Beware Billionaires Who Want To Gut NLRB

Amazon has now joined SpaceX and Trader Joe's in asking that the National Labor Relations Board be deemed unconstitutional. With the Supreme Court in its current configuration, there's a real possibility that they could decide NLRB should no longer exist or be substantially gutted. 

That would be a terrible thing for employees, and for Americans in general. Here's why.

NLRB is the agency that handles unfair labor practices complaints against both employers and unions. That's what they're mostly known for. But they do so much more. Here are some lesser-known rights NLRB enforces:

• The right to discuss your pay with coworkers
• The right to discuss working conditions with coworkers
• The right to complain about working conditions
• The right to discuss forming a union
• The right to refuse to join a union
• The right to assist or refuse to assist a union

Without the NLRB, these rights would have to be dealt with in courts, if at all. That would clog the court system and make it more difficult for workers to enforce their rights.

Unions are good for America. They're good for the economy. When unions were strong, we had a strong middle class that could afford things like houses and college. We're in the horrible economy we're in because Republicans have systematically done everything they could to gut unions and reduce their power in workplaces and in politics.

Amazon and Trader Joe's, you should be ashamed of yourselves. SpaceX, well, what can I say? Seems like there's no shame to be had there anymore.

While unions are on the resurgence, we'll see more efforts like this one to destroy unions and worker power altogether. So vote well.

BREAKING: If Employer Commits Unfair Labor Practice Before Union Election, Union Is Automatically Recognized

In a total game-changer, the NLRB has ruled today that, where an employer commits unfair labor practices before a union election, the union is automatically recognized and the employer must bargain. 

It doesn't appear to apply to every unfair labor practice in every election. But it will force employers to behave better before union elections or risk having the union automatically recognized. Here's a summary:

• It applies where a majority of employees have said they want the union to represent them and the employer either challenges the union majority and demands an election.
• It applies if the employer refuses to bargain without filing a petition for an election and challenges the election due to unfair labor practices.
• It applies if the union has filed a petition for an election.
• If the employer commits an unfair labor practice that requires setting aside the election, the employer will be subject to a remedial bargaining order.
• Employers are no longer allowed to frustrate the election process.
• If the employer interferes with the election process,  NLRB will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer.
• "Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way."

Here's what NLRB said about the new standard:

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly139 files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).140 Section 9(c)(1)(B) of the Act grants employers an avenue for testing the union’s majority through a representation election if the Board, upon an investigation and hearing, finds that a question of representation exists. In order to reconcile the provisions of Section 8(a)(5) and Section 9(a), which require an employer to recognize and bargain with the “designated” majority representative of its employees, with the language of Section 9(c)(1)(B) granting employers an election option, we conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.  

 However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order. Thus, this accommodation of the Section 9(c) election right with the Section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct. As the Supreme Court observed in Gissel, Section 9(c)(1)(B) was not intended to confer on employers “an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.” 395 U.S. at 599. If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees. In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer. 

Our focus, then, is on the unlawful conduct of the employer that prevents a free, fair, and timely representation election. Given the strong statutory policy in favor of the prompt resolution of questions concerning representation, which can trigger labor disputes, we do not believe that conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated – can ever be a truly adequate remedy. Nor is there a strong justification for such a delayed attempt at determining employees’ free choice again where the Board has determined that employees had already properly designated the union as their majority representative, consistent with the language of the Act, before the employer’s unfair labor practices frustrated the election process. Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.

An employer that refuses to bargain without filing a petition under Section 9(c)(1)(B) may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case. However, its refusal to bargain, and any subsequent unilateral changes it makes without first providing the employees’ designated bargaining representative with notice and an opportunity to bargain, is at its peril.

This will make it much easier for workers who are organizing a union to have their union recognized. And it should stop much of the a**hattery that goes on during union-busting. 

Union yes! 

COVID-19 Makes The Need For Unions Clear

Due to coronavirus, millions of Americans have been laid off and more layoffs are coming. The global pandemic has made the need for unions crystal clear. Unions all over the U.S. have valiantly been fighting for workers.

Here is just some of what unions have done to help their members during the pandemic:

• Insurance continuation: Unions have successfully negotiated with employers to maintain health insurance and other benefits and insuring employers continue paying for health care premiums during furloughs and layoffs.
• Priority reinstatement: Many union contracts provide that furloughed or laid off workers be given priority when jobs become available again. Others have successfully negotiated reinstatement for workers when the pandemic eases.
• Severance packages: Some unions have negotiated severance packages for laid off workers.
• Remote work: Unions have successfully negotiated for some workers to work remotely from home during the pandemic. 
• Paid leave: Unions have obtained agreements for employers to offer paid leave for employees during the coronavirus pandemic.
• Hazard pay: Unions have negotiated hazard pay for essential workers. 
• Social distancing and safety: Unions have successfully negotiated with employers to implement social distancing and other safety measures for workers. They have also helped members file OSHA complaints for safety violations.
• Hammering out details of remote work: For those that are working remotely, unions are negotiating the rules and expectations for working from home.
• Preventing furloughs: Some unions have managed to negotiate to prevent furloughs altogether. 
• Lobbying: Multiple unions have lobbied Congress for relief for workers, including seeking assistance with health insurance payments, fighting for safe working conditions, fighting abuse of the Paycheck Protection Act, and fighting for personal protective equipment. 
• Financial relief: Many unions are offering financial relief to members in the form of grants or loans.

Unionize now

Bottom line is that our country has almost no social safety net left and very few protections for workers. Those working in non-unionized workplaces have little or no protection. Unions are necessary to balance power between workers and management. It isn't too late if your workplace doesn't have a union. How about taking the time during your furlough or layoff to start looking into unionizing when you get back to work?

The first thing I'd suggest is talking to a union about how to unionize. They have organizers who can help you. Find the union that matches your workplace. There are unions for just about any kind of work you can imagine. I wrote an article here about how to start a union. More useful information on how to form a union can be found here, here and here. If you find a union you are interested in, they may have their own how-to page on their website. There are laws about what is allowed, so don't just try to unionize without getting some help from a union.

What Unions Can Do To Help Immigrant Members

The National Immigration Law Center has this helpful information for unions that want to help their members in this time of ICE raids:

If you belong to a labor union, there are ways it can help you. You should talk to your union representative about your concerns. If it would make you feel more comfortable, ask some of your co-workers to go with you to talk to your representative. Your union contract might have language that protects union members, such as an agreement with the employer that has one or more of the following provisions:

• The employer will not allow any Immigration officers to enter the workplace without a valid warrant signed by a federal judge or magistrate
• The employer will immediately notify the union if the Immigration authorities contact the employer for any purpose so that the union can take steps to inform its members about their legal rights or to help them obtain legal assistance.
• The employer will allow lawyers or community advocates brought by the union to interview employees in as private a setting as possible in the workplace. The union might also have a legal plan, which provides workers with immigration attorneys.
• The employer agrees not to reveal the names, addresses, or immigration status of any employees to Immigration, unless required by law.
• The employer will not participate in any computer verification of employees’ immigration or work authorization status.

I hope labor unions that don't have these provisions in place will look at ways they can negotiate to help their immigrant members.

Give Thanks And Support To Labor Unions Before It's Too Late

The Supreme Court, hijacked by conservatives when they refused to allow President Obama to appoint a Justice during his term, has predictably put another knife in the back of labor unions. The Republican plan is to eliminate unions altogether. They may succeed. So I wanted to do a rerun of an article I wrote some time ago about why you should give thanks to labor unions and support them by joining, paying dues, and participating.

Anti-union sentiment has spread from state to state, and union busting has become popular under the banner of money savings. Before your billionaire CEO convinces you that labor unions are bad, please don't forget what life was like in the bad old days before unions.

Maybe you don't remember the Triangle Shirtwaist Factory from your American History classes. I'll remind you. The Triangle Shirtwaist Factory was a sweatshop. Women and children, mostly immigrants, worked for terrible wages in terrible conditions. When a fire broke out, they couldn't escape because the employer had locked them in. Wouldn't want employees to take breaks or anything, would you? The employer said it was to stop theft. The fire escapes had collapsed and the elevators stopped working in the 10-story building. One hundred forty six workers died that day in 1911, many as young as 14. It was, until 9/11, the worst tragedy in New York history.

In a speech about the tragedy, explaining what lessons workers needed to learn from it, Rose Schneiderman said:

I would be a traitor to these poor burned bodies if I came here to talk good fellowship. We have tried you good people of the public and we have found you wanting. 

The old Inquisition had its rack and its thumbscrews and its instruments of torture with iron teeth. We know what these things are today; the iron teeth are our necessities, the thumbscrews are the high-powered and swift machinery close to which we must work, and the rack is here in the firetrap structures that will destroy us the minute they catch on fire. 

This is not the first time girls have been burned alive in the city. Every week I must learn of the untimely death of one of my sister workers. Every year thousands of us are maimed. The life of men and women is so cheap and property is so sacred. There are so many of us for one job it matters little if 146 of us are burned to death. 

We have tried you citizens; we are trying you now, and you have a couple of dollars for the sorrowing mothers, brothers and sisters by way of a charity gift. But every time the workers come out in the only way they know to protest against conditions which are unbearable the strong hand of the law is allowed to press down heavily upon us. Public officials have only words of warning to us--warning that we must be intensely peaceable, and they have the workhouse just back of all their warnings. The strong hand of the law beats us back, when we rise, into the conditions that make life unbearable. 

I can't talk fellowship to you who are gathered here. Too much blood has been spilled. I know from my experience it is up to the working people to save themselves. The only way they can save themselves is by a strong working-class movement.

As a result of this terrible tragedy, New York strengthened its labor laws. An investigation showed 200 factories had equally dangerous conditions for workers.

Before the labor movement, it wasn't uncommon for sweatshops to engage in human trafficking. Workers in coal mines, factories, farms and many other workplaces were sometimes forced to work while getting further and further in debt. Many workers were paid in company "scrip" that they could use only at the company store. They could never save for their families and never hope for a better life. Children had to work starting very young, to help support their families, with no opportunity to go to school.

The next time you hear someone knock the labor movement and say unions aren't necessary, please remember that, without unions, our workers would not have these benefits we take for granted:

• Minimum wage
• Overtime pay
• Safety standards/OSHA
• Paid vacation
• Sick days
• Child labor laws
• Weekends
• 40-hour work week
• Health benefits
• Unemployment compensation

Now that your job (or old job) doesn't look half as bad anymore, make sure you thank union leaders for the rights you take for granted. Think they can't take away those rights? Then you aren't paying attention. Wake up, before it's too late.

I wrote this in 2011. Now they really are starting to take away those rights. What can you do? Join a union. Pay dues. Participate. Change your workplace for the better. Vote better. Vote in the mid-terms in November. Register some friends to vote.

How To Bring Back Unions? Give Unionized Companies A Tax Cut

If there is one thing that will make a huge difference in the fight for worker rights, it's unions. Yet unions are under attack. Employers try to bust unions and prevent unionization. They do everything they can to make sure their workforce is not unionized, and if it is, to discourage workers from joining the union.

So what if we could change that picture just a little? What if employers had an incentive to encourage or at least not prevent unionization? What if employers were motivated to have a unionized workforce?

But how, you ask?

Corporations just got a huge tax cut, and if Democrats manage to take back Congress, the corporate tax cuts will be one of the first things to be rolled back. But I would suggest offering corporations the opportunity to keep their tax cuts if their non-management workforce is 95% unionized.

Right now, the companies that got the tax cuts have pretty much taken their money and run. They have moved jobs overseas, cut jobs, given raises and bonuses to C-level employees, and have done little or nothing to help their workers. Unions have asked employers to show what they did with their tax cut money, but have been met with crickets.

If employers had a tax break for a 95% unionized workforce, then they would have an incentive to stop their anti-union activities. They would also have more of an incentive to keep jobs in the U.S.

Will this result in fair pay, better pro-employee policies, and better benefits for American workers? I think it would help slowly increase the unionization in the U.S., which will be good for workers. Maybe with a tax break, it will be good for employers too.

Maybe a tax break could help stop or slow the war on workers in this country.

Is It Time To Start a Union At Your Workplace?

While you're enjoying your long weekend, thanks to the labor movement, enjoying a weekend at all thanks to unions, getting paid a living wage thanks to unions, and getting ready to go back to your safe workplace thanks to the labor movement, it's time to think about this: should you start a union at your workplace?

Many of my readers have tried to change things by complaining to management, to no avail.

If management isn't listening, if working conditions are terrible, if your coworkers and you are fed up, then start thinking about forming a union at work. It isn't that hard. You might even be able to form a micro-union to represent a single department rather than the entire workplace like 41 Macy's cosmetics workers did. Don't assume you're too small to have a union.

Here's how to get started:

1. Find some coworkers you trust (and be careful who you trust) and speak to them about whether they would be interested in finding out more about starting a union. You are legally protected when you talk to coworkers about working conditions (unless you're a supervisor or someone else not covered by the National Labor Relations Act). Talk to them about what changes you would like to see made and why you think you might need help from a union. You might also join an organization like Working America to familiarize yourself with the issues affecting workers and be part of a group even before you unionize.

2. Contact a union organizer. It may seem early to do this, but I spoke to a friend at AFL-CIO and he said that just contacting them is legally protected, and they keep records of your contacting them. This contact could be evidence if your employer fires you or retaliates for your protected organizing activities. Here's where to contact an AFL-CIO union organizer to find out more about the process. The organizer may tell you to do more work before they get involved, but they can give you some guidance from the beginning.

3. Figure out which union is right for you. Different unions represent different types of employees, and which union might represent you is not necessarily intuitive. There are unions for electrical workers, engineers, communications workers, actors, writers, office workers, pretty much any job you have, there's a union for you.

4. Form an organizing committee. Your coworkers from step one will likely form the core of an organizing committee. Your union organizer can help guide you with this. You will want to develop a plan of action and how to convince a majority of coworkers to join. You'll have to do some research on wages, benefits, and other workplace issues.

5. Get a majority to sign on. The union organizer will help you prepare cards to present to coworkers who want to join. If you can sign a majority, then you will get to have an election.

6. Be prepared for employer attacks. There is a whole army of lawyers and anti-union folks who will help employers fight unions. Your union organizer can help you get ready to deal with attacks and make sure you are legally protected.

7. Win the election. You'll have to convince your coworkers that a union is the right thing for them. Again, your organizer can help you with figuring out the best way to do this.

8. Negotiate a contract. Once you're unionized, you will negotiate a contract with your employer and they can't change terms and conditions of employment without negotiating first.

There are things you can do to improve your working conditions even before you think about unionizing, but sometimes a union is the only way to get an employer to take its workers seriously.

Walmart Should Have Listened To Me About Firing Striking Workers

About exactly a year ago, I wrongly predicted that Walmart wouldn't fire their striking workers. The article was called Why Walmart Won't Fire Striking Workers - And What That Means For You. The reason I predicted that they wouldn't fire their workers for striking is that the National Labor Relations Act says even non-union American workers have the right to strike and take other actions to protest and try to improve working conditions, and they can't be fired in retaliation.

Despite my warning that the strikers couldn't be legally fired, at least 23 workers were fired and another 43 were disciplined. Well, the NLRB didn't take that sitting down. They just slapped Walmart hard, announcing they will pursue legal claims against Walmart for the employees, which means these employees may get reinstated and awarded back pay. 

Here's what NLRB said about Walmart's actions: “During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.” NLRB also found that, “Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.”

What this means is we can expect more Black Friday protests, and probably more battles to improve working conditions at Walmart.

Just a reminder - before you run out the door with placards to protest your workplace, the National Labor Relations Act only covers non-supervisory employees, and while it covers most non-government workplaces, it doesn't cover them all. Plus, you have to be part of "concerted activity" with coworkers to be protected. If you're protesting your own working conditions, you aren't protected against retaliation. However, if you are objecting to something that affects at least one co-worker, or with at least one co-worker, then you may be legally protected.

If you are thinking about organizing at work, smaller micro-unions are now allowed. This means that you don't have to organize the whole company anymore, but can organize a specific group of workers. For instance, a court recently allowed a union to organize a group of nursing assistants at a hospital. The employer thought other non-professional employees should be included, but the smaller unit was approved.

If you decide you want to organize a union at work, or want to know more about your rights to discuss and improve working conditions, I suggest contacting a union like AFL-CIO to get some help and legal advice. There are some legal hoops you'll have to jump through if you actually form a union.

Debate Questions For Joe Biden From An Employment Attorney

This is part of the continuing series of debate questions being posted by employee- and management-side employment lawyers. These are my questions for Vice President Joe Biden.

Your opponents have supported efforts to roll back union rights and the strength of unions. You said this to the AFL-CIO: "We don't see the value of collective bargaining, we see the absolute positive necessity of collective bargaining. Let's get something straight: The only people who have the capacity -- organizational capacity and muscle -- to keep, as they say, the barbarians from the gate, is organized labor. And make no mistake about it, the guys on the other team get it. They know if they cripple labor, the gate is open, man. The gate is wide open. And we know that too." Why do you think it's important to have strong labor unions in America and what do you think your opponents propose that will harm working Americans?

Then I'd ask:

You said this about your opponents on Labor Day: "Ladies and gentlemen, you, organized labor, are one of the reasons why this country is coming back. Folks, let me make something clear and say it to the press: America is better off today than they left us when they left." How are working Americans better off than they were under George W. Bush?

I might want to know this (from all the candidates, really):

More and more states are passing laws to allow employees to bring their guns to work. They can't be fired for keeping weapons in their vehicles or for telling coworkers they've done so. What kind of legislation, if any, do you think we should have in this country to protect unarmed workers from coworkers who "go postal"?

I'd also want to ask:

President Obama signed the "VOW to Hire Heroes Act" into law on November 21, 2011. The Returning Heroes Tax Credit provides businesses that hire unemployed veterans a maximum credit of $5,600 per veteran, and the Wounded Warriors Tax Credit offers businesses that hire veterans with service-connected disabilities a maximum credit of $9,600 per veteran. This law also fixed a loophole in the law to make sure it is illegal to harass service members at work due to their military service. Why has your administration thought it was important to help veterans and military members get back to work and stay at work?

Debate Questions for Mitt Romney on Employment Issues

This will continue the series a group of management-side and employee-side employment attorneys are doing on what questions we would ask the candidates in the debates. Since I handle employee-side issues, I bet you can predict some of what I would ask Mitt Romney, but here goes.

I'd start with this one.

Four years ago, you advocated letting Detroit go bankrupt rather than bailing out our auto industry during the depths of the recession. You addressed some specific solutions, including dumping existing management, saying, "The new management must work with labor leaders to see that the enmity between labor and management comes to an end. . . . Companies in the 21st century cannot perpetuate the destructive labor relations of the 20th. This will mean a new direction for the U.A.W., profit sharing or stock grants to all employees and a change in Big Three management culture. The need for collaboration will mean accepting sanity in salaries and perks. At American Motors, my dad cut his pay and that of his executive team, he bought stock in the company, and he went out to factories to talk to workers directly. Get rid of the planes, the executive dining rooms — all the symbols that breed resentment among the hundreds of thousands who will also be sacrificing to keep the companies afloat" Do you still believe that management needs to get rid of perks and be more reasonable and fair with labor?

 I'm pretty sure I know the answer, but I'd like to hear him backpedal. I might follow up with this one:

As Massachusetts governor, you worked with Senator Ted Kennedy to develop health care coverage for all employees. Yet you've opposed the strikingly similar provisions of Obamacare. How would you assure that all employees and their dependents get health care coverage?

 That should be fun. Then I'd ask:

During the primary campaign in New Hampshire, you said, “My view has been to allow the minimum wage to rise with the CPI or with another index so that it adjusts automatically over time.” Now you seem to have changed your mind, and say there's no need to raise minimum wage. Which is it? What would you do to bring minimum wage workers over the poverty level, which they are currently about $7000/year under?

I'd probably end with this one:

In 1994, you wrote a letter to the Log Cabin Republicans where you said, "I am more convinced than ever before that as we seek to establish full equality for America's gay and lesbian citizens, I will provide more effective leadership than my opponent. . . . If we are to achieve the goals we share, we must make equality for gays and lesbians a mainstream concern. My opponent cannot do this. I can and will." In 2011, you were asked: "How do you feel about gays serving openly in the military?" and you answered, "That’s already occurred and I’m not planning on reversing that at this stage." As President, are you going to reverse gay rights in the military? Would you support adding sexual orientation to the protected categories in Title VII?

There are lots of other questions I could ask, but I know the answers. The fact is, this election is of huge importance to employees. You can either vote against your own economic interests and can buy into what Fox is telling you, or you can vote with your wallet. For anyone making under a million a year, the choice is pretty clear. I hope the middle class will see it that way.