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Tag: "labor"

Blue-Green Alliances

[ 11 ] July 18, 2016 |

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There’s a lot of tension between parts of the labor movement and the environmental movement right now. This can often be painted too broadly. Basically, the building trades hate environmentalists for not supporting building every dirty power project and the UMWA hates environmentalists for supporting restrictions on coal. But there are lots of unions with perfectly fine relationships with environmentalists, even if the big public sector unions like SEIU, AFSCME, and AFT could do much, much more to represent the interests of their members in supporting a clean, sustainable environment with plenty of recreational opportunities. But even within those hostile unions, it’s not as if there isn’t room to work with environmentalists on issues where their interests coincide. And this is one of the lessons of so-called blue-green alliances. It’s not as if unions and environmentalists have to agree on everything. They may never be a force marching together for combined ecological and economic justice. Rather, this sort of alliance-building is going to be dependent on the given issue. And that’s OK so long as there is enough dialogue to allow that alliance to happen when it can. That’s what groups like the BlueGreen Alliance try to do. And we are seeing it pay off with both labor and greens outraged over Flint, which has shamefully fallen out of the headlines in the last 2 months.

When you think of an environmental hero, a plumber might not be the first person who comes to mind. But the BlueGreen Alliance gave its “champion” award this year to the union representing plumbers and pipe fitters. The big reason: people like Harold Harrington, of the United Association local 370 in Flint, Michigan. He says during the lead in water crisis there, his members volunteered to go door to door and replace faucets and water filters in people’s homes. “We replaced 650 faucets, just because the filters wouldn’t fit the old faucets. And they’re carbon filters, so they do remove lead,” he says.

Leaders in both the environmental and labor movements say the country could prevent more public health disasters like Flint, if old infrastructure is fixed or replaced — like leaky drinking water pipes, and natural gas pipelines. And at the same time, the repairs would create jobs. Michael Brune is executive director of the Sierra Club. He gives the example of new regulations in California to fix old gas pipelines. They were passed in response to a four-month leak of methane – a potent greenhouse gas – in Aliso Canyon, in southern California. “And there will be lots of jobs and there will be a cut in the pollution from these pipelines,” says Brune.

We need a lot more of this. New infrastructure building is the kind of agenda that should create broad agreement on the left. First, this nation really, really needs it. Second, it would be a huge spur to the economy. Third, that new infrastructure could create a far-more sustainable network of power and transportation than we currently have. But even when that’s not available, working together over issues of the relationship between the environment and everyday people is the kind of thing that can bring unions and greens together.

I have long stated that environmentalism ultimately hurt itself by focusing more on wilderness and wildlife preservation over the broad-based anti-pollution measures that made it politically popular in the 1960s and 1970s. There were lots of good reasons for that–the fact that the Clean Air Acts and Clean Water Acts were so successful that the obvious need for stronger laws diminished, the growth of conservatism making it necessary to defend laws in the courts instead of push for new laws, and the wealthy people funding environmentalism who wanted campaigns around wilderness, rain forest protection, and wildlife protection. Add to this the deindustrialization, outsourcing, and automation transforming the American economy and making working people scared of supporting environmentalism because their employers were threatening to move their jobs overseas (which they were often planning on doing anyway) and the political calculus for environmentalism changed rapidly. Yet this is unfortunate and needs to change. Building alliances around environmental injustice and infrastructure is at least a starting point.

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Organizing Seattle Uber Drivers

[ 41 ] July 18, 2016 |

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David Bensman has a really great piece on how the Teamsters are taking the lead on organizing Uber drivers in Seattle and how doing so has relied on the kind of community effort necessary for organizing in the modern day. It’s taken building not only union power but connections within immigrant communities, working with politicians, and building alliances with environmentalists and community activists. This is the sort of campaign that can make a long-term difference and as Uber has begun facing political pushback for its exploitative model, is highly necessary. And how bad are things for drivers now that Uber has flooded the market?

Since Uber and Lyft came to town and recruited ten times the number of drivers that had been issued licenses under the city’s regulatory taxicab regime, earnings of all drivers have tumbled. While Uber started out allowing drivers to keep almost the same amount per mile driven as the regulated taxi drivers were getting, it has since cut that rate from $2.35 to $1.35 per mile. Now Uber drivers charge lower fares, and they get the lion’s share of the business. But with their low mileage rate, they have to work seven 12-hour days each week to make enough to live in the expensive metropolitan region. Mohammed, a somali driver I met near the Al Aqbar mosque that was the first to allow drivers to hold organizing meetings, told me that he knew driving such long hours was dangerous. “But what choice do I have?” he asked. “I have to pay for my car, my apartment, to put food on the table.”

Mohammed told me he pays $600 per week for the car Uber pressured him to lease from Toyota. He also pays the company $1.40 per passenger as a “safe rider fee,” though he can’t figure out what he or his passengers are getting for the money, since background checks are minimal and fingerprinting is unknown. On the day I visited the airport parking lot, Uber drivers waited 40 minutes, on average, before they got a call to pick up a passenger. Some days are better, Mohammed informed me; by now the drivers know when the planes are landing, and they try to time their arrival at the airport to minimize their wait. But even when they time it right, their earnings are limited; a ride from the airport to town only nets them $16, and there’s no tipping. Worse, a recent company-imposed pooling policy requires drivers to pick up multiple passengers at different places to take them to common destinations at severely reduced fares. This “innovation,” communicated to drivers through Uber’s app, really has the drivers grumbling.

Licensed-cab taxi drivers probably have it worse. At nights and on weekends, millennial customers use their Uber app. As a consequence, most licensed drivers work an early shift, from 4:00 in the morning to 4:00 in the afternoon, seven days a week. Driving cab number 718, a Somali driver who was afraid to give me his name told me that before Uber arrived, he used to be able to make a decent living driving eight hour days. Now he has a choice; he can drive seven 12-hour days or he can reduce his lifestyle. He’s moved to a cheaper apartment and settled for straitened circumstances. He’s philosophical about his change of life, but he doesn’t think it’s right. “I don’t mind competition,” he told me. “Competition makes everyone play their best game. If you are skilled and have a good strategy, you can win. But this competition is unfair. Uber doesn’t pay the standard mileage rate, its insurance is no good, and it makes its drivers work unsafe hours. This competition you can’t win.” Another driver, an Ethiopian, made the other choice, working seven 12-hour days. “My kids think I’m an ATM machine,” he told me. “I never see them.”

This is total exploitation. There’s nothing wrong per se with having more cabs on the road. There is something very wrong in driving workers into poverty and pooling profits at the top.

The Activist NLRB and the Future of Organized Labor

[ 17 ] July 18, 2016 |

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Shaun Richman asks a fundamental question: When the hell did the federal government get bolder than most labor unions about asserting the legal rights of workers?

On Monday, in a 3-1 ruling, the National Labor Relations Board (NLRB) reversed a Bush the Younger-era precedent that gave employers a say over whether temporary and subcontracted workers can be included in the same bargaining unit as the regular, full-time employees with whom they work beside. Go figure, most employers said “no” to the proposition that people who work shoulder to shoulder, but are paid from separate checkbooks, could bargain together in the same union. But the new Miller & Anderson, Inc. decision could force subcontractors to bargain with a certified union over the wages and working conditions determined by the controlling employer.

The ruling comes hot on the heels of the Board’s American Baptist Homes decision. That case re-established a balancing test for whether a boss’ employment of permanent replacement strikers is actually motivated by a desire to bust a union —which goes a long way towards restoring a legal right to strike.

And, of course, the Board’s attempt to expedite representation elections by holding frivolous management objections in abeyance until after the workers vote nearly broke the Congress. (Seriously, if you want to drink some delicious boss’ tears Google “quickie NLRB election.”)

As veteran union organizer Stephen Lerner succinctly puts it, “Unions have been significantly hobbled by the legal regime, and a lack of imagination to challenge it.” I have advocated that unions should pursue an agenda of judicial activism. These recent NLRB actions prove that the time is ripe to challenge the rules of the system that keep unions shackled. I’ve spent most of my career complaining about how slow and ineffective the NLRB is, as have most union organizers. That bias should not blind us to the opportunity of the moment.

Speaking of Lerner, this is worth your time:

Austerity, growing inequality, and the economic and political domination of billionaires, bankers, hedge funds, and giant corporations make the current moment ripe for birthing a movement that can radically transform the country and the world. This is a time of great peril, but also of extraordinary opportunity and—yes—reasons for hope. The last four decades have been characterized by unrelenting attacks on the working class, the weakening of unions and the financialization of capitalism. The fiscal crisis of 2007-2008, the burgeoning wealth gap, and the flood of money from corporations and the rich drowning our democracy have exposed the nation’s political, moral, and economic decay, creating conditions that beg for an alternative to a system that increasingly only works for the super-rich.

I agree that there are a lot of reasons to hope right now. I don’t see the failure of the Sanders campaign or the Walmart organizing campaign as actually failures. I see them as moments leading to something much larger, something we are already seeing in the debates around income inequality, the growth of minimum wage legislation, and even Republican politicians sometimes having to admit that these are real problems (even if their solutions are as anti-poor as ever).

So what role do unions play now, given their decreased density? Lerner suggests several possibilities. Each of these have longer descriptions but let me just lay out their intros with a brief comment. First:

Unions need to understand and educate the public about what is going on in the economy if labor and other social movements are to seize this opportunity and figure out how to turn frailty into strength. They need to demystify the complexity of the how the economy works, so that working-class people and social movements can respond in kind.

Unions are well-placed to do this, as they hire labor economists and analysts who produce perceptive critiques of the economy. In this, I would say that these unions should (and of course they already do) work in conjunction or in conversation with left-leaning think tanks like the Roosevelt Institute to build up these critiques, and then find ways to disseminate this through the politically active population.

Assert control over wealth and capital: In the post-World War II era, unions made two related mistakes that have contributed to labor’s isolation and to unrestrained corporate control of the economy: First, organized labor focused nearly exclusively on winning higher wages and benefits for only the unionized sector of the economy; and second it declined to challenge how companies were managed or how capital and wealth were invested or controlled. In the auto sector, the United Auto Workers (UAW) won higher wages in Big Three assembly plants at the same time the companies spun off and outsourced manufacturing of parts that used to be done by UAW members. These two moves both lowered standards for these workers and undercut the union’s overall power in the industry.

All of this was predicated on the idea that unions and collective bargaining were accepted by the corporate and political elites as a permanent fixture of the system and as a legitimate method for setting wages and benefits. Since the 1970s, however, union membership has been in a steady free fall with today’s union density at roughly 11 percent. This means that, in addition to having ceded control over wealth and capital, unions have largely focused on protecting the interests of only a small fraction of workers.

Some unions have already moved in this direction, especially seen in SEIU’s support of the Fight for $15, for which they have expended millions of dollars without organizing a single establishment under a contract. Lerner also points to labor support of immigrant rights in recent decades as another example of this. Of course, there are some tricks here. A union has to remain financially viable and it has to serve its own members. Those things are paramount. But that can be done while also fighting for the broader agenda of all workers. Of course, not all unions are doing this and thus you see unions arguing for exemptions to minimum wage laws for their own members. That’s the kind of negative leadership unions have to stop doing. Broadly, unions need to be allies in other mass movements. Sometimes that is happening, sometimes it isn’t. But some unions are just never going to adjust to thinking of themselves as part of a social movement.

Unions are still the best-resourced progressive organizations in the U.S., but they have been far less successful at capturing the national imagination than other movements that have no resources. If unions limit their mission to the four walls of the workplace, then they become less relevant as they represent fewer workplaces. But by embracing other mass movements—without attempting to control or hijack them—unions can grow alongside of them and those movements will benefit from the organizational resources that organized labor can bring to bear.

The idea in Occupy Wall Street that unions would co-opt the movement was laughable from an evidentary standpoint. As if the unions had that power! But the fact that activists thought it was a real thing is a sign of the distrust a lot of activists in other movements have toward organized labor and to no small extent, that reputation has been earned over the past century. But Lerner provides several examples of how unions have been doing a much better job on these issues in recent years. Such alliance building is not just about the economy, but also making unions leaders in the fight for racial justice. That’s also going to take internal organizing in many of the unions, which are not always made up of racially progressive people.

Lerner concludes:

At this moment financialized capitalism is dominant, but also incredibly fragile, caught in cycles of booms and busts. Wall Street, mega corporations and newly minted tech billionaires boast of using “creative destruction” to reshape companies and the economy while enriching themselves at labor’s expense. Instead of accepting their dominance and control unions can start to counter their destruction with their own “creative disruption”, demonstrating just how fragile their control is and the potential power of labor—if unions are willing to flex their muscles.

By articulating a vision of a more just world, going on offense, demanding more instead of accepting less, and aligning campaigns against the billionaires at the top, labor can inspire and organize a movement dedicated to redistributing wealth and power.

Going back to Richman to end this long post, he argues that unions need to build upon this newly aggressive NLRB and start making real demands of the agency (assuming that Hillary Clinton wins the general election) that would push back against the decades of corporate attack upon workers:

A good case in point is employers’ “right” to force employees to attend mandatory anti-union “captive audience” meetings during a union organizing drive. Most organizers accept that it “is what it is”—another fucked up way that NLRB election rules are rigged so that unions lose a ton of representation elections. (Although, it should be noted that unions used to lose half of all representation elections during the Clinton I-era and now tend to win about two-thirds of elections, thanks partly to more strategic organizing choices and partly to the NLRB’s recent return to its historic mission of encouraging unions and collective bargaining.)

Meanwhile, apparently, the NLRB has been on the record for half a century as inviting unions to make a case that there should be some kind of equal access standard for unions if an employer forces workers to attend mandatory meetings on the subject of union representation. A group of 106 leading labor scholars, led by Charles Morris and Paul Secunda, have filed a petition at the NLRB to re-establish just such a rule.

The speculation is that the NLRB is unlikely to act on Morris’ and Secunda’s petition, as it prefers to act on union (or employer) initiated procedural cases. The Miller & Anderson decision came in response to a union representation petition; the American Baptist Homes decision in response to an unfair labor practice charge. To win equal time, a union will have to file exceptions to a losing representation election in which the employer made use of mandatory captive audience meetings. Surely, and sadly, someone reading this article has recently lost an election under such circumstances, and can take the initiative.

Similarly, most unionists just accept that an employer has a “right” to permanently replace striking workers. For example, Jane McAlevey, in her organizing memoir Raising Hell (and Raising Expectations), incorrectly chalks it up to a law signed by Ronald Reagan. It wasn’t. It was a poorly decided 1938 Supreme Court case that was dusted off in the 1980s. Like referees in a schlocky Hulk Hogan wrestling match, Reagan’s NLRB appointees looked the other way as employers engaged in a coordinated union-busting drive that weaponized the unfrozen caveman Supreme Court precedent.

After an unsuccessful attempt to legislatively ban permanent replacements during the first Clinton era, most unions seem to have shrugged and accepted that workers can legally lose their jobs for striking—that is until the NLRB reverted to the pre-Reagan rules. But the Board can go further. The crucial phrase in that 1938 Court decision, NLRB vs. Mackay Radio & Telegraph Co., is that an employer can hire permanent replacements if it is necessary “to protect and continue his business.”

In other words, to meet the Supreme Court standard, the NLRB could force Verizon or any other Fortune 500 company to prove that they would otherwise go out of business unless they can hire scabs to steal the jobs of their striking workers. Good luck with that. Unions should get in the habit of filing unfair labor practice charges any time a boss advertises for scabs.

The NLRB even potentially has the power to reverse “Right to Work.” The statutes, passed on a state-by-state basis, aim to prevent unions from collecting fees from all of the workers they are legally obligated to represent. But the federal law that allows “Right to Work” statutes has, until recently, faced very few judicial challenges. One open question is whether the legislative intent of the Taft-Hartley act was merely to ban union membership as a condition of employment—not whether unions could negotiate mandatory fees for grievance representation services. Seattle University Associate Professor of Law Charlotte Garden notes that the NLRB could approve such a formula, and has indicated openness to cases arguing for it.

There’s a lot of potential here. But it’s going to take unions taking the offensive to make that happen. I believe that even with their decreased membership, unions have an absolutely vital role to play any future left-leaning organizing in this nation. The potential is there for far-reaching changes that would go far to reset the playing field between workers and employers. We’ll have to see if they can take advantage of it. But the first thing that has to happen is Hillary Clinton must be elected to the White House. Otherwise, the rules of the game are going to get much, much, much worse.

NLRB Pushes Back Against Permatemps

[ 59 ] July 13, 2016 |

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In their myriad ways to avoid not only unions but also responsibility for their own employees, employers have come up with any number of ways to control workers without having any legal obligation to them. One of the most effective ways is to use temp agencies for long-term workers who labor on the shop floor next to actual employees, doing the same work with lower wages and fewer if any benefits. The Japanese auto industry’s investment in American factories for instance has relied heavily on this sort of arrangement. How can a factory unionize when the workers are technically employees of different companies? This is of course half the point of it, the other half being lowering employee compensation. Before this week, the rule was that the temp company would have to grant permission for their employees to be included in such a bargaining unit, which is of course laughable that they would grant. But by a 3-1 vote, the NLRB overturned that rule this week.

The National Labor Relations Board is reaffirming its view that labor law must now address the brave new world of the fissured workplace—where workers are often separated from their actual employer by layers of subcontractors and staffing agencies. On Monday, the board announced a decision on the case Miller & Anderson, ruling that unions that want to represent bargaining units including direct employees as well as “permatemps,” contract workers, and other indirect workers that share a “community of interest” are no longer required to get permission from the parent company.

The old standard, established by George W. Bush’s NLRB in 2004, which required unions to gain such parent-employer consent, allowed companies to use staffing agencies and subcontractors as a barrier to organizing drives. Under the new ruling, a nurses union, for example, can now more readily expand bargaining units at a hospital to include registered nurses who are directly employed by the hospital, as well as nurses who work for staffing agencies hired by the hospital.

This is absolutely huge and another enormous advance in labor law by Tom Perez’s Department of Labor.

In an increasingly fractured world of labor relations, it’s hard to understate how big of a deal this is for easing union organizing efforts. And coming less than a year after its Browning Ferris ruling that established a bold new standard for defining when parent companies are joint employers of subcontracted workers, the Miller & Anderson decision is yet another important step that increases employer accountability to their workers by expanding the responsibilities of joint employers.

Not only does the decision mark an emerging new jurisprudence on labor relations, it also serves to burnish President Obama’s second-term record on labor and worker rights, which includes a rash of bold new policies enacted through executive power.

You can read the decision in this PDF

This is why I have zero patience with anyone voting for Jill Stein. While there’s no guarantee that Hillary Clinton will have as strong a DOL as Obama has since naming Perez to his cabinet, there’s also no question that her NLRB appointees will build on these sorts of decisions to improve conditions for workers. I simply assume that most people who refuse to “compromise their values” by voting for Hillary basically don’t actually care about working class people.

Donald Trump, Friend of the Worker

[ 19 ] July 12, 2016 |

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That populist Donald Trump, he’s really a friend of the working person. I really take his populist talk about jobs and trade agreements very, very seriously. The history of workers in his own properties shows he’s the kindest, warmest, man to ever live.

GOP presidential hopeful Donald Trump fashions himself a friend of union workers. He has bragged about having good relationships with labor unions. When the AFL-CIO recently endorsed his Democratic rival, Hillary Clinton, Trump claimed it was he who deserved the labor federation’s coveted backing.

“I believe [union] members will be voting for me in much larger numbers than for her,” Trump declared last month.

Before entering the voting booth, those union members might want to know how much money one of Trump’s businesses has spent in an effort to persuade low-wage workers not to unionize.

The Culinary Workers Union recently organized housekeepers and other service workers at the Trump International Hotel in Las Vegas. The union won the election in December — but not without a fight from hotel owners Trump Ruffin Commercial LLC. That’s a joint venture between the likely GOP nominee and casino magnate Phil Ruffin, himself a major financial backer of Trump’s presidential run.

According to Labor Department disclosure forms reviewed by The Huffington Post, Trump Ruffin shelled out more than half a million dollars last year to a consulting firm that combats union organizing efforts. The money was paid from Trump Ruffin to Cruz & Associates in a series of seven payments between July and December, totaling $560,631.

Nearly $285,000 of that money was paid over the course of two weeks in December, shortly after the hotel held its union election.

Despite the heavy investment from Trump Ruffin, the union prevailed by a vote of 238 to 209. Trump Ruffin argued in a filing with the National Labor Relations Board that the union illegally swayed the vote, but a regional director for the NLRB rejected those claims. The hotel has asked that the board members in Washington review that decision. According to an NLRB spokeswoman, the board has not yet determined whether it will grant that review.

A lawyer for Trump and a campaign spokeswoman did not immediately respond to requests for comment on the payments. Lupe Cruz, the owner of Cruz & Associates, did not respond to a voicemail left at his office on Friday.

I’m not going to say that it’s not in the interests of union members to vote for Trump. It’s certainly not in their economic interest to do so. But too many Americans prioritize their interests in white supremacy over their interest in feeding their kids. That’s unfortunate, but it’s true and some of those people will vote for Donald Trump. Racial resentment has usually trumped economic solidarity in American history. But this should be brought up over and over whenever Trump talks about himself as a friend to union members.

Are Right to Work Laws Unconstitutional?

[ 55 ] July 10, 2016 |

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Are right-to-work laws an unconstitutional taking of property? That’s what unions and their lawyers are arguing in Wisconsin and West Virginia, both states that have recently passed such law.

Eleven state labor unions filed petitions in Kanawha Circuit Court Monday challenging the state’s new “right-to-work” law as an illegal taking of union property and resources.

“First and foremost, it’s unconstitutional because it’s an illegal taking of property without due process,” said Josh Sword, secretary treasurer of the West Virginia AFL-CIO, one of the 11 plaintiffs.

The lawsuit, and a motion for a preliminary injunction to block the law from going into effect July 1, contends that the Workplace Freedom Act (SB 1) is intended to discourage union membership by “enabling nonmembers of unions to get union services for free.”

Vetoed by Gov. Earl Ray Tomblin, but enacted into law by override votes with no Democratic support in the Republican-controlled House of Delegates and Senate, the legislation allows employees in union shops to opt out of paying union dues.
The lawsuit contends that amounts to an illegal taking of unions’ property and resources, since state and federal labor laws require unions to negotiate contracts and provide representation to the non-union employees at “considerable cost” to the unions.

“Requiring unions to provide services to free riders while simultaneously prohibiting unions from charging for those services necessarily takes union funds and directs them to be expended on behalf of third parties,” the lawsuit states.

The lawsuit contends one intent of the law is to discourage employees from joining unions.

“Why, the employee would ask, should I pay for something that the law requires be made available to me for nothing,” the petition states. “Such a circumstance would — naturally and predictably — seriously burden a union’s ability to recruit and retain members.”

In April, a Wisconsin circuit court judge overturned that state’s right-to-work law in a case that similarly argued the law amounts to an unconstitutional taking of union property and resources. That ruling has been stayed, pending an appeal to the Wisconsin state Supreme Court.

“This is ultimately going to go to the U.S. Supreme Court, without question,” Sword said of the challenges to right-to-work laws. “The general question of whether it’s an illegal taking of property without due process will be ultimately decided by the U.S. Supreme Court.”

This indeed does seem headed up the court ladder. We have a very good idea what a court with Scalia would have ruled on such a case. Once again, the fate the Court is the single most important reason to vote for Hillary Clinton this fall, even if you hate her. It’s the only responsible for choice for anyone who cares about unions at all.

Union Busters and Their Friends on the Bench

[ 10 ] July 8, 2016 |

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Speaking of Tom Perez, his Department of Labor helped even the playing field between unions and employers earlier this year by forcing employers to be transparent to their workers about the unionbusting firms they hire.

Earlier this year, the U.S. Department of Labor (DOL) passed the “persuader rule” that closed a major loophole, which has for decades allowed employers to hire attorneys and consultants to secretly assist them in what is politely referred to in the industry as “union avoidance.” The goal of this activity is to persuade and prevent workers from organizing unions.

The new rule did not try to make the consultants’ and attorneys’ practices illegal, or regulate the types of activities that employers and consultants could engage in; it was simply intended to provide transparency to workers who are the subject of a coordinated anti-union campaign. But last week, a Texas federal district court judge issued a nationwide injunction prohibiting the DOL from implementing the rule.

The persuader rule reinterpreted the “advice” exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), which had only required disclosure when employers hired outside consultants who directly communicated with employees. Under the previous interpretation of the exemption, the vast majority of employers who hire labor consultants—sometimes referred to as “union busters”—and the consultants they hire have been able to evade their filing requirements and remain in the shadows by having these consultants work behind the scenes.

As a result, the workers are never privy to who is coordinating the anti-union campaign or how much their employers are spending on it. It is estimated that employers in 71-87 percent of organizing drives hire one or more consultants, yet because of the massive loophole in the law, only 387 agreements were filed by employers and consultants.

Good idea, right. Well, sure, except for that Texas judge issuing an injunction against it at the behest of right-wing Texans and, oddly, the American Bar Association.

The new persuader rule, which covers all agreements and payments after July 1, was intended to close this loophole. The rule requires employers who hire anti-union consultants (and those consultants hired) to disclose to the DOL the agreement and the amounts paid. It would not require disclosure of what the consultants said or any legal advice sought. It is akin to a requirement that political campaign ads disclose who is paying for the ad so that people know who is behind the message they are receiving.

But now, under last week’s injunction, all of that is in jeopardy.

“This was one of the most one-sided orders I have ever seen,” explains Seattle University School of Law Professor Charlotte Garden. “The court found every one of the theories brought by the plaintiffs likely to succeed.”

The suit was brought by the National Federation of Independent Business, the Texas Association of Business, the Lubbock Chamber of Commerce, the National Association of Home Builders, the Texas Association of Builders, and a group of GOP-controlled states. Some of these organizations were concerned that their current activities of providing anti-union seminars and materials would require them to file reports identifying themselves as labor relations consultants.

Perhaps the most surprising group to take a side in this case was the American Bar Association (ABA), whose mission is “To serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.” The ABA cited attorneys’ ethical rules for their opposition to the DOL Rule, and said, “by imposing these unfair reporting burdens on both the lawyers and the employer clients they represent, the proposed Rule could very well discourage many employers from seeking the expert legal representation they need, thereby effectively denying them their fundamental right to counsel.”

This coalition of business and attorney groups and states brought forward a number of arguments, from the DOL lacking authority to pass the rule to the rule exceeding the DOL’s estimated compliance costs by $59.99 billion over 10 years. (The DOL estimated the rule would cost all employers and consultants a total of approximately $826,000 per year; the plaintiffs estimated it at $60 billion over 10 years.) Additionally, in line with the growing use of the First Amendment against government regulation of business, the plaintiffs argued that the rule violated the employers’, lawyers’, and consultants’ free speech, expression and association rights. The Judge concluded that some union busters may not offer their services as freely, and some attorneys may leave the field, if their identities and the terms of their arrangements were disclosed.

This is the sort of case that is probably going to be adjudicated over the next few years going up the ladder, possibly all the way to the Supreme Court. And as we know, voting is a consumer choice and Hillary Clinton doesn’t make me feel all warm and fuzzy inside so I am going to vote for Jill Stein to show those Democrats. If that means Trump gets elected, then it’s totally that neoliberal Hillary’s fault when Trump’s judges rule in favor of corporations in cases like this.

Lockouts

[ 13 ] July 7, 2016 |

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Often, when people say workers are on strike, they are actually being locked out by their employer. Lockouts have become a distressingly common way for employers to bust unions. Moshe Marvit has a compelling essay arguing that the courts should rein how corporations are able to use lockouts. He notes that the lockout was actually something largely created by judges and therefore the courts are the best method to fight this problem today. The original version of the National Labor Relations Act prohibited lockouts, but the language was removed in committee. Marvit then details how the courts have expanded the lockout’s use over the years. Finally, his conclusion:

On May 31, 2016, the NLRB released an important decision that limited the employer’s use of replacement workers during a strike.44 The Board held that the employer’s motivation in hiring replacement workers is important, and if the decision is made to discourage union membership, then the use of replacement strikers is a violation of the Act. Harvard Law Professor Ben Sachs argued that the decision brought “some sanity” to the use of replacement strikers because it addressed the long-standing tension in the law where workers may not be fired for striking, but they may be permanently replaced.45 It is time for the NLRB to similarly bring some sanity to the use of lockouts and temporary replacement workers.

Lockouts are highly disruptive of workers’ lives and they impact one of labor’s greatest strengths: its ability to strike. The lockout serves as a looming threat and a punishment for workers who have joined a union and engaged in meaningful collective bargaining. The employer’s right to lay off all union workers—even if only temporarily—because they engage in their rights to collectively bargain violates these workers’ core rights.

As labor lockouts continue to rise as a percentage of work stoppages, the National Labor Relations Board should reconsider its position that lockouts do not have much impact. In following the Supreme Court’s direction, the NLRB should investigate whether the lockout has had on a “slight effect on employee rights.”

If one walks the picket line in a lockout, one can easily conclude that the effects on workers’ rights are significant. The balance of power is already greatly tilted towards employers, and the right to withhold labor should belong solely to workers. Putting this power to stop work primarily back in the hands of workers is one step toward leveling the playing field of labor.

Assuming a Hillary Clinton victory in November and the Democrats retaking the Senate, the courts are rapidly becoming dominated by Democratic-appointed justices. It’s time to start filing cases against these lockouts and seek to roll back some of the legal framework to even the playing field between employers and workers.

This Day in Labor History: July 6, 1924

[ 11 ] July 6, 2016 |

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On July 6, 1924, members of the Philippine Scouts, a division of Filipino troops in the U.S. Army occupying the Philippines, refused to drill to protest their poor pay and unfair treatment. This would eventually lead to their court martial. This incident shines a light on two critical and understudied issues in American labor history: the idea of the military as labor and the labor history of American imperialism.

The Philippine Scouts were a division of troops that joined the U.S. Army in defense of American colonial rule of their nation, land wrested from the Spanish in 1898 and which it then had to crush a independence movement with shocking brutality. This was instituted soon after the U.S. took control and included many Filipino members of the Spanish army. By the early 1920s, these made up the majority of occupying forces, with about 15,000 Filipino soldiers serving under 2500 white officers and additional 5000 American soldiers. Primarily they existed to protect the colony from its greatest threat–Filipino insurrection. Most served near Manila, although they were scattered around the islands. They could marry and bring their families with them, creating what was basically a steady job. Reenlistment rates were about 80 percent.

But the pay was low, especially compared to American soldiers of the same rank. A U.S. private made $21 a month. A private in the Scouts made $8 a month, a rate that had barely changed since the Scouts were first created. With the U.S. wanting to avoid international commitments and costly programs during the 1920s, replacing American soldiers with poorly paid Filipinos was appealing in Washington. The Scouts had to put their wives and children to work, often serving the white officers. Cost of living increased dramatically during the post-World War I years though and the Scouts had a harder time making ends meet. By 1924, the Scouts were making less than skilled labor in Manila. Although the benefits were still much higher than other Manila workers, the Scouts saw themselves as downwardly mobile.

There was a good bit of labor strife in Manila around wages and working conditions during these years, much of it aimed at U.S. controlled operations. By 1924, the Filipino labor movement had 145 officially registered unions or similar organizations, consisting of over 90,000 members. These included fairly conservative unions that served more like member lodges and more radical communist unions. Outside of this, there were also peasant movements heavily infused with messianic religious leadership. The response of the U.S. colonial administration, led by Colonel Leonard Wood, was, not surprisingly given how the U.S. would usually respond to labor uprisings at home and abroad, not that it was a series of responses to specific lived conditions of workers, but part of a global communist plot against colonialism. For Wood, all labor questions were attacks on colonialism. On the minds of Wood and other leaders was the Boston police strike of 1919, which for the first time called into question whether security forces would agree to crush organized labor.

Calvin Coolidge, who had risen to national prominence by destroying the Boston police union, was also responsible for what was to follow in the Philippines. In May 1924, Congress passed an omnibus military bill that raised Scouts’ rations and subsistence allowances and also created a pension system for them that gave them three-quarters of their salary after 30 years. Coolidge vetoed it. The Philippine Scouts did not know all the details, but they came to believe that Congress had granted them a pay raise and their officers were withholding it from them.

In response, the Scouts started organizing into what they called the Secret Soldiers’ Union. They were mostly young and mostly privates. They planned a demonstration for July 4, gathering on a hill near Fort McKinley and marching into downtown Manila where they would present their demands to the commander of the the U.S. Army’s Philippine Department and then go to Leonard Wood’s headquarters to make their demands to him. They decided to delay it until August 2, but on July 5, informants told the Army of the soldiers plan. Fort McKinley’s Provost Guard raided a meeting and detained 26 Scouts. The next morning, July 6, 380 Scouts refused to drill. Warned of the consequences and told their refusal would be treated not as a strike but as a mutiny, only 104 soldiers held out on July 7, but that increased to 202 on July 8.

The American community in the Philippines freaked out, fearing plots to blow up U.S bases and a general attack on Americans. One told a reporter, “Discharging these men and allowing the to return home is similar to turning smallpox into a hospital full of patients. Each man is carrying the germs of insurgence to his home province.” Army officers were more divided on how important this protest was, especially since a growing number of the protesters were veterans with long service records. But on July 9, the Army announced plans to discharge 190 of the men for mutiny. On July 29, three proceedings began, one for 17 supposed ringleaders, another for 209 charged with mutiny, and a third for 298 who had refused to obey orders.

Proceeding over the trial was Brigadier General Douglas MacArthur, head of the Philippine Division’s 23rd Brigade. Nearly all the men charged were found guilty. Tomas Riveral, identified as the mutiny’s leader, was sentenced to 20 years in prison. Most of the rest were placed in convict detachments on Correigdor and released after two years. In 1928, the Army finally raised the pay of a private in the Scouts from $8 a month to $9 a month. The Secret Soldiers’ Union disappeared almost immediately after the repression. The War Department did conduct an internal study because it worried that it’s whole plan to defend the colonies from internal rebellion was worthless if the soldiers were not loyal. But the Scouts continued and no additional labor agitation came from the Scouts before the end of U.S. occupation of the Philippines.

As to the broader question of whether military service is labor, the answer is that it is a different form of labor with a different relationship to the state, yes, but it’s labor nonetheless. Like most forms of labor through American history, it is heavily gendered and racialized. And occasionally, despite structures that make protest much harder than in the civilian labor force, soldiers do rise up and protest their oppression, such as in the Port Chicago protests during World War II.

I based this post on Christopher Capozzola’s essay “The Secret Soldiers’ Union: Labor and Soldier Politics in the Philippine Scout Mutiny of 1924,” in Daniel Bender and Jana Lipman, Making the Empire Work: Labor & United States Imperialism.

This is the 184th post in this series. Previous posts are archived here.

Finally, I will note that I started this series 5 years ago today with a relatively brief discussion of Homestead. It’s been a fun series to write over the years. And now that I’ve gotten through most of the standard events of labor history, I can write up incidents like the Philippine Scouts that basically no one has ever heard about before. Here’s to 5 more years of it.

The Story of a Photo

[ 44 ] July 3, 2016 |

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Cats, beer, unions–what does this story not have? I guess ketchup, but that wouldn’t make any sense. Anyway, this is a fascinating attempt to piece together this photo of a British strike from the 1920s.

This Day in Labor History: July 2, 1964

[ 7 ] July 2, 2016 |

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On July 2, 1964, President Lyndon Baines Johnson signed the Civil Rights Act. Today’s post evaluates the impact of Title VII of the law. Title VII prohibited discrimination by covered employers on the basis of race, color, religion, sex or national origin, with an exception for members of the Communist Party who employers could continue to discriminate against. For the first time, they had the right to a job regardless of their race and gender. This transformed employment law and the lives of millions of American workers.

Title VII came out of a long history of employment discrimination. A. Philip Randolph’s March on Washington Movement had targeted this directly and the 1963 March on Washington for Jobs and Freedom had not only aimed to get the bill that became the Civil Rights Act passed but also sought economic remedies like Title VII. Civil rights and economic rights can not be separated, as much as Republicans would like to think civil rights is about one line out of one speech Martin Luther King gave and absolutely nothing more.

Title VII targeted private employers, excluding the federal government. Many feared Title VII would be toothless. The law created the Equal Employment Opportunity Commission, but it originally had little power. Said the chair of the EEOC from 1967-1969, Clifford Alexander, “We sort of gummed them to death if we could, but we had no enforcement powers.” But when LBJ issued Executive Order 11246 in 1965 that required federal agencies to establish nondiscrimination clauses and private contractors practice nondiscrimination, Title VII slowly took on life. Requiring govenrment contractors to comply meant that the government’s significant power of the purse as it became an ever larger sector of the economy was a powerful tool that sent reverberations through the labor market.

In the long-run, Title VII had the farthest reaching impact of any clauses in the law. Civil rights groups began finding the EEOC a useful tool and assisted people who had been discriminated against in filing suit to use it. In its first year, people filed 9000 complaints to the EEOC. By 1975, there were 77,000 complaints. They could also use class action lawsuits for a much larger tool against systemic employment discrimination. More than 1200 such lawsuits were filed between 1965 and 1971. In 1972, Congress granted the EEOC the power to sue in federal court, vastly expanding its reach. Major companies sought to create consent decrees with the EEOC rather than face trial. Many of those companies agreed to major settlements with female workers and workers of color. The success of many of them gave employers the push they needed to solve their employment discrimination problems themselves.

The inclusion of Title VII contained a vitally important principle rarely recognized in the Untied States—that civil rights preempted property rights, which is why racists like Rand Paul still rail against the law today. As Barry Goldwater said when voting against the law, “Our right of property is perhaps our most sacred right.” Human rights surpassed property rights, arguably for only the second time in American history, and the first took a civil war to accomplish.

The inclusion of women in Title VII was at first seen as something of a joke, although it turns out the issue was more complicated than it first appeared. When Virginia Rep. Howard Smith, a staunch segregationist, added the category of sex to the law, he did intend to undermine it. But Smith had worked closely with Alice Paul in the past. Paul and the National Women’s Party had long opposed any liberal legislation, especially labor law, and often worked with conservatives who were interested in a broad Equal Rights Amendment. Smith was one of them. So Smith introduced the word “sex” both because he wanted to see the bill die but also because if it did pass, he wanted women to have a right under it, especially if they were competing against black men for jobs.

One of the most frustrating thing about studying justice issues is that white women are among the biggest beneficiaries from affirmative action programs, yet so many do not see themselves as benefiting or in solidarity with people of color. Title VII was arguably the biggest political victory for women’s rights since the passage of the Nineteenth Amendment in 1920. The EEOC’s initial reluctance to fight for women’s rights on the job helped lead to the creation of the National Organization of Women in 1966. While we might not remember NOW as a leader in the fight for employment equality, NOW frequently worked closely with civil rights groups to fight both racial and sexual discrimination.

Title VII also allowed the Supreme Court to ban sexual harassment at the workplace under the law, including same-sex sexual harassment, as decided in Oncale v. Sundowner Offshore Services. Of course the use of Title VII to drastically change employment arrangements came under attack from the conservative movement and the Reagan administration underfunded the EEOC as it did the EPA, OSHA, and any other agency that sought to create a more equal America. Today, we are still far away from equal pay for equal work or an end to employment discrimination, despite real gains that we have made.

Some complain that the rise of a workplace fairness doctrine like Title VII has helped undermine the broader call for economic justice that the civil rights movement fought for. And there’s some real truth there. A. Philip Randolph was worried at the time that the law would ultimately do little for African-Americans because automation would throw many black workers out of a job and thus a jobs program was needed as well. But, between the 1960s and 1990s, the number of black policemen double, the number of black electricians tripled, and the number of black professionals quadrupled. The numbers of female professionals increased from 5 percent of the workforce to more than 30 percent in the same years. On the other hand, economic inequality is a major problem in society, it falls heavily by race and gender, and nothing in the Civil Rights Act even begins to solve this problem. Of course, the answer is new federal legislation to start solving it, but that’s probably far away.

I borrowed heavily from the forum on Title VII in the Fall 2014 issue of Labor: Studies in Working-Class History of the Americas for this post.

This is the 183rd post in this series. Previous posts are archived here.

Save America’s Pastime–From the Minimum Wage and Overtime Pay?

[ 52 ] July 1, 2016 |

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Did you know baseball evidently needs saving? From what, you might ask? Is it from sluggers using specific drugs that challenge the records of the heroes current sportswriters had when they were kids? Is it from Clayton Kershaw going on the DL? Is it from the horrors of the Yankees winning the World Series? No. Evidently baseball needs saving from the oppressive measures of the Fair Labor Standards Act. But what, you say? Major league players are millionaires! Indeed. This is about making sure that minor league players don’t receive proper compensation.

Cheri Bustos of Illinois and Brett Guthrie of Kentucky introduced the “Save America’s Pastime Act” late last week. The bipartisan legislation—Bustos is a Democrat, Guthrie a Republican—proposes to amend the Fair Labor Standards Act (FLSA) and create a specific exemption for minor league baseball players (who are not unionized) so that they are explicitly not guaranteed the minimum wage, and thus not allowed overtime pay.

Minor leaguers are professional athletes, so they’re never going to get widespread sympathy from the public, but MiLB’s wage structure is set up such that that they can barely earn a living while playing baseball. At best, they can break even. It’s tricky to conceive of sports jobs on hourly terms, since the responsibilities of a professional athlete extend so far beyond simply clocking in and out on game days, but minor league baseball players live all of the round-the-clock lifestyle of MLB players, just without getting the pay to justify it.

The bill alleges that MiLB players need their wages locked in at poverty level and that if players start getting paid at least as much as fast food workers, grassroots minor league baseball is at risk:

If the law is not clarified, the costs to support local teams would likely increase dramatically and usher in significant cuts across the league, threatening the primary pathway to the Majors and putting teams at risk.

This is bullshit. Major league owners pay the salaries of their farm teams. MiLB teams don’t need attendance revenue to pay their players, the money comes from the top. As ESPN noted, bumping every minor leaguer’s pay by $5,000 would shake out to 5 percent of Justin Verlander’s salary. MLB made $8 billion in revenue in 2013 (the number is certainly higher now). But the “Save America’s Pastime Act” isn’t about saving money, and it certainly isn’t about saving America’s pastime.

If you are asking why a Democrat like Bustos would be involved in such a horrible piece of anti-worker legislation, the answer is pretty simple. Her father in Major League Baseball’s chief lobbyist. The entire justification is completely ridiculous. Major League Baseball is going to support a minor league system because they require a minor league system to prepare players for the major leagues. The idea that teams in Missoula and Batavia are going to fold because the Yankees and Dodgers have to pay the minimum wage to the players does not hold up to even the first bit of scrutiny.

Outside of the grotesque nature of the arguments for this rather Orwellian named bill, Grant Bisbee explores just how despicable it is by thinking of the minor leaguers themselves. Basically, minor leaguers develop no job skills for the future. If they sign out of high school, they spend their traditional college-aged years learning nothing but to hit and field and pitch. If they do go to college, they probably leave after 3 years without a degree and spend their post-college years, when their friends are starting to find stable jobs and figure our careers, learning nothing but to hit and field and pitch. Most of them will never see a 40-man roster, not to mention actually playing in the major leagues. Far less will become wealthy. For most, this is a career dead-end. This bill is about making sure a 26 year old outfielder with a .700 OPS in Chattanooga doesn’t get paid if he goes to visit a nursing home in a team event, not about protecting players, the minor leagues, or baseball itself.

…Bustos has since withdrawn her support of her own bill in what Bill Shaikin calls “a flip flop monumental even by Washington standards.” Honestly, this is enough that her constituents should seek to primary her out of a job in 2018. Meanwhile, Major League Baseball is doubling down and saying that minor league players aren’t really employees–they are creative class people like artists and musicians. Yeah, that makes as little sense as it sounds.

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