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Amazon is intentionally burning through warehouse workers, but it may not be sustainable forever

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Interview with Laura Clawson, Daily Kos Contributing Editor | Smart  Bitches, Trashy Books

Amazon defeated a union organizing drive in Alabama recently, but two major new articles on the company’s warehouses powerfully show why workers wanted to unionize—and why it’s going to be nearly impossible for such efforts to succeed.

The New York Times led off with a damning look at JFK8, an Amazon fulfillment center in New York City. The JFK8 story was a window into Amazon’s broader employment practices, though, starting with high turnover by design, because Amazon founder Jeff Bezos wants people gone quickly, calling long-term employment a “a march to mediocrity.” In the warehouses, that translates to Amazon not caring that it is churning through workers at a staggering rate, seeing turnover of 150% a year even before the coronavirus pandemic. Other analyses of Amazon’s turnover rate have put it somewhat lower, but still at least 100%.

Hourly warehouse employees also have few chances for advancement—again by design, a former human resources vice president for the company told the Times. The internal promotion rate for these workers is less than half that of Walmart, with Amazon preferring to hire “wicked smart” college graduates in management roles. And—surprise!—at JFK8 that and other policies translated to an hourly workforce that was 60% Black or Latino, while management was more than 70% white or Asian. Black workers were also almost 50% more likely to be fired than white workers.

Amazon really is treating people as disposable, bringing them in and burning them out. Partly that seems to come from Bezos’ contempt for workers. But HuffPost’s Dave Jamieson also highlights how this helps insulate Amazon from worker organizing efforts

High turnover is “definitely one way to avoid a union,” former JFK8 worker Chris Smalls, now launching an independent organizing effort at the facility, told Jamieson. That plays out in the development of solidarity between workers, the trust workers feel in each other that enable them to talk freely about things management wouldn’t want them talking about, the long-term investment workers feel in improving the workplace … and, very concretely, in the mechanics of getting a union representation election.

To get the National Labor Relations Board to set up an election, organizers have to have signed union cards for 30% of workers, but in reality, organizers need far more than that because some initial support may disappear in the face of an anti-union campaign by management.

“At an Amazon warehouse, high turnover means a union would be losing cards every day as workers leave and new employees unfamiliar with the campaign replace them,” Jamieson writes. “Even if the union manages to win an election, high turnover could hurt its position at the bargaining table if some of the most active organizers have quit or been fired. And churn could even help the employer purge the union from the facility by convincing newer workers to decertify it.”

Bezos is stepping down as Amazon’s chief executive soon, and on his way out he has made sounds about improving Amazon’s employment practices, vowing the company would become “Earth’s best employer.” That is … unlikely. But, the Times pointed out, Amazon’s turnover is so extreme that “multiple current and former Amazon executives fear there simply will not be enough workers. In the more remote towns where Amazon based its early U.S. operations, it burned through local labor pools and needed to bus people in.” Reforming its employment practices enough that the company can keep a workforce in place for the long run may be a necessity at some point. And that, in the most optimistic scenario, could also be an opening for organizers.

This blog originally appeared at DailyKos on June 4, 2021 Reprinted with permission.

About the author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and a full-time staff since 2011, currently acting as assistant managing editor


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BAmazon Union: Anticipating the Battle in Bessemer, Alabama

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Last Friday, representatives from the Retail Workers (RWDSU) went before the National Labor Relations Board (NLRB), Region 10, seeking a quick union certification election.

The election is to determine whether a majority of the employees at the newly opened Amazon Fulfillment Center (BHM1) in Bessemer—a small of suburb of Birmingham, Alabama—want union representation.

Amazon was represented at the hearing by the law firm Morgan Lewis—a firm that specializes in “union avoidance” strategies. In dispute was the size of the bargaining unit.

The union had petitioned the Labor Board on November 20 with the support of at least 30 percent of a workforce that it calculated at 1,500. Obviously seeking to invalidate the union’s petition, the company countered that the appropriate bargaining unit was more than 5,700! The hearing took evidence from both parties and the hearing officer will decide who is right.

If the hearing officer rules in favor of the union, a quick certification election could be forthcoming. It is far more likely, however, that Amazon will spend its millions on legal actions to thwart a quick election. The company will argue that it is protecting the franchise of thousands of workers from a predatory outside organization.

UPRISINGS AT AMAZON

RWDSU’s filing for an election at Amazon caught the business press and many labor activists by complete surprise. But as Alex Press pointed out in Jacobin, “With pandemic-fueled growth has come an uptick in organizing at Amazon warehouses. The global health crisis and increased demand for Amazon’s services have led to widespread worker complaints about unsafe working conditions, including quotas that preclude safety measures they see as necessary to protect themselves from the virus.”

The Bessemer facility opened in March, at the onset of the pandemic. It is an 885,000-square-foot, four-story facility in one of Alabama’s poorest communities. The Bessemer City Council welcomed the opening with great fanfare, seeing these $15-per-hour jobs as particularly attractive in a state with only a $7.25 minimum wage.

Nevertheless the conditions at Amazon that have provoked nationwide actions against inhumane speed-up, pandemic-related and other health and safety issues, and callous disrespect have provoked a reaction here too.

Union drives in the South have often suffered from a perception that the union is a bunch of outside carpetbaggers from the North. However, this drive could have real local legs. RWDSU represents poultry processing facilities throughout the Southeast and has 7,500 poultry members in Alabama. Workers at nearby Koch Foods held a public protest on June 3 to force their employer to provide protective gear and safer conditions during the pandemic.

That kind of visible public fight no doubt was an appeal to friends and family working at Amazon who are suffering from some of the same conditions, without an organization to fight back.

RWDSU previously announced a union drive at Amazon’s Staten Island, New York, fulfillment center in late 2018, during the battle over the company’s plans to open a new headquarters in New York City, though the union never filed for an NLRB election. In March, a small walkout at the same facility over the lack of protective gear resulted in a flurry of publicity, but management fired a key leader, Chris Smalls.

AMAZON WORKERS ORGANIZE

For two years now, a network organizing under the banner Amazonians United has waged high-profile battles with Amazon at delivery stations in Sacramento, Chicago, and Queens. Instead of filing petitions for union elections, these workers have focused on building workplace organizations to wage fights around the immediate needs and interests of employees.

For example, in 2019, Sandra, an employee at a Sacramento delivery station, was fired for exceeding her unpaid time off by one hour. For weeks the Human Resources department ignored her and strung her along without a paycheck. But Amazonians United Sacramentoswung into action—and within 24 hours of their submitting a petition, H.R. announced that Sandra would be rehired with back pay.

Victories like this are the reason that Amazonians United’s efforts have been celebrated worldwide. The group has also made links internationally with other rank-and-file Amazon workers, particularly in Europe.

Workers at an Amazon facility in Shakopee, Minnesota, have also won local demands. After public protests backed by the local labor movement, workers won Muslim prayer hours for a large group of Somali employees. In particular, their efforts have received crucial support from SEIU Local 26, which represents many Somali janitors in the Twin Cities area.

There is no better base for organizing than the commitment and grassroots support of existing unionized workers who have friends and family in non-union workplaces. Hopefully, the organizing taking place in Bessemer, Alabama, is similarly “organic.”

OBSTACLES AHEAD

No matter how deep or wide the organizing is, the workers’ road to victory is mined with heavy obstacles. 

First, they face obstruction and delay. The company originally sought to delay the NLRB hearing until January, arguing that its supervisors were too busy with “peak” season to supply the information on employment necessary to determine the size of the unit. The NLRB agreed to delay the hearing only from December 11 to the 18th. 

But without a doubt, Morgan Lewis’s attorneys will take advantage of every legal loophole to obfuscate and delay. That’s a big part of what the current round of hearings on the size of the unit is about—delaying an election as long as possible to weaken any momentum the union has built up.

Next, they can expect aggressive management interference. If and when the NLRB finally sets an election date, the company’s anti-union “persuasion” campaign will swing into high gear, utilizing a combination of promises and threats, carrots and sticks.

Amazon undoubtedly will try to enlist some city councilors or other elected officials who raved about landing the warehouse in Bessemer to assist its campaign to throttle the union. Remember how Tennessee Senator Bob Corker, the ex-mayor of Chattanooga, lambasted the UAW’s attempt in 2014 to organize the Volkswagen plant there. Corker threatened that the state would pull back on its tax breaks for VW if workers won their union. When the union tried again in 2019, VW brought the governor of Tennessee into the plant to lead mandatory all-employee anti-union meetings.

Under these conditions an election victory would be a moving and inspiring moment, a true David and Goliath story. But wait, there is more: If the company chooses not to make fraudulent claims to undermine election results, next the RWDSU must bargain with the company for a first contract. Amazon can be expected to thwart labor law by not bargaining in good faith. Here again Amazon will stall and try to demoralize the workers. 

SUPPORT FOR BAMAZON UNION

These are some of the grim caveats that confront this valiant and apparently community-rooted effort. However, as we recently wrote in The Cost of Free Shipping: Amazon in the Global Economy, workers in facilities like Bessemer are in a position to wield significant power. “Amazon’s vulnerability is its supply chain management… based on the sophisticated coordination of product inventory and transportation logistics. That makes it highly susceptible to strategic action by workers—whether in its vast warehouse and sortation centers, shipping its products, or on the technology side.”

The whole Amazon world, and especially its workforce, will be watching and rooting for success. A victory in Bessemer would be a victory for all Amazon workers and a credit to the RWDSU and its members. 

Bearing in mind the national and international reach of Amazon, its sophisticated logistics capacity, and its vast resources to oppose worker organization, building workers’ power and sustaining organization must ultimately be national and international in scope.

The flexibility built into the Amazon business model which enables same-day delivery and the efficiency of the last mile is also flexibility that can be used to thwart worker organization if it remains isolated at single facilities.

That is why ultimately the effort will require the dovetailing of internal worker organization at multiple facilities—like what Amazonians United is doing—with the power and resources of one or several national unions, like RWDSU or the Teamsters, for instance. There is no single model for success at Amazon. RWDSU has launched an important initiative in Bessemer.

Amazon’s business model fundamentally undermines wages and working conditions for the whole labor movement, including the more than 200,000 Teamsters employed at UPS and hundreds of thousands of grocery store members of the United Food and Commercial Workers. We all have a stake in supporting a victory for the workers in Bessemer and their new “BAmazon” union! Stay tuned to Labor Notes for updates on the NLRB election and further developments in organizing at Amazon.

This blog originally appeared at Labor Notes on December 21, 2020. Reprinted with permission.

About the Author: Peter Olney is retired Organizing Director at the ILWU, currently working with a national network of Amazon employees and organizers. 

About the Author: Rand Wilson is chief of staff at SEIU Local 888. He was communications coordinator for the Teamsters’ 1997 UPS strike.


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Will Biden Resuscitate the NLRB?

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Unions are hoping that President-elect Joe Biden quickly takes control of the National Labor Relations Board and launches a new era of federal labor policy.

Over the past four years, a cabal of Trump appointees, determined to rewrite U.S. labor law, has run the NLRB into the ground. The agency has issued a steady stream of precedent-setting anti-labor rulings, seemingly designed to not only undo all progress made on workers’ rights during the Obama administration but also to grievously undermine the ability of unions to resist.

What are the chances that Biden will resuscitate the Labor Board and restore its role as a defender of workers’ right to engage in concerted action against employers? It may take quite a while before we find out.

REPUBLICANS STILL IN CONTROL

The NLRB is governed by five Board members appointed by the president. The Senate must confirm each appointment by a majority vote of senators present and voting (a filibuster rule requiring 60 votes was jettisoned in 2013). 

Board members serve for five years with one member’s term expiring each year. Depending on the composition of the Board and the number of vacancies when a new president takes office, it may take as many as three years before he or she has three seats, the number of members needed to issue precedent-setting decisions. 

At present, four board members are in place. Three are Republicans. Chairperson John Ring and member William Emanuel worked for high-powered management-side law firms. Marvin Kaplan was a House staff member. The lone Democrat, Lauren McFerran, worked for a union-side law firm. One slot is vacant.

Biden will be able to nominate a second pro-labor member upon taking office on January 12. If GOP dominance of the Senate continues after the Georgia runoffs, the chamber may reject the nominee or delay voting for months. (It is also theoretically possible, though unlikely and without precedent, that Trump and McConnell will try to block Biden at the last moment by filling the vacancy before Trump leaves office, a so-called “midnight appointment.”)

Even with a second Democrat, Republicans will still have a majority on the board. Over the next eight months that majority is likely to issue a slew of anti-labor rulings such as a ban on displaying stationary signs and inflatable rats to pressure secondary employers and a weakening of the contract bar rule blocking decertification proceedings.

LOTS TO UNDO

Biden should be able to nominate a third Democrat to take office on August 27, 2021, when Emanuel’s term expires. Confirmation, however, cannot be assumed. A GOP-controlled Senate may reject the nominee, leaving the board deadlocked two to two—assuming Biden’s first nominee is confirmed by then. Or, it may force a deal compelling Biden to appoint a more middle-of-the road nominee.

One move Biden can make immediately upon taking office is to appoint McFerran as Board chairperson. This will increase her influence but will not prevent the Board from issuing more bad decisions. On the other hand, unless Biden takes the bold step of sending him packing, Peter Robb, the union-hating general counsel, who supervises NLRB regional offices and plays a major role in setting the Board’s agenda, will be able to stay in office until his four-year term expires on November 16, 2021. 

Eventually, a Biden majority may well control the NLRB. If Biden’s appointees are as labor-friendly as Obama’s picks, they will have an opportunity to reexamine many of the most harmful Trump-era rulings. The following cases should be at the top of their undo list:

  • Boeing Companies (2017), which gave employers unprecedented rights to enact work rules restricting union and other concerted activity.
  • PCC Structurals (2017), which changed the definition of appropriate bargaining units to make it far more difficult for unions to petition for representation rights.
  • Supershuttle (2019), which eased the way for employers to classify workers as independent contractors exempt from union bargaining rights.
  • Valley Hospital (2019), which allowed employers to cease deducting union dues when a collective bargaining agreement expires.
  • United Parcel Service (2019), which limited Board review of arbitration awards that violate NLRA rights.
  • Kroger Limited (2019), which allowed employers to bar union organizers from distributing literature on employer property even if groups such as the Girl Scouts were allowed to solicit.
  • MV Transportation (2019), which elevated management-rights clauses in union contracts to levels of unilateral privilege not even dreamed of by HR specialists. 
  • General Motors (2020), which ended the special protections long enjoyed by union representatives.

This blog originally appeared at Labor Notes on December 7, 2020. Reprinted with permission.

About the Author: Robert M. Schwartz is a retired union labor lawyer. He is the author of several books including The Legal Rights of Union Stewards and No Contract, No Peace! A Legal Guide to Contract Campaigns, Strikes, and Lockouts. His books can be purchased from the Labor Notes online store.


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Trump’s Anti-Worker Labor Board

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In his State of the Union address this year, President Trump declared that “our agenda is relentlessly pro-worker.” Despite this populist posturing, any sober assessment of Trump’s first term will show that it has been an all-out assault on labor.

Trump has ruthlessly attacked federal workers, granted more tax cuts for the rich, and severely weakened the Occupational Safety and Health Administration, and he is now undermining Social Security. Campaign promises such as massive infrastructure projects, a minimum wage hike, and an overhaul of the health care system have barely even been attempted.

In a few short years, Republicans have used the opportunity presented by a Trump Administration to attack workers in ways we haven’t seen since before the Great Depression. While these seismic shifts in labor relations rarely get highlighted in the media, they should alarm anyone who cares about working people’s basic rights.

Can Workers Still Use the NLRB under Trump?

“The big-picture situation at the agency under Trump is not good,” wrote labor lawyer Gay Semel in the January 2020 issue of Labor Notes. “But in certain situations,” she emphasized, “the Board is still the only place workers can go for legal protection, and workers shouldn’t let the president’s pro-corporate appointees scare them out of ever exercising their rights.”

For advice on when and how to go to the NLRB in the current political climate, see Semel’s article here.

A BOARD OF CORPORATE STOOGES

Actions of the National Labor Relations Board (NLRB) are the most striking example of the anti-worker agenda. The Wagner Act of 1935, the first iteration of the National Labor Relations Act, established the NLRB as an agency to protect workers’ rights to organize and engage in collective bargaining. Trump has rapidly turned an agency designed to serve workers’ interests into another tool of corporate power.

Trump has appointed three Republicans to the board, none of whom has any experience representing workers or unions. In fact, all have long careers defending corporate interests. Between December 2019 and August—when Democrat Lauren McFerran was reconfirmed by the Senate—Trump presided over the first all-Republican Board in the NLRB’s 85-year history.

At the head of the board is the General Counsel, whom workers depend on to actually prosecute cases. Trump’s pick was management lawyer Peter Robb.

The Trump Board has dutifully pursued a corporate wish list of 10 items put out by the Chamber of Commerce in early 2017. Board members have already taken action on all 10. These priorities include delaying union elections, restricting the ability of employees to communicate about workplace issues, and enhancing the ability of employers to determine bargaining units.

We shouldn’t overstate the importance of labor law. Deep organizing and shop floor power are what’s needed to rebuild the labor movement and working people’s ability to fight back. But these laws still make a real difference in shaping the barriers to the revitalization we seek. The NLRB under Trump is on a determined mission to destroy the last vestiges of organized power working people have left.

PRECEDENT OUT THE WINDOW

As Celine McNicholas, Margaret Poydock, and Lynn Rhinehart of the Economic Policy Institute wrote in their October 2019 report “Unprecedented: The Trump NLRB’s Attack on Workers’ Rights”: “The Trump board has repeatedly reversed long-standing board precedent, weakening workers’ rights and giving more power to employers. In the two years that Republicans have held the majority on the board, they have overturned NLRB precedent in more than a dozen cases. All of these decisions overturning precedent favor employers.” In most cases, the Board has issued these types of rulings without even bothering to solicit public input, a reversal of its normal practice.

Take the Board’s ruling in Bexar. Thanks to this ruling, now off-duty employees do not have a right to organize in public areas of their workplace if their employer is a contractor. In this particular instance, San Antonio Symphony musicians were barred from leafleting in front of their home venue, where the vast majority of their performances take place, because the venue is not owned by their employer.

In another case, UPMC, hospitals were granted the ability to ban union organizers from talking to nurses in hospital cafeterias that are public.

The NLRB has also set its sights on undoing more recent precedents set during the Obama Administration. In 2011, the Board’s Specialty Healthcare decision undermined employers’ ability to increase the size of bargaining units in union elections, a tactic often used to make it harder for workers to organize. This ruling allowed, for example, workers in the cosmetics department at Macy’s to petition for a union election among themselves, rather than having to win an election for the entire store. One of the first things the new NLRB did was overturn this ruling—and then add additional measures that gave management even more power to beat organizing drives.

UNDERMINING COLLECTIVE BARGAINING

Traditional understandings and procedures in the collective bargaining process have also been upended. For over 70 years, employers were banned from making sweeping changes to wages, hours, or working conditions unless they demonstrated that the union had clearly waived its right to bargain over these issues.

Give $10 a month or more and get our “Fight the Boss, Build the Union” T-shirt.

But the Board adopted a new rule that allows employers to make unilateral changes if there is reference in the contract to management’s authority over the issue.

In Johnson Controls, a rule was announced allowing employers to withdraw union recognition at the end of a collective bargaining agreement if they can prove that the union does not have majority support. They can now do this without holding an election, such as through an employee petition for decertification. But employers can still insist on an election when the union is first trying to be established—no “card check” there.

HURTS NEW ORGANIZING

In this age of dire economic inequality, Americans need and want unions. Recent polls show that nearly half of non-union workers say they would vote for a union if given the chance. Sixty-five percent of Americans have a favorable opinion of unions, according to a Gallup poll this year—the highest since 2003. But the NLRB is doing everything in its power to deny working people union protection.

Union elections have been undermined as well. Never letting a crisis go to waste, the board used COVID-19 as an excuse to halt all union elections in late March and early April, even though they could have been handled through the mail. This affected thousands of workers who were looking to vote a union in. More important, the Board enacted new rules that will affect the way union elections are done well after the pandemic is over.

Occasionally, employers will recognize a union voluntarily, without an election, when a majority of workers have signed union cards. The Board now requires such employers to tell those workers that they can file for an election to get rid of the union they just formed. New rules also dictate that a union election should proceed even when the union has filed charges of illegal practices by employers to alter the election.

Over the last decade, groups of Walmart workers have gone on many short strikes to raise awareness about the company’s labor practices. The NLRB ruled in July 2019 that more than a hundred Walmart workers who took part in a five-day strike were not protected by labor law. The Board argued that their action counted as an “intermittent” strike, which is unprotected, and thus there were no legal consequences for Walmart when the company retaliated.

PERILOUS FUTURE

There are already signs of what the Board will pursue if Trump gets a second term.

In the age of COVID-19, recent rulings related to workplace health and safety are particularly dangerous and despicable. Board regional directors have been told to dismiss COVID-related cases against employers. Incredibly, the Board has ruled that employers are not obligated to bargain over paid sick leave, hazard pay, or temporary closure due to the pandemic.

In such a stifled organizing climate, speaking out to the public about unsafe working conditions may be the only hope workers have for protecting their well-being. But the Board has made this more difficult as well, with recent advice memos from the General Counsel refusing to afford protection to or overturn firings of workers who spoke out against their company’s COVID safety procedures.

With each new ruling it becomes clearer that the Board seeks a workplace where employers have unfettered control over workers’ minds and bodies. In December 2019 a ruling allowed private sector employers to place major restrictions on the wearing of union swag, upholding a Walmart policy that restricts employees from wearing anything but “small, non-distracting” union buttons or other insignia in stores. Walmart absurdly claimed this practice would “enhance the customer shopping experience and protect its merchandise from theft or vandalism.”

In July, employers were given the green light to discipline shop stewards for using profanity during meetings with management. This effort to restrict behavior also extends to language used on picket lines and social media.

Labor law is not a silver bullet. Having strong labor laws on the books wouldn’t mean much without a vibrant union movement to enforce them. Conversely, it’s possible to have a situation where anti-worker labor laws are overcome by a militant presence on the shop floor and in society.

But it’s clear that these laws have real-world effects, especially for our ability to organize in the future. The NLRB under Trump exposes his pro-worker rhetoric as a lie.

There will be real consequences of another Trump term. But after the election is over comes the hard work of reversing the huge power imbalance between workers and the boss.

This blog originally appeared at Labor Notes on October 8, 2020. Reprinted with permission.

About the Author: Paul Prescod is a high school social studies teacher and belongs to the Working Educators caucus of the Philadelphia Federation of Teachers.


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Trump labor board declares open season on ‘independent contractors’ this week in the war on workers

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The Donald Trump-appointed National Labor Relations Board dealt a major blow last week to workers being exploited by companies misclassifying them as independent contractors. Whether a worker is an employee has long been determined by a number of factors, including how much control the employer exerts over things like work hours and conditions. The NLRB, though, looked at SuperShuttle drivers in Dallas-Fort Worth who have to buy the exact van that SuperShuttle wants, pay a series of fees to SuperShuttle, use company dispatchers, and be monitored by SuperShuttle GPS tracking, and decided that they are legitimately independent contractors and not employees because something something “entrepreneurial opportunity.” Moshe Marvit has the gory details:

Throughout the Board majority’s decision, it becomes clear that when it uses the language of “freedom” and “entrepreneurial opportunity,” it is the freedom to fail and the opportunity to lose. Reading the decision, one is struck by the lack of any evidence that the drivers—or “franchisees” in the language of the case—do well under the agreement. Instead, the Board majority approvingly cites the NLRB Acting Regional Director who made the first determination in the case, in which she found that “franchisees face a meaningful risk of loss in light of the substantial costs that go into owning a franchise, i.e. the vehicle payments, weekly system fees, insurance costs, gas, maintenance, licensing fees, and tolls.” The Board methodically goes through every instance where the company has offloaded costs and risks to the drivers, while maintaining strict control, and calls the new relationship one where the drivers are small business owners, experiencing freedom and entrepreneurial opportunity.

Basically the NLRB served notice that there may be no employment relationship so exploitative that it declines to affirm it as independent contracting.

This blog was originally published at Daily Kos on February 2, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.


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Trump’s NLRB Just Quietly Ruled to Make Union Pickets Illegal

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An all-Republican panel of President Trump’s National Labor Relation Board (NLRB) recently ruled that janitors in San Francisco violated the law when they picketed in front of their workplace to win higher wages, better working conditions and freedom from sexual harassment in their workplace. The ruling could result in far-reaching restrictions on picketing that limit the ability of labor unions to put public pressure on management. 

The NLRB reached its conclusion by using the complex and convoluted employment structure created by the janitors’ employers. The janitors were technically employed by one company, Ortiz Janitorial Services, which was subcontracted by another company, Preferred Building Services, to work in the building of a third company.

This type of confusing employment relationship is increasingly common, resulting in workers being put in a position where it’s difficult to negotiate higher wages and better working conditions, or protect their basic employment rights.

The NLRB based its decision on a particularly onerous provision in federal labor law that prohibits employees from engaging in boycotts, pickets or other activities that are aimed at a secondary employer. The provision was added as part of the 1947 Taft-Hartley Act, taking away one of labor’s most powerful weapons.

In this case, the NLRB overturned an administrative law judge’s ruling that because the second company had significant control over the employment relationship, it constituted a joint employer. The judge based her conclusion on evidence that Preferred Building Services was involved in the hiring, firing, disciplining, supervision, direction of work, and other terms and conditions of the janitors’ employment with Ortiz Janitorial Services. Therefore, both Ortiz and Preferred acted as joint employers to the janitors.  

This matters because if the various companies were joint employers, there were no prohibited secondary activities. But the NLRB held that the janitors worked for the subcontractor, and any actions aimed at any other company was illegal under the law.

What is remarkable about this case is how it makes things much worse for workers by only subtly reinterpreting the law. It takes a narrow read on the joint employment doctrine and thereby limits workers’ right to picket. And, as a result, many workers in what former U.S. Department of Labor Wage and Hour Administrator David Weil has termed “the fissured workplace” will find it difficult to vindicate their rights. Ultimately, this case shows how many basic fundamental rights associated with the First Amendment workers are prohibited from engaging in.

At their picket line in San Francisco, the janitors held signs demanding a municipal minimum wage increase, complaints about the companies’ labor practices and demands to stop sexual harassment. If any person other than the janitors had engaged in such a picket, their activities would clearly be protected under the First Amendment. However, because the NLRB found that these janitors “engaged in picketing with a secondary object prohibited by Section 8(b)(4)(ii)(B)” of the NLRA, these workers had run afoul of the law.

In 1984, labor law scholar James Gray Pope used the imagery of a ladder to highlight the absurdity of how the law treats workers’ picketing and speech rights as compared to how the law treats these activities for everyone else. “On the ladder of First Amendment values,” Pope explained, “political speech occupies the top rung, commercial speech rests on the rung below, and labor speech is relegated to a ‘black hole’ beneath the ladder.”

The First Amendment “black hole” for labor rights has become more apparent with the Supreme Court’s Janus decision, which created an onerous free-speech carveout breaking with decades of precedent for how to treat public sector workers’ free speech.

Instead of following its longstanding rule holding that the First Amendment only applies when a public employee speaks as a citizen on a matter of public concern, the Court held that a single employee’s complaint about union was a matter of First Amendment concern. Although time will tell, it appears unlikely that the Supreme Court will extend such First Amendment protections to public employees in cases that would help, rather than hurt labor.

The NLRB’s recent case restricting the picketing rights of subcontractors, temps and other workers who do not have a single direct employment relationship is a further sign that the labor board will continue limiting its joint employer doctrine. This will make it more difficult or even impossible for many workers to have any meaningful voice in the workplace. But the case also highlights some of the core problems of labor law as it currently exists. By being included under the NLRA, workers lose basic rights that all other Americans enjoy.

In addition to pushing for the NLRB to prevent employers from evading liability through a complex web of subcontractors, labor needs to push their way out of the First Amendment black hole that workers have been in for over 70 years.

This article was originally published at In These Times on October 26, 2018. Reprinted with permission. 

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.


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Trump Is Making It Harder for Low-Wage Workers to Organize, But This Fast Food Union Could Win

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Workers at a Burgerville in Portland, Oregon declared on March 26 that they will file for a federal union election. If union campaigners win, the restaurant will become the first federally recognized fast food union shop in the United States. The local effort, which has a significant chance of victory, offers a powerful antidote to the Trump administration’s aggressive anti-worker agenda.

This move comes after years of worker organizing as part of the Burgerville Workers Union (BVWU), which is an affiliate of the Industrial Workers of the World (IWW). The workers gave Burgerville 48 hours to voluntarily acknowledge the union, which management refused.

BVWU went public in 2016, seeking raises for hourly workers, affordable healthcare, a sustainable workplace and consistent scheduling. In addition to these demands, workers asked Burgerville to stop using the E-Verify system, which they say targets undocumented workers. E-Verify compares employee information with Department of Homeland Security and other federal records to confirm that people can legally work in the United States.

Today, six of the Washington-based company’s 42 stores have publicly active unions, and workers say they’ve been fighting union busting and resistance from management throughout the entire process.

In an interview with the website It’s Going Down, Luis Brennan, an employee at Burgerville’s Portland Airport location, alleged that the company retaliates against organizers by accusing them of minor infractions that wouldn’t otherwise be enforced. He told the story of two Burgerville workers who were recently let go. One of them was allegedly fired for putting a small amount of ice cream in his coffee. The other was allegedly fired for smelling like marijuana. According to Brennan, the latter worker never admitted to smoking marijuana and the company didn’t ask him to take a drug test. The employee, who is black, did have a medical prescription for marijuana because of his epilepsy. “They gave him a week’s suspension and then they fired him,” said Brennan. “He’s an active union supporter, and the combination of racism and anti-unionism in that is pretty transparent to everybody.”

Last year, Jordan Vaandering, a Burgerville-employee who had worked at the store’s Vancouver Plaza location for fourteen months, was allegedly fired for eating a 70-cent bagel without paying for it. Vaandering said a manager gave him the bagel during a paid-break and didn’t ask him for any money. While the bagel was the pretext for Vaandering’s termination, he believes he was let go because he was recruiting co-workers to join the BVWU.

Asked about the alleged retaliations earlier this year, the company released the following statement: “Burgerville does not comment on individual employee matters or internal company policies.”

Earlier this year, in response to management’s refusal to negotiate with the union and its alleged retaliation against organizers, BVWU called on consumers to boycott Burgerville. The boycott call came during a three-day strike that started at the company’s Northeast MLK Boulevard location before spreading to its Southeast Powell and 26th store, two locations in Portland.

Mark Medina, an employee at the Southeast Portland store and a member of BVWU, told In These Times that, while the union campaign has been active for more than 20, now is the perfect time to file for a union election. “It took a lot of work to get where we are right now,” said Medina. “This was all built from the ground up: no money, all volunteers. We’ve had major strikes and many shops, and now we’ll have more leverage during the process. Our level of organization is concrete now. It’s better.”

Burgerville workers’ call for a union election comes on the heels of a potentially major defeat for fast-food workers at the federal level. Trump’s National Labor Relations Board (NLRB) General Counsel Peter Robb recently negotiated a tentative settlement between McDonald’s and the NLRB over a landmark case pushed by the Service Employees International Union (SEIU)-backed Fight for $15 campaign that aimed to hold the company responsible for its individual franchises’ labor violations. The details of the tentative settlement, which is pending approval by an NLRB judge, remain undisclosed. But McDonald’s admits to no wrongdoing, and the settlement allows the company to avoid the “joint employer” designation that would allow groups like Fight for $15 to unionize fast food locations more effectively.

“In a real settlement, McDonald’s would take responsibility for illegally firing and harassing workers fighting to get off food stamps and out of poverty,” said Fight for $15 attorney Micah Wissinger.

“We think a union contract is just one tool to help build the working class we all deserve,” Chris Merkel, who works at the Convention Center Burgervillel, told In These Times, “The NLRB can change all the rules, but we still have to do the work on the floor and in our communities to get our basic needs met.”

Medina said he has “love and affection” for unions like the SEIU and campaigns like Fight for $15. “Fight for $15 is great,” said Medina, “I support raises, but a raise alone doesn’t empower workers to change their own lives and community.”

Despite the fact that the IWW is a rank-and-file union working independently from the bigger labor organizations, Medina said he’s been blown away by the support it has received in Portland. “You see the AFL-CIO at an IWW event,” he explained. “SEIU has turned out. Carpenters 503 has manned our picket lines. We’ve shown we’re here to stay and the community has shown so much support.”

After BVWU announced their call for the election, Burgerville’s Senior VP of Operations Beth Brewer released a statement: “Burgerville respects the right of every employee to support or not support the organization of a union. If there is enough support, we anticipate they will file a petition with the NLRB. Burgerville will abide by the NLRB’s decision and guidance.”

Medina told In These Times that he hopes the Burgerville efforts inspire others throughout the country. “You can organize fast food workers,” he said. “If you put in the effort to organize them, you can. Take what we did and replicate it.”

This article was originally published at In These Times on April 3, 2018. Reprinted with permission. 

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria


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Caution: Your Right to a Timely Vote May Be at Risk

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Three years ago, the National Labor Relations Board took modest steps to streamline, modernize and improve the process by which workers petition for an election to vote on forming a union at work. The rules reduced unnecessary delay caused by management lawyers litigating issues in order to slow down elections and deprive workers of their right to vote.

Under the rules, workers get to vote two weeks sooner—the median time from petition to election is 23 days, compared with 38 days under the old rules. This shows that the goal of reducing unnecessary delay has been met.

Unfortunately, the U.S. Chamber of Commerce and other corporate interests have been campaigning to get rid of the rules, saying they are unfair to businesses. First they tried lawsuits—and lost, with the rules upheld in full by courts in Washington, D.C., and Texas. Then the Chamber and their allies tried to block the rules with legislative action, which has so far failed.

But now three Republican appointees to the NLRB are asking for public comments on whether the rules should be changed. The two Democratic appointees to the NLRB—Mark Gaston Pearce and Lauren McFerran—disagree, saying the rules have worked well and there is no reason to change them.

The NLRB is taking public comments until April 18 on whether it should change the 2014 rules. Add your voice to the growing chorus telling the NLRB to keep the rules.

This blog was published at the AFL-CIO on April 3, 2018. Reprinted with permission. 


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Trump appointee’s conflict of interest forces labor board to toss anti-worker ruling

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A Trump appointee’s conflict of interest has bitten the Trump administration’s anti-worker agenda in the ass. The National Labor Relations Board has vacated its Hy-Branddecision after the agency’s inspector general said that board member William Emanuel should not have voted due to his conflict of interest.

Hy-Brand reversed an Obama-era decision which expanded rights for workers directly employed by staffing agencies or franchise owners—under Browning-Ferris, companies couldn’t escape responsibility for the workers in their factories or warehouses or restaurants just by making sure someone else signed the paychecks. If a company determined the terms and conditions of employment, it could be treated as a joint employer. That had major implications for the huge temp worker industry and for the heavily franchised fast food industry, too.

Emanuel voted on Hy-Brand despite his former law firm having been involved in the earlier case, and that vote and that conflict of interest proved a problem:

In a report issued Feb. 9, NLRB Inspector General David Berry said Emanuel should not have cast a vote overturning Browning-Ferris. While Hy-Brand involved different companies, Berry wrote that the way the NLRB handled it amounted to a “do over” in which the new case was “merely the vehicle” to reconsider the old one—which at the time was still pending in federal court. Berry said the issue revealed “a serious and flagrant problem and/or deficiency” in the NLRB’s handling of conflict-of-interest issues.

The order vacating Hy-Brand was issued by a 3-0 vote in which Emanuel didn’t participate, according to a statement Monday from the agency, which said the move was made “in light of the determination by the board’s designated agency ethics official that member Emanuel is, and should have been, disqualified from participating in this proceeding.”

“This is, so far as I’m aware, unprecedented,” said former NLRB chair William Gould IV, a professor emeritus at Stanford’s law school. “There is no decision on a matter of such high import that has been vacated based upon a breach of conflict-of-interest rules.”

Don’t doubt the determination of Trump appointees and the Trump administration generally to find ways to hurt workers—they’re likely to look for another chance at a do-over and the House has already passed a bill overturning Browning-Ferris—but it’s nice to see rampant corruption and conflicts of interest get in Team Trump’s way for a change.

This blog was originally published at Daily Kos on February 27, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at DailyKos.


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Inside the Trump Administration’s Plan to Shrink the NLRB

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Labor rights advocates are alarmed by a proposal to centralize more control of the National Labor Relations Board (NLRB) at the agency’s Washington, D.C., headquarters and shrink its network of regional offices. Widely viewed as another effort by appointees of President Donald Trump to reverse some union-friendly policies promoted by Obama appointees, the proposal is a step toward an even smaller role for the NLRB in protecting workers’ rights, these advocates charge.

News of the proposal leaked out to media outlets in mid-January, first to the Daily Labor Report and then to the The New York Times. The news reports focused on objections to the proposal by NLRB staff members at the agency’s 26 regional offices. Some of those staffers would be demoted, or lose their jobs entirely, if the proposal is implemented by NLRB General Counsel Peter B. Robb.

Trump appointee Robb “is a man in a big hurry” to remake the NLRB into an agency more responsive to the anti-union demands of conservative Republicans and business interests, says William B. Gould IV, a former NLRB chairman now teaching law at Stanford University. “He looks to be seizing control of the complaint process,” at the regional level, Gould tells In These Times. “That’s terribly important because it is the regional offices that are the great strength of the NLRB … The regional offices are where a union shop steward or a legal practitioner can go to have complaints handled in a professional way.”

Robb, appointed by Trump in September of last year and sworn in Nov. 17, comes to the post with strong anti-union credentials. As described by The New York Times, he was appointed “after a career largely spent representing management, including handling part of the Reagan administration’s litigation against the air traffic controllers’ union that waged an illegal strike in 1981. Most labor historians say the government’s hard line in firing the controllers contributed to organized labor’s decline…”

Robb’s proposal comes on the heels of recent decisions by the five-member board to roll back some Obama-era initiatives that favored unions. Those decisions were more explicitly political, coming after votes by board members in which Republican Party appointees narrowly prevailed over Democratic appointees. As general counsel to the agency, Robb is not a board member, but rather a White House appointee in charge of administering the day-to-day affairs of the agency under the general direction of the Board members.

According to Michael C. Duff, a professor at the University of Wyoming College of Law, the NLRB votes and the actions by Robb are “of a piece with the Trump agenda to downgrade the agency as a defender of labor rights as spelled in the National Labor Relations Act.” A former NLRB staff lawyer himself, Duff tells In These Timesthat “I don’t have a good feeling about what is going on. There is a sense that the agency is being hollowed out.”

“You get a sense that they [Republican appointees] are going to reverse everything,” in NLRB policy that is favorable to workers, Duff continues. As a former staffer who is still in regular contact with some of his NLRB colleagues, Duff says “the situation is probably more dramatic than it looks … [The trend] is essentially a repudiation of labor law as we know it.”

Part of the “hollowing out” process is cutting the budget of the agency. Daily Labor Report’s Laurence Dubé reported last year that a 6-percent proposed cut would mean the elimination of 275 jobs from the agency’s staff. The budget has not been finalized, but staff cuts are expected in the coming year, and may  continue throughout the Trump administration, predicts Duff.

Burt Pearlstone, president of the National Labor Relations Board Union, says the staff union has no comment on Robb’s proposal at this time. He tells In These Times that the executive committee of the staff union may take  up the issue at its next scheduled meeting, by may also wait until Robb’s proposals are more formalized

The staff union represents more than 700 NLRB employees in the regional offices and a second independent union, the National Labor Relations Board Professional Association (NLRBPA), represents many staff members at Washington, D.C., headquarters. No representative of the NLRMPA could be reached for comment.

Robb’s proposal to demote employees and consolidate regional offices was outlined in a conference call Jan. 11, in which Robb described the plan to NLRB mid-level administrators. According to Gould, the administrators were not provided with a written version of Robb’s proposal, but were alarmed enough to respond with a written objection that has been published by Daily Labor Report.

“As you can imagine, the information you provided to the Regional Directors has created much uncertainty and has disheartened us … It was unclear to us how many Districts you envision, how many Regional Offices would remain, how many Regional Directors would remain in that position, what the supervisory ratio would be, and when you envision removing Regional Directors from the Senior Executive Service … However, any anticipated changes must be thoughtfully considered so that the great work of the Agency remains. We would like to work with you in developing changes that would be appropriate to meet our challenges,” the NLRB staffers wrote.

“The NLRB has a lot of problems as an agency. The number of cases they handle is way down from when I started work at the Philadelphia regional office (in 1997), but there are still not enough people to handle the work load,” comments Duff.

“Pay freezes and government shut downs have an effect [on morale],” Duff continues. “From what I am hearing now, things are actually worse than you think.”

This article was originally published at In These Times on January 31, 2018. Reprinted with permission.
About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

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