Today’s News & Commentary — May 4, 2017

The New York Times reports that Apple plans to create a $1 billion fund for the advancement of manufacturing jobs in the United States. In an interview with CNBC, Apple’s chief executive Timothy D. Cook noted, “Those manufacturing jobs create more jobs around them because you have a service industry that builds up around them.” The company hopes to announce its first investment from the new fund sometime this month.

The House Rules Committee will meet this week to discuss an amendment to the FLSA. The Working Families Flexibility Act is a Republican-sponsored bill that would create the option for employers to offer one-and-a-half hours of paid time off in lieu of one hour’s worth of time-and-a-half overtime wages. The bill recommends capping the paid time off hours available at 160. A blog post notes that the House Education and Workforce Committee approved the bill last week.

The Circuit Court for the District of Columbia reversed an NLRB decision last week in the case of Bellagio LLC v. National Labor Relations Board, finding that the Bellagio Hotel and Casino did not interfere with a bellhop’s “Weingarten rights” under the NLRA. Weingarten rights assert that employees have the right under the NLRA to have union representation during any investigatory interviews. This right must be affirmatively requested by the employee, after which an employer may (1) grant the request, (2) end the interview, or (3) offer the employee the option between holding an interview without representation or not having an interview.

Following a complaint from a hotel guest about the bellhop, Bellagio management attempted to interview the bellhop, Gabor Garner, who requested union representation. Bellagio suggest Garner contact a union representative on his own, but he refused. The hotel then attempted to find a representative, but was unsuccessful. Upon returning to the interview room where Garner was waiting, management asked Garner if he would like to make a written statement instead, which he also refused. Management then ceased the interview and placed Garner on paid suspension pending investigation until Garner returned the following day with his union representative to conduct the interview. Continue reading

Today’s News & Commentary — April 25, 2017

The Supreme Court will soon be presented with the opportunity to decide whether unions can constitutionally charge non-members “fair share” fees.  According to Bloomberg BNA, “the National Right to Work Legal Defense Foundation intends by the end of May to file a petition asking the high court to review a Seventh Circuit decision dismissing a lawsuit by two Illinois government workers who challenged the fees on First Amendment grounds.”  The Supreme Court heard a similar challenge in 2016, Friedrichs v. California Teachers Association, but ultimately ruled 4-4 following the death of Justice Scalia, thus affirming a lower court decision finding that public-sector unions may continue to collect “fair share” fees from nonmembers.  The Seventh Circuit similarly upheld such fees in the case at issue now.

Using colorful language about a boss does not deprive a worker of the protections of the National Labor Relations Act, according to the Second Circuit.  Consumerist reports that the Second Circuit found that the operator of restaurants at New York’s Chelsea Piers illegally terminated a worker in retaliation for engaging in protected activity when, two days before a unionization vote, the worker posted a colorful Facebook post about his boss in urging support for unionization.  The Second Circuit concluded that “the NLRB could reasonably determine that the server’s “outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.”

America’s male-dominated industries want to diversity.  Per the Chicago Tribune, the “Iron Workers union this month leaped to the cutting edge of the effort, becoming the first building trades union to offer up to eight months of paid maternity leave to pregnant women and new moms” despite only 2 percent of union members being women.  The union and other traditionally male-dominated employers are driven to recruit women by the aging of baby boomers, a decline in enrollment in vocational education, and other factors.

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Weekend News & Commentary—April 15-16, 2017

Yesterday, in dozens of cities across the U.S., tens of thousands of protestors took to the streets to demand that Trump release his tax returns.  Reuters explains that organizers of the “Tax March” wanted to draw attention to Trump’s refusal to release his tax returns.  The marches were planned for April 15 because it is the traditional filing deadline for U.S. federal tax returns (this year the filing date was pushed back two days).

Politico reports that the “clock is ticking” for expanding the number of available H-2B visas.  The H-2B visa program permits business to hire temporary, non-agricultural foreign workers, with a cap of 66,000 visas per year.  The 2015 spending bill exempted returning workers from the cap, and business leaders are pushing for Congress to do the same in 2017.  Although a House appropriations bill for the fiscal year 2017 already includes the exemption, business leaders are lobbying the Senate to do the same by April 28, the date by which Congress needs to pass a spending bill to keep the government functioning.

On Thursday, U.S. District Judge for the District of Massachusetts Leo T. Sorokin presided over a two-hour hearing regarding two City Hall aides charged with extortion for “allegedly threatening to withhold permits for the Boston Calling festival in September 2014 unless organizers hired union workers.”  According to the Boston Globe, a prosecutor in the U.S. Attorney’s Office asserted that the aides thought they were advancing Mayor Walsh’s agenda.  Attorneys for the defense countered that the aides acted as city workers seeking jobs for constituents, that they had the right to negotiate the use of City Hall Plaza, and that the prosecutors “have failed to show that the defendants received anything of value for allegedly urging the labor union jobs.”  As Attorney Thomas Kiley argued, “A violation of the National Labor Relations Act is not the same as [extortion].”

Beware of Judge Gorsuch’s Profoundly Anti-Democratic, Anti-Regulatory Vision

Not surprisingly, at Neil Gorsuch’s confirmation hearing, the Democratic Senators didn’t succeed in getting Judge Gorsuch to reveal much about his views.  Instead, Gorsuch insisted that “if I were to start telling you which are my favorite precedents or which are my least favorite precedents or view it in that fashion, I would be tipping my hand and suggesting to litigants I already made up my mind about their cases.  That’s not a fair judge.” But, Gorsuch has already done exactly that, writing an unusual concurring opinion that criticized Chevron U.S.A. Inc. v. Natural Resources Defense Council, a unanimous 1984 Supreme Court decision that has been reaffirmed many times.  Gorsuch’s critique of Chevron merits a close look because it reveals a vision that is profoundly anti-democratic and that makes it exceedingly difficult to rein in large corporations.

In Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote a 23 page concurrence arguing that Chevron should be overturned.  At his confirmation hearing, Gorsuch explained his actions by saying, “my job is when I see a problem to tell my boss.”  I can’t help noting that only a judge who has forgotten what it’s like to have a real boss would describe the Supreme Court justices as his “bosses,” since they have no ability to affect either his job tenure or his working conditions.  As Eric Posner has pointed out, Gorsuch’s views on Chevron place him far outside the mainstream, and to understand why, it’s worth reviewing both the holding and the rationale for the Chevron decision.  Chevron involved the validity of regulations adopted by the Environmental Protection Agency (ironically under the leadership of Gorsuch’s mother) during the Reagan Administration. The regulations at issue were challenged by environmental groups, who argued that they were inconsistent with the purposes underlying the Clean Air Act.  The Court held that if a statute is silent or ambiguous with respect to a specific issue, the court should not simply impose its own construction on the statute, but instead should defer to the construction of the agency charged with administering that statute as long as the agency’s interpretation is “reasonable.”  This means that sometimes the Court will uphold the agency’s construction even though the Court might have reached a different result if the question had initially arisen in a judicial proceeding.

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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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Guest Post: Collective Bargaining As We Know It Can Still Work, But It Is Not Enough

Kate Andrias is Assistant Professor of Law at the University of Michigan Law School.

Andrew Strom takes issue with labor supporters who are “arguing that collective bargaining is dead and unions need to find something new to replace it.”  He argues that passing a series of local minimum wage ordinances “is no substitute for collective bargaining.”  He is right on both counts.  Collective bargaining is essential; and employment law cannot be a replacement for large-scale organizations that are controlled by workers.  Any reform effort that rests on an abandonment of self-funded worker-led unions should be rejected.

But a commitment to collective bargaining and to worker-led organizations should not lead one to settle for our existing system of labor relations.  As Strom himself has recognized “existing labor law makes it nearly impossible for workers to join unions.  The law also makes it exceedingly hard for workers to achieve substantial gains in bargaining.  And the difficulties are likely to get worse with the new Administration.

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