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

Today’s News & Commentary — January 27, 2017

Teamsters president James P. Hoffa went on Fox News on Wednesday to praise President Donald Trump for some of his early actions.  Hoffa praised President Trump’s approval of the Keystone XL and Dakota Access pipelines, his withdrawal from the TPP, and his re-shoring of jobs at Carrier and Ford Motor Company.  Hoffa also expressed hope for the future for Trump as a workers’ president, saying “He’s not just going to be the big business president; he’s going to be the president of everybody here.”  Hoffa also praised the president’s executive orders on immigration on the grounds that “anybody that has a country that anybody can walk in is a problem.”  Hoffa’s optimism for the Trump administration puts him at odds with other unions’ views towards the president, including SEIU, which cut its budgets 30% in response to the election outcome, and AFL-CIO.

The Iowa legislature is asking hundreds of state employees to forgo a 1.25% pay raise for nothing in return.  The request comes about as the state legislature is finding ways to cut $118 million in spending over the next five months.  Giving up the raise would save the state about $10 million, while each worker would give up about $61 per month.  AFSCME, which represents the state employees, voted to put the request to a member vote.  The state did not promise any protections or future benefits in return for giving up the pay raise, but the AFSCME Iowa Council 61 president Danny Homan noted in an email blast to the affected workers that giving up the raise may result in fewer layoffs at the end of the fiscal year.

The governor of Puerto Rico signed a controversial labor reform law yesterday that weakens many protections for employees in the hope that the law will attract businesses to invest in its struggling economy.  The law “implements flexible scheduling, cuts the amount of a mandatory Christmas bonus, reduces vacation days and overtime pay from double time to time-and-a-half, and implements a nine-month probation period for most workers.”  The law also creates a non-rebuttable presumption that someone is an independent contractor provided certain requirements are met.  Employees are now also have the burden of proof to show that their terminations were without just cause. These and other changes are summarized here.

Today’s News & Commentary — January 13, 2017

Missouri’s House Rules Committee voted 11-3 yesterday to become a right-to-work state, the 28th in the nation.  The bill will now head to the Missouri House floor for consideration.  Missouri Democratic Representative Doug Beck attempted to amend the proposal to put the issue before voters in a referendum, but Republicans blocked the attempt.  As a right-to-work state, union non-members would no longer be required to pay dues to the union obliged to negotiate on their behalf.

Amazon announced yesterday plans to create 100,000 jobs in the United States over the next 18 months.  Many of these jobs will be at the 70+ Amazon fulfillment centers across the country.  Transition team spokesman Sean Spicer stated that President-elect Trump is “pleased to have played a role” in Amazon’s announcement.  Amazon is the latest of a string of companies to announce plans to create or re-shore jobs in America.  This is welcome news for the President-elect and many of his supporters, but some have criticized the long-term tactical wisdom of the President-elect’s emphasis on re-shoring and domestic job creation and subsequent self-crediting for the United States.

President-elect Trump will meet with AFL-CIO President Richard Trumka today. Politico hypothesizes that the two will discuss NAFTA.  Though the two are differently-minded with respect to many things, both Trump and Trumka have fiercely criticized the trade agreement.

Today’s News & Commentary — December 30, 2016

AFL-CIO President Richard Trumka published this week an op-ed in the New York Times criticizing President-Elect Trump’s claims to represent the interests of workers.  Mr. Trumka argues that unions, not the President-Elect, ought to possess the mantle when it comes to asserting worker rights.  He also casts suspicion on Trump’s sincerity when it comes to worker interests, pointing to Trump’s cabinet appointments and policy platform.

The Washington Post reports that some members of the Metropolitan Washington Airports Authority’s governing board are considering wage increases for some airport workers currently uncovered by MWAA’s living-wage policy.  Some airport workers contract directly with individual airlines, not the airports themselves, and therefore earn as little as $6 an hour.  Airport workers at Reagan National and Dulles International, airports operated under MWAA’s authority, have protested for better pay and benefits this year.  They are part of the broader Fight for Fifteen, which achieved victories for airport workers in New York, New Jersey, and Washington state.

President-Elect Trump announced on Wednesday that Sprint would re-shore 5,000 jobs to the United States after he had a call with the company’s top officers.  Sprint later clarified that the 5,000 jobs are part of a previously announced commitment by Sprint’s majority owner, the Japanese company SoftBank, to create 50,000 jobs in the United States through a $50 billion investment in the United States.  However, that previous announcement itself came after a meeting between SoftBank founder Masayoshi Son and the President-Elect, who claims that Mr. Son told him he would not have made such an investment had Trump not won the election.

Two former employees of UFCW Local 135 are suing union president Mickey Kasparian for sexual harassment in two separate lawsuits.  UFCW and Mr. Kasparian deny all allegations from the plaintiffs.

Today’s News & Commentary — December 16, 2016

About 8,000 airport workers in New York and New Jersey settled their first union contract in a deal orchestrated by SEIU 32BJ. The contract comes after four years of organizing and seven months of negotiations. It covers a baggage handlers, airport security officers, wheelchair attendants, and other workers at JFK, LaGuardia, and Newark airports. As New York state moves to a $15 minimum wage, this marks the first group of workers under the aegis of the Fight for $15 and a Union campaign to successfully achieve both. However, interestingly, the contract itself does not address to topic of pay. Consequently, in the coming year workers at Newark Liberty International Airport will be paid at a lower rate of $10.10 an hour, the Port Authority’s minimum wage for its workers, while workers at JFK and LaGuardia will receive $11 an hour, the new New York minimum wage set to go into effect on December 31. The agreement is set to be ratified in the coming week.

Former welder, union official, and Secretary of Labor Bill Usery died last week of heart failure. Mr. Usery served as Assistant Secretary of Labor under President Nixon and Secretary of Labor under President Ford. Mr. Usery, a Democrat, was instrumental to the Nixon’s administration’s decision to grant organizing and collective bargaining rights to millions of federal government employees. As a former union organizer, Mr. Usery had the trust of labor in many of the disputes he resolved as a private mediator. In 1984, Mr. Usery helped finalize the agreement between UAW, Toyota, and General Motors for the two auto giants to jointly run the famous NUMMI plant in Fremont, CA. He had also helped mediate between striking NFL players and owners during the 1976 season.

The NBA and the NBA Players’ Association have tentatively reached a new collective bargaining agreement, both parties announced on Wednesday night. The seven-year deal contains an opt-out clause for both parties after year six. Specific terms are unavailable currently, but ESPN reports that the new CBA includes measures to help teams retain their current star players and increases the average salary of players from $5 million annually to nearly $9 million. The new CBA will also shift responsibility over licensure of player likenesses from the NBA to the union. Read more details here.

Today’s News & Commentary — December 2, 2016

The U.S. economy added 178,000 jobs in November, decreasing the unemployment rate from 4.9% to 4.6%, the lowest it has been since 2007. However, average hourly earnings decreased by 0.1%. The Department of Labor revised its September and October data to remove 2000 jobs. The solid performance paves the way for a long-rumored federal rate increase.

President-elect Donald Trump and Vice President-elect Mike Pence successfully negotiated with Carrier, a heating and cooling manufacturer, to keep 1000 factory jobs in the United States. Carrier rose to media prominence earlier in 2016 when a video emerged of management announcing to factory floor workers that their jobs would be outsourced to Mexico. Details about the President-elect’s deal with Carrier emerged Thursday morning. United Technologies Corp., Carrier’s parent company, will receive $7 million in tax breaks over 10 years in exchange for not outsourcing the jobs. According to the Indiana Business Journal however, the bigger motivation for Carrier was the threat of losing federal contracts. Senator Bernie Sanders criticized Trump for acceding to Carrier by giving it tax breaks to prevent the outsourcing.

Michigan passed legislation yesterday to take regulatory powers over ride-sharing services like Uber and Lyft away from local authorities and grant them instead to the Michigan Licensing and Regulatory Affairs. Communities that have existing agreements with ride-sharing services can maintain their agreements for four years. The legislation would make Uber and Lyft subject to the same regulation as taxis. Uber officials supported the legislation, as it would enable its drivers to pick up and drop off customers at airports.