Today’s News & Commentary — March 5, 2015 [Updated]

[Updated] Today, the Wisconsin Assembly begins the final stages of debate on a “right to work” bill, Reuters reports. Assuming it passes, Governor Scott Walker could sign it as early as next week. Reuters spoke with Ben Sachs, who explained that the law could weaken unions over time, and because unions typically support Democrats, this could eventually “disable[] the political opposition.”  We’ve explained the background of this bill and posted a legal analysis.

An op-ed in the Wall Street Journal argues that Wisconsin’s new “right to work” bill will increase economic competitiveness in that state. It cites evidence from the Bureau of Labor Statistics that “right to work” states have seen a faster increase in job growth between 2003 and 2013 than non-“right to work” states. CNBC News, however, writes that other researchers have found that “right to work” laws do not increase job growth at all.

The Washington Post and ProPublica both have reports on newly emerging flaws in the nation’s workers’ compensation system. The ProPublica investigative report documents how states have dramatically weakened workers’ compensation in the past two decades. It found that since 2003, 33 states have past laws limiting which employees can access compensation, and how much payment they can receive. It argues that this shifts the costs of workplace accidents to taxpayers and the injured worker. The Post adds that a on a recent Department of Labor report found that low-wage workers, and especially Latino workers, are disproportionately injured on the job. And because many of these workers are misclassified as independent contractors, they are less likely to report the injury, and less able to seek compensation.

In sports news, the New York Times reports that Major League Soccer players may go on strike. The players’ union and the league are in a dispute over salaries and free agency rules. Last year, the minimum salary was $36,500, and free agents (players who could be redrafted by another team) could only be paid at their pre-existing salary rate. The players union wants free agents to have the ability to negotiate for a higher salary and then choose which offer to accept, rather than being assigned to a new team with no say in the matter. A strike could be called as early as Wednesday.

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House Subcommittee Examines Resolution to Block NLRB “Ambush Election” Rule

On Wednesday March 4, the Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “H.J. Res. 29, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Labor Relations Board relating to representation case procedures.”

According to a press release by the House Education and the Workforce Committee:

In December 2014, the National Labor Relations Board (NLRB) finalized its ambush election rule, which dramatically alters long-standing policies governing union elections. The rule significantly shortens the time between the filing of a petition for a union election and the election date, limits the opportunity for a full and fair hearing of issues that may arise during the election proceedings, and grants union organizers greater access to employees’ personal information. As a result of these and other changes, the rule will undermine the right of employers to speak to employees, cripple the ability of employees to make informed decisions, and jeopardize the privacy of workers and their families.  Under the Congressional Review Act, the House and Senate may vote on a joint resolution of disapproval to stop a federal agency from implementing a rule or regulation. H.J. Res. 29 would block the NLRB’s ambush election rule and safeguard election procedures that have served employees, employers, and unions well for decades. Wednesday’s hearing will provide members the opportunity to examine H.J. Res. 29 and the harmful consequences of the NLRB’s unprecedented re-write of union election procedures.

The witness list for the hearing included:

Ms. Brenda Crawford – Registered Nurse (Murrieta, CA)

Mr. Roger King – Senior Labor and Employment Counsel, Testifying on behalf of the Retail Industry Leaders Association (Washington, DC)

Mr. Arnold E. Perl – Member, Glankler Brown, PLLC (Memphis, TN)

Mr. Glenn M. Taubman – Staff Attorney, National Right to Work Legal Defense and Education Foundation, Inc. (Springfield, VA)

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The Legal Problem with Wisconsin’s Right-to-Work Law (and what to do about it)

Wisconsin is about to pass a right-to-work law. Yesterday, Rachel provided an excellent background on this bill. Here, I want to make just a couple of comments.

First, the relevant language of the Wisconsin bill is identical to Indiana’s recently-enacted statute. The law would dictate that no one may be required, as a condition of employment, to “[p]ay any dues, fees, assessments or other charges or expenses of any kind or amount.” As we reported and discussed, the Indiana law was challenged on preemption grounds in a case called Sweeney v. Pence, but that challenge was unsuccessful. Significantly, though, a petition for rehearing en banc nearly succeeded when five Seventh Circuit judges from across the ideological spectrum (Judges Posner, Rovner, Wood, Williams, and Hamilton) voted to grant the petition (five voted not to).

The preemption analysis that Judge Wood adopted in her Sweeney dissent will be available to opponents of the Wisconsin law. So, too, would a slightly narrower preemption attack that Catherine Fisk and I put forward in a recent article. There, Fisk and I explained that pursuant to NLRA §14(b), right-to-work laws can prohibit collective bargaining agreements that condition employment on a worker’s “membership” in a labor organization. And, we argued that the Supreme Court’s decisions in General Motors, Schermerhorn, and Beck together imply that the definition of “membership,” for 14(b) purposes, means:

[T]he financial requirement of paying dues and fees equivalent to the share of member dues and fees that fund the union’s collective bargaining and contract administration functions. The definition of membership that emerges from the Court’s opinions is thus far broader than the literal “membership” to which section 14(b) refers, but not so broad as to cover all forms of mandatory payments from employees to unions. Indeed, the Court’s opinions suggest that a provision in a collective bargaining agreement requiring all employees in a bargaining unit to pay the proportion of membership dues that cover members’ representation in disciplinary matters—but nothing more—would not “require membership” within the meaning of section 14(b). In general terms, so long as the required payments are less than what members pay to support collective bargaining and contract administration functions, they do not constitute the equivalent of membership and thus may not be prohibited.

Thus, right-to-work statutes like Indiana’s and Wisconsin’s – which ban “charges or expenses of any kind or amount” – go beyond what 14(b) permits and therefore are preempted.

It is worth noting that this argument is slightly distinct from and somewhat narrower than the one Judge Wood adopted in her Sweeney dissent. Continue reading

Today’s News & Commentary — March 4, 2015

The Senate voted yesterday to reverse a new NLRB rule that would shorten the time between a union’s request for representation and the actual union certification vote. According to AP, the new rule, which is set to take effect in April, also provides for the union to receive the email addresses and telephone numbers of workers to facilitate communication prior to the election. The rule is meant to counter widespread reports of interference and unfair tactics used by employers and sometimes outside groups before certification votes actually take place, a period that can sometimes last for months. The White House promised to veto the measure before yesterday’s 53-45 party-line vote in the Senate, and it is unlikely that Republicans have enough votes to override the veto.

The Supreme Court will hear oral arguments this morning in King v. Burwell, the latest legal challenge to the Affordable Care Act, according to the LA Times. The suit alleges that under a strict reading of the statute the insurance subsidies that were implemented with the help of the federal government in 37 states are illegal. That would leave intact the plans of only a handful of states that established their own exchanges through the law. If the suit is successful, an estimated 7 million people could lose access to their healthcare coverage under the ACA.

A ruling from an NLRB Regional Director yesterday cleared the path for unionization for adjunct faculty members at Seattle University, according to Inside Higher Ed. The director rejected the university’s argument that a union would not be valid because of the school’s Roman Catholic Jesuit status. The case was the first in a handful that were remanded to local boards following the NLRB’s precedent-setting ruling in Pacific Lutheran University in December 2014, in which the Board found that the adjuncts in question did not have specific religious or managerial duties that should block unionization. Following that decision, the Board remanded several similar cases back to the local boards to be decided in light of the new standard. In related news, the New York Times reports on the continuing effort of Columbia University’s adjuncts to pressure the university to voluntarily bargain with them, following a similar and successful petition at NYU in 2013.

Today’s News & Commentary — March 3, 2015

According to The Wisconsin State JournalWisconsin law makers will likely vote Thursday on a proposed bill that would strip private unions in that state of their ability to charge mandatory fees of all workers that they represent. Such laws are commonly called “right-to-work” laws, which we posted an explainer about yesterday. Because unions are bound by the duty of fair representation, they must represent all workers within the bargaining unit. In order to cover those costs, workers in union shops must pay a fee which covers a “fair share” of the costs of representation they receive, including workers that have opted not to be union members. Passage of the bill would make Wisconsin the 25th state in the Union with such a law on its books. The Wisconsin State Journal reports that, “[o]pponents of the bill said it was an effort by the Republicans who control state government to weaken labor organizations that tend to support Democratic candidates.”

With right to work laws picking up steam in Illinois, Kentucky, and Missouri, and likely to be passed this week in Wisconsin, Lydia DePillis at The Washington Post takes a look at what options and strategies the labor movement might take up if the fight against right-to-work laws turn out to be a losing one. A survey of several labor experts revealed that, while these laws are a blow to labor, they do not spell its “obliteration.” But survival might require a revisioning of traditional labor mechanisms, such as permitting members-only unions, as Catherine Fisk and Benjamin Sachs made the case for in a recent paper. Other strategies that might strengthen worker bargaining power include advocating for laws that would require the disclosure of wage and salary information (as Cynthia Eslund has argued for), strengthening “alt-labor” organizations, and carving out a significant role in immigration legislation reform. Finally, unions simply need to work harder to demonstrate their value to the members and other workers. As David Rolf told The Washington Post “…now is the time for risk and experimentation and trying to build new models… [b]ecause whether we like it or not, some of the tools associated with those models are going away.”

An Explainer: What’s Happening In Wisconsin?

This past Thursday, the Wisconsin Senate passed a so-called “Right to Work” bill, leading to protests in the state’s capital.

What Is Wisconsin’s “Right To Work” Bill?

Once a union is recognized as the representative of a bargaining unit, that union is obligated to collectively bargain on behalf of all employees, not just union members. Because of this obligation, unions may require non-members to pay their share of the costs of collective bargaining and contract administration—known as “fair share” fees—as long as those fees don’t go toward other union functions such as political activity. The Wisconsin bill, like other states’ so-called “Right to Work” laws, would prevent unions from collecting these “fair share” fees from non-members.

Governor Scott Walker, a Republican who is widely expected to run for President in 2016, initially suggested this bill should not be a priority for the Senate, however, he has since announced that he will sign it. Twenty-four other states have adopted similar “Right To Work” laws, many in recent years, according to NPR. The New York Times reports that the bill introduced in Wisconsin is “is almost verbatim from a model provided” by the conservative advocacy group the American Legislative Exchange Counsel (“ALEC”).

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Today’s News & Commentary – March 2

Bloomberg Business reports that South Korean Employment and Labor Minister Lee Ki Kweon said in an interview that large companies should hire more permanent workers and boost pay to subcontractors.  One-third of South Korea’s workforce is employed on temporary contracts, and these contract workers earn an average 56 percent of what regular, full-time employees earn.

On Sunday, German labor union Verdi called for a strike at Deutsche Bank’s retail unit Postbank to enforce job security and higher wages.  Verdi stated that the union expects “an offer that extends job guarantees [until 2020 from the end of last year] and [5%] higher wages.”  The strikes will take place at various locations throughout Germany on Monday.  Verdi’s strike comes at a time when Deutsche Bank is working on a strategy shift that may include selling or “floating” Postbank.

The Los Angeles Times writes that California longshoremen’s unions have retained influence in an era where unions are pushed to the side in favor of globalization and automation.  About half of West Coast union longshoremen make more than $100,000 a year, and over half of foremen and managers earn more than $200,000 each year.  All longshoremen union employees get free healthcare.  This advantageous position, in stark contrast to many other shipping industry unions, is largely due to collective bargaining and contract deals in the 1930s and 1960s.

However, not everything in California’s shipping industry is smooth sailing.  The Wall Street Journal reports that, in light of the massive port worker slowdown that has all but shut down West Coast shipping, managers have had to resort to creative measures to keep cargo from piling up.  Some have tried making time slots for short-haul truck drivers, others have eschewed moving containers around to get specific cargo and instead just giving each truck driver the first cargo off the top of the stack.  Still others have turned to an Uber-like app called Cargomatic to direct short-haul truck drivers.  Even since a tentative contract was reached Feb. 20, experts estimate it could be almost six months before shipping returns to normal, and that these delays could cost retailers billions of dollars this year.