Today’s News and Commentary–December 17

Three Kentucky counties have begun the process of enacting county-level right-to-work laws, including Warren County, home of the UAW-organized Corvette plant in Bowling Green. In Warren County, a “final reading” of the right-to-work law—the last step in the enactment process—is scheduled to take place on December 19. The Nation has explained that the National Labor Relations Act, which allows a “State or Territory” to pass a right-to-work law, may preempt action at the county and municipal level. On Labor has covered this matter in some detail. It is also not clear that counties are empowered to enact right-to-work legislation under Kentucky law. Kentucky Attorney General Jack Conway, a Democrat, will issue a legal opinion on whether Kentucky law allows such actions. These measures are the beginning of a coming sustained and widespread push by conservative groups, including ALEC and the Heritage Foundation, to enact local right-to-work legislation.

The NLRB may issue decisions in the widely anticipated Browning-Ferris and Northwestern University cases as early as today. On Labor has covered both cases in detail. In Browning-Ferris the Board is deciding whether to expand its definition of “joint employer” so that businesses may be held responsible for labor violations committed by their franchisees or sub-contractors when the businesses exercise a sufficient degree of control over the franchisees or sub-contractors. Reuters has a short explainer here. In Northwestern University, the Board will consider whether football players at that university are “employees” under the National Labor Relations Act, with implications for other ambiguous relationships at academic institutions.

Employees at a Sysco location in Atlanta voted to join the Teamsters yesterday. The vote was 220 to 141 in favor of unionization. The vote comes as Sysco, the world’s largest industrial food service provider, attempts to acquire U.S. Foods, the second largest. The proposed merger has drawn intense scrutiny from federal and state authorities.

Among its many provisions, the massive “CRomnibus” legislation recently approved by Congress loosens restrictions on the number of hours truck drivers can spend driving in a week. Under the existing 2013 rule established by the Federal Motor Carrier Safety Administration, truck drivers could drive a maximum of 70 hours per week and were required to take a certain amount of rest and to take part of that rest during the early morning hours. With the CRomnibus, Congress increased the maximum number of weekly driving hours from 70 to 82 (the pre-2013 maximum) and suspended the requirement that drivers rest during the early morning hours. Lydia DePillis of the Washington Post covers the changes in detail. The Department of Transportation, the Teamsters, and Public Citizen all argued against loosening the restrictions, while large trucking companies and drivers operating as independent contractors supported the change.

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Today’s News & Commentary — December 16

The NLRB has delivered an opinion changing its policy on arbitration agreements, tightening the standards under which it will evaluate the findings of an arbitrator over unfair labor practices before deferring to those findings. The burden of showing why a court should agree to an arbitrator’s standard has now also shifted to the party favoring deferral. Under the board’s new standard, deference to an arbitration award involving an unfair labor practice is appropriate when: “(1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award.” The case is Babcock & Wilcox Construction Co., Inc. and Coletta Kim Beneli (Case 28-CA-022625), and the decision is available in its entirety here. More commentary is available at POLITICO

A federal judge in Pennsylvania has found President Barack Obama’s executive order on immigration unconstitutional. The executive order has given millions of illegal immigrants protection from deportation. In a 38-page ruling, district court Judge Arthur Schwab found that the action goes “beyond prosecutorial discretion.” The Wall Street Journal reports.

Two national hotel-industry groups have filed a suit against the city of Los Angeles, challenging a recent minimum-wage increase as a violation of federal labor law. The Hotel Workers Act, which is slated to take effect in July, would have raised minimum wage in large hotels to $15.37/hour. The groups filing suit –  the American Hotel & Lodging Association and the Asian American Hotel Owners Association – argue the Act unfairly targets a single industry. The groups further claim that their concern is not the wage increase, but a provision of the act allowing its requirements to be waived by any hotel covered by a collective-bargaining agreement. In doing so, the group argues, the law allows unions to pressure non-unionized hotels to organize. The Wall Street Journal reports.

In international news, strikes at’s shipping centers have expanded to seven of nine German sites. The German services union Verdi is demanding reclassification of workers and wage increases. The Wall Street Journal reports.

According to the New York Times90% of New York City teachers received one of top two rankings in a new evaluation system. Most districts had negotiated the specifics of these new systems with teachers’ unions – New York City could not reach an agreement with the United Federation of Teachers, and its system was ultimately imposed by the state.

The United Automobile Workers union will be seeking wage increases for members in 2015 contract talks. Dennis Williams, the U.A.W.’s new president, has commented that workers at General Motors, Ford and Fiat Chrysler deserve a larger share in the success of the companies, particularly after the U.A.W. agreed to lower pay for entry-level jobs. The New York Times reports.

Four unions of Chicago workers have filed a lawsuit against the city, claiming changes to its municiple pension plans are “unfair and unconstitutional.” The lawsuit seeks to permanently overturn changes to the municipal retirement system, which serves about 55,000 workers. The Chicago Tribune reports.

The Biggest Labor Developments of 2014 [Updated]

This post has been updated below.  We’ll continue to update this post throughout the week with more input from leading labor voices.

As our reader poll continues, we wanted to share the votes of some leading labor voices.  You can click here to add your own vote (we won’t post anyone’s vote without asking first (unless you tweet it!)):

Anna Burger: Harris v. Quinn

Catherine Fisk: The fast food campaign and the political success of minimum wage laws

Charlotte Garden (via twitter): The political success of minimum wage laws

Dave Jamieson: The fast food campaign

Wilma Liebman:  Volkswagen/UAW efforts, fast food strikes and Market Basket (not necessarily in that order)

Moshe Marvit (via twitter):  Harris in the courts, Fast Food campaign in the streets

John Raudabaugh:  VW’s decision to engage in ‘constructive dialogue’ with worker organizations at the Chattanooga plant

David Rolf: Political success of minimum wage laws

Andy Stern: Harris v. Quinn

[Updated] Trevor Burrus: Harris v. Quinn

Here, too, are a couple of explanations that accompanied the votes above.

Catherine Fisk, of U.C. Irvine Law School, writes to us:

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Reader Poll: What Were the Biggest Developments in Labor This Year?

Looking back on 2014, it is clear that this has been (for better and worse) a major year in labor.  From the Supreme Court to Chattanooga, TN, and from Northwestern football to McDonald’s restaurants, a lot has happened.  Here at OnLabor, we’re interested in your views on what the most important labor developments have been over the past twelve months.  So, to take advantage of the expertise and experience of our readership, we’re running our first ever reader poll.

To get things started, we’ve put together a partial list (not in any particular order) of what seem to us major developments from 2014. But we want to hear from you.  So let us know your thoughts by completing the poll.  You can use the options we’ve provided or suggest ones we’ve left out.  Once we hear from you, we’ll post the results at OnLabor.

1.  The Supreme Court’s decision in Harris v. Quinn.  (We extensively covered the pre-game analysis, the decision, and some of its implications).

2.  The Supreme Court’s decision to dismiss Mulhall. (We covered the lead-up to the case, our reactions to the oral arguments, some perspectives from around the political spectrum, and the implications of the dismissal).

3.  The UAW’s loss at VW in Chattanooga, TN. (Which we explained, covered, and analyzed)

4.  VW’s decision to engage in “constructive dialogue” with worker organizations at the Chattanooga plant.  (Which we covered and provided some analysis of the legal issues).

5.  The ALJ decision that Northwestern football players are “employees” within the meaning of the National Labor Relations Act.  (We covered the decisionits background, and some of its implications for football players and other athletes).

6.  The NLRB general counsel’s decision to authorize complaints against McDonalds as a joint employer.  (We covered the decision, some of its implications, and some disagreeing viewpoints).

7.  The fast food campaign.

8.  The new NLRB election rule.

9.  The political success of minimum wage laws.

10.  Market Basket.

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Today’s News and Commentary — December 15

As Prof. Sachs recounts in more detail here, the NLRB on Friday issued a new final rule which allows the NLRB regional director responsible for elections to decide “which, if any, voter eligibility questions should be litigated before an election is held.” This marks a shift from prior practice under which voter eligibility questions had to be litigated prior to the election.

SFGate reports that on Saturday, restaurant workers at San Francisco International Airport returned to work after a two day strike led by UNITE HERE! Local 2. The union stated that the walk out was intended to send a message to the airport’s restaurants that they were determined to win job security protections and health care coverage. Union representatives hinted that such actions could continue during the busy holiday travel period.

According to the StarTribune, members of the International Association of Machinists Lodge 1947 approved a 5-year extension of their labor contract with Mercury Marine in Fond du Lac, WI. This Midwestern employer of 2,800 had openly discussed moving its manufacturing plant to Oklahoma, with the IAM offering concessions and local government offering incentives to convince them to stay.

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The NLRB’s Election Rule

The NLRB has issued a Final Rule making some relatively minor changes to its procedures in union election cases. These are limited, commonsense changes that will improve the current procedures for running union elections. The improvements will come primarily from reducing (some) delay and improving information flow to workers – improvements that are badly needed.

Under the new rule, the NLRB regional director responsible for an election will decide “which, if any, voter eligibility questions should be litigated before an election is held.” This marks a shift from prior practice under which voter eligibility questions had to be litigated prior to the election – even if they weren’t relevant to the question of whether an election should be held – a practice that the Board correctly determined often produced unnecessary litigation and delay. The new rules also make a sensible change to the voter list employers provide during elections. Whereas, previously, the list included only employee names and home addresses, lists will now include phone numbers and email addresses (where available). Since the purpose of voter lists is ensuring that employees are able to hear all sides of the debate over unionization – including the union side – it makes good sense to give unions information that will enable them actually to contact employees. Plus, many employees would probably far prefer to get a phone call or an email from a union organizer than a home visit. Continue reading

Weekend News and Commentary – December 14, 2014

This week, California prison officials agreed to make minimum custody inmates employed by the prison system eligible for early release. The proceedings resulted from the Supreme Court’s finding in 2011 that California’s prisons were so overcrowded that their conditions violated the Eighth Amendment. The Attorney General’s office had resisted the settlement previously, arguing that the inmates provided a necessary supply of labor to the prison system. But after receiving negative press, the AG’s office distanced itself from these objections and, within a few weeks, agreed to settle. If approved, the settlement filed last Friday would allow inmates, who are paid anywhere from 8 to 37 cents per hour as janitors, cooks, and groundskeepers, to start earning reduced sentences in January 2015.

Last Friday, Bill-C36, or the Protection of Communities and Exploited Persons Act, a new Canadian anti-prostitution law criminalizing those who buy sex, officially took effect. Under the new law, it is illegal to knowingly advertise an offer to provide sexual services and profit from the material benefits from the sale of sex; however, individual sex workers will not be charged with advertising their services. Just one year ago, Canada’s Supreme Court struck down the country’s anti-prostitution laws, which prohibited sex-workers from designating a regular meeting place to meet with clients, ruling that the laws violated the constitutional guarantee to life, liberty and security.  But many believe that the new sex work law will make conditions less safe for sex-workers by making it impossible for sex-workers to hire bodyguards and other assistance, who, by earning a salary off of the “material benefits” of sex work, would face up to ten years in prison. Kerry Porth, chairwoman of Pivot Legal Society, a legal advocacy organization based in Vancouver, and a former sex worker, commented that, although the bill was intended to protect sex workers, criminalizing consumers and public communication around sex work will lead to rushed transactions preventing sex workers from adequately screening clients.

A group of over 100 protesters, including Reverend Jesse Jackson, gathered outside Apple’s Cupertino campus this past Thursday to deliver a petition signed by 20,000 people, calling on Apple to help raise the wages of its contractors. The demonstration was organized by a regional division of SEIU, United Service Workers West, whose efforts to unionize security guards across Silicon Valley has recently focused on Apple, with the hope that it will help lead industry-wide reform. The protest took place just weeks after a recent labor victory in the Valley won by Facebook shuttle bus drivers, who voted to join the Teamsters in late November.

The Trades Union Congress (TUC), a British trade union center, reported that 1 in 12 workers in the labor force are now in in low-wage, precarious employment, including zero-hours contracts, agency employment, and short-term employment. According to the report, only 1 in 20 men and 1 in 16 women worked under such conditions in 2008, but these numbers increased by 61.8% for men and 35.6% for women in just six years. The TUC issued a report specific to women in precarious employment, making recommendations that employers implement fixed work patterns and payment for time that casual workers are on call.

Addressing similar issues in the U.S., the New York Times published a piece yesterday discussing the rates at which workers are leaving the workforce across gender. After climbing for six decades, the percentage of women between 25 and 54 in the American workforce has been declining since 1994, when 74% of women were in the workforce, and has now fallen to 69%, far below Sweden (83%), France (76%), Portugal (72%) and several others. The New York Times/CBS News/Kaiser Family Foundation poll of nonworking adults in the United States offers some insights into this recent trend, revealing that, for 61%of women, family responsibilities were a reason they weren’t working (compared with 37% of men) and that many were unwilling or unable to move to a new city for a job.

Earlier this month, the Department of Labor released the sixth edition of the List of Goods Produced by Child Labor or Forced Labor, a report required by the Trafficking Victims Protection Reauthorization Act of 2005. The list does not include information about U.S. workplace practices, but it calls attention to certain sectors of the international economy, especially agriculture, relying heavily on child and forced labor. The release of the list was followed closely by an announcement by several of the world’s biggest tobacco companies, including Philip Morris International and British American Tobacco, that they would pledge to end child labor in their supply chains, marking the first time that members of the industry had jointly agreed to abide by international labor law, according to Human Rights Watch