Daily News & Com­men­tary — June 21, 2017

Yesterday, Travis Kalanick resigned from his post as chief executive at Uber following a series of scandals concerning the company’s workplace culture and legal problems.  Earlier on Tuesday, a group of investors insisted Kalanick step down in a joint letter.  Kalanick will continue to serve on Uber’s board.  Read more here.

The White House announced that President Trump will nominate Marvin Kaplan to the National Labor Relations Board.  Kaplan currently serves as independent counsel at the Occupational Safety and Health Review Commission.  Previously, he served as counsel on the Republican staff of the House Committee on Education and the Workforce.  With two vacancies at the Board and Democrats controlling two of the three filled seats, this announcement puts President Trump on the path to creating a Republican majority at the NLRB.  A Republican controlled Board could rollback many Obama era decisions.  President Trump will also nominate Patrick Pizzella to fill the role of Deputy Secretary at the Department of Labor.  

In international news, the New York Times reported that Laurent Berger, the leader of the French Democratic Confederation of Labor, might be willing to work with the French government to update the country’s labor code.  Berger suggests that President Emmanuel Macron’s victory may provide an opportunity for reform.  Macron has championed “flexible security,” an economic model originating in Denmark.  The system aims to foster agreement between management and labor and reduce unemployment.  While some of Macron’s proposed reforms are likely to face stiff opposition from unions, Berger’s belief that “‘in a globalized world, the economy must be able to adjust” provides hope for the reform effort.  Read more here.     Continue reading

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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Today’s News & Commentary — May 4, 2017

The New York Times reports that Apple plans to create a $1 billion fund for the advancement of manufacturing jobs in the United States. In an interview with CNBC, Apple’s chief executive Timothy D. Cook noted, “Those manufacturing jobs create more jobs around them because you have a service industry that builds up around them.” The company hopes to announce its first investment from the new fund sometime this month.

The House Rules Committee will meet this week to discuss an amendment to the FLSA. The Working Families Flexibility Act is a Republican-sponsored bill that would create the option for employers to offer one-and-a-half hours of paid time off in lieu of one hour’s worth of time-and-a-half overtime wages. The bill recommends capping the paid time off hours available at 160. A blog post notes that the House Education and Workforce Committee approved the bill last week.

The Circuit Court for the District of Columbia reversed an NLRB decision last week in the case of Bellagio LLC v. National Labor Relations Board, finding that the Bellagio Hotel and Casino did not interfere with a bellhop’s “Weingarten rights” under the NLRA. Weingarten rights assert that employees have the right under the NLRA to have union representation during any investigatory interviews. This right must be affirmatively requested by the employee, after which an employer may (1) grant the request, (2) end the interview, or (3) offer the employee the option between holding an interview without representation or not having an interview.

Following a complaint from a hotel guest about the bellhop, Bellagio management attempted to interview the bellhop, Gabor Garner, who requested union representation. Bellagio suggest Garner contact a union representative on his own, but he refused. The hotel then attempted to find a representative, but was unsuccessful. Upon returning to the interview room where Garner was waiting, management asked Garner if he would like to make a written statement instead, which he also refused. Management then ceased the interview and placed Garner on paid suspension pending investigation until Garner returned the following day with his union representative to conduct the interview. Continue reading

Today’s News & Commentary — April 25, 2017

The Supreme Court will soon be presented with the opportunity to decide whether unions can constitutionally charge non-members “fair share” fees.  According to Bloomberg BNA, “the National Right to Work Legal Defense Foundation intends by the end of May to file a petition asking the high court to review a Seventh Circuit decision dismissing a lawsuit by two Illinois government workers who challenged the fees on First Amendment grounds.”  The Supreme Court heard a similar challenge in 2016, Friedrichs v. California Teachers Association, but ultimately ruled 4-4 following the death of Justice Scalia, thus affirming a lower court decision finding that public-sector unions may continue to collect “fair share” fees from nonmembers.  The Seventh Circuit similarly upheld such fees in the case at issue now.

Using colorful language about a boss does not deprive a worker of the protections of the National Labor Relations Act, according to the Second Circuit.  Consumerist reports that the Second Circuit found that the operator of restaurants at New York’s Chelsea Piers illegally terminated a worker in retaliation for engaging in protected activity when, two days before a unionization vote, the worker posted a colorful Facebook post about his boss in urging support for unionization.  The Second Circuit concluded that “the NLRB could reasonably determine that the server’s “outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.”

America’s male-dominated industries want to diversity.  Per the Chicago Tribune, the “Iron Workers union this month leaped to the cutting edge of the effort, becoming the first building trades union to offer up to eight months of paid maternity leave to pregnant women and new moms” despite only 2 percent of union members being women.  The union and other traditionally male-dominated employers are driven to recruit women by the aging of baby boomers, a decline in enrollment in vocational education, and other factors.

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Today’s News & Commentary — March 9, 2017

Congresswomen Jan Schakowsky (D-Ill.) and Pramila Jayapal (D-Wash.) stood in solidarity with rallying crowd of women for International Women’s Day. According to Politico, labor unions such as the American Federation of Teachers and National Nurses United were in attendance. Rep. Schakowsky addressed the protestors, stating, “American women still earn far less than men 50 years after President Kennedy signed the Equal Pay Act.”

The Huffington Post reports that the number of deportations of undocumented workers under the Trump administration, alongside the regime’s immigration policies, begs the question of how reporting standards in immigrant labor will shift. Chicago attorney Christopher Williams, who specializes in immigrant wage theft cases, notes, “There’s a lot of fear out there, and it’s driving workers further underground. I honestly think it’s creating an incentive to hire more undocumented workers, because now they’re even more vulnerable to being exploited.” So far, the Labor Department has not issued a press release detailing wage and safety investigations since Trump’s presidency commenced.

Meanwhile, the D.C. Circuit has issued its opinion in Scoma’s of Sausalito. Scoma’s involved an employer’s withdrawal of recognition of UNITE HERE Local 2850 based on the employer’s belief that the union no longer enjoyed majority support of the bargaining unit.  The Board held that the withdrawal was illegal and issued a bargaining order. The D.C. Circuit agreed that withdrawing recognition was an unfair labor practice, but refused to enforce the Board’s bargaining order remedy. Instead, the court of appeals sent the case back to the Board and ordered the Board to come up with a less “extraordinary” remedy for the illegal withdrawal of recognition.

In other NLRB news, the Board has ordered a Regional Director to revisit its decision that NBCUniversal workers in Chicago, New York, and Los Angeles were part of a single nationwide bargaining unit.

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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