Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NLRB’

Tesla Workers Say Elon Musk is a Union Buster. The NLRB Just Gave Their Case a Boost.

Thursday, April 12th, 2018

Tesla factory workers have been trying for months to win restitution for the company’s alleged union-busting and harassment. Now, a National Labor Relations Board (NLRB) complaint against the company appears to be making strides.

Last August, the NLRB filed a complaint against Tesla after finding merit in a number of accusations from employees at its Fremont, California factory. Some Tesla factory workers say the company engaged in various forms of union-busting, through harassment and surveillance. They also claim that Tesla required them to sign a confidentiality agreement which prohibited them from discussing the details of their working conditions.

On March 30, the NLRB amended the complaint to add new allegations from workers which the board found to have merit. In the new claims, Tesla workers say the company investigated them after they posted information on a pro-union Facebook page.

The case has now been scheduled to go before an NLRB administrative law judge in June. After hearing the case, the judge will issue a decision and recommended order. The fact that the complaints were deemed to have merit, and that workers will have their concerns heard, constitute significant developments in the case.

The amended NLRB complaint comes as Tesla, and its CEO Elon Musk, are being criticized for failing to live up to their production goals. After Tesla shares dropped last month, its engineering chief Doug Field sent an email to staff attacking people who doubted Musk’s vision. “I find that personally insulting, and you should too,” Field wrote in a March 23 email. “Let’s make them regret ever betting against us. You will prove a bunch of haters wrong.”

In an internal memo from March 21, the company also announced that a small number of “volunteers” would be brought in to help assist with Tesla’s Model 3 line. After Bloomberg reported this fact on March 29, Tesla informed the outlet that volunteer shifts would only take place on one day, while production of the company’s Model X and S cars was stopped. Employees who regularly work on those models could either volunteer to work on the Model 3, take paid time off, or take unpaid time off that day.  “The world is watching us very closely, to understand one thing: How many Model 3’s can Tesla build in a week?” Field wrote in his email to staff. “This is a critical moment in Tesla’s history, and there are a number of reasons it’s so important. You should pick the one that hits you in the gut and makes you want to win.”

The working conditions of Tesla employees, and their organizing efforts, were brought to the public’s attention last February when Jose Moran, a production worker at Tesla’s plant in Fremont, published a Medium post criticizing the company’s hourly wages and high number of preventable work injuries. “Tesla isn’t a startup anymore. It’s here to stay,” wrote Moran. “Workers are ready to help make the company more successful and a better place to work. Just as CEO Elon Musk is a respected champion for green energy and innovation, I hope he can also become a champion for his employees.” In his piece, Moran mentions that Tesla workers had reached out to the United Auto Workers (UAW) for assistance with their unionizing efforts.

Workers at the Tesla factory say they were reprimanded by management for printing copies of Moran’s post and attempting to pass them out, along with information about the UAW. Three workers cited this action in the charges that became part of the August complaint from the NLRB. Workers also claim they were harassed for wearing UAW shirts. The updated complaint claims that two workers were investigated and interrogated by Tesla after they posted company information in a private Facebook group called “Fremont Tesla Employees for UAW Representation.” Last October, one of the employees was fired and the other was given a disciplinary warning. Tesla said it fired the employee after he admitted to lying about the incident during their internal investigation.

That same month, Tesla fired 700 of its employees without notice or warning, about 2 percent of its entire workforce. The UAW promptly filed a federal complaint against the company, claiming that some of the employees were fired because they were part of the unionization efforts. On a quarterly earnings call last November, Elon Musk defended the firings and called criticisms of them “ridiculous.” He pointed to Tesla’s supposedly high standards for performance. “You have two boxers of equal ability, and one’s much smaller, the big guy’s going to crush the little guy, obviously,” said Musk. “So the little guy better have a heck of a lot more skill or he’s going to get clobbered. So that is why our standards are high. They’re not high because we believe in being mean to people. They’re high because if they’re not high, we will die.”

Last November, the UAW filed another complaint against Tesla. This one concerned its Gigafactory battery plant in Nevada. The filing, which was obtained by Jalopnik via an FOIA request, charges Tesla with intimidating, surveillance, and interrogating employees who participated in union organizing. The NLRB consolidated these charges into the ongoing complaint.

Earlier this month, Tesla released the following statement regarding the amended NLRB complaint: “These allegations from the UAW are nothing new. The only thing that’s changed since the UAW filed these charges is that many of the allegations have been outright dismissed or are not being pursued by the NLRB. There’s no merit to any of them.”

Legally, Tesla has to respond to the newest round of complaints by April 13. The case will go before an administrative judge on June 11.

This article was originally published at In These Times on April 12, 2018. Reprinted with permission. 

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

Trump Is Making It Harder for Low-Wage Workers to Organize, But This Fast Food Union Could Win

Wednesday, April 4th, 2018

Workers at a Burgerville in Portland, Oregon declared on March 26 that they will file for a federal union election. If union campaigners win, the restaurant will become the first federally recognized fast food union shop in the United States. The local effort, which has a significant chance of victory, offers a powerful antidote to the Trump administration’s aggressive anti-worker agenda.

This move comes after years of worker organizing as part of the Burgerville Workers Union (BVWU), which is an affiliate of the Industrial Workers of the World (IWW). The workers gave Burgerville 48 hours to voluntarily acknowledge the union, which management refused.

BVWU went public in 2016, seeking raises for hourly workers, affordable healthcare, a sustainable workplace and consistent scheduling. In addition to these demands, workers asked Burgerville to stop using the E-Verify system, which they say targets undocumented workers. E-Verify compares employee information with Department of Homeland Security and other federal records to confirm that people can legally work in the United States.

Today, six of the Washington-based company’s 42 stores have publicly active unions, and workers say they’ve been fighting union busting and resistance from management throughout the entire process.

In an interview with the website It’s Going Down, Luis Brennan, an employee at Burgerville’s Portland Airport location, alleged that the company retaliates against organizers by accusing them of minor infractions that wouldn’t otherwise be enforced. He told the story of two Burgerville workers who were recently let go. One of them was allegedly fired for putting a small amount of ice cream in his coffee. The other was allegedly fired for smelling like marijuana. According to Brennan, the latter worker never admitted to smoking marijuana and the company didn’t ask him to take a drug test. The employee, who is black, did have a medical prescription for marijuana because of his epilepsy. “They gave him a week’s suspension and then they fired him,” said Brennan. “He’s an active union supporter, and the combination of racism and anti-unionism in that is pretty transparent to everybody.”

Last year, Jordan Vaandering, a Burgerville-employee who had worked at the store’s Vancouver Plaza location for fourteen months, was allegedly fired for eating a 70-cent bagel without paying for it. Vaandering said a manager gave him the bagel during a paid-break and didn’t ask him for any money. While the bagel was the pretext for Vaandering’s termination, he believes he was let go because he was recruiting co-workers to join the BVWU.

Asked about the alleged retaliations earlier this year, the company released the following statement: “Burgerville does not comment on individual employee matters or internal company policies.”

Earlier this year, in response to management’s refusal to negotiate with the union and its alleged retaliation against organizers, BVWU called on consumers to boycott Burgerville. The boycott call came during a three-day strike that started at the company’s Northeast MLK Boulevard location before spreading to its Southeast Powell and 26th store, two locations in Portland.

Mark Medina, an employee at the Southeast Portland store and a member of BVWU, told In These Times that, while the union campaign has been active for more than 20, now is the perfect time to file for a union election. “It took a lot of work to get where we are right now,” said Medina. “This was all built from the ground up: no money, all volunteers. We’ve had major strikes and many shops, and now we’ll have more leverage during the process. Our level of organization is concrete now. It’s better.”

Burgerville workers’ call for a union election comes on the heels of a potentially major defeat for fast-food workers at the federal level. Trump’s National Labor Relations Board (NLRB) General Counsel Peter Robb recently negotiated a tentative settlement between McDonald’s and the NLRB over a landmark case pushed by the Service Employees International Union (SEIU)-backed Fight for $15 campaign that aimed to hold the company responsible for its individual franchises’ labor violations. The details of the tentative settlement, which is pending approval by an NLRB judge, remain undisclosed. But McDonald’s admits to no wrongdoing, and the settlement allows the company to avoid the “joint employer” designation that would allow groups like Fight for $15 to unionize fast food locations more effectively.

“In a real settlement, McDonald’s would take responsibility for illegally firing and harassing workers fighting to get off food stamps and out of poverty,” said Fight for $15 attorney Micah Wissinger.

“We think a union contract is just one tool to help build the working class we all deserve,” Chris Merkel, who works at the Convention Center Burgervillel, told In These Times, “The NLRB can change all the rules, but we still have to do the work on the floor and in our communities to get our basic needs met.”

Medina said he has “love and affection” for unions like the SEIU and campaigns like Fight for $15. “Fight for $15 is great,” said Medina, “I support raises, but a raise alone doesn’t empower workers to change their own lives and community.”

Despite the fact that the IWW is a rank-and-file union working independently from the bigger labor organizations, Medina said he’s been blown away by the support it has received in Portland. “You see the AFL-CIO at an IWW event,” he explained. “SEIU has turned out. Carpenters 503 has manned our picket lines. We’ve shown we’re here to stay and the community has shown so much support.”

After BVWU announced their call for the election, Burgerville’s Senior VP of Operations Beth Brewer released a statement: “Burgerville respects the right of every employee to support or not support the organization of a union. If there is enough support, we anticipate they will file a petition with the NLRB. Burgerville will abide by the NLRB’s decision and guidance.”

Medina told In These Times that he hopes the Burgerville efforts inspire others throughout the country. “You can organize fast food workers,” he said. “If you put in the effort to organize them, you can. Take what we did and replicate it.”

This article was originally published at In These Times on April 3, 2018. Reprinted with permission. 

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

Inside the Trump Administration’s Plan to Shrink the NLRB

Thursday, February 1st, 2018

Labor rights advocates are alarmed by a proposal to centralize more control of the National Labor Relations Board (NLRB) at the agency’s Washington, D.C., headquarters and shrink its network of regional offices. Widely viewed as another effort by appointees of President Donald Trump to reverse some union-friendly policies promoted by Obama appointees, the proposal is a step toward an even smaller role for the NLRB in protecting workers’ rights, these advocates charge.

News of the proposal leaked out to media outlets in mid-January, first to the Daily Labor Report and then to the The New York Times. The news reports focused on objections to the proposal by NLRB staff members at the agency’s 26 regional offices. Some of those staffers would be demoted, or lose their jobs entirely, if the proposal is implemented by NLRB General Counsel Peter B. Robb.

Trump appointee Robb “is a man in a big hurry” to remake the NLRB into an agency more responsive to the anti-union demands of conservative Republicans and business interests, says William B. Gould IV, a former NLRB chairman now teaching law at Stanford University. “He looks to be seizing control of the complaint process,” at the regional level, Gould tells In These Times. “That’s terribly important because it is the regional offices that are the great strength of the NLRB … The regional offices are where a union shop steward or a legal practitioner can go to have complaints handled in a professional way.”

Robb, appointed by Trump in September of last year and sworn in Nov. 17, comes to the post with strong anti-union credentials. As described by The New York Times, he was appointed “after a career largely spent representing management, including handling part of the Reagan administration’s litigation against the air traffic controllers’ union that waged an illegal strike in 1981. Most labor historians say the government’s hard line in firing the controllers contributed to organized labor’s decline…”

Robb’s proposal comes on the heels of recent decisions by the five-member board to roll back some Obama-era initiatives that favored unions. Those decisions were more explicitly political, coming after votes by board members in which Republican Party appointees narrowly prevailed over Democratic appointees. As general counsel to the agency, Robb is not a board member, but rather a White House appointee in charge of administering the day-to-day affairs of the agency under the general direction of the Board members.

According to Michael C. Duff, a professor at the University of Wyoming College of Law, the NLRB votes and the actions by Robb are “of a piece with the Trump agenda to downgrade the agency as a defender of labor rights as spelled in the National Labor Relations Act.” A former NLRB staff lawyer himself, Duff tells In These Timesthat “I don’t have a good feeling about what is going on. There is a sense that the agency is being hollowed out.”

“You get a sense that they [Republican appointees] are going to reverse everything,” in NLRB policy that is favorable to workers, Duff continues. As a former staffer who is still in regular contact with some of his NLRB colleagues, Duff says “the situation is probably more dramatic than it looks … [The trend] is essentially a repudiation of labor law as we know it.”

Part of the “hollowing out” process is cutting the budget of the agency. Daily Labor Report’s Laurence Dubé reported last year that a 6-percent proposed cut would mean the elimination of 275 jobs from the agency’s staff. The budget has not been finalized, but staff cuts are expected in the coming year, and may  continue throughout the Trump administration, predicts Duff.

Burt Pearlstone, president of the National Labor Relations Board Union, says the staff union has no comment on Robb’s proposal at this time. He tells In These Times that the executive committee of the staff union may take  up the issue at its next scheduled meeting, by may also wait until Robb’s proposals are more formalized

The staff union represents more than 700 NLRB employees in the regional offices and a second independent union, the National Labor Relations Board Professional Association (NLRBPA), represents many staff members at Washington, D.C., headquarters. No representative of the NLRMPA could be reached for comment.

Robb’s proposal to demote employees and consolidate regional offices was outlined in a conference call Jan. 11, in which Robb described the plan to NLRB mid-level administrators. According to Gould, the administrators were not provided with a written version of Robb’s proposal, but were alarmed enough to respond with a written objection that has been published by Daily Labor Report.

“As you can imagine, the information you provided to the Regional Directors has created much uncertainty and has disheartened us … It was unclear to us how many Districts you envision, how many Regional Offices would remain, how many Regional Directors would remain in that position, what the supervisory ratio would be, and when you envision removing Regional Directors from the Senior Executive Service … However, any anticipated changes must be thoughtfully considered so that the great work of the Agency remains. We would like to work with you in developing changes that would be appropriate to meet our challenges,” the NLRB staffers wrote.

“The NLRB has a lot of problems as an agency. The number of cases they handle is way down from when I started work at the Philadelphia regional office (in 1997), but there are still not enough people to handle the work load,” comments Duff.

“Pay freezes and government shut downs have an effect [on morale],” Duff continues. “From what I am hearing now, things are actually worse than you think.”

This article was originally published at In These Times on January 31, 2018. Reprinted with permission.
About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Trump NLRB Appointee Behind Major Anti-Union Ruling Accused of Corruption

Thursday, January 25th, 2018

An anti-union policy decision from President Donald Trump’s National Labor Relations Board (NLRB) appointees appears to be tainted by a violation of ethics standards, and Sen. Elizabeth Warren (D-Mass.) is joining unions in demanding answers.

The Trump policy decision came on December 14 when the NLRB reversed an Obama-era ruling in the Browning-Ferris case—a pro-worker decision from 2015 that has been loudly decried by business lobbyists and conservative Republicans. The case turned on the issue of how the NLRB would define the term “joint employer” in union organizing cases—and was broadly viewed as a blow to McDonald’s and other fast food companies that exploit the franchise business model as a tool to help defeat unions. Last month, the five-member NLRB voted 3-2 in the Hy-Brand Industrial Contractors case to reverse Browning-Ferris, with recent Trump appointee William J. Emanuel providing the margin of victory for the anti-union forces.

Emanuel now stands accused by Warren and others of violating ethical standards by voting on the case even though he appears to have a conflict of interest. The conflict is said to arise from Emanuel’s former status as part owner (or “shareholder”) of the labor law firm Littler Mendelson, a business that specializes in representing employers against their own workers. The firm represented a party in Browning-Ferris, so standard government ethics rules indicate Emanuel should have recused himself from voting, according to critics.

“It looks really bad,” says Susan Garea, a California attorney representing Teamsters Local 350. Emanuel’s violation of ethics rules taints the NLRB vote, she tells In These Times, so the decision in Hy-Brand Industrial should be voided, and the validity of Browning-Ferris evaluated in an atmosphere free of conflicts of interest. Garea detailed her charges in a Jan. 4 court filing in the U.S. Court of Appeals for the District of Columbia Circuit. “It’s clear Emanuel should not participate,” in any vote on Browning-Ferris, she says

The Teamsters have been fighting the case for years. In 2013, Local 350 tried to organize workers at a recycling center in Milpitas, Calif., that was owned and operated by Browning-Ferris. But the union found itself blocked by a legal strategy that asserted the workers were actually employees of an outside staffing agency, Garea explains. The union fought the case before the NLRB, prevailed with the Board’s 2015 pro-union decision, and has been working ever since to fend off legal attempts to overturn the ruling. Garea, of the law firm Beeson, Tayer & Bodine, proclaims the case is far from over and the union is intent on blocking Emanuel’s improper action.

Warren entered the picture when Trump nominated Emanuel for the NLRB in mid 2017. She opposed him from the start, arguing that a lawyer who has represented only bosses in a 40-year-plus legal career was a bad choice for the NLRB, which is supposed to be a fair arbiter of labor disputes. She demanded a commitment from Emanuel to recuse himself from NLRB cases involving a long list of former clients (which he agreed to do) and voted against him in the final confirmation on the Senate floor.

“Emanuel is the opposite of what Senator Warren would like to see in an NLRB member. His conflicts of interest are a mile long, and he spent decades fighting against workers’ efforts to join together and stand up for themselves,” Warren’s Deputy Press Secretary Saloni Sharma tells In These Times.

The Senate floor vote on Emanuel reflected the deep party-line divide over Trump’s nominations to the NLRB. All the Democratic Party senators present voted against Emanuel, and all the Republicans voted for him. AFL-CIO chief lobbyist Bill Samuel tells In These Times that Trump’s appointments to government labor posts have been strongly anti-union, but Emanuel is one of the most extreme. “We didn’t make a fight about Emanuel. We just didn’t have the votes,” he says. “But we are very much behind Sen. Warren in her efforts to hold them [the NLRB members] accountable.”

In a letter dated Dec. 21, Warren posed questions to Emanuel raising concerns about potential misconduct in the Hy-Brand vote. “Given that your former partners at Littler Mendelson P.C. represented a party in [Browning-Ferris] before the board, did you recuse yourself from the board’s decision to move to remand the [Browning-Ferris] case from the U.S. Court of Appeals for the D.C. Circuit back to the board? If not, why not?” she writes. The letter, also signed by several other top Congressional Democrats, requests that Emanuel commit to additional recusals from pending NLRB cases in the future.

An unsigned email message stated that Emanuel “respectfully declines” a telephone interview to discuss the Warren allegations. Messages left directly with Emanuel were not returned.

Sen. Warren and other congressional Democrats are awaiting a formal response to the questions before deciding on the next step against Emanuel. Meanwhile, the White House is expected to announce it is nominating Washington, D.C., management-side attorney John Ring to fill an open seat on the five-member NLRB, as former Chairman Philip Miscimarra’s term on the Board expired just days after the Hy-Brand decision.

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

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

Here Are the 10 Worst Attacks on Workers From Trump’s First Year

Wednesday, January 24th, 2018

January 20th marks the one-year anniversary of President Donald Trump’s inauguration. Since taking office, President Trump has overseen a string of policies that will harm working people and benefit corporations and the rich. Here we present a list of the 10 worst things Congress and Trump have done to undermine pay growth and erode working conditions for the nation’s workers.

1) Enacting tax cuts that overwhelmingly favor the wealthy over the average worker

The Tax Cuts and Jobs Act (TCJA) signed into law at the end of 2017 provides a permanent cut in the corporate income tax rate that will overwhelmingly benefit capital owners and the top 1%. President Trump’s boast to wealthy diners at his $200,000-initiation-fee Mar-a-Lago Club on Dec. 22, 2017, says it best: “You all just got a lot richer.”

2) Taking billions out of workers’ pockets by weakening or abandoning regulations that protect their pay

In 2017, the Trump administration hurt workers’ pay in a number of ways, including acts to dismantle two key regulations that protect the pay of low- to middle-income workers. The Trump administration failed to defend a 2016 rule strengthening overtime protections for these workers, and took steps to gut regulations that protect servers from having their tips taken by their employers.

3) Blocking workers from access to the courts by allowing mandatory arbitration clauses in employment contracts

The Trump administration is fighting on the side of corporate interests who want to continue to require employees to sign arbitration agreements with class action waivers. This forces workers to give up their right to file class action lawsuits, and takes them out of the courtrooms and into individual private arbitration when their rights on the job are violated.

4) Pushing immigration policies that hurt all workers

The Trump administration has taken a number of extreme actions that will hurt all workers, including detaining unauthorized immigrants who were victims of employer abuse and human trafficking, and ending Temporary Protected Status for hundreds of thousands of immigrant workers, many of whom have resided in the United States for decades. But perhaps the most striking example has been the administration’s termination of the Deferred Action of Childhood Arrivals program.

5) Rolling back regulations that protect worker pay and safety

President Trump and congressional Republicans have blocked regulations that protect workers’ pay and safety. By blocking these rules, the president and Congress are raising the risks for workers while rewarding companies that put their employees at risk.

6) Stacking the Federal Reserve Board with candidates friendlier to Wall Street than to working families

President Trump’s actions so far—including his choice not to reappoint Janet Yellen as chair of the Federal Reserve Board of Governors, and his nomination of Randal Quarles to fill one of the vacancies—suggest that he plans to tilt the board toward the interests of Wall Street rather than those of working families.

7) Ensuring Wall Street can pocket more of workers’ retirement savings

Since Trump took office, the Department of Labor has actively worked to weaken or rescind the “fiduciary” rule, which requires financial advisers to act in the best interests of their clients when giving retirement investment advice. The Trump administration’s repeated delays in enforcing this rule will cost retirement savers an estimated $18.5 billion over the next 30 years in hidden fees and lost earning potential.

8) Stacking the Supreme Court against workers by appointing Neil Gorsuch

Trump’s nominee to the Supreme Court, Neil Gorsuch, has a record of ruling against workers and siding with corporate interests. Cases involving collective bargaining, forced arbitration and class action waivers in employment disputes are already on the court’s docket this term or are likely to be considered by the court in coming years. Gorsuch may cast the deciding vote in significant cases challenging workers’ rights.

9) Trying to take affordable health care away from millions of working people

The Trump administration and congressional Republicans spent much of 2017 attempting to repeal the Affordable Care Act. They finally succeeded in repealing a well-known provision of the ACA—the penalty for not buying health insurance—in the tax bill signed into law at the end of 2017. According to the Congressional Budget Office, by 2027, the repeal of this provision will raise the number of uninsured Americans by 13 million.

10) Undercutting key worker protection agencies by nominating anti-worker leaders

Trump has appointed—or tried to appoint—individuals with records of exploiting workers to key posts in the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB). Nominees to critical roles at DOL and the NLRB have—in word and deed—expressed hostility to the worker rights laws they are in charge of upholding.

This list is based on a new report out from the Economic Policy Institute.

This article was originally published at In These Times on January 19, 2018. Reprinted with permission.

About the Author: The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions.

Workers’ rights dealt major blow as GOP-led labor board sides with McDonald’s

Friday, January 19th, 2018

In September, the National Labor Relations Board tilted to a 3-2 GOP majority for the first time in ten years. Thus began a series of Obama-era policy reversals that previously strengthened worker protections.

By December, the NLRB overturned the Obama-era “Browning-Ferris” rule. The landmark rule had made it easier for employees to hold companies liable for labor violations committed by franchise owners or contractors. Before Browning-Ferris, a company needed to have direct and immediate control over their employees. Overturning the rule had implications for a 2014 case brought against McDonald’s, one of the biggest franchises in the country.

Republicans Are Taking Voter Suppression to the Workplace

Tuesday, January 16th, 2018

A Republican party that survives through voter suppression may be replicating its model in the workplace. In December, the National Labor Relations Board (NLRB) invited public commentary on a possible revocation of a rule that makes employers provide union organizers with contact information for workers in advance of a representation election.

Ostensibly, the Board, which will almost certainly remain in control of Republicans until 2021, is reconsidering Obama-era rules that sped up the timeline of union elections and added phone numbers and email addresses to the list of contact info that unions must be furnished before an election. But outgoing Board Chairman Phil Miscimarra’s bellyaching about “employee rights of free choice and privacy” implies openness to removing any legal right of union organizers to talk with potential members.

The very fact that Trump’s NLRB is inviting public comment indicates that it is considering reversing a much older precedent: the 52-year-old Excelsior rule that employers should provide a list of names and addresses of eligible voters in an upcoming union certification election. Sharon Block, a former member of the NLRB and current Executive Director of the Labor and Worklife Program at Harvard Law School, has argued that the slew of hastily-decided reversals of second-term Obama precedents “seemed to be a rush to set the clock back on workers’ rights as much as possible.”

The Excelsior rule makes employers provide union organizers with a list of eligible voters and their home addresses a few days before an election. It’s an essential tool in a campaign, and any cut is a blow to unions. However, it is also important to remember that Excelsior was a bad compromise, and a real solution lies in actual free speech in the workplace. That will require that unions wage a free speech fight to regain our voice at work.

Captive-audience meetings versus knocking on doors

As soon as the National Labor Relations Act was passed in 1935, employers were already challenging the legal framework for workers to organize and bargain collectively.

In six short years, the bosses succeeded in demolishing the Act’s mandate of employer neutrality by strenuously appealing to the Supreme Court that the standard restricts bosses’ First Amendment right to inform their workers about just how strongly they oppose unionization. Six years after that, a Republican Congress codified this unequal application of free speech in the Taft-Hartley Act.

For a brief time after Taft-Hartley, the NLRB enforced an equal time standard by granting union organizers access to talk to workers on the job when an employer conducted captive-audience meetings. In an all-too-familiar pattern, the Board ping-ponged back and forth between different legal standards on employer speech and union access, depending on which political party was in the White House, until 1966.

That was the year of Excelsior Underwear, Inc ., the NLRB decision that established the right for unions to be furnished with a list of names and addresses of eligible voters. It was issued on the same day that the Board declined to reinstate the equal time rule. The case that we should have won that day was General Electric Co. and McCulloch Corp.

Loathe to trample on management’s rights and private property, the Democratic majority begged the unions in that case to try visiting workers at home and see if that effectively counter-balanced the boss’s work-time campaigning.

Anyone who has worked as a union organizer will tell you that an Excelsior list is no match for the mandatory round-the-clock campaigns of intimidation that union-busters consider “management’s most important weapon” in beating back an organizing drive.

Kate Bronfenbrenner, director of Labor Education Research at Cornell University, has been documenting employer union-busting tactics for decades. Her most recent study, covering the period of 1999 to 2003, found that 9 out of 10 employers use captive-audience meetings to fight a union organizing drive. Bosses threaten to cut wages and benefits in 47 percent of documented cases, and to shut down entirely in 57 percent of union elections. Incredibly, in one out of 10 campaigns employers hired “consultants” to impersonate NLRB agents.

That report is nearly nine years old. It is likely that when Dr. Bronfenbrenner updates her research, all of these numbers will be even higher—particularly the instances of outright lies and deception.

Within the General Electric Co. and McCulloch Corp. decision, the NLRB explicitly invited unions to press the issue of equal time if experience were to prove that knocking on workers’ doors was no match for mandatory captive-audience meetings. Labor law scholars Charles Morris and Paul Secunda were clever enough to notice this half-century-old invitation. Last year, they organized 106 of their leading peers to sign on to a petition to the NLRB to reinstate the equal time rule.

The right to free speech

We shouldn’t hold our breath waiting for Trump’s NLRB to respond to that petition, but we also shouldn’t be patient about demanding change. This past summer, I proposed that unions wage a constitutional battle to challenge the most unequal aspects of labor law and fight for workers’ constitutional rights on the job. Call it Labor’s Bill of Rights.

At the heart of the problem is that the National Labor Relations Act derives its constitutional authority from the Commerce Clause. That means that when workers’ rights are challenged in the courts, judges are weighing corporations’ First Amendment claims against unions’ claims that workers’ rights to organize and go on strike are good for business.

Under that framework, bosses’ rights and business interests have trumped workers’ free speech and human rights. Consider union certification elections. These are official legal elections conducted by an arm of the federal government. At stake is whether the government will enforce certain statutory rights of the workers who wish to form a union. The rules of the election are determined by the government through court decisions, congressional action and NLRB rule-making.  In this simple “yes” or “no” vote about whether there shall be a union, only an employer—and only one advocating a “no” vote—can force voters to attend speeches where they will tell them how to vote And if any voter declines to attend, she can be fired. This is compelled political speech and a massive violation of workers’ free speech rights.

Perversely, Trump’s NLRB could be doing us a favor if it really does kill Excelsior lists by making the imbalance of free speech rights in union organizing campaigns that much starker. Regardless of what new form of union busting the Trump NLRB endorses, we should start waging a campaign to restore the equal time rule now.

What this free speech fight would look like as a campaign is this: every time an employer stages a captive-audience meeting in advance of a union election, we should file an Unfair Labor Practice charge. And every time a union loses an election where the employer conducted captive-audience meetings (which, again, is almost always), we should file an appeal to have the election results overturned.

We should be filing these cases now, even with a Trump Board that will dismiss them all. If we can file a couple hundred challenges and make enough noise about them, we can turn the free speech fight over captive-audience meetings into an obvious controversy that the next Democratic-majority NLRB must respond to.

A Democratic NLRB with a modicum of decency would—at a minimum—re-establish the rule that conducting captive-audience meetings while providing union advocates no right of response is grounds to void an election and order a re-run. Better would be a rule making the very act of conducting captive-audience meetings an Unfair Labor Practice subject to court injunctions, unless union advocates are granted an equivalent platform—in work locations, on work time—from which to campaign for a union yes vote.

If the NLRB were to rule in our favor, we should expect the first employer to face sanctions to resist and drag the case into the federal courts. And then we’re off to the races with a well-deserved counter-attack to the cynical right-wing HarrisFriedrichs and Janus efforts to use free speech as a cudgel against union rights.

This article was originally published at In These Times on January 16, 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.

What #MeToo Can Teach the Labor Movement

Friday, December 29th, 2017

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

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

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

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

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

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

Sexist thought is holding our movement back

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

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

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

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

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

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

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

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

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

Unions can’t win without reckoning with sexism and racism

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

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

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

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

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

Women can’t win without building workplace power

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

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

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

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

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

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

2017 was a year of eroding workers’ rights

Thursday, December 28th, 2017

There have been a series of victories for labor rights in recent years. Graduate student workers at private colleges and universities now have the right to unionize. In New York, employers are no longer allowed to ask for an employee’s salary history — a question that often hurts women and people of color. And the Fight for 15 has scored wins in cities across the country.

But the Trump administration stands in the way of much of the progress labor activists are demanding. It may not be as noisy or ripe for attention-grabbing headlines as Betsy DeVos’ education department or Scott Pruitt’s Environmental Protection Agency, but Alexander Acosta’s labor department has rolled back a number of key Obama-era labor advances.

“Acosta is not a bomb-thrower,” said Jeffrey Hirsch, law professor at University of North Carolina at Chapel Hill. Unlike some of Trump’s other less traditional choices for agency heads, Acosta had already been confirmed by the Senate for three previous positions and was considered a safe choice for labor department secretary.

Still, it’s clear the department is now under a Republican administration.

The National Labor Relations Board (NLRB), which enforces fair labor practices, has an employer-friendly majority. The General Counsel of the NLRB is Peter Robb, a lawyer who management-focused firm Jackson Lewis wrote would “set the stage for the board to reverse many of the pro-labor rulings issued by the Obama board”. The Senate also confirmed to the NLRB William Emanuel, whose nomination was supported by corporate donors and industry groups like the National Retail Federation, U.S. Chamber of Commerce, and National Restaurant Association. Emanuel’s work previous focused on union avoidance tactics and among his former clients were Amazon, Target, Uber, and FedEx.

With these new additions, the Department of Labor has been busy dismantling protections for workers. Here are some of the biggest ways the Trump administration rolled back workers’ rights in 2017:

Less accountability for corporations like McDonald’s

One of the labor rollbacks that gained the most attention this year was the board’s decision to overturn the new joint employer standard that was supposed to make it easier for corporations to be held accountable for unfair labor practices at their franchises. Labor advocates expected the decision for some time after the department rescinded guidance that defines who a joint-employer is.

The Obama administration’s standard on joint employers went beyond simply looking at who sets wages and hires people, and considered a worker’s “economic dependency” on the business. McDonald’s has tried to avoid responsibility for violations like wage-theft for years. In 2016, McDonald’s settled a wage-theft class action and released a statement that said it “reconfirms that it is not the employer of or responsible for employees of its independent franchisees.”

“Under the previous rule, you only needed to show [McDonald’s] had a theoretical amount of control. They reserve the right to control terms and conditions of work and controlled those conditions in an indirect manner like setting policies that other companies have to follow,” Hirsch explained. “The new case has said that no, you need actual direct control. When push comes to shove, it’s a matter of evidence and how much proof you have, so you may well still have a case against McDonald’s but you’re going to have to show that there is more actual control.”

Reduced protections for quality investment advice

In August, the Labor Department said it would like to delay a rule that would require financial advisors to act in the best interest of their customers and their retirement accounts. According to a federal court filing, the department wanted to delay implementation of the rule to July 2019. The full implementation of the rule is currently set for January 2018.

There are two standards investors have to be aware of right now: the fiduciary standard and suitability standard. A financial adviser operating under what is called the “suitability standard” is only required to make sure a client’s investment is suitable for the client’s finances, age, and risk tolerance at that point in time, but they don’t have a huge legal obligation to monitor the investment for the client. Under the fiduciary standard, an adviser must keep monitoring the investment and keep the customer’s overall financial picture in mind. In addition, advisers must disclose all of their conflicts of interest, fees, and commissions under the fiduciary standard. Right now, it’s easier for advisers to push investments that will make them money but are not necessarily in clients’ best interest, said Paul Secunda, professor of law and director of the labor and employment law program at Marquette University Law School.

“That rule has been substantially cut back, though how far back we’re still waiting to see. The current admin is in a holding pattern right now and my sense is that it could be cut back fairly dramatically even further,” Secunda said.

None of these labor department actions have been good enough for the financial industry, however. Plaintiffs in a lawsuit that included the Securities Industry and Financial Markets Association, the Financial Services Institute, the Financial Services Roundtable and the U.S. Chamber of Commerce, sent a Dec. 8 letter to the U.S. Court of Appeals for the Fifth Circuit. The plaintiffs said the delay of regulation shouldn’t hold up their appeal, where they argue the department does not have the authority to promulgate the rule, according to InvestmentNews.

Reduced worker safety

Experts on labor violations and the Occupational Safety and Health Administration told ThinkProgress they were concerned about how OSHA would respond to Hurricanes Harvey and Irma, especially since the Trump administration has slashed worker safety rules from the Obama administration. 

Trump’s OSHA has left behind regulations on worker exposure to construction noise, combustible dust, and vehicles backing up in factories and construction sites, according to Bloomberg BNA. It also abandoned a rule that would change the way the agency decides on permissible exposure limits for chemicals. The July regulatory agenda did not list any new rule-making. The president’s 2018 budget would have killed OSHA’s Chemical Safety Board, which looks into chemical plant accidents, as well as the Susan Harwood grant program, which benefits nonprofits and unions that provide worker safety training.

“OSHA is taking a turn we usually see during Republican administrations, which means a lot less inspections and enforcement and a lot more trying to get employers to self-regulate or voluntarily comply which has not really worked that well historically,” Secunda said. “People who participate in these voluntary participation programs are usually employers who are already in compliance and those who continue to be bad actors are not really impacted by these voluntary programs. OSHA is about to be run by corporate America, which is obviously not good for employees.”

Deciding to let go of Obama-era overtime rule

In July, the labor department moved to roll back an Obama administration rule that would have expanded the number of workers eligible for overtime pay by 4.2 million. The department has not appealed a U.S. District Court in Texas that gave business groups the temporary injunction they wanted.

The current threshold for overtime pay is at just $23,660 a year, and the Obama-era rule would have nearly doubled that. In 1974, 62 percent of full-time salaried workers had a salary that allowed them to be eligible for overtime, but today, only 7 percent of full-time salaried workers earn a salary below this level, according toDavid Weill, dean of the Heller School for Social Policy and Management at Brandeis University who headed the Wage and Hour Division of the department during the Obama administration.

Referring to Acosta, Weill wrote in U.S. News, “Failure to appeal this flawed decision will leave millions working long hours with low pay and abrogate his responsibility to protect the hardworking people he and the Trump administration profess to care so much about.”

Labor department focus on ‘harmonious workplaces’

In one of the NLRB’s less discussed decisions this month, it overruled the Bush-era standard Lutheran Heritage Village-Livonia. This standard went into further detail on whether facially neutral workplace rules, policies, and handbook provisions could unlawfully interfere with Section 7 of the National Labor Relations Act. (Under Section 7, it’s unlawful for employers to interfere with employees’ organizing rights.) The NLRB provides the example of employers threatening, interrogating, or spying on pro-union employees or promising employees benefits if they stay away from organizing as unlawful activity under Section 7.

Under the 2004 standard, employers could have the violated the National Labor Relations Act by instituting workplace rules that could be “reasonably construed” to prohibit workers from accessing these rights even if the employers don’t explicitly prohibit the activities.

Hirsch said he was surprised by the decision to reverse a Bush-era decision. “To me, it seems like they’re doing more than they needed to, which makes me wonder if they’re trying to make a point.”

Hirsch added that the decision appeared to carve out certain types of rules, such as a civility code in the workplace, and say they were permissible. The decision referred to employers who wanted “harmonious workplaces” and cast any opposition to such a requirement to be impractical, but Hirsch said there needs to be a balance in NLRB decisions between clarity and flexibility.

“That can be problematic bevause they’re rules that depending on the history of what has happened in that particular workplace and it could actually be viewed as fairly chilling for those employees,” Hirsch said. “… Labor and management relations aren’t always harmonious. In fact, they are designed not to be in a  lot of ways. Sometimes harsh language is used by both sides and sometimes that is OK, or we’re willing to tolerate that as part of the collective bargaining process rather than having violent strikes, like we did before the NRLA.”

‘Micro-unions’ are out of luck

The NLRB made another business-friendly decision this month when it decided that a unionized group of 100 welders and “rework specialists” at a manufacturing company with thousands of workers was improper. This means it will be easier for employers to oppose what are referred to as “micro unions” even though it can be advantageous for workers to organize this way. The decision went against eight federal appeals court rulings, according to Reuters.

LGBTQ workers’ not protected by Title VII

There is ongoing debate over whether LGBTQ workers have rights to ensure that they are treated fairly in the workplace under Title VII, part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. In July, the Department of Justice undermined rights for LGBTQ people when it filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.

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

Wednesday, December 20th, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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