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Amazon defeats Alabama union effort after dirty, but predictable, campaign

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The union organizing effort at an Amazon warehouse in Bessemer, Alabama, appears headed for defeat after the first day of counting ballots. There were 3,215 votes, with the count standing at 1,100 against unionizing to 463 in favor. Voting ended March 29, but before the counting began, hundreds of ballots were challenged, most by the company. If those could be decisive, they will be revisited.

But on the day counting began, we learned more about how far Amazon went to stack the deck in its favor. The National Labor Relations Board had refused Amazon’s request to have a ballot drop box in the facility, citing coronavirus social distancing precautions. But documents obtained by the Retail, Wholesale, and Department Store Union through Freedom of Information Act requests show that Amazon defied that by going to the U.S. Postal Service and asking for a mailbox to be installed on Amazon property—which it was, unmarked, the day before voting started.

One critique of the campaign and the decision to press forward to an election after Amazon successfully expanded the bargaining unit involved in the vote from around 1500 workers to all 5800 in the warehouse: 

“We have not heard anything back on the install of this collection box,” a Postal Service account manager emailed Postal Service workers in Alabama on Jan. 14. “Amazon is reaching out again to me today about the status as they wanted to move quickly on this.” 

Those emails directly contradict a Postal Service spokesman’s claim that the mailbox was “suggested by the Postal Service as a solution to provide an efficient and secure delivery and collection point.”

”Even though the NLRB definitively denied Amazon’s request for a drop box on the warehouse property, Amazon felt it was above the law and worked with the postal service anyway to install one,” RWDSU President Stuart Appelbaum said in a statement. “They did this because it provided a clear ability to intimidate workers.” 

When the mailbox was installed, journalist Kim Kelly and More Perfect Union showed exactly why it functioned to intimidate workers:

Assuming the vote counting continues as it has begun, this will become the basis for a challenge by the union. It was, of course, only one of a string of intimidation strategies and efforts to rig the vote in Amazon’s favor—most of which were allowed under current U.S. labor law. So much of what’s happened in Bessemer is a case study in why we need the Protecting the Right to Organize Act, but also in why big business is so determined to keep U.S. labor law weak and tilted in favor of management.

This blog originally appeared at Daily Kos on April 9, 2021. Reprinted with permission.

About the Author: Laura Clawson has been a contributing editor since December 2006. Clawson has been full-time staff since 2011, and is currently assistant managing editor at the Daily Kos.


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Citing Unfair Labor Practices, 1,300 Steelworkers Strike in Five States

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At 7:00 AM on Tuesday, March 30, 1,300Steelworkers employed by Allegheny Technologies Incorporated (ATI) walked out in protest at facilities in Pennsylvania, Ohio, New York, Massachusetts, and Connecticut. The strike comes just over a year after United Steelworkers began negotiations with ATI. According to a statement released that day, the union is dissatisfied with company demands for ?“major economic and contract language concessions.”

United Steelworkers further claims that ATI has committed unfair labor practices. A charge filed with the National Labor Relations Board on March 9 alleges that the company is refusing to furnish the union with essential bargaining information. As USW International Vice President David McCall tells it, this withholding finally pushed the workers to strike.

“We are willing to meet with management all day, every day. But ATI needs to engage with us to resolve the outstanding issues,” McCall says. ?“We will continue to bargain in good faith, and we strongly urge ATI to start doing the same.

Healthcare is among the biggest points of contention in the negotiations. While the company maintains that their proposals continue a ?“premium-free plan,” a union bargaining update contends that out-of-pocket costs are up. Workers are also balking at a company plan to assign coverage to workers hired after 2024, which they say will give new employees inferior, more expensive coverage and thus introduce a ?“two-tiered system.”

Plant closures have been another topic of heated debate. Andy Artman, President of USW 1138?–?6 and an electrician at ATI’s Latrobe facility, says he had to relocate after ATI’s Bagdad plant in Gilpin, PA, shuttered in 2016. And he has company. Michael Barchesky, who has worked in electrical maintenance at the Latrobe facility since 2007, claims he knows people who have had to move two or three times because of facility closures. With the company pushing for more?—?including the Waterbury facility in Connecticut, the Louisville facility in Ohio, and a production line in Brackenridge?—?the union is fighting to ensure that workers forced into retirement will keep the pensions they’ve earned.

For rank-and-file workers like Joe Clark, an overhead crane operator at the Brackenridge facility, a work stoppage is his chance to draw a line in the sand after years of compromise.

“When we were first contracted to put this [hot rolling mill] in [at Brackenridge], they asked us for concessions because they wanted to create jobs that were going to be for us and for our families in the future,” says Clark. ?“It was supposed to guarantee more jobs for the community, so we sacrificed.”

The company spent $1.5 billion to expand and update the Brackenridge facility, aided by a controversial economic development strategy known as ?“Keystone Opportunity Zones.” The long-term tax abatements awarded to these zones were supposed to create jobs, but a 2015 piece written by then-President of the USW, Leo Gerard, argues they have never materially benefitted local residents. Bill Hrivnak, who Gerard quotes in the piece, says that “[Everyone] thought when they built a $1 billion plant here that it would be great for the community, and it hasn’t been.”

“They cut two thirds of the same department we work in now,” he continues. ?“The [new] jobs never appeared, the technology cut [existing] jobs, and we continued to work without raises, sacrificing. They’re always telling us the company is in a difficult position, and they’re not making money. But they’re paying out millions of dollars to their CEOs and their upper-level people.”

Workers are skeptical about the company’s claimed hardship. ?“You look at what we’re getting compensated and what the CEOs are getting compensated, it doesn’t really add up,” says Barchevsky.

Although it expects to rebound in 2021, recent filings with the Securities and Exchange Commission reveal ATI has lost money each of the last three quarters. The same report finds that the company has ?“reduced company-wide employment levels by approximately 1,400 people, or about 17% of our total workforce.”

Many of those layoffs have been union jobs. Before a 2015 labor dispute that led to a lockout, workers say there were approximately 2,200 bargaining unit employees. Now there are just 1300, with management proposing to close more plants and make further cuts. 

Artman puts things bluntly: ?“They’re trying to break the union.” Clark agrees, describing management as a ?“tyranny of evil men.” For its part, ATI released a statement on social media saying that it was ?“disappointed USW elected to strike.”

Fortunately for the USW, the Brackenridge community is on its side. 

“Everyone’s still supportive,” says Barchesky. ?“They still wave, they still come and talk to us. Nobody wants to go on strike. We didn’t get compensated for the last seven months we were locked out, but we can’t lay down and take another beating… we can’t let them just keep gutting us.”

This blog originally appeared atIn These Times on April 1, 2021. Reprinted with permission.

About the Author: C.M. Lewis is an editor of Strikewave and a union activist in Pennsylvania. 


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How Joe Biden Is Empowering America’s Workers

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Time and again over the past few years, as he fought to protect his coworkers at Bobcat’s North Dakota plant, William Wilkinson faced two obstacles.

One was the company. The other was a federal government that, instead of fulfilling its duty to safeguard workers, helped management exploit them.

Within hours of taking office on January 20, however, President Joe Biden began to level the playing field and harness the strength of working people to tackle the huge challenges confronting the country.

Biden understands that only with a healthy, empowered workforce can America end the COVID-19 pandemic and rebuild the economy.

So in one of his first official acts, Biden fired Peter Robb, the union-busting corporate lawyer who wormed his way into the general counsel’s job at the National Labor Relations Board (NLRB) and then used his power to turn the agency against the people it was created to protect.

Robb, who directed agency field offices and set policy, thwarted organizing drives and advocated stripping workers of long-standing union protections. He determined that employers had no obligation to bargain with unions seeking COVID-19 protections and even sided with employers who fired workers for voicing coronavirus safety concerns.

“Board charges used to scare the company. Now, they mean nothing,” said Wilkinson, president of United Steelworkers (USW) Local 560, who sensed Robb’s anti-worker animus rigging the scales in numerous cases that he filed on behalf of his members.

“No matter what, your case is dead before you get there,” Wilkinson said, recalling one dispute in which the NLRB refused to make Bobcat turn over financial data the union needed to assess a health insurance hike. “It’s Bizarro World. They have no interest in wrongdoing or whatever problem brought you there.”

Righting the NLRB will involve not only selecting a new, capable general counsel but, in a change from the former administration, installing board members committed to upholding labor law.

Biden’s housecleaning will ensure the agency returns to its mission of protecting labor rights, such as ensuring that the growing number of Americans who want to join unions—including employees of AmazonGoogle and transportation services—can do so without harassment or retaliation.

A properly functioning NLRB will reset the scales and once again bar corporations from changing working conditions in the middle of a contract.

It will roll back recent, unfair rulings making it easier for corporations to oust unions, discipline workers without recourse to their union representatives and misclassify employees as contractors with fewer labor rights. In classifying SuperShuttle drivers as contractors, for example, the board denied many exploited workers the chance to form a union and build better lives.

An overhauled NLRB will have to reassure workers that they’ll get a fair hearing when they bring contract violations and other offenses to the board.

“We just want to be equal,” Wilkinson said. “I’m not asking for special treatment.”

When the coronavirus struck, Wilkinson and many other workers across the country had to fight their employers to implement commonsense safety measures like social distancing and sanitizer stations.

Some refused, exposing their communities to needless risks and fueling the virus’s spread. All the while, the previous administration callously refused to ramp up workplace protections or hold corporations accountable.

But in an executive order declaring worker health and safety to be a “national priority,” Biden quickly unshackled the agencies charged with protecting Americans on the job.

The order requires the Occupational Safety and Health Administration (OSHA)—an agency that Wilkinson described as having “gone completely corporate” like the NLRB in recent years—to update COVID-19 safety guidelines for workplaces.

Biden also directed OSHA, whose leadership allowed investigations to lag and inspector positions to go vacant before the pandemic, to scrutinize its enforcement program and train resources on COVID-19 hotspots.

And under Biden’s order, both OSHA and the Mine Safety and Health Administration must quickly study the need for emergency, temporary infectious disease standards that would require employers to take certain steps to keep workers safe on the job.

The USW and other unions demanded these standards for nearly a year, realizing that many employers will act responsibly only when regulators hold their feet to the fire. Workers need these protections more than ever as America’s COVID-19 death toll eclipses 440,000, new variants of the virus begin hitting the nation and Biden accelerates the vaccine rollout that his predecessor botched.

To accomplish all of this vital work as quickly as possible, it’s essential to have battle-tested experts at the helm.

That’s why Biden tapped James S. Frederick, formerly the assistant director and principal investigator for the USW’s Health, Safety and Environment Department, to serve as one of the top leaders at OSHA.

During his 25 years on the front lines of occupational safety, Frederick doggedly pursued answers to workplace tragedies and advocated for some of the most important safety regulations that OSHA is responsible for enforcing today.

But it isn’t just technical knowledge that prepared Frederick for his new role. His empathy for injured workers and bereft families will give a fresh urgency to OSHA’s work.

“What a super win to get a Steelworker in there,” said Wilkinson, who praised the USW’s health and safety programs. “He’ll do a good job for working people. He’ll do it right.”

Working people took so many hits the past four years that Wilkinson felt the country’s foundation crumbling.

But with Biden in their corner, he believes workers will have the support they need to steer through the pandemic and build a stronger America.

“What he’s done so far is totally a morale changer,” Wilkinson said. “If Biden holds to his promises, I see the middle class growing, along with unions. That’s more jobs and higher wages for all working people.”

This article was produced by the Independent Media Institute.

About the Author: Tom Conway is the international president of the United Steelworkers Union (USW).


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Biden has promised to be a champion for workers. Some early signs suggest he means to deliver

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President Joe Biden has long branded himself as a union guy, Joe from Scranton who represented the worker. The reality of his policies—especially as a senator from credit card company mecca Delaware—and his personnel decisions has been more mixed. But the early signs from his presidential administration have many labor advocates and progressive economists excited.

First off, Biden didn’t wait on a key union priority: getting rid of National Labor Relations Board general counsel Peter Robb. On Inauguration Day, Biden requested Robb’s resignation, and when Robb refused, Biden fired him. Robb had 10 months left in his term, but worker advocates felt—and Biden apparently agreed—that the extreme anti-worker agenda he was bringing to the role was such that 10 months was way too long.

Robb is a longtime union-busting lawyer who, as NLRB counsel, let McDonald’s off the hookfor any responsibility for labor conditions at franchisee-owned stores. “Since then, Robb has gone after so-called ‘neutrality’ agreements between unions and employers that make it easier for workers to organize,” Dave Jamieson reported. “And he has recently taken on Scabby the Rat, the labor-dispute protest icon beloved by unions and progressives. Robb apparently hates the rat and wants to ban its use as ‘unlawfully coercive.’” 

Robb had also sought to restructure the NLRB to remove power from civil servants and put them in the hands of political appointees like himself.

“There’s one measure that will signal that Biden is serious” about his claims to support unions, C.M. Lewis wrote at Strikewave the week before inauguration. “On day one, he needs to fire National Labor Relations Board General Counsel Peter Robb.” Well, Biden has signaled that he’s serious.

But that’s not the only labor-related move that drew excitement from progressives on the evening of Biden’s inauguration. The announcement of Janelle Jones as chief economist, Angela Hanks as counselor to the secretary, and Raj Nayak as senior advisor drew a lot of excitement on Wednesday night. Jones and Hanks have both been affiliated with the Groundwork Collaborative, which “is dedicated to unifying progressives and activists in communities across the country to refine and advance a progressive economic worldview.” Hanks has also spent time at the Center for American Progress, the National Skills Coalition, and as a staffer for the late Rep. Elijah Cummings. Jones has worked at the Economic Policy Institute and the Center for Economic and Policy Research, and news of her hiring moved Rep. Ayanna Pressley to tweet “Personnel is policy. Janelle Jones = policy that meets the moment & the crises we face.” Nayak is an alumnus of the Obama Labor Department and has worked at the National Employment Law Project.

There was a LOT of excitement about these hires.

So the early signs on Biden and labor are looking decidedly better than expected. But that doesn’t mean the pressure can let up. American workers need the Biden administration to deliver big things. 

This blog originally appeared at Daily Kos on January 21, 2021. Reprinted with permission.

About the Author: Laura Clawson has been a contributing editor since December 2006. Clawson has been full-time staff since 2011, and is currently assistant managing editor at the Daily Kos.


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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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Trump’s NLRB Quietly Makes It Riskier To Wear Union Schwag at Work

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The Republican-controlled National Labor Relations Board (NLRB) ended 2019 by rolling back another round of Obama-era regulations and handing down a number of pro-employer decisions. One of those rulings restricts workers from wearing union buttons and other pro-labor insignia.

The Organization United for Respect at Walmart (Our Walmart) had challenged a company policy limiting the size of union buttons for employees of the retail corporation. The group seemingly had momentum on its side. In 2017, the NLRB rejected an attempt by the fast-food chain In-N-Out Burger to prohibit its workers from wearing “Fight for $15” buttons during their shifts. The company then tried to have the case heard before the U.S. Supreme Court, citing the court’s infamous anti-union Janus ruling to argue for an expansion of corporations’ free speech rights, but the case was declined. “Today’s decision affirms that no company can just unilaterally decide to take away our right to speak out and join together in a union,” In-N-Out employee Alondra Becerra told Bloomberg Law in February of 2019. “It’s a victory for workers everywhere who are fighting to win our unions and make the economy more equal that the Supreme Court is not going to take up In-N-Out’s case.”

However, in a 3-1 decision handed down on December 16, 2019, the NLRB ruled that private sector employers covered by the NLRB are allowed to ban some union insignia. Walmart had argued that its restrictive policies “enhance the customer shopping experience and protect its merchandise from theft or vandalism.” The NLRB agreed. The decision further erodes worker rights and will make it harder for employees to openly back unionization campaigns while on the job.

The decision upends a 75-year-old precedent that was established in the 1945 Republic Aviation Corp. v. Labor Board case. In doing so, the NLRB cited its 2017 Boeing ruling, which established a new test to determine whether employer rules are lawful: The court must weigh the rights of workers against the concerns of the employer. By the conditions of Boeing, the NLRB ruled that it’s unlawful for Walmart to prohibit certain union buttons in “employees only” zones like break rooms, but perfectly legal to require that they are “small and “non-distracting” on the sales floor. “[Walmart’s need] to enhance the customer shopping experience and protect its merchandise from theft or vandalism—outweigh the adverse impact on employees’…rights,” reads the decision.

The lone dissent came from the only Democrat who was on the board at the time, Lauren McFerran. “I fear that today’s decision signals the majority’s intention to import the Boeing framework… into other well-settled areas of Board law that currently require their own subject-matter specific analyses,” she wrote. “That surely would not be a welcome development for workers.” McFerran’s term expired shortly after the decision.

Cyndi Murray, a United for Respect member and Walmart associate of 20 years, slammed the ruling in an interview with In These Times. “Trump’s NLRB continues to put the interests of large corporations ahead of working families,” said Murray. “Walmart’s CEO McMillon would rather us not talk about having our hours cut or how no one can make ends meet at $11 an hour, but this ruling won’t stop people who work at Walmart from continuing to speak out for living wages and respect.”

The Walmart decision comes amid a barrage of pro-employer rulings that will surely make workplace organizing more difficult. Last month, the NLRB overturned the Obama-era Lincoln Lutheran of Racine decision, effectively allowing employers to unilaterally end automatic deductions of union dues when a collective bargaining agreement expires. In Caesars Entertainment, it found that the casino didn’t break the law by prohibiting employees from using their work email addresses for  “non-business information.” In blocking potential unionizing on these platforms, the board overturned an Obama-era decision which protected the right to share information regarding “wages, hours, or working conditions” via company email. The board also reversed union election rules that were adopted under Obama. Employers will now have more time to prepare for organizing votes and potentially develop plans to thwart unionization efforts.

Despite the large number of strikes and work stoppages in 2019, union membership in the United States remains scant. On January 22, the Bureau of Labor Statistics (BLS) released data showing that the percentage of wage and salaried workers in unions fell by 0.2 points last year to a record low of 10.3%. A recent piece of legislation called the Protecting the Right to Organize Act (or the PRO Act) would strengthen unions and make it easier for workers to organize, but it has yet to receive a vote on the House floor.

This article was originally published at In These Times on January 28, 2020. Reprinted with permission. 

About the Author: “Michael Arria is the U.S. correspondent for Mondoweiss. Follow him on Twitter: @michaelarria.


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Trump appointees hand McDonald’s a win in labor case, this week in the war on workers

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Donald Trump’s conflict-of-interest-plagued National Labor Relations Board handed McDonald’s a big win in the fight over whether the company shares responsibility for workers and working conditions in most of its restaurants. The board allowed a $170,000 settlement between McDonald’s franchisees and workers, overruling an administrative law judge who had said the settlement was inadequate.

The lone Democrat on the NLRB dissented, saying that the judge “reasonably exercised her discretion to reject settlements that fail to resolve the joint-employer status of McDonald’s, and instead serve to advance the policy view of the current General Counsel, who has attacked the Board’s current joint-employer standard at every opportunity as he litigated this case brought by his predecessor.”

Under Trump, the NLRB has moved to let companies like McDonald’s off the hook as a joint employer of workers who work in their facilities but on paper are employed by franchisees, temp services, or other third parties. McDonald’s notoriously exerts tight control over every detail in its restaurants, including details about workers, yet claims not to be their employer when it comes to labor law violations and other problems. And the Trump NLRB agrees.

This article was originally published at Daily Kos on December 14, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor at Daily Kos editor since December 2006. Full-time staff since 2011, currently assistant managing editor.

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In Praise Of Scabby The Rat

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Giant balloons apparently terrify Peter Robb, who is Donald Trump’s hand-picked general counsel for the National Labor Relations Board (NLRB).

Big balloons shaped like rats, cats, pigs and cockroaches so frighten Robb that he has used his office to take extraordinary steps to outlaw them.

He won’t criminalize the Macy’s Thanksgiving Day Parade balloons. The massive SpongeBob SquarePants, Mickey Mouse and Angry Bird inflatables will survive his extermination. Only the somewhat smaller balloons floated by labor unions offend Robb. He wants the NLRB to trample labor unions’ First Amendment right to buoyant protests.

This petty attempt to deflate labor power symbolizes just how far the Trump administration will go to crush the very workers that Trump constantly pledged to protect during his campaign. In 2.5 years, his administration has refused to raise the 10-year-old minimum wage, significantly diminished the number of workers who will be eligible for overtime pay under new regulations, petitioned to decertify the immigration judges’ union, issued executive orders making it easier to fire federal workers and weakening their unions, and failed to secure for workers that $4,000 raise that Trump pledged his tax cuts for the rich would provide – to name a few betrayals.

But nowhere is the campaign to trample workers worse than it is at Trump’s rigged NLRB.

Just to be clear, the point of the 1935 National Labor Relations Act, also known as the Wagner Act, was to encourage unionization. This was during turbulent times. From 1933 through 1935, more than a million workers a year launched thousands of walkouts, sit-down strikes and picket lines. These actions significantly disrupted a depressed economy.

The law formalized a process under which workers could form unions and bargain for better pay and benefits. As a result, it virtually eliminated the need for one type of strike – those to demand that corporations recognize labor unions.

The NLRB, created by the National Labor Relations Act, is supposed to safeguard workers’ rights to organize.

In an 80th NLRB anniversary commemoration document, former board chairman Mark Gaston Pearce wrote:  “Enacted during the Great Depression, the Act was designed to restore prosperity – to put more money in the pockets of working Americans, by making it possible for them to organize labor unions and to engage in collective bargaining with their employers.

When President Franklin Roosevelt signed the law in 1935, he said that its goal was to achieve ‘an act of both common justice and economic advance.’ Since then, millions of American workers have freely chosen to join unions, and collective bargaining has helped Americans to build and keep a middle-class society, through good economic times and bad.”

Under the Trump administration, however, the NLRB is systematically thwarting workers’ attempts to organize. Trump appointed the three Republicans on the board, who dominate the four-member panel.

Trump’s appointees spent careers representing corporations against unions or serving the GOP. Robb falls into the same category. Also, he was instrumental in helping former President Ronald Reagan destroy the Professional Air Traffic Controllers Organization, fire the 11,000 workers and replace them. Many labor historians believe this permanently changed U.S. labor relations, encouraging corporations to permanently replace strikers and break unions.

The anti-union labor board is defying a pro-union environment in this country. A 2018 survey found 62% of Americans approve of unions, a 15-year high. Another 2018 survey found that 48 percent of nonunion workers would join if given the opportunity. That is a sharp rise over the percent in two earlier surveys and suggests that 58 million American workers would sign up given the opportunity. That would quadruple the current number of union members.

Workers who want a union and those already in one had reason to believe Trump would support them.  Repeatedly on the campaign trail, Trump said, “The jobs, incomes, and security of the American worker will always be first priority.” Workers represented by labor unions earn more money, receive better benefits and labor in safer conditions than those who are not organized. If a president’s first priority is workers’ jobs, incomes and security, then his labor board would protect union rights, not upend them.

Trump’s NLRB, however, is reversing gains workers received under the Obama NLRB. In addition, the Trump NLRB is going the extra mile to undercut workers’ rights – including contending that protest balloons, such as the rat nicknamed Scabby, must be deemed illegal because the inflatable animals “coerce” employers to do unions’ bidding.

A good example is the Trump NLRB’s divergent positions on the speed of elections.

The NLRB believes delaying elections sought by unions is fine but those sought by employers must be sped up. This is significant because when workers want the NLRB to conduct an election to determine if more than half of employees want union representation, corporations often hire union-busting law firms to arm-twist workers to vote no. Corporations want extra time before a union election so they can pinpoint and fire union organizers and conduct forced-attendance meetings with workers during which they threaten to close or move the factory if workers vote for the union.

Labor organizers want the election held as soon as possible after they determine they have sufficient support. The Obama NLRB issued rules providing for quicker elections, but the Trump board has made it clear it intends to kill them.

When workers want more time before an election, however, the Trump NLRB plans to deny that. The board in August issued proposed regulations to make it easier for corporations to destroy unions, including refusing to delay a union decertification voteafter a labor organization files unfair labor practice charges. That way, union leaders will have less time to persuade wavering members that they should vote to retain representation, even when employers have violated labor law by threatening and haranguing workers.

In July, the NLRB decided that a corporation may withdraw its recognition of a union – even when the union is able to present evidence that a majority of workers, in fact, support the union. This new rule, created out of whole cloth, forces the union to seek an NLRB election to reinstate it as the bargaining representative and gives the company time to bully or bribe workers into voting no. In the specific case the NLRB reviewed, the company went with a bribe. It announced wage and benefit hikes immediately after it withdrew recognition of the union, in effect telling workers they didn’t need representation because the benevolent corporation would take care of them.

This is the kind of situation that union workers might protest with a Scabby the Rat balloon, or giant inflatable “pluto-cat” dressed as a CEO and clutching a worker by the neck. Or a floating cockroach or flying pig.

The NLRB and courts, most recently on June 19, have repeatedly upheld the legality of such protests. But Robb doesn’t care. He says they’re all wrong. Robb has instructed a regional office to file a complaint against a union for protesting with a “pluto-cat,” and to use the case to overturn three previous decisions allowing balloons. So Scabby’s days may be numbered.

That is, until a union appeals the NLRB decision to a court. There’s no doubt a judge will once again rule that unions have the right to fly protest balloons. It may take until Labor Day 2020 for that decision to arrive, though.

This blog was originally published by the Our Future on September 4, 2019. Reprinted with permission. 

About the Author: Tom Conway is international president of the United Steelworkers (USW).


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Trump’s administration considers rule that would make it easier for businesses to exploit workers

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The U.S. Department of Labor plans to propose a rule that would reexamine worker classification, redefining who is given certain labor protections and who is not.

The boom of the so-called gig economy — as seen in ridesharing apps like Uber and Lyft and others like TaskRabbit and DoorDash — have raised questions about whether people providing these services should be classified as entrepreneurs or as workers.

Paul Secunda, professor of law at Marquette University, said the motivation for an employer-friendly Department of Labor to explore worker classification is very clear.

“Obviously employers want as many workers as possible to be independent contractors for the reasons that they don’t have to pay benefits, they are not subject to employment laws, and are at a real disadvantage bargaining with their employers,” Secunda said.

Secunda said such a rule would have profound effects on workers.

“It almost comes across as arcane and who cares? But if you can’t be considered to be an employee then all these laws are beyond your reach. You can’t organize. You can’t get minimum wage or overtime. You can’t get the protections of employment discrimination law. You can’t get consumer protections when it comes to pensions and health insurance. It’s really damaging. Those in the Trump administration, who are pro-business in a way that I don’t know we’ve ever seen before, are focused on it as a way to make it less expensive for these large companies to have labor and not pay for it.”

Bloomberg Law broke the news that the department would be looking at the issue after a spokeswoman told the outlet it will update the joint employer rule and then look at worker classification.

There are different tests and factors to determine whether a worker is an employee or contractor. The National Labor Relations Act uses what is known as a common law definition based on how much control the employer has over the worker, including factors such as bringing your own tools to a job, whether you get a W-2 or Form 1099, and how much direction you receive on how to provide the service or product.

Under the Fair Labor Standards Act, which the Labor Department administers and enforces, there is an economic realities test that asks how dependent someone is on the employer in question. The more dependent the person is, the more likely that person is an employee and not an independent contractor.

In January, the National Labor Relations Board (NLRB) ruled that the transportation service SuperShuttle was correct to call its airport van drivers contractors instead of employees. The NLRB said it was considered entrepreneurial opportunity since workers set their own schedules and have their own work vans.

Secunda said the ruling was a “radical departure” from the common law definition of employee that has been used under the NLRA for decades.

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“They’ve added a new factor called entrepreneurial opportunity which is nowhere to be found in any of the list of factors I’ve ever seen for the common law control. You could argue that some of these factors hint at such entrepreneurial control but it’s never been either discussed as the centerpiece of the test as it was in the SuperShuttle case nor has so much emphasis been put on it as it was in the SuperShuttle case,” Secunda said. “It is not just happenstance that this case was decided by the NLRB and then in the regulatory agenda you see the Department of Labor is thinking of trying to eventually change the definition or factor test in a way that is not surprisingly going to favor employers.”

One in five Americans is a contract worker, so the debate over who is an employee or contractor will only grow in importance. People who are considered freelancers, on-call workers, temp agency workers, and contractors increased from 10.5 percent to 15.8 percent between 2005 and 2015, according to Harvard and Princeton economists.

“It’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited.”

Many of these workers have pursued lawsuits in the past few years. A part-time driver sued Grubhub in 2015 and argued that he that was entitled to minimum wage, overtime pay, and reimbursement of expenses, since the company had a lot of control over his schedule. But last year, a U.S. District Court judge disagreed and said that because he never went through training, wore a uniform, or received performance evaluations, he wasn’t a traditional employee.

A federal judge ruled last year that Uber doesn’t have enough control over Uber Black, a limo service, to be considered an employer under the FLSA, since drivers are free to run personal errands, take naps, and smoke cigarettes between rides. In 2017, DoorDash, a food delivery company, reached a settlement with workers after they said they were misclassified as independent contractors. Although the agreement provided more protections for workers and clearer policies, it did not result in a change in worker status.

The online gig economy is “growing rapidly,” economists Seth D. Harris and Alan Krueger explain in a 2015 report on the modernizing labor laws. Harris and Krueger propose that there be a new legal category of workers called independent workers for people like Lyft drivers, who are neither traditional employees or independent contractors, since they have similarities to both categories. Although they can, in theory, choose when and whether to work, there are restrictions imposed by the company on how much they can charge customers. They suggest “extending many of the legal benefits and protections found in employment relationships to independent workers.”

Secunda said that although the department will likely argue that these workers are entrepreneurs, there isn’t necessarily evidence to suggest that is how they should be characterized. Due to low pay, some drivers work extraordinarily long shifts.

“I think their entire emphasis here, entrepreneurial opportunity, brings the gig workforce into play,” Secunda said. “That term micro-entrepreneur — the idea that these people who are running their own little businesses — it’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited. But that’s their argument.”

This possible change would come after recent victories for businesses. In December, a federal appeals court ruled that an Obama-era standard that says joint employers can be held responsible for labor law violations and must bargain with contract workers’ unions was too broad. McDonald’s has been one of the companies at the center of this issue, after workers filed 291 complaints accusing the company of retaliation for a strike in the form of reduced work hours, disciplinary actions, and interrogations.

In September, the National Labor Relations Board issued a business-friendly proposed rule for an updated standard on joint employer status under the National Labor Relations Act. Under this rule, an employer is a joint employer “only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and… in a manner not limited and routine.”

The Labor Department plans to update the joint employer rule soon. The Labor Department has also recently moved to encourage states to conduct drug tests for people seeking unemployment insurance, which labor experts say would accomplish nothing but humiliation and more hoops for low-income people seeking relief.

Meanwhile, House Democrats are focusing on the Labor Department’s handling of its proposed tip-pooling rule, after reports that the department moved to hide findings that the rule would rob workers of billions of dollars every year. On Friday, Reps. Bobby Scott (D-VA), Keith Ellison (D-MN) Mark Takano (D-OR), and Suzanne Bonamici (D-OR) askedfor all economic analyses of the rule. Democrats have also called for an investigation into Labor Secretary Alexander Acosta after a Miami Herald report on his role in securing a plea deal for multimillionaire financier Jeffrey Epstein, who was able to avoid prison despite allegations that he sexually abused dozens of girls.

This article was originally published at ThinkProgress on February 6, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering education and labor issues. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, and In These Times.

Secunda said that although the department will likely argue that these workers are entrepreneurs, there isn’t necessarily evidence to suggest that is how they should be characterized. Due to low pay, some drivers work extraordinarily long shifts.

“I think their entire emphasis here, entrepreneurial opportunity, brings the gig workforce into play,” Secunda said. “That term micro-entrepreneur — the idea that these people who are running their own little businesses — it’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited. But that’s their argument.”

This possible change would come after recent victories for businesses. In December, a federal appeals court ruled that an Obama-era standard that says joint employers can be held responsible for labor law violations and must bargain with contract workers’ unions was too broad. McDonald’s has been one of the companies at the center of this issue, after workers filed 291 complaints accusing the company of retaliation for a strike in the form of reduced work hours, disciplinary actions, and interrogations.

In September, the National Labor Relations Board issued a business-friendly proposed rule for an updated standard on joint employer status under the National Labor Relations Act. Under this rule, an employer is a joint employer “only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and… in a manner not limited and routine.”

The Labor Department plans to update the joint employer rule soon. The Labor Department has also recently moved to encourage states to conduct drug tests for people seeking unemployment insurance, which labor experts say would accomplish nothing but humiliation and more hoops for low-income people seeking relief.

Meanwhile, House Democrats are focusing on the Labor Department’s handling of its proposed tip-pooling rule, after reports that the department moved to hide findings that the rule would rob workers of billions of dollars every year. On Friday, Reps. Bobby Scott (D-VA), Keith Ellison (D-MN) Mark Takano (D-OR), and Suzanne Bonamici (D-OR) askedfor all economic analyses of the rule. Democrats have also called for an investigation into Labor Secretary Alexander Acosta after a Miami Herald report on his role in securing a plea deal for multimillionaire financier Jeffrey Epstein, who was able to avoid prison despite allegations that he sexually abused dozens of girls.


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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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