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.

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.”

Fact and Fiction About Graduate Student Unionizing

When the NLRB in Columbia University held that university student workers are “employees” with the right to unionize, it restored at private universities a right student workers had between 2000 and 2004, a right that their counterparts have had in medical education for almost 20 years, and, most compelling, a right that many public university student workers have had for almost 50 years.  Given this long history of unionization — about 64,000 grad students at public universities in ten states are unionized — I am astonished that university lawyers and PR people are still arguing with a straight face that unionization will undermine education.  Let’s look at the universities’ arguments and at the facts.

Mentoring Relationships.  Universities argued to the NLRB, and to the press, that graduate student unions prevent or undermine the mentoring relationship between faculty and students.  The NLRB majority thought the empirical studies of the effect of unionization on educational mentoring relationships showed otherwise.  A 2013 study comparing student-faculty relationships, academic freedom, and economic well-being across unionized and non-unionized campuses confirmed the findings of prior surveys: unionization does not interfere with faculty-student relationships or harm the education or training of graduate students.  Indeed, unionized graduate students reported higher levels of personal and professional support and unionized graduate student employees fared better on pay.  Additionally, unionized graduate students “had higher mean ratings on their advisors accepting them as competent professionals, serving as a role model to them, being someone they wanted to become like, and being effective in his or her role.”

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Teach Grad Students A Lesson: Uphold Brown and Preserve Academic Freedom

Over the past few years, the attention given to the employment status of student athletes has resulted in increased scrutiny over labor issues at universities.   Indeed, just a year after the NLRB declined to assert jurisdiction in Northwestern University, a case involving student athletes, the Board agreed to revisit the status of graduate assistants in Columbia University.  In earlier posts on this blog, Professor Catherine Fisk and Jon Weinberg argued that the NLRB should use Columbia as an opportunity to reverse its 2004 Brown University decision, which held that graduate assistants are not statutory employees under the National Labor Relations Act.  However, these arguments to overturn Brown ignore years of precedent and do not fully address the substantial risk that graduate student unionization poses to academic freedom at private universities.

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Weekend News & Commentary — April 23-24, 2016

In the wake of the Uber settlement, more outlets release their take on the resolution. The Washington Post provides details of the terms of the settlement, gauging that it is ultimately in Uber’s favor. The Wall Street Journal dives deeper into the tipping notice issue. For the first time, Uber drivers can post a sign stating that fares do not include tips but that passengers may leave tips in cash. Unlike its competitor Lyft, Uber will not build tipping into the app. Given the app’s appeal of riding currency-free, along with drivers’ hesitancy to do anything that might put off customers, drivers don’t know if the optional notices will have any effect on tipping or if they will even post them.

While Uber workers remain classified as independent contractors, the National Labor Relations Board takes up the question of whether misclassification is an unfair labor practice. Politico announced that the NLRB regional office filed a complaint alleging an NLRA violation for misclassification of Southern California port truck drivers as independent contractors. The Teamsters called the complaint a “historic” moment in their organizing drive. Additionally, this summer the NLRB will release decisions on whether graduate student teaching assistants have collective bargaining rights, and whether new rules will make it easier for permanent and temporary employees to unionize in a single bargaining unit.

The Boston Globe released a report on a federal investigation into alleged use of strong-arm tactics to stifle non-union development projects—with the implicated actors risings as high as Boston Mayor Martin J. Walsh. As the former head of the Boston Building Trades, Walsh was drawn into the investigation through 2012 wiretaps, in which he reportedly told a development company it would face permitting problems unless it hired union labor on an unrelated development project. Walsh denied threatening any company and maintains that as mayor, “no one gets any special treatment under [his] administration — developers, contractors, or unions.”

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