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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Weekend News & Commentary — January 28-29, 2017

President Donald Trump’s executive order banning entry from seven majority-Muslim nations has dominated the news over the past 48 hours.  Though a federal judge in the Eastern District of New York stayed large portions of the order Saturday night, news outlets continue to report on the ongoing implications of the ban, especially for the numerous workers from the targeted countries who had regularly traveled to and from the United States.  Politico and the Washington Post examine the effect the restrictions may have on employers—especially tech companies and those using H-1B visas—while the New York Times delves into the consequences the order could have for professional athletes.

In other news, the Center for Economic and Policy Research has issued a troubling new report analyzing the most recent Bureau of Labor Statistics data on union membership, which indicates that both public and private sector unionization rates dropped in 2016.  Despite union members continuing to earn a significant premium over nonunion workers, private sector union membership now consists of only 6.4% of workers.  This represents the lowest rate of union membership since statistics began being recorded by the government, with declines being particularly steep in recent right to work state states such as Wisconsin, which has lost 40% of its union members since a 2011 law barring most public sector collective bargaining.

Finally, the New York Times looks at the ongoing failure of the federal government to provide health care for soldiers exposed to dangerous levels of radioactivity while cleaning up after atom bomb tests on islands in the Pacific Ocean during the late 1970s.  Inadequate safety equipment and poor monitoring of radiation exposure may have contributed to elevated cancer rates among workers involved in efforts to restore the islands to suitability for human habitation.

Guest Post: How President Trump Could Surprise with Improvement for the NLRB and a Boost for the Middle Class

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

This is a piece whose unlikely outcome is based on wishful thinking.  It’s what I want to believe, not what I really believe.  But whether I’m right or wrong, the information that follows should prove useful for general understanding of the National Labor Relations Act (NLRA or Act) and its policy, and perhaps someday for improving the functioning of the National Labor Relations Board (NLRB or Board).

As a result of the Presidential election, there is one evidentiary fact on which there’s wide agreement, which is that an unacceptable level of economic inequality exists in America.  Inasmuch as Donald Trump made a major campaign promise to “rebuild our economy for working people,” he now faces the prospect of having to seriously address that condition.  Although this is one of the few areas in which Democrats may find common ground with his administration, there will obviously be substantial disagreements as to what steps should be taken to move toward the common objective of bettering the lot of the American middle class.  And further complicating  those limited areas of agreement  are the areas where the Trump campaign is, or will be, at odds with conventional views of the Republican establishment—especially the Republican Congress.  The extent to which the Trump administration will be willing to pursue objectives that differ from traditional Republican positions is mostly unknown.  For example, If one assumes the possibility of President Trump prevailing in intra-party disagreements concerning matters involving labor-relations—which is pure wishful thinking—a fundamental question arises as to whether he might actually oppose some of the extreme anti-union positions that have long been hallmarks of the Republican establishment and perhaps even initiate some reasonable actions that favor both organized labor and the economy as a whole.

At first blush such occurrences seem unlikely—if not impossible—but Trump’s public statements and his extensive labor-relations record have created an area of mystery that makes this unlikely possibility worth examining.  As we all know, Trump changes his positions readily and is full of surprises.  A potential subject for one such unlikely surprise has crossed my mind. But before examining that subject, we should first look at its likely setting and at Trump’s known record as an active participant in union-management relations, all of which can be contrasted and compared with his public statements.

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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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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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Guest Post: The AFL-CIO’s Response to Trump’s Presidency

Jon Hiatt is Executive Assistant to the President and Chief of Staff at the AFL-CIO.

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

Rather than slice and dice the electorate into different demographics and voting blocks, we have to understand what happened on November 8 not as a vote for or against the two candidates.  Rather, it was something much larger.  It was an expression of the insecurity of working people all over the formerly industrialized world, brought on by globalization forcing them to compete for work in a labor market without borders.  Candidate Trump was correct when he said “I see a big parallel” between U.K. voters favoring Brexit and U.S. citizens supporting him.  Both were expressions of the belief that existing institutions of government are no longer protecting the security and well-being of working people in a global economy.

Union officers who talk to their members will tell you that the insecurity and anger underlying the vote was real.  And they will also tell you that if that insecurity and anger is not addressed, they will threaten liberal democracy and slow or even reverse our halting progress toward equality.

Both candidates were right that we need to rebuild our physical infrastructure to compete in the global economy, but we also need to rebuild the infrastructure of government and society – most centrally the institutions that speak for working people, their unions.  If we revive U.S. manufacturing without unions, we will not bring back good jobs.  Factory jobs and jobs in the mines were not good jobs until they became union jobs and the same will be true in the future.

Long before Donald Trump eyed the presidency, U.S. unions understood what our trade policy was doing to working America.  Standing against Democratic presidents, unions opposed NAFTA and unions opposed TPP.  Unions have called for an industrial policy that would train U.S. workers for high value-added occupations, rebuild our infrastructure, bring opportunity to disadvantaged communities, and create green jobs.

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Labor and Politics: Learning the Right Lessons from 2016

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

A presidential loss, especially an unexpected one, produces no shortage of scapegoating and second-guessing among activists and insiders of the defeated party.  In this regard, the otherwise unprecedented 2016 election proved utterly normal.  The emerging narrative pins the Clinton campaign’s shocking Electoral College defeat on its neglect of the white working-class, a constituency buffeted by decades of de-industrialization and declining union memberships.  As evidence, adherents of this theory point to Rust Belt counties and states that flipped from blue to red between 2012 and 2016, and exit polls showing a smaller share of union households backing Hillary Clinton than Barack Obama.  Journalists have had no trouble digging up disaffected white working-class voters who cast their first Republican ballot this year.

What’s remarkable is how quickly this narrative congealed into conventional wisdom.  As an interpretation of what went wrong, it leads to one obvious path for Democrats to take going forward, summed up here by the Times’ David Leonhardt: “Figuring out how to win more white working-class votes, especially in the Midwest, has to be at the center of any Democratic comeback plan.”

Choosing this path would be a mistake.

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