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.
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.
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.
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.
As reported in the BNA Daily Labor Report, the Supreme Court today granted review in Murphy Oil, Ernst & Young, and Epic Systems, three court of appeals cases that address the question of whether class action waivers in mandatory employment arbitration agreements are unlawful under the National Labor Relations Act. We’ve covered this question in some depth, and will continue to do so now that the issue will be before the Court.
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.
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.