Today’s News & Commentary — April 21, 2017

Amidst a UAW-driven unionization effort, workers at Tesla’s Fremont, CA factory have filed a charge of unfair labor practices with the NLRB.  The workers allege that Tesla spied, coerced, and intimidated the workers, and prevented them from communicating with one another.  These efforts, they allege, violate multiple sections of the National Labor Relations Act, including their right to unionize.  The workers also claim that the confidentiality agreement Tesla makes workers sign as a condition of employment is overbroad, impinging upon their rights.  The confidentiality agreement does not just protect trade secrets, but threatens criminal punishment for workers who speak publicly or to the media about “everything that you work on, learn about, or observe in your work about Tesla.”  The NLRB office in Oakland will investigate the workers’ charges.

The Minnesota Senate passed pre-emption legislation usurping local control over labor and employment requirements and transferring it to the state, preventing municipalities from setting local minimum wages.  The bill passed with a vote of 35-31. Bill sponsor Sen. Jeremy Miller, R-Winona, argues that the bill helps Minnesota employers and increases employment because employers no longer have to comply with a thicket of differing laws and standards.  The bill will merge with a Minnesota House-passed bill and come before Democratic Gov. Mark Dayton, who has stated he does not yet know whether he will veto the measure.

Relatedly, Wisconsin Gov. Scott Walker signed legislation preventing local governments from requiring contractors to use unionized workers for public projects, and from even considering the use of unionized labor as a positive factor when deciding to whom the municipality ought to award the contract.  The legislation passed through the House and Senate along party lines in February.  Republicans used the labor costs for the new Milwaukee Bucks stadium as an example of the excessively high wages that the bill would prevent: $12 an hour in 2017, rising to $15 an hour by 2023.

Boston Review published an essay earlier this week on the fraught relationship, historically and in the present day, between labor and the Democratic Party.

Today’s News & Commentary — April 7, 2017

The U.S. economy added only 98,000 jobs in March, less than half the 219,000 jobs added in February.  However, the unemployment rate further decreased from 4.7% to 4.5%, its lowest level since May 2007.  Most of the increase in jobs occurred in professional and business services.  As the unemployment rate decreases yet fewer jobs are added, federal officials are viewing the economy as “operating at or near maximum employment” according to minutes from their meetings in March.

Chicago Teachers Union members will remain on the job on May 1, cancelling plans for a one-day walkout to protest the threat to end the school year 20 days early.  The union voted against the walkout after the Illinois Educational Labor Relations Board held that the walkout would be illegal.  A financial crisis at Chicago Public Schools, which is facing a $129 million budget deficit this year, is driving the consideration of ending classes early.  “While there will be no May 1 walkout, we will continue to stand together in solidarity with our students, parents, immigrant community and other labor and community allies to demand that out district receives the revenue,” CTU president Karen Lewis said.

Earlier this week, President Trump told the New York Times that he would be making an announcement in the coming two weeks on a change to Davis-Bacon, the law that requires federal contractors to pay prevailing, union-scale wages.  Trump has not specified further what the announcement will entail.  As a former real estate developer, Trump is likely very familiar with Davis-Bacon.  In fact, last year, the Labor Department pursued and later dropped an investigation against Trump for alleged Davis-Bacon violations at one of his properties.

Today’s News & Commentary — March 24, 2017

President Trump’s Labor Secretary pick Alexander Acosta promised at his Senate hearings not to let the partisan political considerations affect his administration of the Department of Labor.  His statements came in response to concerns expressed by Democrats that he had looked away as his subordinates at the Justice Department under George Bush deliberately preferenced conservatives in their hiring.  The Senate labor committee will vote next week on whether to advance Acosta’s nomination to a full Senate vote.

The Atlantic published an article on Wednesday on the work of Princeton economist Alan Krueger, who argues that an overlooked cause of the decline in American men’s labor force participation rate is poor health.  Only 89% of American men ages 25 to 54 were either working or looking for work, the second-lowest percentage of OECD countries (Italy has the lowest).  Krueger places blame on opioid addiction and alcoholism, but also on the far more common conditions of obesity and diabetes — health problems uniquely prevalent amongst Americans. Researchers have already pointed out the increased risk of alcoholism that unemployment causes.  Krueger’s work implies that one way to increase labor force participation would be to make greater investments into public health.

President Trump’s first Labor Secretary pick Andy Puzder will be stepping down from his role as CKE Restaurants CEO in April.  CKE Restaurants is the parent company of Carl’s Jr. and Hardee’s.  Puzder claims that the nomination process was not a factor in his decision to step down as CEO.

Today’s News & Commentary — March 10, 2017

The U.S. economy added 235,000 jobs in February, decreasing the unemployment rate slightly from 4.8% to 4.7%.  The job gains occurred mostly in construction, private educational services, manufacturing, and health care. The number of long-term unemployed people stayed at 1.8 million.

The Atlantic published an article yesterday on the threat posed by President Trump to solidarity within organized labor.  Support for Trump within organized labor is currently fractured along vocational lines, which themselves track racial and regional differences.  As a presidential candidate, Trump generated significant support from craft, building trade, and industrial unions, while being “anathema” to service, teacher, and public-employee unions.  One labor official predicts that the wall Trump promised, if the project materializes, would become a flash point within labor — pitting building trades unions against their Hispanic members and other Hispanic union members, especially.

The U.S. Court of Appeals for the D.C. Circuit heard oral argument yesterday on Browning-Ferris Industries’s challenge to the NLRB’s “joint employer” rule, articulated in the NLRB’s Browning-Ferris decision from 2015.  The U.S. Chamber of Commerce, National Retail Federation, and other business groups have criticized the NLRB decision.  Members of the tree-judge panel criticized the NLRB rule as unclear during oral argument.  The case is before Judge Patricia Millett, Robert Wilkins, and Judge A. Raymond Randolph.

ABC and the National Association of Broadcast employees have reached a tentative four-year agreement, the union announced yesterday.  The contract would cover over 2,700 employees.  Terms in the agreement include a 9% wage hike spread over four years and paid sick leave for daily hires.

Today’s News & Commentary — February 24, 2017

President Trump’s second pick for labor secretary, Alexander Acosta, has already won some union support from the International Association of Fire Fighters and the Laborers’ International Union of North America.  IAFF President Harold Schaitberger, describing past experiences working with Acosta, described the nominee as “fair, reasonable, and accessible.”  Despite not having endorsed Acosta yet, AFL-CIO head Richard Trumka has called Acosta worthy of “serious consideration,” unlike Trump’s first labor nominee Andy Puzder.

As reported yesterday, President Trump met with two dozen chief executives of major U.S. manufacturing companies to discuss reshoring factory jobs.  Missing from the meeting was labor union representation.  Responding to a question on why unions were not invited to the roundtable, White House Press Secretary Sean Spicer stated that the meeting “was specifically for people who were hiring people and the impediments they’re having to creating additional jobs,” and reaffirmed that the president “still values [labor union leaders’] opinion.”

New York Times Magazine published today a long-form article by Barbara Ehrenreich on the necessity of new ways of organizing in the face of new forms of employment.  Among other common policy proposals in reaction to the stagnation of working class wages, Ehrenreich criticizes retraining programs for thinking of workers as “endless malleable and ready to recreate themselves to accommodate every change in the job market .”

Today’s News & Commentary — February 10, 2016

According to Reuters, the U.S. Department of Labor will delay the Obama-era fiduciary rule for 180 days and seek public comment on the rule after President Trump ordered the DOL to review the fiduciary rule last week.  The DOL has sent a letter of proposed rulemaking to the Office of Management and Budget that will push back enactment of the rule from April 10 to 180 days later. The DOL has also requested another round of public comments on the rule.  The fiduciary rule elevates all brokers and other financial advisers who work with retirement plans to the level of a fiduciary to their clients, making them legally obligated to act in their clients’ best interests.

According to a Medium post by a man claiming to be a factory worker at Tesla’s only plant, Tesla factory workers have reached out to UAW to seek assistance with forming a union.  Bergen Kelly, a labor union consultant based in San Francisco, sent the Medium post to Bloomberg.  Neither UAW nor Tesla have confirmed or denied the story.  In an emailed statement, a Tesla spokesperson said, “We have a long history of engaging directly with our employees on the issues that matter to them, and we will continue to do so because it’s the right thing to do.”  In response to the allegations, Elon Musk claimed that the man behind the Medium post, Jose Moran, was paid by UAW to join Tesla and agitate for a union.  He criticized the UAW’s alleged attempt to unionize the plant as “morally outrageous.”  “Tesla is the last car company left in California, because costs are so high. The UAW killed NUMMI and abandoned the workers at our Fremont plant in 2010.  They have no leg to stand on.”  Tesla’s Fremont, CA-based plant is the site of the former NUMMI factory, a joint venture between Toyota and General Motors. Workers at NUMMI were represented by UAW.

Wisconsin state senators approved on Wednesday a bill that no longer requires government contractors to work with unions on taxpayer-funded building projects.  Republicans backed the bill, claiming that the measure will protect taxpayers from overspending on projects.  The bill will still allow local elected officials to use project labor agreements.

The Iowa bill that would enact “sweeping changes to Iowa’s collective bargaining laws” has passed Senate committee 7-4 and is headed to the Senate floor.  All Republicans voted in favor and all Democrats voted against.  The legislation is expected to be debated and voted on by the Senate next week.  OnLabor reported on the bill earlier this week here.

The Supreme Court Vacancy and Labor: William Pryor

President Donald Trump plans to announce his nominee to fill the late Justice Scalia’s seat on the Supreme Court this Thursday.  Among the rumored candidates is Judge William H. Pryor Jr. of the 11th Circuit, who met with the president two weeks ago.  Judge Pryor was appointed by President George W. Bush to his seat in Alabama in 2005 after the Senate voted to confirm him 53–45.  From 1995–97, Judge Pryor served as a deputy attorney general of Alabama.  He was elected as Alabama’s Attorney General in 1997, at 34 years old, and served in that position until his nomination to the 11th Circuit.  SCOTUS Blog has extensively covered Judge Pryor’s record on a variety of legal topics, but did not discuss the judge’s record on labor and employment.  We do so here.

Judge Pryor has not developed a particular reputation with respect to labor and employment law, but one impression that emerges from a look at the admittedly few labor and employment opinions he has written or joined is deference to the determinations of the NLRB.

Unlike his fellow shortlist member Neil Gorsuch, Judge Pryor has not publicly expressed concern over excessive deference to administrative agencies.  His NLRB opinions reflect a preference for deferring to agency interpretations and findings.  Out of nine cases he heard in which the NLRB was a party, Judge Pryor sided with the NLRB in eight of them.  In seven of these cases, Judge Pryor found that “substantial evidence” supported the NLRB’s determinations.  Judge Pryor was part of the unanimous or per curiam opinion in six of these cases.  In Lakeland Health Care Assocs. v. NLRB, Judge Pryor dissented from the majority opinion holding that substantial evidence did not support the NLRB’s decision to not count defendant employer’s licensed practical nurses as supervisors, thereby precluding their attempts to unionize.  Criticizing the majority, Judge Pryor wrote, “[i]n reweighing the facts and setting aside the Board’s order, the majority opinion ‘improper substitute[s] its own views of the facts for those of the Board,’ […] and fails to adhere to our deferential standard of review.”  696 F.3d 1332, 1350 (11th Cir. 2012).  He recognized that though some circuits gave a less deferential standard of review to NLRB determinations of who counts as a “supervisor” under § 2(11) of the NLRA, “our Court has refused to make ‘judicial adjustments to the statutory standard of review because we believe the wiser course is a robust application of the standard that has typified review of Board decisions.’”  Id. (citations omitted). Continue reading