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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Today’s News and Commentary — February 28, 2017

The fate of several of President Obama’s signature labor and employment policies could soon hang in the balance.  The Hill reports that “President Trump is facing pressure to roll back union-friendly policy changes made by the Obama-era National Labor Relations Board” from the U.S. Chamber of Commerce.  In particular, the Chamber urged Trump to target “policies that hold companies accountable for labor violations committed by their partners, speed up union elections, and allow small groups of workers to organize multiple unions inside a single company.”  Meanwhile, a Washington Post columnist notes that the Republican Congress is targeting President Obama’s “Fair Pay and Safe Workforces” executive order aimed at ensuring the compliance of federal government contractors with labor laws.

As President Trump acts, Americans work confidently while those without or about to lose work struggle.  USA Today highlights data from payroll company ADP which shows that American workers are increasingly “shifting into new sectors, such as a marketing manager who leaves retail for finance.”  Notably, “in eight of the 10 major industries tracked by ADP, the share of job-switchers who came from a different industry increased from late 2014 to late 2016 while the share swapping jobs within the same industry fell.  That’s up from seven of 10 sectors that met that criteria in the third quarter.”  ADP attributes such shifts to a tight labor market and worker confidence.  Many workers are, of course, struggling.  USA Today also features the story of John Feltner, an Indiana machinist whose union job is being outsourced to Mexico.  Feltner “is left to wonder how Middle America will endure in the age of offshoring moves such as the one [his employer] is executing.”

The reports of sexual harassment of female engineers at Uber continue to make headlines.  According to The New York Times, “the company dismissed the head of its engineering efforts for failing to disclose a sexual harassment claim from his previous job.”  If Americans are surprised by the allegations, many female engineers are not.  The CBC interviewed women in the tech world who note the commonality of harassment and misogyny in the industry.

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New Harvard Law Review Piece on Grad Student Unions

There’s a new piece of student writing in the most recent Harvard Law Review that offers a different take on the Board’s Columbia University decision regarding graduate student union rights.  The piece focuses on the Board’s use of empirical evidence in the decision, applauds it in part, but criticizes the Board for what the piece calls “cherry picking.”  Worth reading.

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