Guest Post: An Obama Executive Order That Trump Should Love

Sharon Block served in the Obama Administration as the Principal Deputy Assistant Secretary for Policy at the Department of Labor and Senior Counselor to the Secretary of Labor.  In February, she will become the Executive Director of Harvard University’s Labor and Worklife Program.  Chris Lu served in the Obama administration as the Deputy Secretary of Labor, and is now a Senior Fellow at the University of Virginia Miller Center.  This post originally appeared in The Huffington Post.

As former political appointees in the Obama administration’s Labor Department, we can think of few areas where we are in agreement with Donald Trump.  In fact, we have fundamental differences with him about how to build an economy that works for everyone.

Yet, we share his belief that government needs to do more to lift up American workers.  If the new president is interested in delivering on his promise of creating jobs and growing wages for workers, there’s an executive order already in place that he should support.

Every year, the federal government spends hundreds of billions of dollars on procurement contracts.  By some estimates, one quarter of all American workers are employed by a federal contractor — that’s millions of families whose livelihoods are connected to the federal procurement system.

In 2014, Barack Obama signed an executive order called “Fair Pay and Safe Workplaces” that was premised on two fundamental principles: doing business with the federal government is a privilege, not a right; and taxpayer money should only go to companies that are abiding by the laws that protect American workers.  Under the Obama executive order, the federal government would give contracts only to companies that pay their workers the wages they’ve earned, protect the health and safety of employees, and prohibit discriminatory practices.

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Guest Post: Against Despair

Kate Andrias is Assistant Professor of Law at the University of Michigan Law School.

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

As others have written, including on this blog, the Trump presidency could be devastating for unions—and for workers generally.  The administration is likely to oppose any increase to the minimum wage; facilitate roll backs of overtime protections; support the expansion of right-to-work, including as a matter of constitutional doctrine; and appoint leaders to the various labor agencies who lack a commitment to enforcing civil rights, worker safety, and wage and hour laws.  Also expected are appointees who seek to eviscerate collective bargaining and organizing rights under the NLRA.

Notwithstanding these and other serious threats, despair is the wrong reaction for several reasons.

First, the election underscored the importance of unions.  To the extent commentators, including some Democrats, had depicted unions as unnecessary relics, the error of that position should now be clear. Worker organizations are key institutions for equalizing power in the economy and in the democracy.  Their decline helps explain the current state of the American economy and politics.  As Jake Rosenfeld wrote here, “[u]nions remain the only set of mass-based organizations that connect working-class Americans to politics.”  Unions are also some of the few institutions in America through which working people can come together across boundaries of gender, race, and ethnicity, to advance their shared interests.  Finally, unions are self-funded membership organizations.  Historically, such civil society organizations have served as critical bulwarks against authoritarianism.

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Guest Post: In This Moment, Labor Must Become a Movement

Moshe Z. Marvit is an attorney and fellow with The Century Foundation, focusing on labor and employment law and policy. He is the co-author (with Rick Kahlenberg) of the book, “Why Labor Organizing Should be a Civil Right.”

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

With the election of President-elect Donald Trump, labor faces a unique opportunity.  Yes, it will face hostility in all branches of the federal government, and will have to maintain a multi-pronged fight.  Yes, union density numbers are at historically low levels, and the bulwark of public-sector unionism may suffer a major blow at the Supreme Court through a case challenging the constitutionality of fair-share fees in the public sector.  Yes, it will face unprecedented challenges to expand, let alone stay afloat.  But in the midst of all this, labor has the opportunity to reform itself so that it can not only survive a Trump administration, but grow as well.  Perhaps “opportunity” is the wrong word to describe the moment; labor has the existential imperative to reform itself, harness the existing energy, and lead a movement.

There is no doubt that Donald Trump—through the use of Executive Orders, executive and judicial appointments, and legislative priorities—will likely usher in an environment that is hostile to labor.  However, unlike Ronald Reagan, Trump ran a campaign that provided the ground for labor to reform itself.  First, he will be the first president in modern history that ran a campaign that was centered around worker issues.  All presidential candidates talk about middle and working class issues, but successful campaigns are rarely centered on improving the lot of workers.  Second, Trump’s calls for mass deportations, exclusion of Muslims, dismantling of the regulatory state, limits to access for abortion, and a litany of xenophobic actions and policies, have united large swaths of Americans in opposition.  Under these conditions, labor can transform itself from what has increasingly become a membership-based services organization into a movement.

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Guest Post: Trump, Sunk Cost Fallacies, and the Next Labor Movement

David Rolf has led some of the largest union organizing campaigns since the 1940s.  He is President of SEIU 775, The Workers Lab, Working Washington, and the Fair Work Center; International Vice President of SEIU; and the author of “The Fight for Fifteen” (New Press, 2016).  Views expressed here are his own.

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

If one were able to magically scrub the embedded racism, misogyny and xenophobia from Donald Trump’s slogan “Make America Great Again,” one might conjure up an image of unionized America circa 1946-1976: high wages, high employment, stable jobs,  good benefits; expanding investments in infrastructure, education, and home ownership;  a growing economy that lifted all boats and created more middle class wealth than in any era before or since.  “Solidarity Forever,” we would sing, to the tune of the Battle Hymn of the Republic, “for the Union makes us strong.”

But although Donald Trump spent precious few words on labor law and labor policy during his campaign, it’s fair to expect that single-party Republican control of all three branches of the federal government will bring only bad news for America’s already-fading unions.

Between now and at least 2021, the best scenario that union leaders can reasonably hope for from the Federal government includes hostile appointments to the NLRB, the DOL, and the judiciary; a rolling-back of progressive Obama-era efforts to modernize both NLRB election procedure and DOL overtime rules; the use of regulation, budget-writing, procurement, and other government powers to chip away around the edges of prevailing wages, wage and hour protections, workplace safety, and nondiscrimination; total or partial repeal of Obamacare; and some short-term job creation if the President-elect is successful in passing an infrastructure package and renegotiating trade agreements on more favorable terms (and assuming he is simultaneously unsuccessful in deporting 11 million wage-earners and triggering a depression by doing so).

A worse but equally likely scenario is a continued and concerted national campaign to weaken and shrink unions themselves.  More right to work laws.  The return of Friedrichs and its ilk. Continued assaults on public employee unions in the two-thirds of state houses controlled by conservatives.  And legal challenges to the notion of exclusive representation itself, brought by adherents of previously obscure and cultish legal theories.

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Guest Post: What Hillary Needs to Say About Trade

Katherine V.W. Stone is the Arjay and Frances Miller Distinguished Professor of Law at UCLA School of Law.  She is the author of “From Widgets to Digits: Employment Regulation for the Changing Workplace” (Cambridge Univ. Press) and “Rethinking Workplace Regulation: Beyond the Standard Contract of Employment” (with Harry Arthurs). (Russell Sage Foundation 2013).  This post originally appeared in The Huffington Post.

Hillary delivered a masterful debate performance last night, and trumped Trump on many issues.  But on one important issue, most commentators give him the point – and that is trade.  Trump, and Sanders, have both made enormous political capital by blaming U.S. trade deals – particularly NAFTA –for the plight of American workers.  Hillary has not come up with a good response, and she needs to.

The problems of American workers are not simply due to increased global trade.  Most economists attribute the decline in the middle class to automation.  They contend that new digital technology favors workers with higher skills, so that workers who lack a college degree have been pushed out of the jobs that, in the past, provided middle class incomes.  Industrial factory jobs, clerical jobs, supermarket cashiers and many other jobs have disappeared due to “skill biased technological change.”  To be sure, trade exacerbates the problem because it enables firms to move the lowest skilled jobs to countries that have low labor standards.

However, to blame trade or/or technological change does not fully account for the decline in America’s middle class.  Their problem is not merely the disappearance of old jobs; it is that new jobs, and even the jobs remaining, have changed.  No longer do jobs come with the kind of security they had in the past.  In the past, having a job meant having an implicit promise of job security, as well as steady and rising wages, health benefits, vacations, sick leave, and the promise of a secure retirement.  These types of jobs have disappeared.  Instead, many firms have replaced regular workers with temporary workers or independent contractors.  And many regular workers have found that the security and benefits they had assumed was part of the job package have disappeared.

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Guest Post: The Blue Eagle May Be Ready to Fly Again

Charlie J. Morris is Professor Emeritus at the Dedman School of Law, Southern Methodist University.

Thank you, Andrew Strom, for calling attention to and describing NLRB Member Kent Y. Hirozawa’s end-of-term concurring opinion in Children’s’ Hospital and Research Center of Oakland, 264 NLRB No. 114 (2016), in which he unobtrusively began the belated process of opening a door to members-only minority-union collective bargaining.  This is an opening to what should eventually allow the NLRB to usher in that little-known rational bargaining practice, allowing it to become a viable alternative to the current backward-procedure of first requiring a union to prove its majority, rather than first allowing it to build that majority through a logical incremental process of bargaining for its members only.  Such bargaining would be in accord with the clear language of the National Labor Relations Act.  Hirozawa correctly held that the bargaining “right enforced by Section 8(a)(5) is unencumbered by any requirement of Section 9(a) [majority] status.”  He accurately pointed out that Congress had made it clear in the text of Section 8(a)(3) with reference to closed shops (and retained for the Taft-Hartley’s change to union shops) that the same restrictive language indicated that it knew well how to confine all bargaining to Section 9(a) majority unions—had it so intended.  Furthermore, as I pointed out in my 2005 book, The Blue Eagle At Work, this rejection of a majority requirement was also confirmed by Congress’s specific rejection of “smoking gun” alternative language that would have expressly confined all collective bargaining to representatives “chosen as provided in Section 9(a),” i.e., “designated” or “selected” by a “majority” of bargaining-unit employees.

Although I did call contemporary attention to members-only bargaining in the Blue Eagle, the concept is not new.  It was widely used during the decade following passage of that Act in 1935.  During those early years, minority-union members-only contracts became as prevalent as majority-exclusivity contracts, and their numerical coverage of employees may have been even greater.  Those contracts almost always developed into conventional majority/exclusivity Section 9(a) contracts.

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Guest Post: When It Comes to Economic Strikes, Real Change May Be On the Way (But It’s Not Here Yet)

Mark Kaltenbach is an associate at the law firm of Markowitz & Richman in Philadelphia, where he represents labor unions, workers, and employee benefit plans.

For most workers, the right to strike for better wages, benefits, and other terms and conditions of employment is illusory, because the Board has given employers who permanently replace strikers a free pass.  In its recent Piedmont Gardens opinion, the Board held that, as with every other employer decision, an employer may not decide to permanently replace economic strikers in retaliation for the employees’ concerted activity.  Though this holding is obviously correct, the right to strike remains largely an illusion in its wake.  However, in a case currently pending before the Board, the General Counsel has asked the Board Members to adopt a rule that would finally make the right to strike real.

An employer cannot fire, demote, suspend, transfer, or take any other adverse employment action against an employee in order to stop that employee or other employees from engaging in protected concerted activity.  Piedmont Gardens merely holds that the decision to permanently replace a striking employee is no different from these other employment actions—the employer cannot decide to permanently replace an economic striker in order to punish or prevent concerted activity by its employees.

This holding is mandated by the Act and is good for labor rights as far as it goes, but it will be cold comfort to employees and unions considering a strike.  In the wake of Piedmont Gardens, exercising the right to strike remains an incredibly risky proposition for employees—the employees will effectively be betting their livelihoods on being able to prove months or years after the fact that the employer was driven by animus when it decided to replace them, which is no easy feat.  With the risk of job loss so high, most employees and unions are sure to decide that striking is just not worth it.

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