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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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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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 — May 1, 2017

Happy May Day! Also known as International Workers’ Day (or Labour Day in many countries outside the U.S.), May 1st is celebrated by workers and unions around the world in honor of the Haymarket affair. As we noted yesterday, the tradition will continue in force today. Organized labor and immigration groups are set to protest throughout the country, especially the Bay Area, according to the Los Angeles Times. Today too marks the last day of the contract of the Writers Guild of America, meaning strikes could begin as soon as tomorrow.

Michael Grabell in the New Yorker has a lengthy feature on immigrant worker exploitation at Case Farms’ chicken plant. One of “most dangerous workplaces in America,” the plant recruits immigrants “who endure harsh and at times illegal conditions that few Americans would put up with.” Workers, however, find themselves in a bind when complaining about conditions and injuries as harsh immigration law penalties loom over them. And when workers successfully bring cases in front of the NLRB or other authorities, they often receive few actual remedies. Instead of fixing its labor conditions, however, Case Farms is hoping to get rid of them altogether—with automatic chicken deboners.

The U.K. House of Commons Work and Pension Committee just published a damning report on self-employment and the gig economy [PDF]. The report accuses companies like Uber and Amazon of avoiding paying taxes and “free-riding on the welfare state” by classifying workers as “self-employed,” and “rebuffs their claims to be providing flexibility for workers,” according to the Guardian. The report concludes that drivers should be by default assumed to have “worker” status, giving them more labor protections while still affording them plenty of flexibility.

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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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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