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President Trump repealed a rule yesterday requiring federal contractors to disclose labor law violations.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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Today’s News & Commentary — October 19, 2016

On Tuesday, Harvard University and the Harvard Graduate Student Union–United Auto Workers (HGSU-UAW) signed an agreement on election terms for eligible students to vote on unionization.  An email sent to the student body about the election can be accessed here.  HGSU-UAW seeks to represent all Harvard students who serve in research and teaching positions, with the exception of undergraduate research assistants.  The NLRB will conduct an on-site secret ballot election on November 16 and 17.  Both the Office of the Provost and the HGSU-UAW have created FAQ pages about unionization, and the HGSU-UAW has also created a “Response” to the Harvard FAQ page.

The Harvard University Dining Services (HUDS) workers’ strike has entered its third week, and students continue to rally to the cause.  On Monday, hundreds of students staged a walk-out to support the workers.  As The Crimson reports, the protests began at 10:30am, when Divinity students gathered at the Harvard Divinity School before marching to the Science Center Plaza to join striking HUDS workers for a rally.  At 12:30pm, hundreds of undergraduates walked out of their afternoon classes and joined another rally, organized by the Student Labor Action Movement, at the John Harvard statute.

Ford has decided to stop making small cars in the United States, and plans to move production of its Focus compact cars from a factory in Wayne, Michigan to a new plant in Mexico.  Donald Trump and other critics of NAFTA have attacked Ford for creating jobs in Mexico instead of the United States.  However, as the New York Times points out, the move will not result in a cut to U.S. jobs: the Wayne factory will remain fully staffed to build more trucks and S.U.V.s.  As the Times explains, Nafta has played a role in shifting American manufacturing jobs to Mexico.  The story of Ford’s Wayne plant, however, demonstrates that many factors — including the state of the economy, the profitability of the vehicles being produced, the strength of the dollar, and how well or not each carmaker’s products are faring in the marketplace — determine the number of auto-making jobs in the United States.

At the end of September, Nissan CEO Carlos Ghosn threatened to abandon a major investment in the U.K. until the nation provided more clarity on its plans for post-Brexit trade relations with the E.U.  According to the Wall Street Journal, Ghosn now appears to have shifted his tone.  After a meeting on Friday with U.K. Prime Minister Theresa May, Ghosn said in a joint statement that he looked forward to “continued positive collaboration.”  In the statement, Prime Minister May said that the U.K. government would continue to work with Nissan as it develops “the environment for competitiveness of the automotive industry here in the U.K. to ensure its success.”