Today's News & Commentary — July 9, 2015

Published July 9th, 2015 -  - 07.09.153


Per the Washington Post, the National Labor Relations Board is set to consider whether the U.S. Postal Service violated the terms of its collective bargaining agreement with the American Postal Workers Union when it agreed to outsource certain retail services to Staples. Specifically, the union contends that the Postal Service “illegally subcontract[ed] work to Staples without bargaining first with the union.” A regional director of the NLRB agreed with the union, and filed a complaint against the Postal Service to be heard in mid-August. “This ruling represents an important step forward in the battle against the privatization of our nation’s public Postal Service,” stated APWU President Mark Dimondstein. The Postal Service has declined to comment.

Staying on the topic of privatization for a moment, Massachusetts labor union leaders are “outraged” after state lawmakers signed off on a budget deal that would temporarily make it easier to outsource services provided by the Massachusetts Bay Transportation Authority. According to the Boston Globe, state officials had previously been required to “prove that outsourcing a service would be cheaper than allowing public employees . . . to provide it in ‘the most cost-efficient’ manner possible.” However, as part of the state’s $38.1 billion budget package, legislators agreed to a three-year moratorium on the rule, which had been characterized as “anti-privatization” in the wake of  severe winter storms that had significantly crippled public transportation in the greater Boston area. Yet State Senator Marc Pacheco, who had sponsored the 1993 legislation enacting the outsourcing rule, had this to say: “I don’t know how you call something anti-privatization when 80 percent of the time it has been tested, it’s allowed privatization. But that’s the narrative that a lot of you guys in the mainstream press are using.”

Bloomberg BNA reports that the U.S. Court of Appeals for the D.C. Circuit has ordered the NLRB to resolve a statutory conflict concerning employer obligations in the event of a change in employee bargaining representative. Where employees opt to switch which union will formally represent them, § 8(a)(5) of the National Labor Relations Act appears to require employers to arbitrate all outstanding grievances with the former union, while § 9(a) requires employers to negotiate exclusively with the new one. In other words, Judge Karen Henderson wrote in her opinion for the court, “[t]he NLRA does not identify where the duty to resolve unfinished business with the old union ends and the duty to bargain exclusively with the new union begins.” The NLRB, however, declined to address the seeming statutory inconsistency in adopting an administrative law judge’s order that the Children’s Hospital and Research Center of Oakland must arbitrate all remaining grievances with the relevant bargaining unit’s previous representative. “When an agency fails to wrestle with the relevant statutory provisions, [the courts] cannot do its work for it,” Judge Henderson continued. She was joined in her opinion by Judges David Tatel and Thomas Griffith.

Reuters has coverage on the latest legal challenge to employment status in the ever-growing gig economy. Handy, the “on-demand” house cleaning provider, has been sued in federal district court in Massachusetts for allegedly misclassifying its cleaners as independent contractors. The named plaintiff in the proposed class action claims that she was only paid $14 for a 30-hour workweek after she was forced to pay for cleaning supplies. Notably, the suit has been filed by Shannon Liss-Riordan, the same attorney who is presently litigating similar actions against companies such as Uber and Lyft.

In the shadow of May’s fatal derailment of Amtrak Train 188, the National Transportation Safety Board has recommended that inward-facing surveillance cameras be installed in all Amtrak locomotives. While Amtrak CEO Joseph Boardman had already publicly stated that the railroad would install such cameras, the Philadelphia Inquirer notes that the NTSB is calling for “additional requirements for a complete inward- and outward-facing audio and image recorder system” as well as “semiannual public progress reports on installing the recorders.” An Amtrak spokesperson said that it was “reviewing the NTSB recommendations and will incorporate them, as appropriate, into [their] plan to install inward-facing cameras in the locomotive fleet.” However, in testimony before a House committee last month, the head of the Brotherhood of Locomotive Engineers — the union that represents Amtrak engineers — called the cameras “an accident-investigation tool and not an accident-prevention tool,” and suggested that the cameras constituted an invasion of employee privacy.

There may be good news on the horizon for beleaguered teachers unions and fellow opponents of standardized testing. The New York Times reports that Congress is set to revise the No Child Left Behind Act and potentially “scale back . . . the use of high-stakes standardized testing to punish schools.” On Wednesday, the House of Representatives passed a bill that would “retain the annual reading and math tests required under current law,” but give states greater “latitude to decide how those assessment tests would be used to measure school and teacher performance.” Although the Senate version of the bill purports to do the same, it would also “require states to continue to use the tests as a significant accountability factor while the House measure does not.” Nevertheless, National Education Association President Lily Eskelsen García called the Senate bill “a giant leap for childkind” and said that it would “get[] rid of the test and punish[] mandates that say you will label a child or you will label a school by a standardized test.”

Also from the New York Times, medical and legal experts are growing increasingly concerned about the effect of doctors’ notes on the employment status of pregnant employees. Recently published commentary spearheaded by Dr. Rebecca Jackson, chief of obstetrics and gynecology at San Francisco General Hospital, suggests that “unspecific or poorly timed notes could bring harsh responses from employers.” This is especially true in the case of “[v]ague or overarching medical recommendations . . . because some employers seize on them to suggest a woman can’t perform her job and so must be put on unpaid leave midpregnancy.” Instead, the commentators recommend that “doctors first learn what a patient’s essential job duties are” and “then specify in the note what she can no longer do and, as important, what she can still do.” The article also discusses the U.S. Supreme Court’s recent decision in Young v. UPS, noting that “[e]ven the best educated doctors may not understand” the “legal ramifications” of their efforts to support pregnant individuals.

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