Today’s News & Commentary — February 28, 2019
Later this morning, Senator Richard Blumenthal and Representatives Hank Johnson and Jerry Nadler will hold a press conference announcing the Forced Arbitration Injustice Repeal (FAIR) Act, a bill that would amend the Federal Arbitration Act to exempt mandatory pre-dispute arbitration agreements in consumer, employment, and patient contracts from the Act’s broad mandate of enforceability. The press conference will be live-streamed at 11:30 AM EST here. The bill comes on the heels of a recent wave of successful worker activism demanding that employers end forced arbitration for work-related disputes. Earlier this week, Vox Media, facing pressure from its staff union, said it would stop asking employees to sign forced arbitration agreements and would end enforcement of such clauses in existing contracts. Google made a similar announcement last week.
As Vail wrote on Tuesday, Labor Secretary Alexander Acosta is facing pressure from some lawmakers to step down after a federal judge ruled last week that he violated the Crime Victims’ Rights Act while serving as a prosecutor in South Florida in 2008. But during a conference call this week, the AFL-CIO executive council decided to hold off on calling for Acosta’s resignation. Politico reports that two labor leaders on the call expressed concern that Acosta, whose stewardship of the Department of Labor has been characterized as cautious and deliberative relative to other Trump cabinet members, could be replaced by an appointee even more hostile to labor and less willing to play by the rules.
In its decision this week in Miller v. Inslee, the Ninth Circuit held that Washington State’s authorization of SEIU Local 925 as the exclusive bargaining representative of the state’s childcare providers did not violate the First Amendment rights of a provider who objected to unionization. First, the panel said that the Supreme Court’s 1984 decision in Minnesota State Board for Community Colleges v. Knight governed the case. Alternatively, even if Janus v. AFSCME upset Knight as precedent, the exclusive bargaining arrangement still passed constitutional muster because the scope of representation was limited and the arrangement served the compelling state interest of labor peace. The Ninth Circuit follows in the footsteps of the First, Seventh, and Eighth Circuits, which have all found no First Amendment problem with unions serving as exclusive bargaining representatives for state-subsidized workers. In December, the National Right to Work Legal Defense Foundation filed a cert petition for Supreme Court review of the Eighth Circuit’s decision in Bierman v. Dayton.
Bloomberg Law reports that NLRB General Counsel Peter Robb is urging the Board to overrule its 2014 decision in Food & Commercial Workers Local 700 (Kroger Limited Partnership), which reaffirmed its prior decision in California Saw & Knife. Kroger and California Saw established that a union fulfills its obligation to notify new employees of their right to be nonmembers and opt out of paying full union dues even when it does not tell workers up front how much they would pay as nonmembers. As Robb writes in his most recent memo, “It is obvious that employees will be better able to make informed decisions about whether to become Beck objectors if they know the amount of savings that will result from that decision.”
Yesterday the Senate Committee on Health, Education, Labor and Pensions voted to advance the nominations of Janet Dhillon to chair the EEOC, Scott Mugno to head OSHA, and Cheryl Stanton to direct the DOL’s Wage and Hour Division. The vote for the nominees split 12-11 along party lines. Committee Chairman Lamar Alexander encouraged the full Senate to approve the nominations swiftly.