Workers Understand a Boss’s “Hopes”

According to the sworn testimony of former FBI Director James Comey, President Trump pulled him into a private meeting in the oval office and said, about the FBI’s ongoing investigation of former national security advisor Michael Flynn, “I hope you can let this go.”  One question raised by the testimony is whether it was reasonable for Comey to interpret President Trump’s statement as a directive.  While labor law does not have a direct answer, the National Labor Relations Board has held that when a company president expresses his “hope” to a worker, it can be coercive.

In a 1995 case, KNTV, Inc., the company president had a private meeting with a reporter where the president told the reporter, “I hope you won’t continue to be an agitator or antagonize the people in the newsroom.”  The NLRB found that the statement was coercive in large part because it was made by the company’s highest ranking official and it was made in a meeting that the reporter was required to attend alone.  Sound familiar?

In other words, the expert agency that regularly adjudicates disputes about whether particular statements by an employer rise to the level of coercion has held that when the president of an organization expresses his “hopes” in a private conversation with a worker, those comments will likely have a “chilling effect” on the employee.

Expanding the Workers’ Bill of Rights

I recently proposed a Workers’ Bill of Rights, and invited others to respond with suggestions for other rights that should be included.  I did receive some helpful comments, and in response I would propose adding three additional rights to the ones I had previously proposed:

A Right to Strike and Engage in Other Concerted Actions:  These are the key rights protected by the National Labor Relations Act (NLRA), but, as James Gray Pope, Ed Bruno, and Peter Kellman recently pointed out, they often exist more in theory than in fact. There are many reasons for this, but at least in the private sector, here are some of the key ones:  First, an employer’s ability to permanently replace striking workers, particularly when combined with a constant reserve of unemployed individuals, has virtually eliminated the strike as a viable weapon for most workers. Next, few workers are aware of their rights under the NLRA.  When the Labor Board took a small step to address this ignorance by issuing a rule that required employers to post notices informing workers of their rights, employers succeeded in enjoining the rule.  In addition, when employers interfere with these rights, it can take years to obtain a legal victory, and the victory is often hollow because the NLRA does not impose any penalties on employers.

A Right to Be Free from Discrimination:  One of the places where we have made real strides in this country over the last forty years is in combatting race and sex discrimination in the workplace.  It hasn’t gone away, and workers are still often too scared to speak up when their supervisors are the perpetrators, but most employers at least proclaim a commitment to fight race and sex discrimination.  Unfortunately, in many cases this commitment to combat discrimination does not extend to discrimination based on sexual orientation or gender identity.  The circuit courts are split on whether Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation.  Only about half the states outlaw employment discrimination based on sexual orientation and gender identity.  Thus, while the Constitution may protect the right of same sex couples to marry, it does not prevent their employer from firing them for exercising that right.

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Workers Need a Bill of Rights

Except for about a month in the summer of 2009 when the Democrats had 60 votes in the Senate, for the entire twenty-first century any proposal to substantially increase workers’ rights at the national level has had to be prefaced by the comment that, “of course, this is not politically feasible now.”  But rather than just spending the next four years fending off misguided Republican legislation, I think it’s time to step back and focus on principles that should guide workplace legislation.  Toward that end, here are some thoughts on a potential workplace bill of rights.

There might be some other rights that should be included in this list, and maybe folks have ideas about better ways to phrase the various rights.  But, I think it would be helpful for the labor movement, worker advocates, and the Democratic party to start talking about this bill of rights in order to refocus our discussion about jobs.  The measure of a good job, whether it is in manufacturing or the service sector, should be whether it provides these rights to workers.  In addition, we should be thinking about what changes we need to see in our laws to ensure that all workers enjoy these basic rights on the job.  Some of these issues can be addressed at the state level, although of  course, that would mean that these rights would exist in only a handful of states.  Here’s my proposed worker bill of rights – let the debate begin.

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Do Workers Realize How Much Collective Bargaining Scares Employers?

In February, teaching fellows in eight departments at Yale University voted in favor of union representation.  Rather than bargain with the teaching fellows’ union, Yale has insisted upon first exhausting its appeals, apparently hoping that Donald Trump’s yet-to-be-named appointees to the National Labor Relations Board will come to its rescue.  In the meantime, some of the teaching fellows have embarked upon a hunger strike, generating a great deal of publicity, and inflaming tensions on campus as right-wing student groups have taken to taunting the hunger strikers.

At the same time that this controversy has been brewing at Yale, employer trade associations have been aggressively lobbying Congress to do something to overturn the NLRB’s decision in Browning-Ferris Industries, which makes it easier for workers to bargain with lead firms that exercise power over their terms and conditions of employment.

When I think about the events at Yale and the employer community’s reaction to Browning-Ferris, I find it reassuring that collective bargaining still seems to strike so much fear into the hearts of employers.  And yet, workers don’t seem to realize this.  Instead, the share of the economic pie that workers get continues to shrink, while the percentage of workers in unions is also declining.  And, instead of joining together with their co-workers to bargain collectively, some workers have turned to a billionaire demagogue who tells them they should let him be their voice since he alone can solve their problems.

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Beware of Judge Gorsuch’s Profoundly Anti-Democratic, Anti-Regulatory Vision

Not surprisingly, at Neil Gorsuch’s confirmation hearing, the Democratic Senators didn’t succeed in getting Judge Gorsuch to reveal much about his views.  Instead, Gorsuch insisted that “if I were to start telling you which are my favorite precedents or which are my least favorite precedents or view it in that fashion, I would be tipping my hand and suggesting to litigants I already made up my mind about their cases.  That’s not a fair judge.” But, Gorsuch has already done exactly that, writing an unusual concurring opinion that criticized Chevron U.S.A. Inc. v. Natural Resources Defense Council, a unanimous 1984 Supreme Court decision that has been reaffirmed many times.  Gorsuch’s critique of Chevron merits a close look because it reveals a vision that is profoundly anti-democratic and that makes it exceedingly difficult to rein in large corporations.

In Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote a 23 page concurrence arguing that Chevron should be overturned.  At his confirmation hearing, Gorsuch explained his actions by saying, “my job is when I see a problem to tell my boss.”  I can’t help noting that only a judge who has forgotten what it’s like to have a real boss would describe the Supreme Court justices as his “bosses,” since they have no ability to affect either his job tenure or his working conditions.  As Eric Posner has pointed out, Gorsuch’s views on Chevron place him far outside the mainstream, and to understand why, it’s worth reviewing both the holding and the rationale for the Chevron decision.  Chevron involved the validity of regulations adopted by the Environmental Protection Agency (ironically under the leadership of Gorsuch’s mother) during the Reagan Administration. The regulations at issue were challenged by environmental groups, who argued that they were inconsistent with the purposes underlying the Clean Air Act.  The Court held that if a statute is silent or ambiguous with respect to a specific issue, the court should not simply impose its own construction on the statute, but instead should defer to the construction of the agency charged with administering that statute as long as the agency’s interpretation is “reasonable.”  This means that sometimes the Court will uphold the agency’s construction even though the Court might have reached a different result if the question had initially arisen in a judicial proceeding.

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Those Job Crushing Regulations

Donald Trump and the Republicans in Congress love to refer to regulations as “job crushing.”  When Trump spoke recently at the Conservative Political Action Conference he not only said that companies can’t hire because of regulations, but he also said that “we’re going to put the regulation industry out of work and out of business.”  Trump has already taken steps to make it much harder for government agencies to do their jobs.  When he came into office, he imposed a hiring freeze, and he issued an executive order decreeing that the cost of all new regulations issued by each department or agency for fiscal year 2017 can’t be greater than zero regardless of the benefits to be gained from the regulations.  Now, Trump has proposed a budget that would dramatically slash the budgets of most federal agencies.  Government “regulators” do a great deal of important work to help sand some of the harshest edges off of our capitalist economy.  I’ll leave it to others to talk about the importance of environmental and food safety regulations, but workers desperately need a vigilant Occupational Safety and Health Administration (OSHA) to protect them from injuries and chemical exposure on the job.  To take just one example, in the last days of the Obama Administration, OSHA issued citations to a manufacturing company after two workers suffered severe hand injuries within ten days due to the company’s failure to install proper safety guards on its machines. While the consequences of inadequate wage and hour regulation are less dramatic, a recent Tenth Circuit case illustrates why there is such a pressing need for the government to monitor workplaces.

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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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