President Joe Biden intends to nominate Gwynne Wilcox, a union-side labor lawyer, to the National Labor Relations Board (NLRB), the White House announced yesterday. As a senior partner at Levy Ratner and associate general counsel for SEIU 1199 United Healthcare Workers East in New York, Wilcox made waves through a landmark unfair labor practice case filed against MacDonald’s on behalf of the Fight for $15, litigation which tested the bounds of franchisors’ legal liability for third-party employers and resulted in an $170,000 settlement for the organization. If confirmed, Wilcox would be Biden’s first appointee to the five-member NLRB, as well as the Board’s first African-American woman member. Her appointment would reduce the GOP’s membership edge on the Board from 3-1 to 3-2, setting the majority up to flip once Republican Member William Emanuel’s term expires in late August.
Elsewhere in government, Biden appointees continue to roll back anti-worker policies from the prior administration. On Wednesday, the Department of Labor’s Office of Labor-Management Standards (OLMS) published a notice of proposed rulemaking to rescind a Trump-era rule that required unions to disclose detailed financial information on strike funds, apprenticeship programs, and other trusts as part of their compliance with the Labor Management Reporting and Disclosure Act (LMRDA). The rule, which OLMS ceased to enforce in March, formed part of a trio of onerous disclosure requirements proposed under the Trump administration, two of which were never finalized. Also yesterday, the U.S. Department of Agriculture (USDA) announced in an online constituent update that it would reimpose speed limits on pork-processing lines abandoned under the Trump administration. The decision comes in light of a federal district court ruling on March 31, which invalidated the Trump administration’s relaxation of speed limits as unlawfully implemented and gave the USDA 90 days to reformulate its policy.
U.S. Trade Representative Katherine Tai also continues to beef up U.S. labor policy internationally, outlining a new proposal before the World Trade Organization (WTO) to monitor and combat forced labor at sea. In a statement, Tai proposes that WTO members recognize the issue and be required to notify the Organization of any suspected forced-labor incidents at sea. The proposal would form part of a broader agreement being negotiated to address environmentally harmful fishing subsidies, a process set to conclude in July. According to both the State Department and the Department of Commerce, Chinese firms have been repeatedly flagged for committing forced-labor violations at sea.
On Capitol Hill, the House Committee on Health, Education, Labor and Pensions (HELP) advanced two bills to expand workers’ rights. One, H.R. 3110, would expand protections for paid meal and nursing breaks afforded to workers under the Fair Labor Standards Act (FLSA) to a number of employee categories currently exempted, including teachers, farmworkers, transportation employees, and airline workers. The other, H.R. 2062, would ease the burden of proof required of employees to show unlawful age discrimination under the Age Discrimination in Employment Act (ADEA). In Gross v. FBL Fin. Servs., 577 U.S. 167 (2009), the Supreme Court imposed higher causality requirements for ADEA claims than for other discrimination claims under Title VII, holding that age must be not only the but-for cause of an employment decision, but—according to some lower courts—the sole factor involved. While last year’s decision in Bostock v. Clayton Cnty., 130 S. Ct. 1731 (2020), may have loosened the but-for cause standard for ADEA claims, H.R. 2062 goes further by copying the Title VII standard and allowing plaintiffs to claim discrimination if age was a “motivating” factor in an employment action, even when not a determinative one. Despite backing from the Chamber of Commerce, H.R. 3110 passed on a party-line vote of 28-19, while H.R. 2062 passed 29-18 with one just Republican in support.
While support for Uber’s deceptive labor rights bill collapses in Albany, Uber drivers have won a major organizing victory across the pond. On Wednesday, Uber announced that it would enter into a labor agreement with the British union GMB to represent the company’s 70,000 U.K. drivers. The new contract, which guarantees a national living wage, paid holidays, and a pension, comes on the heels of a landmark decision by the U.K. Supreme Court earlier this year, which ruled that rideshare drivers are “workers,” not independent contractors, and therefore entitled to union rights under British law. The agreement marks the first time Uber has ever recognized a drivers’ union. Still, leaders of the App Drivers & Couriers Union (ADCU) in Britain have sounded caution; Uber’s remains extremely hostile to unionization overall, and agreement has some notable shortcomings. It imposes an open shop, for instance, and does not guarantee compensation for waiting time as required in the high court’s ruling. The agreement also leaves out an estimated 30,000 Uber Eats drivers, who were expressly exempted from the recent legal decision.
On Monday, organizers from the United Auto Workers (UAW) submitted 10,441 union cards to the California Public Employee Relations Board to request a union election for around 17,000 higher education workers across ten University of California (UC) schools. UAW already represents tens of thousands of graduate student workers and researchers across the UC system. With over 60% of the bargaining unit having already signed on, observers suggest that the union is well poised to expand its coverage to nearly 50,000 UC employees overall. Meanwhile in New York, the Technical Office and Professional Union 2110, a UAW affiliate, announced plans to unionized around 130 full- and part-time employees at the Brooklyn Museum, proposing a unit that would include curators, editors, conservators, fundraisers, visitor-service workers, educators, and gift-shop employees. This flurry of organizing takes place at a moment of historic internal turmoil for UAW, as the union faces its first-ever direct leadership elections in the next six months courtesy of recent consent decree. Meanwhile, UFCW has announced its own pair of groundbreaking organizing victories, as two of the nation’s largest cannabis producers—Union Harvest and Nature’s Root Labs—have signed onto an organizing agreement with the union.