out on the top floors of the Triangle Shirtwaist factory. Firefighters arrived at the scene, but their ladders weren’t tall enough to reach the impacted area. Trapped inside because the owners had locked the fire escape exit doors, workers jumped to their deaths. Thirty minutes later, the fire was over, and 146 of the 500 workers—mostly young women—were dead.

Many of us have read about the tragic Triangle fire in school textbooks. But the fire alone wasn’t what made the shirtwaist makers such a focal point for worker safety. In fact, workplace deaths weren’t uncommon at the time. It is estimated that more than 100 workers died every day on the job around 1911.

A week after the fire, Anne Morgan and Alva Belmont hosted a meeting at the Metropolitan Opera House to demand action on fire safety, and people of all backgrounds packed the hall. A few days later, more than 350,000 people participated in a funeral march for those lost at Triangle.

Three months later, responding to pressure from activists, New York’s governor signed a law creating the Factory Investigating Commission, which had unprecedented powers. The commission investigated nearly 2,000 factories in dozens of industries and, with the help of such workers’ rights advocates as Frances Perkins, enacted eight laws covering fire safety, factory inspections, and sanitation and employment rules for women and children. The following year, they pushed for 25 more laws—entirely revamping New York State’s labor protections and creating a state Department of Labor to enforce them. During the Roosevelt administration, Perkins and Robert Wagner (who chaired the commission) helped create the nation’s most sweeping worker protections through the New Deal, including the National Labor Relations Act.

The shirtwaist makers’ story inspired hundreds of activists across the state and the nation to push for fundamental reforms. And while there have been successes along the way, the problems that led to the Triangle fire are still present today. It was just five years ago, for instance, that the Rana Plaza collapse in Bangladesh killed more than 1,100 garment workers.

As worker health and safety continues to be a significant issue both in the United States and abroad, the AFL-CIO took a strong stand at our 2017 Convention, passing a resolution on worker safety:

The right to a safe job is a fundamental worker right and a core union value. Every worker should be able to go to work and return home safely at the end of the day.

Throughout our entire history, through organizing, bargaining, education, legislation and mobilization, working people and their unions have fought for safe and healthful working conditions to protect workers from injury, illnesses and death. We have made real progress, winning strong laws and protections that have made jobs safer and saved workers’ lives.

Over the years, our fight has gotten harder as employers’ opposition to workers’ rights and protections has grown, and attacks on unions have intensified. We haven’t backed down. Most recently, after decades-long struggles, joining with allies we won groundbreaking standards to protect workers from silica, beryllium and coal dust, and stronger protections for workers to report injuries and exercise other safety and health rights.

Now all these hard-won gains are threatened. President Trump and many Republicans in Congress have launched an aggressive assault on worker protections.

The worker protections under assault include:

  • Trump’s proposed fiscal year 2019 budget cuts funding for the Department of Labor by 21%, including a 40% cut in job training for low-income adults, youth, and dislocated workers and the elimination of the Labor Department’s employment program for older workers.
  • The budget also proposes to cut the Occupational Safety and Health Administration budget, eliminate OSHA’s worker training program and cut funding for coal mine enforcement, while proposing a 22% increase for the Office of Labor-Management Standards’ oversight of unions.
  • The budget also proposes to slash the National Institute for Occupational Safety and Health’s job safety research budget by 40%, to move NIOSH to the National Institutes of Health from the Centers for Disease Control and Prevention, and to remove the World Trade Center Health Program from NIOSH’s direction.
  • OSHA delayed the effective date of the final beryllium standard originally issued in January 2017. Then it delayed enforcement of the standard until May 11, 2018. In June 2017, OSHA proposed to weaken the beryllium rule as it applies to the construction and maritime industries.
  • OSHA delayed enforcement of the silica standard in construction, which in December was fully upheld by the U.S. Court of Appeals for the District of Columbia Circuit.
  • OSHA delayed the requirement for employers to electronically report summary injury and illness information to the agency set to go into effect on July 1, 2017, until December 31, 2017. OSHA has announced it intends to issue a proposal to revise or revoke some provisions of the rule.
  • OSHA withdrew its policy that gave nonunion workers the right to have a representative participate in OSHA enforcement inspections on their behalf.
  • The Mine Safety and Health Administration delayed the mine examination rule for metal and nonmetal mines from May 23, 2017, until Oct. 2, 2017, and then again until March 2, 2018. MSHA also proposed weakening changes to the rule, including delaying mine inspections until after work has begun, instead of before work commences.
  • In November 2017, MSHA announced it would revisit the 2014 Coal Dust standard to examine its effectiveness and whether it should be modified to be less burdensome on industry. This comes at the same time NIOSH reported 400 cases of advanced black lung found by three clinics in Kentucky.
  • OSHA withdrew over a dozen rules from the regulatory agenda, including standards on combustible dust, styrene, 1-bromopropane, noise in construction and an update of permissible exposure limits.
  • The agency also suspended work on critical OSHA standards on workplace violence, infectious diseases, process safety management and emergency preparedness.
  • MSHA withdrew rules on civil penalties and refuge alternatives in coal mines from the regulatory agenda and suspended work on new standards on silica and proximity detection systems for mobile mining equipment.

The Triangle Shirtwaist tragedy took place 107 years ago today. We have a long way to go to make sure that we prevent the next such tragedy and keep working people safe and healthy.

The West Virginia Teachers’ Strike Has Activists Asking: Should We Revive the Wildcat?

Wednesday, March 14th, 2018

The stunning success of the recent statewide West Virginia teachers’ strike makes it one of the most inspiring worker protests of the Trump era.

The walkout over rising health insurance costs and stagnant pay began on Feb. 22 and appeared to be settled by Feb. 27 with promises from Gov. Jim Justice of a 5 percent pay raise for teachers. Union leaders initially accepted that deal in good faith, along with vague assurances that the state would work with them on a solution to escalating out-of-pocket costs for workers’ healthcare.

Dramatically, rank-and-file teachers refused to end the walkout. Every public school in the state remained closed for nine days due to the strike, until the West Virginia legislature voted to approve a 5 percent pay increase for all state workers as well as a formal labor-management committee to deal with the healthcare problem.

The entire experience leaves many labor activists asking variations of three questions: What is a wildcat strike? Was West Virginia a true wildcat? And should we have more wildcat strikes?

What is a wildcat strike?

Wildcat strikes are job actions led by rank-and-file members in defiance of official union leadership. Why would leaders try to stop a job action that members want to take? The answer, generally, is that the strike is either against the law or in violation of a contractual no-strike clause (and, often, the leaders are in some way legally compelled to discourage it). In either case, workers who strike could be fired with no legal recourse for the union to win them their jobs back. This is a peculiar feature of America’s post-World War II labor relations system.

Prior to the 1935 National Labor Relations Act (NLRA), a strike was a strike. It was not uncommon to have multiple unions vying for workplace leadership and engaging in a kind of one-upmanship of job actions. While these actions occasionally produced small gains in pay or reductions in hours, they rarely ended with union recognition—much less signed contracts.

That’s because employers didn’t have to deal with unions. They might have begrudgingly made a unilateral concession to the workers’ wage or hour demands in order to resume operations, but bosses almost never formally sat down with elected union representatives.

The NLRA changed that status quo by compelling employers to “bargain in good faith” with any group of union members that demanded it. As Charles J. Morris documents in his 2004 book, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, the NLRA did not include any provision for certification elections of exclusive union representatives. The framers of the NLRA wrote it for the labor movement that existed at the time: a collection of voluntary associations that made bargaining demands for their members only.

Compelled to bargain with unions, employers quickly developed a preference to deal with only one as an exclusive representative. That way, bosses could have contractual assurance that all outstanding disputes would be settled (or at least channeled through grievance and arbitration procedures) for the period of a contract that also guaranteed no strikes (or lockouts or other forms of industrial actions) would occur during the terms of labor peace.

Under that framework, the wildcat became a unique kind of worker protest. The etymology of the term “wildcat” can probably be traced to the Industrial Workers of the World (IWW) and their unofficial symbol, the sabo cat.

Wildcat actions are not common and are rarely full-blown strikes. More often, they are temporary slowdowns or quick work stoppages in a smaller segment of a wider operation. They could be sparked, for example, over a sudden change in work rules or the belligerent actions of a supervisor. Usually, an official union representative rushes to the scene to attempt to settle the dispute with management and encourages the workers to return to their jobs.

Wildcats were more common in the early 1970s, during the last great strike wave in the United States. Those years saw a large number of strikes by teachers and other public-sector workers to win collective bargaining rights. Many of those strikes were technically illegal, but not wildcats as they were organized and led by official union leadership that had few alternatives in the absence of formal union rights under the NLRA.

However, in that climate of greater worker protest, many private-sector workers also went on strike. Many of those strikes were wildcats sparked by out-of-control inflation and intolerable speed-ups. In a sense, workers weren’t just striking in violation of their collective bargaining agreements but against their terms.

The most famous example was the 1972 rank-and-file rebellion at the General Motors factory in Lordstown, Ohio, which has fascinated generations of labor writers. In her 1975 book All the Livelong Day: The Meaning and Demeaning of Routine Work, Barbara Garson captured this illustrative conversation between workers:

“It pays good,” said one, “but it’s driving me crazy.”

“I don’t want more money,” said another. “None of us do.”

“I do,” said his friend, “so I can quit quicker.”

“The only money I want is my union dues back – if they don’t let us out on strike soon.”

In 1972, the factory was churning out Chevy Vegas at a pace that gave each worker 36 seconds to do a minute’s worth of work before the next car moved down the line in the blink of an eye. Workers had taken to acts of sabotage, like throwing a few loose screws in a gas tank, in hopes that the “error” would be caught by quality control and shut the line down for a few minutes of blessed relief.

While the United Autoworkers (UAW) leaders prioritized wages in bargaining—they won an impressive 13 percent increase for their members in the contract that was then in effect—the workers at Lordstown wanted to slow the pace of work. They went on a wildcat strike that lasted for 22 days, until management settled a slew of grievances and agreed to rehire a number of laid off positions in order to reduce the pace of work.

By the end of the decade, the competitive pressures of global trade put workers back on the defensive. The Lordstown plant is still in operation despite multiple threats to shutter it. In a 2010 profile, the New York Times called it one of GM’s “most productive and efficient plants,” and noted that 84 percent of the workers had recently voted to approve concessions during GM’s bankruptcy.

Those competitive pressures, combined with austerity budgets in the public sector, have severely reduced many workers’ living standards. The West Virginia strike may be a sign that these desperate times have turned many workplaces into powder kegs of simmering resentment and desperation.

Was West Virginia a true wildcat?

West Virginia schools have a peculiar framework: no contracts or formal collective bargaining, but a degree of official union recognition—including dues check-off—within a highly litigious tenure and grievance procedure with statewide pay and benefits subject to legislative lobbying. That environment appeared perfectly crafted to sap unions of their potential militancy, assuming the bosses understood they had to provide a minimally-decent standard of pay and benefits. Instead, teachers faced some of the lowest pay rates in the nation, along with rising healthcare costs, which helped lead to their decision to walk off the job.

Because the West Virginia strike happened outside the context of formal, contract-based unionism, Lois Weiner argues in New Politics that it is inaccurate to describe the statewide walkout as a wildcat. “Confusion on nomenclature reflects how remarkable this phenomenon is: we don’t know how to name a movement of workers that is self-organized, not confined by the strictures of collective bargaining,” she writes, continuing, “There is no legally prescribed procedure for ending the strike because the vast majority of people striking aren’t union members and strikes are not legal.”

Given the frontal assault on the entire legal framework of union representation—Janus vs. AFSCME being the massive tip of the gargantuan iceberg—what unionism looks like in the United States is bound to be radically altered in the coming years. Weiner does us a service by breaking the union framework down into its component parts. We need more writers doing this if we are going to have an informed debate about which parts are worth fighting to preserve, and which are overdue for replacement.

Respectfully, however, I would argue that the West Virginia strike was a wildcat. The political dynamics were essentially the same as in the ritualized contract bargaining of the post-war private sector. Union leaders were in the position of “bargaining” with the governor over a legislative fix to pay and healthcare. They took a deal that was reasonable enough in order to demonstrate their own reasonableness to the bosses.

When the rank-and-file rejected that settlement by continuing to stay off the job, the strike became a wildcat. Official union leaders continued to represent the interests of the striking workers and helped harness the continued strike into an even bigger win—all while presenting themselves to politicians as the reasonable negotiators who could help them get the teachers back to work.

That the strike happened in the first place is thanks to a good deal of self-organization among segments of the rank-and-file, aided in no small part by e-mail and social media. Because two unions—affiliates of the American Federation of Teachers and the National Education Association—vie for members across the state like pre-NLRA unions used to, this rank-and-file rebellion appears to have whipsawed the competing union leaderships into a one-upmanship over who could more effectively lead the strike and claim credit for the win.

This example does suggest one model for a new unionism, rooted in our recent past.

Should we have more wildcat strikes?

I recently wrote a piece for the Washington Post on the Janus vs. AFSCME case about how agency fees, which are directly challenged in this case, have historically been traded for the no-strike clause. I’ve been making variations of the same point at In These Times for over two years, but this time it’s created a bit of a stir.

Some commentators are beginning to recognize that an anti-union decision in Janus could spark constitutional and workplace chaos that could make messy protests like the West Virginia teachers’ strike a more regular occurrence.

If deprived of agency fees, it is probable that some unions will cede exclusive representation in order to kick out the scabs, or “free riders.” And one wonders how much longer private sector unions in right-to-work states will continue to slog through unfair NLRB elections in order to “win” the obligation to represent free-riders, instead of embracing Charles J. Morris’ theory that the original 1935 process for card check recognition of minority unions is still operational and demanding “members-only” bargaining.

That trend would inevitably lead to new worker organizations rushing to poach the unrepresented workers left behind. Some would likely compete by offering cheaper dues or by cozying up to management. Others would vie for members and shopfloor leadership by railing against disappointing deals. This will be messy. As in the pre-NLRA era, workplace competition between unions may not produce lasting union contracts.

But it will also make a guaranteed period of labor peace impossible—and that could lead to more strikes like the West Virginia wildcat. Through Janus, right-to-work and the renewed open-shop offensive, the bosses have made clear that they’re not interested in labor peace. Let’s give them what they want.

This article was originally published at In These Times on March 13, 2018. Reprinted with permission. 

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

Divide and Conquer: Employers' Attempts to Prohibit Joint Legal Action Will be Tested in Court

Thursday, September 28th, 2017
On Monday, October 2, the U.S. Supreme Court will hear arguments in the most consequential labor law cases to come to the Court in a generation, which could fundamentally alter the balance of power between millions of American workers and the people who employ them.

So why are so few people paying attention?

At first glance, the cases may seem dry and complex, as they involve 80-year-old laws that most people have never heard of. But the issue at stake is actually quite simple: should your employer be able to force you to give up your right to join your coworkers in a lawsuit challenging working conditions as a condition of getting or keeping a job?

The federal courts of appeals for the Seventh and Ninth Circuits say the answer should be no. They point to the National Labor Relations Act (NLRA), a law passed by Congress in 1935 to end “industrial strife and unrest” and restore “equality of bargaining power between employers and employees.” The NLRA gives workers the right to join unions and to “engage in other concerted activities” for “mutual aid or protection,” and it makes it illegal for employers to “interfere with, restrain or coerce employees in the exercise” of those rights.

But in recent years, more and more employers are requiring their employees to agree, as a condition of working for that employer, that they must resolve any disputes that might come up in the future in a private arbitration proceeding, and not in court. Many of these so-called arbitration agreements also prohibit the arbitrator from hearing more than one employee’s claim at a time—in other words, they ban employees from taking legal action together, either in court or in arbitration. A recent study from the Economic Policy Institute found that 23.1% of private sector, non-union workers, or 24.7 million Americans, work for employers that impose such a concerted legal action ban.

Sheila Hobson was one such employee. She worked at a gas station in Calera, Alabama that was run by Murphy Oil. When she applied to work there, she had to sign an agreement stating that she would not participate in a class or collective action in court, “in arbitration or in any other forum” and that her claim could not be combined “with any other person or entity’s claim.” Two years later, she joined with three coworkers to file a lawsuit under the Fair Labor Standards Act. She and her coworkers claimed that they were routinely asked to clean the station, stock shelves, check prices at competitors’ stations and perform other tasks while “off the clock” and without pay. Murphy Oil moved to dismiss the lawsuit, pointing to their arbitration agreement and arguing that each employee had to pursue their claims individually.

The National Labor Relations Board, a federal agency created by Congress to enforce the NLRA, stepped in to defend Ms. Hobson and her coworkers. The NLRB ruled that Murphy Oil’s arbitration agreement interfered with its employees’ right to engage in concerted activity for their mutual aid or protection in violation of the NLRA. But the Court of Appeals for the Fifth Circuit agreed with Murphy Oil, leading to this showdown before the Supreme Court.

The crux of Murphy Oil’s position, which is shared by the employers in the cases out of the Seventh and Ninth Circuits that are also being argued on Monday, is that the employers’ bans have to be enforced because of the Federal Arbitration Act. This law, passed back in 1925 at the request of businesses who wanted to be able to resolve commercial disputes privately under specialized rules, says that agreements to arbitrate should be treated the same as any other contracts. And because their concerted action bans are found in arbitration agreements, the employers argue, the FAA requires their enforcement.

But the FAA includes a “saving clause” that allows arbitration agreements to be invalidated on any “grounds as exist at law or in equity for the revocation of any contract.” One such ground for revoking a contract is that it is illegal, and the Seventh and Ninth Circuit opinions pointed out that a contract that interferes with employees’ rights under the NLRA is illegal and thus unenforceable under the FAA’s saving clause. Moreover, as the NLRB explained, the Supreme Court has repeatedly held that the FAA cannot take away anyone’s substantive rights; it merely allows those rights to be pursued in arbitration rather than in court. But the concerted action bans in these cases, and those like them that other employers force employees to sign, do take away the very substantive right to join with coworkers that the NLRA guarantees. By preventing workers from banding together in court or in arbitration, these agreements deprive employees of the ability to pursue their concerted action rights in any forum whatsoever.

Given the high stakes these cases present, both employer and employee positions have garnered a large number of friend-of-the-court briefs before the Supreme Court. The Chamber of Commerce has weighed in on the employers’ side, as have other groups representing industry and the defense bar. The Justice Department, which had originally represented the NLRB, switched sides with the change in presidential administration and is also supporting the employers.

Meanwhile a group of ten labor unions pointed out that given the economic power employers wield over employees who need jobs to support their families, “few workers are willing to put a target on their back by bringing legal claims against their employer on an individual basis.” The NAACP Legal Defense Fund and more than 30 other civil rights groups, including Public Justice, explained how joint legal action has unearthed patterns of discrimination and brought about systemic changes in workplace policies that individual cases could never have achieved, listing 118 concerted legal actions challenging discrimination based on race, gender, age, disability and sexual orientation that would not have been possible under concerted action bans like Murphy Oil’s. The National Academy of Arbitrators disputed the employers’ premise that joint or collective claims can’t proceed in the more streamlined forum of arbitration, noting that labor arbitrators have been resolving group claims in unionized workplaces for decades and that requiring each case against the same employer – with the same evidence – to proceed separately would actually be far less efficient and more costly. Finally, the Main Street Alliance argued that concerted action bans reduce enforcement of minimum wage and employment discrimination laws, which disadvantages responsible businesses relative to corporations that mistreat employees and break the law.

With nearly a quarter of U.S. non-union employees already subject to concerted action bans, a green light from the Supreme Court telling employers to continue this practice will no doubt cause that figure to soar. But Public Justice is hopeful that the Court will follow the plain meaning of the NLRA and find these bans to be the illegal acts that they are—attempts to coerce employees into giving up their right to join forces to increase their bargaining power. That right applies equally whether employees want to join a union, join a lawsuit or join a boycott or picket line. The Supreme Court should stop this employer power grab and reaffirm the right to concerted activity, which is just as important for workers now as it was when Congress established it over 80 years ago.

This article was originally published at Public Justice on September 28, 2017. Reprinted with permission.

About the Author: Karla Gilbride joined Public Justice in October 2014 as a Cartwright-Baron staff attorney. Her work focuses on fighting mandatory arbitration provisions imposed on consumers and workers to prevent them from holding corporations accountable for their wrongdoing in court.

Supreme Court opens its new term with a direct attack on workers’ rights

Monday, September 25th, 2017

The Supreme Court returns next Monday from its summer vacation for the first full term where Neil Gorsuch will occupy a seat at the far end of the Court’s bench. And the Court will open this term with a trio of cases that are very likely to immunize many employers from consequences for their illegal actions.

The three cases — National Labor Relations Board v. Murphy Oil USAErnst & Young LLP v. Morris, and Epic Systems v. Lewis — all involve employment contracts cutting off employee’s rights to sue their employer for legal violations.

In at least one case, employees were required to sign the contract as a condition of beginning work. In another, employees were forced to give up their rights as a condition of keeping their job. These contracts contained two restrictions on the employees: 1) a “forced arbitration” provision, which requires any legal disputes between the employer and the employee to be resolved in a privatized arbitration system; and 2) a provision prohibiting employees from bringing class actions or other collective suits against their employers.

Requiring private arbitration favors employers over employees. As an Economic Policy Institute study determined, employees are less likely to prevail before an arbitrator than before a court, and they typically receive less money from an arbitrator when they do prevail.

Banning class action suits, meanwhile, effectively permits employers to violate the law with impunity, so long as they do not do too much harm to any individual employee.

If an employer cheats one employee out of $300,000 worth of wages, for example, that employee is likely to be able to find a lawyer who will take his case on a contingency basis — meaning that the lawyer gets a percentage of what the employee collects from the employer if they win. If the same employer cheats 10,000 employees out of $30 each, however, no lawyer is going to represent any one of these workers on a contingency basis. Plus, few employees are likely to bother with a $30 suit. It’s too much hassle, and too expensive to hire a lawyer who won’t work on contingency. The solution to this problem is a class action suit, which allows the 10,000 employees to join together in a single case litigated by a single legal team.

Banning such class actions effectively leaves these employees without remedy. As one federal judge explained, “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

The employer’s claim that they can combine a forced arbitration clause with a class action ban arises out of two previous Supreme Court cases that took an extraordinarily creative view of a nearly 100-year-old law.

In 1925, Congress enacted the Federal Arbitration Act to allow, as Justice Ruth Bader Ginsburg once explained, “merchants with relatively equal bargaining power” to agree to resolve their disputes through arbitration. Beginning in the 1980s, however, the Court started to read this law expansively to permit forced arbitration between businesses and relatively powerless consumers and employees.

Then, the Court got even more aggressive. By its own terms, the Federal Arbitration Act exempts “workers engaged in foreign or interstate commerce.” Nevertheless, in its 5-4 decision in Circuit City v. Adams, the Supreme Court held that the Act applies to most workers engaged in foreign or interstate commerce. Thus, forced arbitration clauses in employment contracts were given special protected status, even though the federal law governing these clauses says otherwise.

Similarly, Justice Antonin Scalia wrote for a 5-4 Court in AT&T Mobility v. Concepcion that the Federal Arbitration Act has penumbras, formed by emanations from its guarantees that give it life and substance. The right of businesses to insert class action bans, Scalia claimed, is one of these penumbras contained in the 1925 law. And so businesses gained the power to add no class action clauses to their forced arbitration agreements, even if a ban on class actions violates state law — and despite the fact that the Federal Arbitration Act says nothing about class actions.

Nevertheless, the employees in Murphy Oil and its companion cases hope that another provision of law will protect them from signing away their right to join a class action.

A provision of the National Labor Relations Act (NLRA) 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.” Several lower courts have held that an employee’s right to engage in “concerted activities” protects their right to join class actions, and they cite multiple previous Supreme Court decisions which lend credibility to this claim.

In a world governed by the text of the law, employees would have a strong case that they cannot be forced to give up their right to bring class action litigation. But we live in a world governed by Circuit City and Concepcion — both of which demonstrate the Supreme Court’s willingness to take liberties with the law in forced arbitration cases.

This article was originally published at ThinkProgress on September 25, 2017. Reprinted with permission.
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.

Want To Speak Out About Politics at Work? Here Are 3 Things You Need to Know.

Tuesday, May 16th, 2017

In the past several months, there’s been a noted uptick in political speech at work. That speech has often made national news, from Sally Yates’ dismissal as interim attorney general to IBM workers organizing against their employer’s support of Donald Trump. In the early days of the Trump administration, the New York Taxi Workers Alliance’s strike against the Muslim ban at John F. Kennedy International Airport stood out as an impressive act of resistance and solidarity. And even before Trump’s election, Colin Kaepernick, then a quarterback for the San Francisco 49ers, sparked a national discussion when he refused to stand during the national anthem in protest of racism against African-Americans and other people of color.

Protests against the administration are building quickly, with diverse groups organizing mass protests against the administration’s policies. This month, on May Day—otherwise known as International Workers’ Day—thousands of workers across the country took to the streets to challenge Trump’s draconian and unconstitutional immigration policies. In all likelihood, political activity at work will only increase throughout the Trump administration, all of which begs the question: How protected are workers who talk politics on the job?

As it turns out, not very, at least legally. Though more than 40 percent of participants in a 2014 YouGov poll believed that the First Amendment protected them from retaliation for their workplace political speech, the truth is that workers have, at best, a patchwork of rights to talk politics at work.

Most private sector workers have no Constitutional protections to engage in political speech at work. However, they do have rights as workers. (Government workers have some limited First Amendment rights because the First Amendment applies to government action, but those rights aren’t always consistently defined.)

Though it can be difficult to navigate the maze of laws that regulates employment, there are some simple things to keep in mind that can help private sector employees ensure they have maximum protection at work. These tips are not foolproof ways to protect your job, but they provide some cover in the face of the risks and challenges ahead. Of course, you’re safest keeping your protests outside of work, but building the resistance against Trump will require shop floor leaders to be vocal and visible. While speaking out at work is inherently risky, the rewards measured in collective strength and tangible gains cannot be overestimated.

Step 1: Bring a buddy

The National Labor Relations Act (NLRA), the main law governing relations between workers and employers in the private sector, is unique: It mostly protects groups, not individuals. This means that whenever you stand up to improve the conditions at your workplace with at least one other worker, you are engaging in “protected concerted activity” under the NLRA, and you can’t lawfully be fired or disciplined for that activity. Solidarity at work is protected under federal law. This protection applies to regular workplace complaints and grievances—for instance, joining with your coworkers to form a union or ask for a wage increase—but can also apply to political activity.

Usually, even talking to coworkers about your problems at work is “protected concerted activity.” The National Labor Relations Board (NLRB) recently broadened the meaning of the term in a 2014 case. In that case, the NLRB held that a worker who talked to her coworkers about serving as witnesses in her individual sexual harassment complaint was protected under the NLRA because she was enlisting coworkers in her aid. This suggests that a worker can invoke the protections of the NLRA just by talking with coworkers.

It’s always a good idea to act with at least one other coworker. The best defense is building strong ties with coworkers and the community. The more the boss fears pushback, the less likely he is to retaliate. At the very least, make sure to talk to a coworker before engaging in any action at work, political or otherwise, to bring that action under the NLRA’s protection. But keep in mind that not all political protest is protected—as Step 2 explains.

Step 2: If you’re talking or protesting politics, find ways to tie your protest to issues your employer can control

If you decide to engage in political activity at work, the most important action you can take to protect yourself and your coworkers is to tie your speech or protest to an “employment related concern.” With some limited exceptions, the NLRA protects you from discipline for discussing anything having to do with your pay, occupational safety, the policies at your job, and other terms and conditions of employment with coworkers and third parties, whether the news media or a government agency. In a famous labor law case from 1962, NLRB v. Washington Aluminum, the Supreme Court found that labor law protected a group of workers who spontaneously walked off the job because the shop was too cold to work, though there was a rule against leaving work without the supervisor’s permission and the employees didn’t plan or know they were engaging in a workplace action.

Problems that your employer can’t affect or control are not employment related. For example, in 2006, hundreds of workers were terminated for walking off the job to join massive protests against anti-immigrant legislation proposed in Congress. In response to the terminations, the NLRB came up with some guidelines for political activity. While the protests were found to have been done for “mutual aid and protection”—workers standing together in solidarity—walking off the job against employer rules was unprotected, since the employers could not control immigration policy.

Sometimes an employer does have power over a government policy—for instance, if the employer is actively involved in lobbying over that policy, like in a recent case where taxi drivers protested against their employer, a Las Vegas cab company, for lobbying for more medallions, which would put more drivers on the road and reduce their pay. Still, the takeaway is that you should always try to make sure your protest is about a tangible workplace policy. For instance, if you want to protest the Trump administration’s immigration policies, you could center your protest around a demand that the employer not conduct voluntary I-9 audits.

One last thing to remember is that if an employer has a rule that limits political speech at work, it has to be neutral on its face and neutrally applied. If you are fired for violating an employer attendance policy to attend a rally against Trump’s immigration policies, but another coworker who also violated the attendance policy to attend a Trump rally is unscathed, then the boss has violated the law by failing to apply work rules neutrally and you should contact an attorney or the NLRB to report the violation.

Step 3: Build solidarity at work and in the community

Nothing protects you more than the support and solidarity of your coworkers and community. Collective action is a time-honored and battle-tested tactic. The more people support you, the more the boss will be afraid to retaliate against you. In the Fight for $15 campaign, organizers perfected the art of the “walk back.” After one of their now famous strike days, community members, including clergy and local politicians, would walk striking worker back to fast food restaurants in a show of community power. Build relationships at work and in your community to prepare for the fight ahead. Nothing is stronger than people power.

This article originally appeared at Inthesetimes.com on May 15, 2017. Reprinted with permission.

About the Authors: Leo Gertner is a labor lawyer in Washington, D.C., who previously worked as a grievance representative for janitors in Boston. Sam Wheeler is a Pennsylvania labor lawyer who has previously worked in electoral politics and in the legal departments of several national unions.

NLRB Judge Rules Walmart Wrongly Fired Strikers

Monday, February 1st, 2016
Kenneth Quinnell

An administrative law judge at the National Labor Relations Board has ruled that Walmart retaliated against workers for participating in strikes. Walmart claimed that the workers’ actions were not protected under the National Labor Relations Act and that it was legitimate to fire the employees for violating the company’s attendance policy. Judge Geoffrey Carter ruled against Walmart.

The ruling says that Walmart must reinstate 16 former employees with back pay and must hold meetings in 29 stores to inform workers of their right to strike and that strikes are protected under the NLRA.

Jess Levin, communications director for Making Change at Walmart, applauded the ruling:

Today’s decision proves beyond doubt that Walmart unlawfully fired, threatened and disciplined hardworking employees simply for speaking out. Not only is this a huge victory for those workers and Walmart workers everywhere who continue to stand up for better working conditions, but it sends a message to Walmart that its workers cannot be silenced. We will continue to fight to change Walmart for the better.

Read the full ruling.

This blog originally appeared in aflcio.org on January 29, 2016. Reprinted with permission.

Kenneth Quinnell is a long time blogger, campaign staffer, and political activist.  Prior to joining AFL-CIO in 2012, he worked as a labor reporter for the blog Crooks and Liars.  He was the past Communications Director for Darcy Burner and New Media Director for Kendrick Meek.  He has over ten years as a college instructor teaching political science and American history.

The End of Jobs?

Monday, March 24th, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fourth Circuit joins D.C. Circuit in striking down the NLRB's embattled Notification of Employee Rights

Thursday, June 20th, 2013

maria-greco-danaher_1The 4th U.S. Circuit Court of Appeals has affirmed an April 2012 decision of the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12), striking down the National Labor Relations Board’s (NLRB) controversial notice posting rule. The rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. Under the proposed regulation, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, then further postponed until April 30, 2012, and was effectively suspended by the federal court’s April 13, 2012 ruling, which now has been upheld. Chamber of Commerce of the United States v. NLRB, 4th Cir., No. 12-1757, 6/14/13.

Pointing out that the NLRB does not have authority to enforce the Act proactively, the 4th Circuit agreed with the lower court that “the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice [ULP] charges and conducting representation elections upon request.” The Court stressed that “[a]lthough the Board is specifically empowered to ‘prevent’ unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act.” In a thorough and well-reasoned opinion, the Court reviewed the NLRA’s plain language, structure, and legislative history, along with the history of subsequent labor legislation, in holding that the Board was not empowered to promulgate the rule. “Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so.”

The 4th Circuit’s opinion is even more favorable for employers than the recent decision by the D.C. Circuit Court of Appeals,National Association of Manufacturers v. National Labor Relations Board (D.C. Cir. May 7, 2013), which struck down the notice posting rule on the grounds that it violated Section 8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus,” when, in fact, Section 8 allows employer to express their views about unions and unionization, as long as the communications contained no threat or promise.

At this time, it looks as if the notice posting requirement is out of commission for the time being, with two federal appellate courts taking the position that the NLRB is without authority to require posting. However, it remains to be seen whether this phoenix will rise out of the ashes of these opinions and, if so, in what form it will return.

This article was originally printed on Employment Law Matters on June 14, 2013.  Reprinted with permission.

About the Author: Maria Greco Danaher is a shareholder in Ogletree Deakins.  She regularly represents and counsels companies in employment related matters.  She specializes in representing management in labor relations and employment litigation, and in training, counseling, and advising human resource departments and corporate management on these topics.  Maria has first chaired trials in both federal and state courts since 1986, and regularly instructs attorneys and students in issues related to trial tactics.

What Workers Apparently Don't Have a Right to Know

Wednesday, May 15th, 2013

seiu-org-logoIn most workplaces, it’s common to see a poster somewhere public – like a shared lunchroom – notifying employees of their workplace rights on issues such as equal opportunity and health and safety. Most workplaces don’t, however, have posters notifying employees of their rights (e.g. to form a union) under the National Labor Relations Act. And after a D.C. Circuit Court ruling this week, this seems depressingly unlikely to change anytime soon.

The NLRB tried to fix this in 2011 with a rule requiring employers to post an informational notice in the workplace. Not surprisingly, the U.S. Chamber of Commerce of other corporate-backed groups challenged the rule and delayed its implementation.

On Tuesday, the D.C. Circuit Court (known for its pro-business bias) put the final nail in the coffin and struck down the rule.

This decision is undoubtedly bad for workers.

For a sliver of optimism about the future of the labor movement, check out Harold Myerson’s May 8th op-ed in the Washington Post.

This article was originally posted on SEIU on May 10, 2013.  Reprinted with Permission.

Author: SEIU Communications

Labor Law Loses Its Watchdog

Wednesday, March 27th, 2013

Bruce VailThe day-to-day application of key federal protections for workers’ collective bargaining rights is becoming paralyzed, say legal experts and union organizers, as employers across the country realize that a recent federal court decision effectively allows them to ignore the enforcement of the landmark National Labor Relations Act.

The implementation of the New Deal-era law—which protects the right of most workers in private industry to form unions and negotiate collectively with employers—is reported to be slowly grinding to a halt as result of a January 25 court decision in Noel Canning v. NLRB [PDF]. The U.S. Court of Appeals for the District of Columbia ruled that President Barack Obama improperly employed the recess appointments clause of the constitution to name new members of the National Labor Relations Board (NLRB). This means, in effect, that almost 800 NLRB actions taken since the January 2012 recess appointments are unenforceable and that the current board is powerless to implement new orders. Or, as former NLRB Chairman William B. Gould IV tells In These Times: “Compliance with NLRB enforcement is voluntary for employers at this point.”

“There is plenty of evidence that it is having a huge impact on the ground,” says Lynn Rhinehart, co-general counsel of the AFL-CIO. She describes the decision’s effect on union organizing campaigns across the country as “deep and problematic.”

Because of the Canning decision, Rhinehart explains, any employer can now go to a federal appeals court and be granted an indefinite delay in enforcement of any NLRB action taken in the last 14 months. More than 60 employers have filed such cases since the January 25 decision, NLRB spokesperson Nancy Cleeland confirms, and more are expected. All of these cases are officially being held in abeyance pending U.S. Supreme Court action to either affirm or overturn the Canning ruling. That could take up to a year, Cleeland estimates.

Many employers aren’t bothering to formally request delays, but simply ignoring the NLRB rulings that remain in legal limbo. A March 23 story in the Huffington Post details how West Virginia union members mistreated at the hands of anti-union coal operators must now wait indefinitely to see their jobs and backpay restored. Similarly, some Connecticut nursing home workers are being deprived of their legal wages and benefits, says Deborah Chernoff, a spokesperson for the New England division of the healthcare workers union 1199SEIU. In a case notable for both its bitterness and complexity, strikers at five nursing homes operated by HealthBridge are back at work, but not at the compensation levels ordered by the NLRB last year. Instead, they are receiving lower wages and reduced benefits ordered by a bankruptcy judge, and the NLRB is powerless to enforce its order or challenge the bankruptcy court’s decision, Chernoff says.

Meanwhile, the decision has stopped some organizing campaigns in their tracks. Ann Twomey, president of the New Jersey-based Health Professionals and Allied Employees union, says that about 200 nurses fighting for a union at Memorial Hospital of Salem County are “on hold” because of the legal uncertainty at the NLRB. The employer—notoriously anti-union Community Health Systems (CHS)—is stalling talks toward a first contract, despite the union’s 2010 victory in a representation election, Twomey says. Normally in such a case, the union could call on the NLRB to order the employer to the negotiating table. But that’s not an option until the legal authority of the NLRB is re-asserted, says Twomey. “The nurses are functioning as a union and are doing their best,” she says, “But they don’t have a contract, and there isn’t a way forward” without the NLRB.

Resolution of outstanding legal issues in older cases is even affected, says Michael Beranbaum, organizing director of Washington state-based Teamsters Joint Council 28. A Teamsters strike against Oak Harbor Freight Lines in 2008 created legal issues around pensions and healthcare benefits, he tells In These Times, but resolution is being further stalled because the trucking company went to federal court seeking new delays under the Canning decision. “This is an example of the pitiful mess in Washington, D.C.,” resulting from Republican Party obstruction of President Obama’s legitimate appointment powers, he says.

According to a March 11 story in the Wall Street Journal, high-profile employers such as Starbucks, Time Warner, Laboratory Corporation of America Holdings, Domino’s Pizza and McDonald’s are entering the courts in efforts to hamper the actions of the NLRB. In addition to requests for enforcement delays, cases have been filed as a preemptive step to discourage NLRB involvement in workplace disputes at those companies, the newspaper reports.

A common element in many of these cases is that employers are being aided and abetted by the U.S. Chamber of Commerce, according to Rhinehart and other worker advocates. The Chamber assisted the managers of the Noel Canning Corp. in advancing their court case and the Chamber’s Litigation Center is currently maintaining a Web-based “resource page” for employers to coordinate action against the NLRB. The Chamber is also said to be mobilizing Republican members of the Senate to prevent the confirmation of any new NLRB appointees in its ongoing efforts to immobilize the board, Rhinehart indicates.

“It looks like they [the NLRB] are just out of business for the next nine months, at least,” says former NLRB chairman Gould, who teaches at Stanford Law School and is the author of Labored Relations: Law, Politics, and the NLRB–A MemoirIt will take at least that long for the Supreme Court to act,” he says, and an anti-union ruling could very well create even more delay and confusion.

“They [the NLRB] are trying to march right along, issuing new decisions and acting as if the D.C. Circuit Court will inevitably be overturned, but employers don’t see it that way at all,” Gould says. “I can tell you right here in the Bay Area that NLRB subpoenas are not being enforced. Employers are just refusing to honor their subpoenas.”

NLRB’s Cleeland confirms Gould’s report about the agency’s subpoenas. “We’ve seen challenges at every level” of the legal process, she says.

Gould says the current situation is reminiscent of the first two years following the 1935 enactment of the original law, also known as the Wagner Act (after its chief sponsor Sen. Robert Wagner, D-N.Y.). Employers actively resisted the new law on a large scale, Gould says, and many refused to cooperate in any way until the Supreme Court ruled on its validity.

“Back in those days there was something called the Liberty League that cheered the employers on. The Chamber of Commerce is playing that role today,” Gould says. “So this is not new. Their antipathy to labor law and to the NLRB is longstanding. The only thing that’s new is that they [NLRB opponents] are sitting pretty ….They don’t have to do anything” to comply with the Wagner Act until the Supreme Court clarifies the situation.

Not all union organizing is affected by the Chamber of Commerce’s efforts to neuter the NLRB. For example, railroad and airline workers are not covered by the Wagner Act, and campaigns in those sectors are going forward unaffected because they are under the aegis of the separate National Mediation Board. Likewise, public sector employees are not covered by the 1935 law, so the Canning decision does not impact their union initiatives at local, state and federal levels.

AFL-CIO’s Rhinehart says the mess at the NLRB could best be cleared up if the U.S. Senate simply confirmed the new NLRB nominations submitted this year by the Obama Administration. A new board could then re-certify the decisions already made and return to work as normal, she says. But that doesn’t seem likely anytime soon, Rhinehart reluctantly concedes, and thus some action by the Supreme Court seems required to get labor law back on track. Until then, it appears that the Chamber of Commerce has succeeded in effectively preventing the NLRB from doing its job.

This article was originally posted on the Working In These Times on March 26, 2013. Reprinted with Permission.

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

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