How Bad Could it Get (Legally)?

It’s a good moment to think creatively and expansively about how to revitalize the U.S. labor movement.  This important work is underway, with contributions from academics, labor lawyers, union organizers, and others.  Substantive debates about the future of labor law and labor organizing now populate the pages of publications ranging from the Yale Law Journal to Boston Review.  Much of this writing evidences an appropriate degree of optimism – the pieces assume a future in which, for example, progressive law reform might be possible, or in which workers can regain power through increased use of strikes even in the absence of law reform, or in which fundamental aspects of U.S. political economy (and political ideology) might be transformed.  This kind of optimism is necessary to visionary thinking, and it’s badly needed today.

But, I thought it might also be worth writing from the opposite perspective and asking how bad it might really/plausibly get over the next handful of years.  Most of us know much of this already, so you might wonder what the point of such a morose exercise would be.  The idea is not to wallow.  To the contrary, the idea is that putting in one place the major pieces of what could go wrong (legally) over the next few years could help as we continue to imagine and build a better future for the labor movement. As Van Jones put it recently, “hope for the best but expect and prepare for the worst.”

Some caveats.  One, and most important, what follows are not predictions, and I do not mean to suggest that these things are likely.  Instead, these are thoughts about the kinds of negative developments that seem within the realm of the possible (even though, with respect to every one, I think the better arguments are on the other side). Two, given the limits of my expertise, I focus exclusively on how bad labor law could get, leaving to others the question of how bad things could get on other fronts.  Three, I may be wrong in two directions: omitting other possible problems and including things that aren’t plausible.  For that reason, we invite follow-on posts that offer either kind of corrective. Four, and finally, it might be worth saying that this exercise goes against my own nature, which, for better or worse, skews optimistic (as I’ve been critiqued for being).

All that said, here’s what seems within the realm of the plausible: Continue reading

Today’s News and Commentary — March 28, 2017

President Trump repealed a rule yesterday requiring federal contractors to disclose labor law violations.  Per The Hill, the “blacklisting rule” implemented by President Obama was intended “to prevent the government from contracting with businesses responsible for wage theft or workplace safety violations at any point within the last three years.”  Business groups supported the rule’s repeal, while other commentators noted the repeal could contradict Trump’s stated promises to working-class voters of improving job prospects and working conditions.

Another action by President Trump is frustrating efforts by employers to find seasonal workers.  NPR reports that “a cap will soon kick in on the number of short-term work visas provided under the H-2B program, which brings in low-skilled labor for nonagricultural jobs that U.S. employers say they can’t fill closer to home.”  The cap particularly disadvantages employers in the Northern United States, where the demand for seasonal workers begins later in the year.  A bipartisan group of senators has called for an audit of the HB-2 program to ensure the maximum number of visas are awarded, while progressives have noted problems with the program.  For his part, President Trump has espoused opposition to hiring foreign workers but has hired dozens of foreign workers under the HB-2 program at his hotels and resorts.

Universities continue to oppose efforts by graduate students to unionize.  Most recently, The Cornell Daily Sun notes a series of questionable anti-union communications by Dean Barabara Knuth of the Cornell Graduate School through an online forum.  In particular, “the Ask a Dean forum has been a breeding ground for conflict.  Administrators claim they are addressing legitimate concerns from students — who are always anonymous — while union organizers claim that it is the University’s method of circumventing the agreement reached between the two sides in May that prevents professors or administrators from trying to persuade graduates to vote ‘no.'”

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New Harvard Law Review Piece on Grad Student Unions

There’s a new piece of student writing in the most recent Harvard Law Review that offers a different take on the Board’s Columbia University decision regarding graduate student union rights.  The piece focuses on the Board’s use of empirical evidence in the decision, applauds it in part, but criticizes the Board for what the piece calls “cherry picking.”  Worth reading.

Today’s News & Commentary — February 14, 2017

Happy Valentine’s Day!  Those celebrating should be careful not to run affront of labor and employment law.  The Richmond Times-Dispatch notes that “when a gift is received unexpectedly from a co-worker on Valentine’s Day of all days, it raises the creep level to litigation status.”  Their special correspondent advises readers to keep their celebrations out of the workplace.

Donald Trump’s selection for Secretary of Labor, Andrew Puzder, continues to face difficulties with his nomination.  According to CNN, four Republican senators – “Susan Collins of Maine, Lisa Murkowski of Alaska, Tim Scott of South Carolina and Johnny Isakson of Georgia” – are withholding support for Puzder pending his confirmation hearings.  Republican leaders will lobby the four senators, but if they cannot be swayed Trump may replace Puzder.

After a long campaign, a little over 3,000 Boeing workers in Charleston will finally vote tomorrow on unionization.  The New York Times reports that the election represents a key test of the strength of organized labor in the early days of Trump’s presidency.  Boeing was enticed to open the plant in South Carolina in large part because of reduced labor costs relative to their operations in the Seattle area, partly driven by the lack of unionization.

In other news, graduate students at colleges and universities continue to mount union organization campaigns.  Organizers and students continue to make their case at Duke University and the University of Maryland, for example.

Today’s News & Commentary — December 21, 2016

The D.C. Council voted yesterday to pass the Universal Paid Leave Act, one of the most generous paid parental leave laws in the nation.  As Politico and the Washington Post explain, the Act provides private-sectors workers with eight weeks of paid time off after the birth or adoption of a child, six weeks off to care for an ailing family member, and two weeks of personal sick time.  Despite worries that Mayor Bowser and the city’s business establishment would block the bill, it passed by a veto-proof margin of 9 to 4.  Coverage of the bill is also available at Forbes.

On Friday, Columbia University filed a challenge with the NLRB over the recent graduate student unionization vote.  The university has alleged that GWC-UAW organizers participated in various forms of coercion and intimidation.  The New York Times reports that students gathered on Monday to protest, accusing Columbia of trying to drag out the fight until Trump appoints new members to the NLRB.  In an emailed statement, Columbia “took a more bureaucratic approach,” stating the following: “Our objections were filed with the N.L.R.B. as part of its established procedure for determining whether the conduct of the election was appropriate.  We share the N.L.R.B.’s goal of ensuring a fair electoral process and protecting the rights of all students.”

According to ReutersTrump’s declared infrastructure plan would “collide” with the country’s skilled labor shortage.  The Transportation Department estimates that over two-thirds of U.S. roads are in “less than good condition,” and nearly 143,000 bridges need repair or improvement.  At the same time, there currently exists a shortage of construction workers: the National Association of Home Builders estimated earlier this year that around 200,000 construction jobs in the U.S. remained unfilled.  That number represents an 81 percent increase in the last two years.

Today’s News & Commentary — December 12, 2016

Graduate students who work as teaching and research assistants at Columbia University successfully voted for union representation. As reported in Bloomberg BNA, the vote (1,602 to 623) will allow working students to be represented by United Auto Workers—a change opposed by the university. Meanwhile, a similar vote at Harvard still has no result after some 1,200 ballots were challenged.

“I believe in justice for everyone,” stated an eleven-year-old in front of a Wendy’s yesterday. A group of fifth graders joined the picket line at the fast food chain in Boston, “urging customers to boycott the fast-food chain unless it agrees to pay a higher price for tomatoes—a move advocates say could boost farm wages,” according to the Boston Globe. This children’s labor protest is an annual tradition for the class at Boston Workmen’s Circle Center for Jewish Culture and Social Justice. After learning the history of labor movements, the class dedicates time to a current labor issue.

Donald Trump’s crusade to keep jobs from moving overseas was expected. But according to the Los Angeles Times, what’s worrying businesspeople is the way he’s going about it: targeting individual companies, getting personally involved, and conducting “backroom deal-making that has analysts concerned about crony capitalism.” Analysts worry that a job boost would merely be short term. Trump’s tariffs would lead to higher prices, fewer exports, and ultimately fewer jobs—worrying even union workers. The Times also point out how Trump’s Carrier deal—millions of dollars in tax breaks in exchange for their keeping several hundred jobs in the United States—is not scalable. Similar deals have been previously tried with other companies, to no avail.

What Will a Trump NLRB Mean for Graduate Teaching and Research Assistants?

The D.C. Circuit once observed that “[i]t is a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing compositions of the Board.”  In 2000, the Clinton Board found that teaching and research assistants at private universities are “employees” covered by the NLRA; in 2004, the Bush Board found that they were not, and in 2016, once again, the Obama Board found that they were employees.  This has led to speculation that a Trump Board will deny employee status to teaching and research assistants.  In acknowledging this possibility, I don’t want to suggest that this result would be reasonable – the majority opinion in the Board’s 2016 Columbia University case offers a compelling statutory analysis in support of its conclusion.  By contrast, the dissent’s position largely relies on speculation about the effects of collective bargaining on universities, with a particular emphasis on the potential disruption from the use of economic weapons.  Oddly, the dissent fails to acknowledge that many of these weapons – strikes, lockouts, loss of academic credit, loss of prepaid tuition – would be available even if the Board denies employee status to teaching and research assistants.  In fact, Congress enacted the NLRA in the hope that encouraging collective bargaining would minimize industrial strife and unrest.  But, if a Trump Board nevertheless rules that teaching and research assistants are not “employees,” what will happen at Harvard and Columbia, where teaching and research assistants have already voted on unionization?  Assuming they vote in favor of unionization, their unions should be safe for at least an initial contract cycle.

The NLRB does not simply issue fiats setting forth policies.  Instead, it decides particular cases.  In deciding cases, the Board often sets policies that have much broader implications, but even if a majority of Board Members would like to overturn a particular precedent, they must wait until they have a case that raises the issue.  You might think that Harvard or Columbia could raise the issue with the Trump Board simply by refusing to bargain with a victorious union.  But, when an employer refuses to bargain with a newly certified union, since the earliest days of the NLRA the Board has adhered to a policy of refusing to allow the employer to raise issues that “were or could have been litigated in the underlying representation hearing.”  This is true even where the issue raised by the employer is jurisdictional.  For instance, the NLRA definition of “employee” excludes individuals employed as supervisors.  But, where employers have argued that a bargaining unit improperly includes supervisors, the Board has refused to address those claims in refusal-to-bargain cases following a union election.  This has been true even where the Board Members have suggested that they were sympathetic to the employer’s position on the merits.  In Evergreen New Hope Health & Rehabilitation Center, a 2002 case, the employer argued that a newly certified unit improperly included statutory supervisors.  Board Members Hurtgen and Bartlett both noted in a footnote that they did not necessarily endorse the decision that had been reached in the representation case, but nevertheless the issue raised by the employer was not “properly litigable” in the refusal-to-bargain case.

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