Today’s News & Commentary — February 2, 2017

The Washington Post reports that the hold up in scheduling Labor Secretary nominee Andrew Puzder’s Senate hearing is due to the nominee’s difficulties in separating from CKE Restaurants.  Puzder wanted to transfer his CKE holdings to a blind trust, but the Office of Government Ethics has told him that he must divest his stake in the company to satisfy ethics requirements.  Because CKE is not publicly traded, divestment can be more difficult.  In a statement to the Associated Press, Puzder reaffirmed his commitment to the post.

New York City Mayor Bill de Blasio and the Patrolmen’s Benevolent Association, the largest union representing the city’s police officers, announced that they had reached a contract agreement.  The deal includes a wage increase of 9.3 percent over five years and a one-time 2.25 percent raise or “neighborhood policing differential.”  The city claims that the raises for officers will be counterbalanced by reductions in pay for new officers.  Additionally, under the proposed agreement, all officers below the rank of sergeant will be required to wear body cameras by the end of 2019.  The five-year contract will be retroactive starting in 2012 but must be ratified by the union’s members before taking effect.  The Wall Street Journal has suggested that Mayor de Blasio’s negotiating position was impacted by his upcoming reelection campaign and public protest actions by the city’s policemen.  Read more here.

The Washington Post has published a series of articles in the past few days exploring federal employees’ resistance to the Trump administration.  The Post reported that some federal workers have been examining ways to impede the execution of Trump’s policy agenda and have been in contact with former Obama administration officials for advice on how to handle orders the employees deem improper.  While some employee opposition has been overt, such as a dissent memo signed by numerous foreign service officers and former Acting Attorney General Sally Yates’s refusal to implement Trump’s refugee ban, other employees have been looking for quieter ways to thwart the new administration, such as slowing down processes or missing deadlines.  These more covert methods of resistance can go unnoticed.  However, the Post notes that federal employees who refuse to act can face significant repercussions.  Debra D’Agostino, a partner at the Federal Practice Group, warned that “[u]nder current MSPB [Merit Systems Protection Board] case law, the employee must obey an order, and then challenge its validity, except in ‘extreme or unusual circumstances’ in which the employee would be placed in a clear danger or which would cause irreparable harm to the employee, or, presumably, the safety of the public.”  Moreover, while federal employees are currently shielded by whistleblower protections if they are asked to violate the law, these protections do not protect them if they are asked to contravene a regulation.  Some observers have expressed concern over what they see as Trump’s hostility toward dissent within the federal government.  Informal Trump advisor, Newt Gingrich, has suggested that President Trump may try and push for changes that make it easier to fire federal workers who impede the execution of his agenda.  The American Civil Liberties Union has pledged to work to defend dissenters and whistleblowers within the federal government. Continue reading

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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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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Guest Post: In This Moment, Labor Must Become a Movement

Moshe Z. Marvit is an attorney and fellow with The Century Foundation, focusing on labor and employment law and policy. He is the co-author (with Rick Kahlenberg) of the book, “Why Labor Organizing Should be a Civil Right.”

This post is part of a series on Labor in the Trump Years.

With the election of President-elect Donald Trump, labor faces a unique opportunity.  Yes, it will face hostility in all branches of the federal government, and will have to maintain a multi-pronged fight.  Yes, union density numbers are at historically low levels, and the bulwark of public-sector unionism may suffer a major blow at the Supreme Court through a case challenging the constitutionality of fair-share fees in the public sector.  Yes, it will face unprecedented challenges to expand, let alone stay afloat.  But in the midst of all this, labor has the opportunity to reform itself so that it can not only survive a Trump administration, but grow as well.  Perhaps “opportunity” is the wrong word to describe the moment; labor has the existential imperative to reform itself, harness the existing energy, and lead a movement.

There is no doubt that Donald Trump—through the use of Executive Orders, executive and judicial appointments, and legislative priorities—will likely usher in an environment that is hostile to labor.  However, unlike Ronald Reagan, Trump ran a campaign that provided the ground for labor to reform itself.  First, he will be the first president in modern history that ran a campaign that was centered around worker issues.  All presidential candidates talk about middle and working class issues, but successful campaigns are rarely centered on improving the lot of workers.  Second, Trump’s calls for mass deportations, exclusion of Muslims, dismantling of the regulatory state, limits to access for abortion, and a litany of xenophobic actions and policies, have united large swaths of Americans in opposition.  Under these conditions, labor can transform itself from what has increasingly become a membership-based services organization into a movement.

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