Today’s News & Commentary — March 9, 2017

Congresswomen Jan Schakowsky (D-Ill.) and Pramila Jayapal (D-Wash.) stood in solidarity with rallying crowd of women for International Women’s Day. According to Politico, labor unions such as the American Federation of Teachers and National Nurses United were in attendance. Rep. Schakowsky addressed the protestors, stating, “American women still earn far less than men 50 years after President Kennedy signed the Equal Pay Act.”

The Huffington Post reports that the number of deportations of undocumented workers under the Trump administration, alongside the regime’s immigration policies, begs the question of how reporting standards in immigrant labor will shift. Chicago attorney Christopher Williams, who specializes in immigrant wage theft cases, notes, “There’s a lot of fear out there, and it’s driving workers further underground. I honestly think it’s creating an incentive to hire more undocumented workers, because now they’re even more vulnerable to being exploited.” So far, the Labor Department has not issued a press release detailing wage and safety investigations since Trump’s presidency commenced.

Meanwhile, the D.C. Circuit has issued its opinion in Scoma’s of Sausalito. Scoma’s involved an employer’s withdrawal of recognition of UNITE HERE Local 2850 based on the employer’s belief that the union no longer enjoyed majority support of the bargaining unit.  The Board held that the withdrawal was illegal and issued a bargaining order. The D.C. Circuit agreed that withdrawing recognition was an unfair labor practice, but refused to enforce the Board’s bargaining order remedy. Instead, the court of appeals sent the case back to the Board and ordered the Board to come up with a less “extraordinary” remedy for the illegal withdrawal of recognition.

In other NLRB news, the Board has ordered a Regional Director to revisit its decision that NBCUniversal workers in Chicago, New York, and Los Angeles were part of a single nationwide bargaining unit.

Alex Acosta’s Sympathies

We still have a lot to learn about Alex Acosta, Donald Trump’s new nominee for Labor Secretary, but one case he ruled on during his brief stint at the National Labor Relations Board suggests that, not surprisingly for a Trump appointee, he is likely to favor employers over workers when faced with a close question.  In Alexandria Clinic, P.A., a 2003 case, Acosta, joined by two other Republican Board members, overruled a twenty-four year old precedent to uphold the firings of 22 licensed practical nurses who were fired for striking at the health care clinic where they worked.

The National Labor Relations Act provides that unions must give health care institutions at least ten days’ notice before striking, and the notice must state “the date and time” the strike will commence.  The Act further provides that an employee loses her status as an employee if she strikes “within” the notice period.  In this case, the union provided ten days’ notice of its intent to strike on September 10 at 8 a.m.  After the notice went out, the nurses decided that it would be less disruptive for patients if they struck at 11:45 a.m., instead of 8 a.m., and so they decided to begin their strike at 11:45.  The employer was well-prepared to weather the strike, as it had temporary nurses standing by to replace the nurses as soon as they went out.  There was no finding that any patient was harmed as a result of the strike.

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Political Strikes: What Can Workers Do to Protect Themselves?

On January 28, the New York Taxi Workers Alliance called an hour-long work stoppage as a way to express their opposition to President Trump’s Executive Order banning immigration from seven Muslim majority countries and suspending refugee intake.  A week later, Yemeni-American bodega owners in New York City protested the Order by closing their businesses and holding a thousands-strong protest in Brooklyn.  On February 16, as part of an action called A Day Without Immigrants, thousands went on strike to highlight the contributions of immigrant workers.  Each of these demonstrations employed the tactic of work stoppages to send a message.  Each was labeled a “strike” in the media. But unlike traditional workplace strikes, the protesters’ messages were not targeted exclusively or even primarily at their employers.

Similar “political strikes” might become more common in the era of President Trump.  The organizers of the Women’s March on Washington have joined in the call for “A Day Without a Woman” on March 8 – International Women’s Day – in solidarity with an International Women’s Strike.  If women respond in large numbers as they did to the march, the Day could mark the largest political strike in this country’s history.

Such actions are not without risks.  At least one hundred workers were fired for participating in the Day Without Immigrants.  Ten years ago, the first Day Without Immigrants strike was held to protest legislation that increased barriers to hiring immigrant workers.  Then, too, many strikers were fired or faced other forms of retaliation.

So, what can be learned from the Day(s) Without Immigrants to minimize risks for those who choose to take part in A Day Without a Woman?

A guidance letter issued by the National Labor Relations Board following the 2006 Day Without Immigrants provides some instruction.  The letter suggested that the Board will consider two factors when determining whether workers are shielded from retaliation for participating in political advocacy: the workers’ objectives and the means employed.

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The Supreme Court Vacancy and Labor: William Pryor

President Donald Trump plans to announce his nominee to fill the late Justice Scalia’s seat on the Supreme Court this Thursday.  Among the rumored candidates is Judge William H. Pryor Jr. of the 11th Circuit, who met with the president two weeks ago.  Judge Pryor was appointed by President George W. Bush to his seat in Alabama in 2005 after the Senate voted to confirm him 53–45.  From 1995–97, Judge Pryor served as a deputy attorney general of Alabama.  He was elected as Alabama’s Attorney General in 1997, at 34 years old, and served in that position until his nomination to the 11th Circuit.  SCOTUS Blog has extensively covered Judge Pryor’s record on a variety of legal topics, but did not discuss the judge’s record on labor and employment.  We do so here.

Judge Pryor has not developed a particular reputation with respect to labor and employment law, but one impression that emerges from a look at the admittedly few labor and employment opinions he has written or joined is deference to the determinations of the NLRB.

Unlike his fellow shortlist member Neil Gorsuch, Judge Pryor has not publicly expressed concern over excessive deference to administrative agencies.  His NLRB opinions reflect a preference for deferring to agency interpretations and findings.  Out of nine cases he heard in which the NLRB was a party, Judge Pryor sided with the NLRB in eight of them.  In seven of these cases, Judge Pryor found that “substantial evidence” supported the NLRB’s determinations.  Judge Pryor was part of the unanimous or per curiam opinion in six of these cases.  In Lakeland Health Care Assocs. v. NLRB, Judge Pryor dissented from the majority opinion holding that substantial evidence did not support the NLRB’s decision to not count defendant employer’s licensed practical nurses as supervisors, thereby precluding their attempts to unionize.  Criticizing the majority, Judge Pryor wrote, “[i]n reweighing the facts and setting aside the Board’s order, the majority opinion ‘improper substitute[s] its own views of the facts for those of the Board,’ […] and fails to adhere to our deferential standard of review.”  696 F.3d 1332, 1350 (11th Cir. 2012).  He recognized that though some circuits gave a less deferential standard of review to NLRB determinations of who counts as a “supervisor” under § 2(11) of the NLRA, “our Court has refused to make ‘judicial adjustments to the statutory standard of review because we believe the wiser course is a robust application of the standard that has typified review of Board decisions.’”  Id. (citations omitted). Continue reading

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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When They Talk About Joint Employers, Republicans Are Either Lying or Confused

Now that Republicans in Congress are about to get a President who will sign their bills into law, they are eager to overturn even the most modest pro-worker measures that President Obama’s appointees were able to implement.  One of the top items on the chopping block is the “joint employer” standard that the NLRB announced in 2015 in its Browning-Ferris Industries decision.  What’s unfortunate is that rather than debate the Board’s decision on the merits, Republicans in Congress insist upon misrepresenting the decision and its effects.

Consider a recent column by Representative Bradley Byrne, who sits on the House Education and the Workforce Committee.  He wrote, “[t]here may be no regulation that threatens to crush small businesses and working people more than a recent ruling from the National Labor Relations Board relating to the definition of a ‘joint employer.’”  Byrne asserts that the ruling will make big firms liable for the actions of small firms, and thus they are “unlikely to do business with them anymore.”  This is simply wrong.  Joint employers are not automatically liable for each other’s actions.  Instead, under long-settled Board law, a non-acting joint employer is only liable where it knew or should have known that the other employer acted for unlawful reasons.  Apart from being wrong as a matter of law, the claim is absurd as a matter of common sense.  It’s like saying no homeowner would ever hire an electrician because there are some circumstances where the homeowner could be liable for actions taken by the electrician.  In fact, the Browning-Ferris decision wasn’t about liability, but rather about the right of workers to bargain with actual decision-makers.  The workers in Browning-Ferris were employed by a staffing agency, but Browning-Ferris retained the right to dictate who could work at the facility, it set schedules, controlled the speed of the production line, and imposed a maximum wage rate for the agency’s employees.  When the workers formed a union, they wanted the right to bring Browning-Ferris to the table, so that they could bargain about these vital issues.  Byrne also makes the unsupported claim that 600,000 jobs “could be either lost or not created” because of the Browning-Ferris decision.  But, at most, the decision might lead big firms to follow a different business model – if big firms choose to hire workers directly rather than through intermediaries, the workers’ jobs won’t disappear.

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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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