UC’s, AC’s, and ULP Procedures Available to Expand NLRB Joint Employer Ruling

Screen Shot 2015-08-31 at 9.12.31 AMKiln, Mississippi    The decision in Browning-Ferris by the National Labor Relations Board clearly means a lot to subcontracted workers as we have discussed and their ability to bring the real power of the company, not their contractor to the bargaining table. The key in organizing new workers will be a deep understanding of the work situation of the potential bargaining unit sufficient to file initially for representation from joint employers, not just the outfit whose name is printed on the workers’ pay stubs.

It is well known that organizing the unorganized is hard and exacting labor already, now bringing in the joint employer will also be easier said, than done. Since the burden is on the union to establish the status, almost invariably without initial access to the contract between the subcontractor and the main company, much of the argument will have to be made based on a detailed understanding of the workplace and its rules. The contract establishing company prerogatives, either exercised or inherent, would not emerge without a subpoena, if there were a hearing, or board demand after the union’s filing of the petition. Under the new rules most of the hearing issues, if there are any as determined by the Regional Director, are after the election, so this will mean a quicker election but sealed ballots, as was the case with Browning-Ferris and the Teamsters, if a hearing is scheduled. This will be interesting.

We know from the decision that the Board has already ruled that any cases pending where petitioners had argued there was a joint employer status would find relief now. But what about subcontracted workers already under contract by unions? What relief do they get from the joint employer decision? Is there even a way to use the ruling to expand the unit already under contract given this new NLRB decision?

The simplest way to go would be to file an Amended Certification of AC petition with the board it would seem to me. According the NLRB’s Rules and Regulations:

The Employer or Union can file an AC Petition (1) to resolve an ambiguity in the description of a certified unit, (ii) to reflect a change in the duties of certain Employees in the unit, or (iii) to reflect a change in the identity of the bargaining agent.

The Browning Ferris decision was silent on existing units, so we are speculating obviously, but, hey, you make your case and take your chances. If it doesn’t work there is always the unfair labor practice route.

Conferring with Doug Young, our excellent Austin-based attorney, it also seemed to us like a unit clarification procedure might work in a situation where the union was seeking to add workers to the bargaining unit and trigger the joint employer status at the same time. A UC-petition, as it is known under the National Labor Relations Act, allows either a company or a union or in some cases both to petition the Board to determine issues like the placement of workers not initially part of the representation certification or decision and direction of election if circumstances changed in the workplace. Importantly, a unit clarification also allows for accretion or adding workers to the bargaining unit if an expansion of job titles or diverse workers had enlarged the unit. A finding that there is a “community of interest” with the existing bargaining unit, would either lead to an automatic accretion if the number of the additional workers is relatively small, often through voluntary compliance or recognition by the employer, or a new election among the added workers or the entire bargaining unit depending on the circumstances. If there is a UC-hearing, then it works just like an RC-hearing if there had been one on the initial filing. The new rules on elections give the Regional Director discretion on whether or not to allow a brief to be submitted by the attorney for the union or the company. That being the case, this process might not be seamless, but it will be quicker than in the past. I bet in the Browning Ferris case that the Teamsters already represented BFI workers and were organizing a new unit of the subcontracted recycling employees. In this situation the union would be going the other way and trying to accrete the primary company employees, especially if a small number like the BFI situation. Maybe a stretch, but still might be good exercise.

The other way to go, and perhaps the surest route, I would think would be simply to make a demand in bargaining that the big boss come to the table to bargain on the issues where they call the shots, and then to file an unfair labor practice 8a5 charge if they refuse to comply. The downside to my knowledge is that nothing has really sped up the ULP procedures. Evidence would be submitted by the union and reviewed by the Region and then “agenda-ed,” as they call it, to determine whether or not the Region will issue a ULP charge against the company, and then barring a company’s voluntary compliance, which I would rarely expect, it would be set for a hearing some, and more likely many, months away before a NLRB Administrative Law Judge, then a decision, then possible appeals, court challenges, etc, etc, etc. I’m not saying that would take forever, but it would absolutely take months, maybe years, so I’m not sure it’s the quickest route, even if it is the most accessible.

On the bottom line we won’t know until unions start jumping in the water and trying to swim.

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Please enjoy A Fragile Tomorrow’s One Way Ticket (Featuring Joan Baez and the Indigo Girls)

Looking More Closely at the NLRB’s New Joint Employer Standard

10666801h1290937*750xx900-507-0-0Kiln, Mississippi    Lawyers on all sides of the issue will have millions of words and make millions of dollars parsing, arguing, advocating, and appealing the National Labor Relations Board (NLRB) decision to establish a new standard to determine what constitutes joint employer status, but for many workers and, to modify an old expression, the organizers that love them, let’s take a closer look at the actual decision and see what it offers in plain and simple instructions about how to determine whether or not joint employer status exists. Luckily, the decision is written very carefully in the expectation of appeals, so it rewards closer review.

I enjoyed the fact that the NLRB broke through the legal mumbo-jumbo to clearly state in so many words that this was an 800-pound gorilla of a problem too large to continue to ignore. Embedded in the decision is the reality of the modern evisceration of a stable workplace. The Board notes that contingent work now represents 4.1% of total employment in the USA or 5.7 million workers. Temporary employment is 2% of total employment and another 2.87 million workers. On the coasts they can prattle about the new so-called “gig” economy, but the NLRB makes it clear with these numbers that such workers are working without any net of protection or in most situations representation. Without expressly saying so, the NLRB essentially is refusing to continue to support a fiction that unions have any practical or proportionate power at the bargaining table, despite there being a long standing standard for how unions can organize temporary workers that determines the bargaining unit based on an average of hours worked over succeeding 13 week periods averaging the required minimum hours in that period to not be considered casual, but to be determined as employees, albeit temporary.

As we have frequently noted, the new standard elevates indirect control and authority, even if not explicitly exercised, to the status of joint employment. In determining under the new standard whether or not a company is a joint employer with their subcontractors of course setting wages and hours is the brightest line. The NLRB adds to those potential tests the question of whether or not the company establishes the number of workers on the job, has input or authority around scheduling, seniority, overtime, or assigning work and standards. The examples in the decision not only from the Browning-Ferris case under review but also others that are mentioned are very helpful, and include, not surprisingly, examples of how building owners effectively control the janitors working for cleaning companies.

These examples add other “tests” worth listening for including when a contractor recommends discipline or termination of individual workers, rules mandating that a subcontractor worker cannot be paid more than the contractor’s own employees doing similar work, determining when the machines operated by the subcontractor workers turn on or off, and drug, professional, and other testing requirements for subcontract workers. All of these conditions were evident in this BFI recycling case, but many organizers will also recognize many of them as common in representative situations. I can’t even count the number of grievances we have handled in buildings, on garbage trucks, in university cafeterias, school yards, and elsewhere where Local 100 is opposing a termination in the final step and being greeted by a shrug from an employer that the property owner had demanded the action for one reason or another so what choice did they have other than to do what the real boss said or lose the contract. Where there are multiple locations, it often has meant that we agree to reassign the worker away from a problematic worksite or supervisor. I will never forget winning a case for a worker years ago at Tulane University where a Tulane administrator wanted a young woman fired because she didn’t smile enough on the cafeteria line. On that one Tulane had to eat it, so to speak, and she became an outstanding steward for us and a union organizer who had great success in organizing California home care workers for several years.

Franchisee operators can sweat this new decision, but they are not mentioned anywhere. The real beneficiaries immediately are these millions of workers in contingent and temporary employment who are little more than working scams where someone bigger wanted to sweat the same work down to lower wages, less liability and workman’s compensation. The decision changes the game allowing the union, if and when there is one, to force the real employer to the table to bargain on those issues where they have or are exercising control.

As long as it lasts, we’re catching a major break for millions of workers here, if we’re willing and able to do the work to get them organized.

Volunteers May be the Only Good Thing to Hit New Orleans after Katrina

DSCN0432New Orleans    Opinions are divided on the New Orleans so-called recovery after Hurricane Katrina, and it is more than a glass half-full, half-empty situation. Talking to Vanessa Gueringer on Wade’s World, her articulate anger still rages, and listening to her describe how her community in the lower 9th ward has had to fight to win the fulfillment of every promise to the area, it is impossible not to agree. There are many in the city who are ready to evacuate if they hear the word “resilience” even one more time.

Presidents Obama and Bush have now visited along with the current and former HUD secretary and a host of others. I listened to the disappointment expressed by neighbors and colleagues that President Obama didn’t double down on his commitment to rebuild. Mayor Mitch Landrieu has been everywhere enjoying his Mardi Gras moment. Former Mayor and current head of the Urban League Marc Morial was more sober, releasing his report on the state of black New Orleans, where the short summary is: bleak with little change or hope.

DSCN0424-1 DSCN0423-1 DSCN0422-1The one place where almost everyone can find agreement is in thanking the hundreds of thousands of people and thousands of organizations who have come to the city over the last ten years as volunteers to help in any way they can. Appropriately,  even the City of New Orleans and Landrieu somehow understood this universal consensus and got behind the effort. People of good will from around the world made a difference to New Orleans in some way shaming our own government for its inaction, inequity, and racism. And, what better way to mark the tenth anniversary of Hurricane Katrina than by organizing a humongous volunteer service day.

The volunteer goal for the anniversary was 10,000 people and for a change almost the same level of preparation and support is going into the affair as you find during Carnival season, which until this anniversary is the New Orleans benchmark for volunteer extravaganzas. Hosts of nonprofits were recruited to the effort. Individual projects by Tulane University and Xavier University were subsumed into the overall city campaign. ACORN International is hosting 100 volunteers at the ACORN Farm. A Community Voice has 100 volunteers canvassing the Upper 9th Ward, and Southern United Neighborhoods (SUN) has another 100 in the Lower 9th Ward. It’s all in!

There are even corporate sponsors. Just as Walmart trucks rolled into the area after Katrina and there were special vouchers for purchases in their stores, Walmart is a big sponsor of this volunteer assault on the city as well. Coordinators got water, peanut butter crackers, and of course blue volunteer t-shirts at pickup points at Walmart stores throughout the week. The blue in the t-shirts, not surprisingly, looks identically like the Walmart blue customers see in their stores, but, hey, what else would you expect, they say Walmart on the back along with sponsors.

DSCN0425-1 DSCN0428-1 DSCN0426-1The volunteers will only work three hours, and given the heat and humidity that surprises so many in late summer in the city, that probably has more to do with public health than public need. They will have lunch and entertainment later at the Superdome. You get it, right, we’re saying thank you, and whether corporate and tacky, or political and boosterism, we all really mean it.

DSCN0429-1 DSCN0430-1 DSCN0431-1For real, this is thanks to all the volunteers that made such a difference and came to help New Orleans. We’re hoping you feel welcome enough to keep on coming until the job is finished!

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Kindle version of Battle for the Ninth for reduced price to mark the 10th Anniversary. 

NLRB Joint Employer Decision is Huge for Subcontracted Workers

Auto worker celebrate the victory of the UAW-CIO in the Ford National Labor Relations Board (NLRB) election. 1941

Auto worker celebrate the victory of the UAW-CIO in the Ford National Labor Relations Board (NLRB) election. 1941

New Orleans The NLRB on the last day when it had enough members to issue rulings before its one Republican member’s resignation took effect issued what could be a momentous decision, if allowed to stand, by returning the definition of co-employer status to pre-1980 interpretations. The headlines are saying this decision creates a path for organizing fast food workers. I’ll have to think about that. It definitely clarifies bargaining relationships, but one centralized corporate entity has not meant there has been a smooth path for organizing Walmart or other major retailers, and their workforces are larger by a factor of ten, compared to most fast food stands. We’ll see whether there’s any union that wants to step up to the task now, but as I’ve argued previously, the NLRB organizing route will still be unattractive to any union not willing to make a twenty to thirty year investment in such a strategy. The real impact of this decision will be for the gazillion subcontracted workers, temporary workers, casual workers and their precarious grasp on their jobs and the fragile and fraught bargaining positions of their unions working with them to protect and advance their interests.

The decision was brought on a case involving Browning-Ferris or BFI as most of us know the outfit. Along with Waste Management they are one of the huge companies that have marketed and benefited from the push for municipal privatization of sanitation and recycling services in the USA. The little known reality of such privatization by the taxpayers in these cities is that most of the labor, usually all but the truck drivers, is subcontracted out to temporary employment services. The Teamsters in this case organized the subcontracted recycling center workers and, correctly, wanted to push BFI to the table since they controlled pretty much everything about the job.

Local 100 United Labor Unions knows this routine intimately. Almost twenty years ago when we organized hundreds of minimum wage laborers on the back of Waste Management garbage trucks throughout south Louisiana cities in New Orleans, Lafayette, and Baton Rouge it was front page news in The Wall Street Journal. We won all of the elections but only after losing a hearing at the NLRB where we tried to force Waste Management to be named a co-employer. Later in winning the contract the temporary company admitted to us that they had perjured themselves at the hearing because Waste Management had told them it would cancel their contract if they were named a joint employer. By that time we had won huge wage and benefit increases by exploiting the fact that as semi-casual workers our members could simply decide they were tired and not come to work and by demonstrating how that worked in July as garbage sat rotting and stinking in heat and humidity, we closed the contract at 11 PM one night to keep the trucks rolling and the hoppers, as the laborers were called, slinging the cans into the truck. We organized similar workers in Dallas who in fact were called gunslingers there.

Regardless the wink-and-nod dodge of these companies has meant that we have had to reorganize them time after time. We have a huge case still pending before the NLRB on one company. This same situation exists in tens of thousands of other situations where companies routinely evoke 30-day cancellations when a union is organized. Pushing the joint employer buttons years ago led to the first victories in Pittsburgh for the Justice for Janitors campaign when building owners buckled, and that same reality has triggered other successes where property owners were pressured successfully, though before this new decision at some risk of secondary boycott charges. Now they will likely either have to employ the workers directly or stand up and carry their burdens. Same for hotels that have subbed out their housekeepers, schools that flip over their custodial and food service contractors, nursing homes that do the same, and on and on and on. The huge percentage of wage theft and unfair labor practice claims that are never collected because the subcontracts have collapsed may now finally come due as well.

It will be interesting to see whether or not public employers can be forced to the table as well. That’s one worth watching.

So who knows when and how this might impact fast food workers other than to make McDonalds and the like liable for unfair labor practices, but, regardless, this is huge for the vast millions of part-time, contingent workers on subcontracts everywhere.

For workers – and their unions – this is a game changer.

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I Don’t Want Your Millions, Mister ( Almanac Singers )

Smartphones Might Accelerate Lowering the Cost of Remittances

spNew Orleans   For so many smartphones have only meant an even bigger time suck on Facebook, an easier way to play games while waiting for the bus, and a chance to watch YouTube videos of cats or people tripping on sidewalks or whatever. For those people who still think the whole world is only their personal oyster, there might have been some head scratching as they heard that a must-have tool for migrants, fleeing conflicts in the Middle East and trying to navigate their way across Europe to promised lands, is a smartphone. Smartphones? They don’t hardly have two cents and the shirts on their backs, but they have a smartphone? What’s up?

Well, the migrants fleeing for their lives is a huge issue and a humanitarian crisis, but maybe there’s a way to see a silver lining in the increased ubiquity and the obvious affordability of smartphones, especially when it comes to the drum that ACORN International and its affiliates continue to beat about the vital necessity as well to lower the cost of money transfers or remittances from these same migrants and other immigrants to each other and their home communities. Cheap smartphones flying off the shelf from China are part of the clue here, but there are also hopeful signs in Africa as some companies finally are making it easier – and cheaper – to use mobile phones to make bi-national money transfers. Google’s entry into the market in Africa and other developing countries could – and should – accelerate this as well.

London-based Vodafone and South Africa’s MTN, the largest telecom in Africa, are moving forward to facilitate mobile payments between their two huge networks. Vodafone’s Safaricom subsidiary in Kenya through its 14 million customer M-Pesa network already facilitates mobile phone payments for a huge number of purchases and services. Finally central government banks in Uganda and Rwanda have approved telecom transfers. The network of partnerships these companies are building in East Africa is expected to lower the transfer costs of remittances from the current 20% to only 3% or less. The ACORN International demand to the companies has been 5%, so this would be huge. The toothless World Bank even says that reducing prices for the $48 billion worth of remittances in Africa by even 5% say from 20% to 15% would save desperate families $16 billion!

Small, old school “burner” type mobile phones with dual SIM card slots are all over Kenya to allow transfers across networks, but new market entries in large, developing countries could also make a difference. Google’s Android One phone, using its software and Chinese and other manufactures came out last year in India and ten other countries including Pakistan, Indonesia, Turkey, and Philippines. An upgraded model of Android One was announced by Google a couple of weeks ago for Nigeria with all the features needed from dual SIM slots to software lengthening battery life and speeding internet access where connections are weak. The phone is also available on-line in Egypt, Ghana, Ivory Coast, Kenya, and Morocco.

For smartphones to become the handsets of choice and tools for forcing the cost of remittances down and the predatory costs to plummet, pricing is still an issue. Many of the Chinese phones, that also use older versions of Android software, sell for $50, and African and other developing country customers, not unlike many of us non-I-Phone people, purchase on price. Google’s phone is now set at $89 in Nigeria and almost $100 in India. MTN offers $62 smartphones in South Africa and various models between $47 and $57 in Nigeria. Google is likely going to need to get the price down to $30 to $50 to play head-to-head. But, that’s their problem.

Ours continues to be how to put billions of more dollars into communities for their own development and to families to improve their living standards. Moving closer to a system that gets rid of the bankers, Western Union’s, and MoneyGram’s, and lets money move hand to hand through your phone at a fraction of the cost, is our big problem, and smartphones and even the Googles and almost equally predatory telecoms may help us get there, whether that was their intention or not.

Are Minimum Wage “Carve-outs” Worth the Arguments?

ACORN_3New Orleans   As difficult as it is win higher wages in cities around the country, where it has happened businesses are trying to pump up a controversy over union attempts to pass “carve-outs” that would exempt union contracts from compliance with the living wage agreements. There is nothing new in unions trying this tactic in some cities, and Los Angeles where most of the hootenanny is now, has always been controversial in this area, but the real question is whether or not any gain is worth the pain of labor having its great victories tarred by the seeming contradiction.

The mischief began when Los Angeles unions and their labor federation asked the Los Angeles City Council for a waiver shortly before they were expected to pass the increase to $15 per hour by 2020. The waiver would have exempted collective bargaining agreements. The business community and the local chamber of commerce had raised sand about the issue and the exemption language had been omitted from the draft ordinance. There is a long history of such language being included in Los Angeles dating back to when the city passed one of the first living wage provisions in the country for city-based contractors years ago. The language then had included collective bargaining agreements as well as a provision allowing a lower hourly wage if offset by inclusion of health protection for the workers. The language was less controversial there and in some other cities that followed the LA leader because it introduced a level of flexibility and a voice for workers to increase their level of choice.

The Wall Street Journal did a back of the envelope survey of cities that had passed new measures above state or federal minimums. The language for an exemption does not exist in Seattle, Kansas City, Oakland, Louisville, San Jose, or New Orleans, though such carve-outs do exist in San Francisco and Chicago. In Washington there is language encouraging collective bargaining to exceed the new city minimums. In the San Jose language there is no real carve-out, but something closer to a severability clause that anything can be changed “to the extent required by federal law,” which is pretty much standard in all agreements.

The Los Angeles Federation of Labor and the national hotel workers’ union both argue that these carve-outs are needed to avoid unnecessary and frivolous court challenges, but that sounds more like a rationale than a reason. The same severability clauses in most collective bargaining agreements keep the contracts whole and intact based on the actions of any competent jurisdiction, federal, state or local or court actions. The notion that a company would sue the city to hold down its wages or protect its agreement seems a bit specious.

The claim by opponents is that this is an advantage in union organizing, but if it is, unions have never proven it to be. The pure and simple truth is workers almost uniformly grab the maximum in hourly wages come hell or high water, because they want the flexibility in spending and in bargaining the union, wisely, gets of the way and tries to add any increase in benefits on top of the wages.

I’m reminded of a big mistake I made while working as Chief Organizer of ACORN through inattention and failing to look at the forest for the trees in a similar matter many years ago. Somehow I greenlighted a lawsuit by our eager beaver, first amendment, free speech expert lawyers and their minders, challenging whether or not by the nature of our work at ACORN we should have untrammeled rights to associate and speak and therefore should not be subject to the minimum wage laws of California, despite having campaigned vigorously for such increases for all workers. My oversight had been perfunctory at best. We had a point, so, “sure, take a shot,” and away we went without thinking. For years our efforts to exempt the organization were thrown back in our faces in every living wage campaign. The lawyers had looked at the walls of the courtroom and stopped there. It was my job to look at the whole picture, and I didn’t. The optics were terrible regardless of whatever merits our position might have had.

This fight seems like a bad dream coming back. This is a fight we can’t win and should not wage, even if we thought there were real legal risks or organizing gains. We need to be seen as advocating for all workers. Period. We need to keep our victories untarnished. Heck, we need to learn from our mistakes!