Today’s News & Commentary — May 10, 2018
Yesterday Senator Bernie Sanders and Representative Mark Pocan introduced a revamped Workplace Democracy Act (WDA), a bill that builds on past efforts at labor law reform such as the Employee Free Choice Act (EFCA) and previous iterations of the WDA. Like EFCA, the WDA would make majority sign-up or “card check” an option available to workers for NLRB certification of their unions. Currently, employers can choose to recognize a union voluntarily when a majority of workers sign authorization cards, or they can demand a secret ballot union representation election. Under the WDA, workers could select the process they prefer. Again mirroring EFCA, the WDA would mandate that an employer commence negotiations with a certified union ten days after the union formally requests to bargain. Following ninety days of negotiation, either the employer or union can request compulsory mediation. If no contract is reached after thirty days of mediation, the employer and union would submit any issues still on the table to binding arbitration. In new provisions, the WDA would also repeal Section 14(b) of the Taft-Hartley Act, which permits states to adopt right-to-work laws; authorize secondary boycotts and picketing; and require that employers disclose spending on “union avoidance” campaigns, similar to the Obama-era Department of Labor’s Persuader Rule. The bill would also enshrine in federal law both the ABC test recently endorsed by the California Supreme Court for whether a worker is an employee or an independent contractor and the Browning-Ferris joint employer test restored by the NLRB after vacating Hy-Brand.
As we previously reported, the NLRB’s Trump appointees are searching for a new case to overturn Browning-Ferris. However, the Board’s Republicans have had trouble finding a case that does not raise a conflict of interest for either Chairman John Ring or Board Member William Emanuel, both veterans of management-side law firms. While the business lobby hoped for a quick legislative fix, Senate HELP Committee Chairman Lamar Alexander told attendees at the International Franchise Association conference on Tuesday that Republicans did not have the Democratic votes necessary to pass the Save Local Business Act, a bill that would codify Hy-Brand’s direct and immediate control standard. Yesterday the Board announced it is exploring rulemaking as an option to adopt its preferred joint employer standard in lieu of adjudication.
Steven Greenhouse, the former labor reporter for The New York Times, published an op-ed yesterday situating the current wave of teacher strikes within a long history of worker militancy operating outside the law. Greenhouse argues that state officials where teacher strikes are illegal have been hamstrung in their efforts to stop the strikes because teachers, like postal workers who walked off the job in 1970, are admired in their local communities and are too numerous to replace.
Culinary Workers Union Local 226 and Bartenders Union Local 165, which represent around 50,000 Las Vegas casino workers, announced they will vote on May 22 on whether to authorize a strike. Contracts for both unions expire on June 1. Bargaining teams for the resort operators and the unions have been in negotiations since February, but have not yet settled the terms of a new five-year contract. Resort operators averted a city-wide strike in 2002 after they met many of the unions’ demands the day after a successful authorization vote that year. The last city-wide strike was a 67-day walkout in 1984, though workers have more recently walked off the job at individual resorts.