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

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.