Gorsuch’s Judicial Approach and Workplace Protection

When Judge Neil Gorsuch accepted his nomination to the Supreme Court, he professed modesty about his role on the Court, if he is confirmed.  He proclaimed that it is the role of judges to “apply not alter the work of the people’s representatives.”  But, unfortunately, Judge Gorsuch’s record casts serious doubt on whether he would truly respect the role of Congress when it comes to drafting legislation that protects the well-being of the American people.  A recent case involving a truck driver who was fired for leaving his load to take refuge after waiting two and a half hours without heat on a sub-freezing night illustrates how Judge Gorsuch’s approach to the law would endanger workers and the public.

For 150 years, Congress has drafted remedial legislation with the understanding that the courts would liberally construe the provisions of the laws to accomplish their ends.  Here’s what Representative Samuel Shellabarger, the author and manager of the 1871 Civil Rights Act said regarding that Act: “This act is remedial, and in aid of the preservation of human liberty and human rights.  All statutes and constitutional provisions authorizing such statutes are liberally and beneficially construed.  It would be most strange, and in civilized law, monstrous were this not the rule of interpretation.  As has been again and again decided by your own Supreme Court of the United States … the largest latitude consistent with the words employed is uniformly given in construing such statutes….”

Nor was that just the wishful thinking of a legislator.  Even in 1930, during the height of what we refer to as the Lochner era, a unanimous Supreme Court acknowledged that the Federal Employers’ Liability Act (FELA), a law designed to protect injured workers, was “to be construed liberally to fulfill the purposes for which it was enacted.”  Thus, the Court held that even though the statute only imposed liability on railroads for injuries that resulted from the “negligence” of the railroad’s agents or employees, it was proper to impose liability where a foreman assaulted a worker.  The Court explained that since the employer would clearly be liable if the worker’s injuries “had been caused by mere inadvertence or carelessness on the part of the offending foreman it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the Act.”

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Collective Bargaining Can Still Work

People have been writing the obituary of the labor movement at least since the 1980s.  These doomsayers fall into two camps.  One the one hand, there are those who are eager to squelch worker power.  A typical example is Virginia Foxx, the new Chair of the House Education and the Workforce Committee, who recently grabbed headlines when she asserted that organized labor had “sort of lost its reason for being.”  Representative Foxx has never shown any interest in improving the lives of workers, so her comments are like a rabid Yankees’ fan predicting a bad year for the Red Sox.  Of course, she’s not just a “fan,” she holds a position of power where she will undoubtedly try to make it harder for workers to bargain collectively.

But, at the moment, I’m more interested in the other critics – the labor partisans who argue that a new model is necessary to reverse labor’s long decline.  Academics and outside observers have long tried to garner attention by promoting a shiny new toy that would replace the existing labor law regime.  But it is more notable when a successful labor leader like David Rolf makes the same case.  Rolf, a savvy strategist, who heads a home care workers’ union in Washington State, was one of the driving forces behind a successful ballot measure that dramatically raised wages and won paid sick leave for thousands of workers in SeaTac, where Seattle’s airport is located.  Even though the Fight for Fifteen in Seattle could never have succeeded without support from unions that were the product of collective bargaining, Rolf is now going around the country arguing that collective bargaining is dead and unions need to find something new to replace it.  In a post on this blog, Rolf set up a straw man by criticizing the status quo as based on “enterprise bargaining.”  Elsewhere, Rolf suggested that we need a new model to promote geographic and/or sectoral bargaining.  While it’s true that under current law, multiemployer bargaining is voluntary, unions already have a long history of engaging in geographic and/or sectoral bargaining.  In some cases this has happened through formal multiemployer associations, while in other cases it happens informally on a de facto basis, but wherever unions have been successful, whether it is hospital workers in New York, supermarket workers in California, hotel workers in Las Vegas, or office cleaners in two dozen cities, this is what unions do now.  And it’s not just in “legacy” industries.  In fact, just this month, my union, SEIU Local 32BJ, reached a first contract with eleven employers covering over 7,000 workers at New York City’s three airports.  Furthermore, even bargaining with a single employer can make a huge impact if the employer is large enough.  For instance, the Teamsters represent over 250,000 workers who are employed by UPS.  And if there were a successful campaign to organize Wal-Mart, that would cover over one million workers.

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When They Talk About Joint Employers, Republicans Are Either Lying or Confused

Now that Republicans in Congress are about to get a President who will sign their bills into law, they are eager to overturn even the most modest pro-worker measures that President Obama’s appointees were able to implement.  One of the top items on the chopping block is the “joint employer” standard that the NLRB announced in 2015 in its Browning-Ferris Industries decision.  What’s unfortunate is that rather than debate the Board’s decision on the merits, Republicans in Congress insist upon misrepresenting the decision and its effects.

Consider a recent column by Representative Bradley Byrne, who sits on the House Education and the Workforce Committee.  He wrote, “[t]here may be no regulation that threatens to crush small businesses and working people more than a recent ruling from the National Labor Relations Board relating to the definition of a ‘joint employer.’”  Byrne asserts that the ruling will make big firms liable for the actions of small firms, and thus they are “unlikely to do business with them anymore.”  This is simply wrong.  Joint employers are not automatically liable for each other’s actions.  Instead, under long-settled Board law, a non-acting joint employer is only liable where it knew or should have known that the other employer acted for unlawful reasons.  Apart from being wrong as a matter of law, the claim is absurd as a matter of common sense.  It’s like saying no homeowner would ever hire an electrician because there are some circumstances where the homeowner could be liable for actions taken by the electrician.  In fact, the Browning-Ferris decision wasn’t about liability, but rather about the right of workers to bargain with actual decision-makers.  The workers in Browning-Ferris were employed by a staffing agency, but Browning-Ferris retained the right to dictate who could work at the facility, it set schedules, controlled the speed of the production line, and imposed a maximum wage rate for the agency’s employees.  When the workers formed a union, they wanted the right to bring Browning-Ferris to the table, so that they could bargain about these vital issues.  Byrne also makes the unsupported claim that 600,000 jobs “could be either lost or not created” because of the Browning-Ferris decision.  But, at most, the decision might lead big firms to follow a different business model – if big firms choose to hire workers directly rather than through intermediaries, the workers’ jobs won’t disappear.

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What Will a Trump NLRB Mean for Graduate Teaching and Research Assistants?

The D.C. Circuit once observed that “[i]t is a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing compositions of the Board.”  In 2000, the Clinton Board found that teaching and research assistants at private universities are “employees” covered by the NLRA; in 2004, the Bush Board found that they were not, and in 2016, once again, the Obama Board found that they were employees.  This has led to speculation that a Trump Board will deny employee status to teaching and research assistants.  In acknowledging this possibility, I don’t want to suggest that this result would be reasonable – the majority opinion in the Board’s 2016 Columbia University case offers a compelling statutory analysis in support of its conclusion.  By contrast, the dissent’s position largely relies on speculation about the effects of collective bargaining on universities, with a particular emphasis on the potential disruption from the use of economic weapons.  Oddly, the dissent fails to acknowledge that many of these weapons – strikes, lockouts, loss of academic credit, loss of prepaid tuition – would be available even if the Board denies employee status to teaching and research assistants.  In fact, Congress enacted the NLRA in the hope that encouraging collective bargaining would minimize industrial strife and unrest.  But, if a Trump Board nevertheless rules that teaching and research assistants are not “employees,” what will happen at Harvard and Columbia, where teaching and research assistants have already voted on unionization?  Assuming they vote in favor of unionization, their unions should be safe for at least an initial contract cycle.

The NLRB does not simply issue fiats setting forth policies.  Instead, it decides particular cases.  In deciding cases, the Board often sets policies that have much broader implications, but even if a majority of Board Members would like to overturn a particular precedent, they must wait until they have a case that raises the issue.  You might think that Harvard or Columbia could raise the issue with the Trump Board simply by refusing to bargain with a victorious union.  But, when an employer refuses to bargain with a newly certified union, since the earliest days of the NLRA the Board has adhered to a policy of refusing to allow the employer to raise issues that “were or could have been litigated in the underlying representation hearing.”  This is true even where the issue raised by the employer is jurisdictional.  For instance, the NLRA definition of “employee” excludes individuals employed as supervisors.  But, where employers have argued that a bargaining unit improperly includes supervisors, the Board has refused to address those claims in refusal-to-bargain cases following a union election.  This has been true even where the Board Members have suggested that they were sympathetic to the employer’s position on the merits.  In Evergreen New Hope Health & Rehabilitation Center, a 2002 case, the employer argued that a newly certified unit improperly included statutory supervisors.  Board Members Hurtgen and Bartlett both noted in a footnote that they did not necessarily endorse the decision that had been reached in the representation case, but nevertheless the issue raised by the employer was not “properly litigable” in the refusal-to-bargain case.

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It’s Time for a Real Right to Work

In 1912, when the labor leader Eugene V. Debs ran for President for the fourth time as the Socialist Party candidate, in his acceptance speech he spoke of a day when “the right to work shall be as inviolate as the right to breathe the breath of life.”  But, in the 1940s, the term “right-to-work” was hijacked by right-wing business interests, and used to describe laws that do not actually give anyone the right to work.

The failure of the labor movement to take ownership of the term “right to work,” and to adopt an alternate term for laws that exist solely for the purpose of undermining collective bargaining is both a symptom and a cause of labor’s decline.  There is an obvious parallel between the terms “right to life” and “right to work.”  But, when those who want to outlaw abortion started talking about the “right to life,” defenders of reproductive freedom immediately realized that using that terminology would inevitably lead to defeat since it’s very hard to be against a right to life.  But, where is the labor movement’s equivalent to the phrase “pro-choice?”

In his 1944 State of the Union address, Franklin Delano Roosevelt proposed a second bill of rights that included the “right to a useful and remunerative job.”  After FDR’s speech, there was an effort to pass a full employment law that would have made it the official policy of the United States to assure sufficient employment to enable all Americans to exercise the “right to useful, remunerative, regular and full-time employment.”  Needless to say, that never became law.  A watered down version of the bill was enacted in 1946, and in 1978, the Humphrey-Hawkins Act declared as a national goal “the fulfillment of the right to full opportunities for useful paid employment at fair rates of compensation of all individuals able, willing, and seeking to work.”  The Humphrey-Hawkins Act expired in 2000.

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Stronger Together

This post is part of a series on Labor in the Trump Years.

The challenge facing unions following Donald Trump’s victory is a familiar one.  Trump, a twenty-first century robber baron, won the election by using a playbook familiar to nineteenth century robber barons:  he divided workers by race, religion, and national origin, and successfully fanned the flames of bigotry.  Throughout the history of this country, workers have gained power only when they have overcome these prejudices and figured out how to join together with other workers who have a different skin color, who have come to this country more recently, who have different religious beliefs, who speak a different language, who celebrate different holidays, and who eat different foods.

If you read your labor history, you see over and over stories of employers trying to undercut worker organization by bringing in other workers of dissimilar backgrounds.  This happened in the nineteenth century when workers from Southern and Eastern Europe were hired by mining companies (often all lumped together as “Slavs” the same way that Central American immigrants are now often collectively referred to as “Mexicans”) to fill jobs that had previously gone to workers of Welsh, Irish, Scottish, or German ancestry.  On a recent visit to Ellis Island, I saw anti-immigrant political cartoons from the early twentieth century that could have been drawn today, except for the immigrants’ country of origin.  For instance, one cartoon depicted immigrants as rats bringing diseases into the country.  But, Ellis Island also featured a large photograph of a picket line from that era where garment workers carried signs in four different languages.

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Would Earlier Implementation of the New Overtime Rule Have Changed the Election Outcome?

Since the Presidential election was so close, it’s very tempting to engage in thought experiments about how different actions might have changed the outcome.  And for all of Hillary Clinton’s flaws as a candidate, exit polls suggest that the election can be viewed as a referendum on the Obama Administration.  For instance, 63% of the electorate said that the condition of the national economy was either “not good,” or “poor,” and Trump carried this group by a 63% to 31% margin.  In addition, only 31% of voters said that their financial situation was better now than it was four years ago.

While the economy has improved significantly since the devastation caused by the 2008 financial crisis, many workers still have not caught up to where they were before the financial crisis.  And for workers struggling to make ends meet in a small town in Florida, Michigan, Pennsylvania, or Wisconsin, it can be hard to see the ways in which President Obama has improved their lives.  It may well be that they are benefitting from the Affordable Care Act, but if they had insurance before the ACA passed, they may feel that the law has not done enough to contain costs, and they may not notice some of the benefits the law given them. As I have thought about the concrete ways that workers stand to lose when Donald Trump replaces President Obama, one thing that has jumped out at me is the new Department of Labor overtime rule.  The new rule, which goes into effect on December 1st (unless it is enjoined), will extend overtime protections to 4.2 million workers by raising the salary threshold for overtime eligibility from $23,660 a year to $47,476 a year.  This means that in small towns across America, assistant managers of retail stores, low-level supervisors, and other moderate income workers who are paid on a salary basis will either experience a reduction in hours or a wage increase.  These individuals can no longer be required to work a nine or ten hour day without receiving any extra compensation.

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