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!

Demand Withdrawing Arrest Warrants to Stop Debtors’ Prison

s27272609New Orleans   It seems almost incredible to say that anything good could come from a spokesperson from Ferguson, Missouri or for that matter the State of Missouri when it comes to criminal justice issues, but this may be proof that in fact the sun does shine on old dogs every once in a while.

But, yes, Ferguson, the St. Louis suburb now infamous for the police killing of Michael Brown last year and helping trigger the movement, Black Lives Matter, has announced that it is withdrawing thousands of arrest warrants for municipal violations. Furthermore they are also claiming to enact protocols that would prevent the incarceration of people who cannot pay fines and fees. Ferguson acted in advance of measures being taken by the State of Missouri and passed by its legislature to curtail and cap the cash that municipalities can keep from minor traffic beefs. Missouri is also moving to put an expiration date on practices of the modern criminal injustice system that have created debtors’ prisons of our jails and many of our communities by putting caps on the amount of time people can be locked up for failing to pay fines and fees. What can I say, other than, right on!

Well, plenty, starting with “it’s about time!” Not just for Ferguson, but everywhere. How much more evidence do we need that we have criminalized the poor with their own poverty and that the vicious cycle of pyramiding fines and fees that act as a huge bungee cord pulling people back into the system for every petty beef and larding on the costs until they’re back in jail? The Justice Department investigations have found this not just in Ferguson and other St. Louis suburbs, several of them vacuuming up more money in this way than Ferguson, but in communities around the country. We’ve cited excellent books including Michelle Anderson’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness early and prescient warnings in this area and Alice Goffman’s more recent unmasking of Philadelphia’s system in On the Run: Fugitive Life in an American City. How much more evidence do we need that this system is broken? How many more up-close-and-personal stories of this boomeranging of young men – and women – back to jail from selective policing in lower income, minority communities for minuscule beefs with escalating financial penalties?

Enough is enough.

In every community, we need to demand that lessons be learned from Ferguson, limits placed on penalties, and petty arrest warrants withdraw. There’s no way to repaint this problem or clean it up. We need a criminal injustice system makeover, a gut rehab down to the studs with an amnesty program vacating all of this garbage on minor, trivial matters, to realign our communities and our criminal justice and policing systems.

If Ferguson can do it, so can everyone else. It’s worth making the demands and engaging in the fight.

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The Woodbox Gang’s Born With A Tail

Free Advice for Organizing McDonalds’ Workers

 Scott Courtney, a leader of the Fight for 15 campaign, with protesters in Brazil. Credit Fernando Cavalcanti

Scott Courtney, a leader of the Fight for 15 campaign, with protesters in Brazil. Credit Fernando Cavalcanti

New Orleans    There was SEIU’s organizing director Scott Courtney, friend and comrade, in a picture in The New York Times, rallying with Brazilian unions before preparing to testify on the evils of McDonalds’ franchisees in Brazil to their government. Even more surprisingly, he was quoted in the Times essentially saying he was throwing everything against the wall hoping to find some critical vulnerability.

By pushing fast food companies, particularly McDonalds, on its Fight for $15 campaign, the union has succeeded in pressuring the company to raise wages in corporate stores to $9 already and soon to $10 early in 2016. Charges at the National Labor Relations Board have also led to real concerns on whether or not the union has successfully pierced the veil between the corporate locations and its franchisees as co-employers, which has led to mass hand wringing throughout corporate America.

Perhaps the biggest victory though was the success of the campaign in New York State, where the wage board has recommended accelerated increases to $15 in New York City and not long afterwards throughout the state for fast food workers. Several months ago Brother Courtney was quoted as, perhaps too transparently and too willingly, expressing the hope that action by the wage board might have given the union sufficient leverage to be able to make a deal with the company somewhere, somehow to allow the union in on some piecemeal basis. In organizing circles, the New York wage board and a powder keg supposedly ready to explode in Brazil were touted as the one-two punches that were going to bring the company to the mat. One punch seems to have fallen short, and now Brazil is in the ring and though arms are flailing, much of the heat seems addressed at a big franchisee and potential tax scams in that country, which is already reeling from political payoff scandals that have weakened the left, governing Workers Party.

Observers are clearly worried that SEIU might be coming to the end of their rope unless they can deliver a knockout soon, just as UFCW has pulled the plug on its expensive OUR Walmart effort. When blood is in the water, even friends line up to offer advice. Steven Greenhouse, long time labor reporter for the Times in an unusual step weighed in at The Atlantic recommending that SEIU start picking off McDonalds’ “hot shops,” though he undoubtedly knows the statistics on the relatively low success rate in NLRB representative elections for such shops. Wilma Liebman, former chair of the NLRB, recommended that SEIU direct all of its organizing energy at corporate stores rather than franchisees to advance the cause, which is curious advice as well. To the public, McDonalds is McDonalds, and unquestionably many of the franchisees, as SEIU has found in Brazil, are way more vulnerable to organizing and pressure. Eighteen months ago a big franchisee in Houston with more than 50 locations flirted briefly with Local 100 for us to sign up his workers for Obamacare. There are athletes and others who own hundreds of locations who might be leveraged as well.

Regardless, the notion of organizing stores one-by-one has been the opposite of SEIU’s strategy in this campaign and many others over the last twenty years. One senior SEIU organizer in Los Angeles commented to me several years ago that there’s an entire generation of SEIU’s organizers that have never run an NLRB election and would be fish out of water trying to do so. SEIU knows that there were 14350 McDonalds in the USA in 2014 and 21908 internationally. The last thing they are looking for is a Vietnam style quagmire where they are locked into a struggle to organize store by store. How many would they have to organize successfully to have the moral rectitude that converts into the equivalent pressure of their current Fight for $15 Campaign? What could they deliver in collective bargaining to the first couple of hundred stores? These are hard problems, and Courtney and SEIU are clearly intent on doubling down before caving in.

It’s one thing for unions, even SEIU, to decide to throw everything up against the wall against a company for a couple of years to see if they can win. It’s another thing to decide that you are willing to make a 20, 30, or 50 year commitment to actually unionize the workers step by step, block by block, or in this case store by store.

SEIU may have to face that decision soon, but it won’t be today, while they’re still swinging hard, and the bell hasn’t rung.

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Please Enjoy Bruce’s Springsteen’s Working on a Dream

Politicians Silence Advocates and Organizations

10816511New Orleans   There is no doubt by anybody anywhere that the Fight for $15 and in general the fight for living wages has been led by unions and community organizations in every country where the campaign has been fought: the United States, the United Kingdom, and, certainly Canada. No matter the tactics and strategy the targets have been moving corporations and public bodies and elected politicians to sign on and support the workers’ demands for living wages. As we have discussed, some public bodies, including city councils in Los Angeles, Seattle, and New York in the United States as well as particularly Vancouver and Toronto in Canada and even the national government in the United Kingdome have moved substantially on these issues after sufficient organizational and popular pressure. This is how it should be. This is the work we do. Ostensibly, this is how countries subscribing to some level of democratic norms should work.

Well, think again, my friends, not in the age of state and corporate partnerships in the age of neo-liberalism.

The ACORN office in British Columbia received a message marked URGENT from the British Columbia Federation of Labor because we are an active member of course of the Minimum Wage Working Group. The message was pleading that all “Fight for $15” activities would have to be suspended until the mid-October federal elections, a period of almost 3 months since Prime Minister Harper had “dropped the writ,” or called for the election, unusually early in order to trigger the expenditure freezes for the election, favoring the incumbent party. Normally for ACORN the time to increase the pressure on our issues is during election periods when politicians and parties are most vulnerable and our leverage is at its highest! So, what the frick?

I’ll let the message speak for itself:

TO: MINIMUM WAGE WORKING GROUP

As you know Prime Minister Harper has called the election earlier than expected. Additionally new rules have come into place regarding the participation of third parties during an election.

As a result of these changes the BC Federation of Labour is very limited in how it may participate during the writ period, specifically related to advertising. Due to the similarity of our Fight for $15 campaign to the Federal NDP’s platform promise of a $15 per hour federal minimum wage, any traditional or on-line paid advertising that we engage in to support the campaign may be considered election advertising under the Elections Act.

This in itself wouldn’t present a problem. However, the BCFED and all other federations of labour and labour councils are considered by Elections Canada to be one entity under the Canadian Labour Congress. Therefore, we are not permitted to register separately as a third party. This means we are caught in the same spending cap as the CLC. There is no additional room within that cap.

Due to these restrictions we must limit our Fight for $15 campaign activities to those activities that are not considered to be election advertising. This means we are limited to on-line engagement without placement costs and direct communication with our members. We can also submit letters to the editor and op eds.

We are not permitted to petition, leaflet, hand out buttons, distribute t-shirts or participate in any activity that advertises this issue to the public until after the election period. That means we will need to postpone many of our upcoming activities until after the election in October. We are very disappointed by this news and will be developing a new strategy to mobilize the campaign in an on-line capacity that complies with the legislation.

We are asking you to not distribute any materials including petitions, buttons, signs or leaflets that were produced by the BCFED during the campaign period. You, of course, may use your own materials, but please be aware of the requirement to register as a third party advertiser should you incur more than $500 in costs.

You get it? One of the parties, the National Democratic Party, had succumbed to the pressure and made $15 a part of their platform, therefore continuing to organize, advocate, demonstrate, and agitate for $15 suddenly was reclassified as not only electioneering, but advertising rather than action. A similar perversity was recently part of the rules in the United Kingdom federal elections with about the same limitations except 5000 pounds per group rather than 5000 Canadian dollars. Not much doubt that the Canadian Conservative Party might have gotten the idea from the UK Conservative Party, eh? Of course in the United States where anything about money in elections is dysfunctional, the one effort by the IRS to reign in 501c4 social welfare organizations on their political activity, despite the fact that the 501c4 status curtails such activity, was immediately derailed by Congress and then postponed and pulled by the IRS until after the 2016 election, despite the fact that c4s as social welfare front groups and SuperPacs are already flooding campaigns with money, taking over their management, and flaunting every known rule.

But the perversity of organizations being prevented from advocating for change so that politicians can dupe voters into whatever is past the pale. If there were ever rules that were made to be ignored, which is to say, broken, here is a prime example. When government attempts to silence people, it is time to roar.