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.

Rewriting the Rules

Rewriting-rulesNew Orleans              The AFL-CIO has already begun the process of vetting potential Presidential candidates, offering the opportunity to any of the score that has an interest in coming by, which so far means all the Democrats and Republican ex-Arkansas Governor and current TV commentator Mike Huckabee. Interestingly, Rich Trumka has indicated that the AFL’s key benchmark flows from a new report spearheaded by Nobel laureate economist Joseph Stiglitz of Roosevelt University with the input of a host of others. The report is called “Rewriting the Rules,” so let’s take a look at its proposals.

Not surprisingly, Trumka and the house of labor are no doubt pleased to see the ringing endorsement of expanded labor rights and promotion of collective bargaining as important principles to re-establish in the economy. The clearest proposal in this area recommended that the federal government add clear conditions not only to governmental subcontracts but to development grants to protect and advance union protections and bargaining. The rest was predictable.

The point of the report is that the rules matter. No rules, which is what the long desert of deregulation in so many sectors produced, tilted the economy to the 1% and allowed Wall Street and other cowboys to herd us into the Great Recession. Remember it wasn’t just “no rules,” but “bad rules,” which is the point here, too. “Rewriting the Rules” is an argument that in order to re-balance the economy and its myriad winners-and-losers, our politicians and the government need to put new regulations in place that would allow us to prosper and to do so more equitably.

Perhaps most interesting were the recommendation for reforming the financial sector, because this is right in the wheelhouse for Stiglitz and many of his helpers:

 

Screen Shot 2015-07-30 at 10.02.33 AMEnd “too big to fail” by imposing additional capital surcharges on systemically risky financial institutions and breaking up firms that cannot produce credible living wills.

 

Screen Shot 2015-07-30 at 10.02.33 AMBetter regulate the shadow banking sector.

 

Screen Shot 2015-07-30 at 10.02.33 AMBring greater transparency to all financial markets by requiring all alternative asset managers to publicly disclose holdings, returns, and fee structures.

 

Screen Shot 2015-07-30 at 10.02.33 AMReduce credit and debit card fees through improved regulation of card providers and enhanced competition.

 

Screen Shot 2015-07-30 at 10.02.33 AMEnforce existing rules with stricter penalties for companies and corporate officials that break the law.

 

Screen Shot 2015-07-30 at 10.02.33 AMReform Federal Reserve governance to reduce conflicts of interest and institute more open and accountable elections.

 

Some of those recommendations would make a difference, particularly impacting on banking and credit access and affordability. The report also takes some clear shots at what is needed to rein in the quick buck artists of business for the protection of the economy and the public.

 

Screen Shot 2015-07-30 at 10.02.33 AMRestructure CEO pay by closing the performance-pay tax loophole and increasing transparency on the size of compensation packages relative to performance and median worker pay and on the dilution as a result of grants of stock options.

 

Screen Shot 2015-07-30 at 10.02.33 AMEnact a financial transaction tax to reduce short-term trading and encourage more productive long-term investment.

 

Screen Shot 2015-07-30 at 10.02.33 AMEmpower long-term stakeholders through the tax code, the use of so-called “loyalty shares,” and greater accountability for managers of retirement funds.

 

I wouldn’t hold my breath about any of this, but it is reassuring that labor at least is asking the right questions and pointing the way to some hard decisions and clear policies.

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Please enjoy Rickie Lee Jones’ J’ai Connais Pas (I Don’t Know).

Thanks to KABF.

Field Operations are Still Key in the Land of Big Data

maxresdefaultNew Orleans     Sitting around a barbeque grill in Missoula, Montana recently,  I found myself in a mini-debate with a former political science professor at the University there who taught Jim Messina, a former Obama campaign manager and master political consultant. My friend’s position echoed Messina’s own post-election spin about bad political polling, arguing that “Cameron was the only one who wasn’t surprised at the election results.” I took the position, based on discussions with ACORN United Kingdom organizers throughout the country who were in the streets organizing in the communities of Bristol, London, Newcastle, Edinburgh, and Birmingham that the extent of conservative Prime Minister David Cameron’s victory might have been a surprise, but from listening to our organizers on the ground, the fact that he won over the Labour Party candidate was predictable.

My friend’s point was that the campaign mechanics had gone past “big data” allowing micro-targeting to the level that in his words the Conservatives “could count the individual votes.” My point, held with equal stubbornness undoubtedly, was that field work still mattered the most and that no one trusted polling anymore anyway. Outside of the range of the barbeque’s heat the debate is really one where there is little difference in the distinction. I would agree that the tech side of political campaigning is now off-the-chain as it has advanced over the last decade, and my friend would probably agree that the field programs have as well. Our real argument might have been how in the world could we reconcile Jim Messina, long known and admired by both of us, working for David Cameron?!?

Reading reports of the early work in Iowa, the field is still the trigger there. Hillary Clinton’s campaign has 47 paid organizers already on the ground and is recruiting up to 7000 volunteers to work the caucuses more than a year away. Senator Bernie Sanders’ effort isn’t slouching on the field front either,  claiming 33 paid staff and 10 field offices. Those are small organizing armies!

Many of the organizers in both campaigns are veterans of the Obama campaigns. It is worth noting that the campaign manager for the Clinton machine is Robby Mook, who, according to the New York Times “rose through the ranks of field organizing, which has revolutionized modern campaigns.” Wish I had that quote with me in Montana!

Part of the new volunteer field methodology Mook drew from “organizing techniques of labor groups like the United Farm Workers,” according to the Times. Much of this seems to focus on the work of volunteers, using them to recruit other volunteers, and now in the Clinton campaign promoting some of the volunteers as “engagement directors” who develop the “internal organization” or “’captains’ who oversee specific tasks like canvassing.” Of course all of this is coupled with digital technology, both counting and targeting. And, of course none of this really sounds all that novel or unique, and most of it sounds like the reporter was being spun by the campaign. Other reports have already quoted Marshall Ganz, a UFW veteran, essentially prospecting for work, and we’ll be reading about “relational” organizing soon I’ll bet as well.

All of which is important for sure, but the classroom and the computer are still no substitute for hitting the doors and doing the work on the ground. Heck, the candidates – and the issues — even turn out to be important still in campaigns, which is worth remembering, too.

Fifteen Dollars for Fast Food Workers – More to Come?

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Fast-food workers and supporters gathered on Wednesday in Manhattan to watch a live video of the wage board’s decision. The governor hailed it as an example of New York’s progressiveness. Credit Chang W. Lee/The New York Times

New Orleans   Fast food workers in New York State got some great news after a three year campaign. The wage review board set up by Governor Andrew Cuomo has announced, as expected, that it will recommend a $15 wage for many fast food workers in New York State. The increase, once approved will stair step the wage up to $15 over the next six years statewide by 2021 and in New York City will accelerate faster and reach the $15 per hour number in three years by 2018. This is unquestionably a huge victory for service workers and their unions and their community-based partners, like New York Communities for Change, formerly New York ACORN, and the Working Families Party. Hip-hip-hooray!

The wage increases will impact fast food workers working in the big chains with 100-stores or more, so clearly the MacDonald’s, Taco Bell’s, Popeye’s, Burger King, and the like. Outfits like MacDonald’s have already agreed to go to $9 now and $10 next year, so they seem resigned to reality. Reports indicate that there are 180,000 fast food workers in New York State. It is unclear how many are employed in the 100-plus-store chains, but presumably this number would approach or exceed 100,000 workers.

The $15 per hour minimum wage has now won favor and is on an implementation timeline in Seattle, Los Angeles City and County, San Francisco, and Washington, D.C.  The New York plan is the only one that singles out fast food workers rather than all workers in a jurisdiction. Mayor DeBlasio and others in New York City continue to argue for the $15 wage to be spread to all workers, not just fast food workers, and this should put some wind behind their sails. SEIU’s giant New York-based building services local, 32B-J, has announced a strike for airport related workers in their campaign for a $15 per hour wage for contractors there, so the fast food move will be a shot in their arms as well.

God and the government should both know they need it. A report from the nonprofit Tax Foundation found that in cities like Washington, D.C. spending $1 will buy only about 84 cents worth of goods compared to the rest of the country where in places like Mississippi and Arkansas spending $1 will get you about $1.15 worth of goods.

That’s little comfort though. Bill Lipton, the director of the New York Working Families’ Party, was quoted calling the wage recommendation a huge victory for the “99%.” Given the polarized politics of the country and the huge division between rich and poor, it’s worrisome what will happen in the rest of the country, where the fights are still concentrated on winning a ladder to $10 or $11 per hour? We may start having to talk about tales of more than two cities, with the rich and poor divided, and the poor and poorer also divided. Little progress seems forthcoming in Congress on enacting President Obama’s now dusty proposal for a $10.10 minimum wage for example.

This is a clear victory, but there will have to be many, many more of them before New York’s Governor Cuomo’s words that “other states will follow” can come true. A victory in New York for 100,000 workers helps the 99% in New York, but that hardly moves a decimal point in the rest of the country, and the 98.9% are still desperate for a raise. Celebrate for the day, but there’s a lot of work still to be done tomorrow!

Pope Francis is a Cheerleader for Organizing!

150712131441-03-pope-0712-exlarge-169Rock Creek, Montana    Hey, are you having a bad day? Not sure things can ever be any different? Not sure it’s worth the effort to get out there and hit the doors, talk to your neighbors or co-workers, and do what has to be done?

Here’s some good news: you have a friend! Pope Francis, that’s who. Listen to this line from his remarks recently to the World Congress of Popular Movements meeting in Santa Cruz de la Sierra, Bolivia:

“…the future of humanity does not lie solely in the hands of great leaders, the great powers and the elites. It is fundamentally in the hands of peoples and in their ability to organize. It is in their hands, which can guide with humility and conviction this process of change.”

In fact you may have been down at the mouth for a simple reason according to Pope Francis “…suffering from an excess of diagnosis, which at times leads us to multiply words and to revel in pessimism and negativity.”

So, rather than wallowing in negativity, there has to be change, or as Pope Francis says:

“I would insist, let us not be afraid to say it: we want change, real change, structural change. This system is by now intolerable: farmworkers find it intolerable, laborers find it intolerable, communities find it intolerable, peoples find it intolerable … The earth itself – our sister, Mother Earth, as Saint Francis would say – also finds it intolerable. We want change in our lives, in our neighborhoods, in our everyday reality. We want a change which can affect the entire world…”

For organizers especially, the Pope has some words of comfort that almost make you blush hearing them when he says praises our work with people as “fish in the sea of the people,” as Mao recommended:

“This rootedness in the barrio, the land, the office, the labor union, this ability to see yourselves in the faces of others, this daily proximity to their share of troubles and their little acts of heroism: this is what enables you to practice the commandment of love, not on the basis of ideas or concepts, but rather on the basis of genuine interpersonal encounter. We do not love concepts or ideas; we love people…”

The Pope was doing a bit more than cheerleading for organizing in his Bolivian remarks. He asked social movements and organizers to take on three “tasks.” First to force the economy to be “in service to the people,” secondly, he wants us to “unite our peoples on the path of peace and justice,” and, finally, “to defend Mother Earth.” Underscoring those tasks is his analysis, which is important. He identifies part of the fight as being against a “new colonialism.” One face of this colonialism is the “anonymous influence of mammon: corporations, loan agencies, certain “free trade” treaties, and the imposition of measures of “austerity” which always tighten the belt of workers and the poor.” Another face, are you listening to us Comcast and the like, is “ideological colonialism,” which he defines as “…the monopolizing of the communications media, which would impose alienating examples of consumerism and a certain cultural uniformity….” In another interesting concept, Francis argues that we should unite people through with a methodology that is “polyhedric, where each group preserves its own identity by building together a plurality which does not threaten but rather reinforces unity.”

This guy, Francis, is worth watching. And, I’m not saying that just because in Bolivia he also spoke of organizers as “social poets,” which I dearly love. He may be willing to give courage to act and not just heart and soul to social movements. Here is the clarion call in his oration to the people we organize:

What can I do, as collector of paper, old clothes or used metal, a recycler, about all these problems if I barely make enough money to put food on the table? What can I do as a craftsman, a street vendor, a trucker, a downtrodden worker, if I don’t even enjoy workers’ rights? What can I do, a farmwife, a native woman, a fisher who can hardly fight the domination of the big corporations? What can I do from my little home, my shanty, my hamlet, my settlement, when I daily meet with discrimination and marginalization? What can be done by those students, those young people, those activists, those missionaries who come to my neighborhood with their hearts full of hopes and dreams, but without any real solution for my problems? A lot! They can do a lot. You, the lowly, the exploited, the poor and underprivileged, can do, and are doing, a lot. I would even say that the future of humanity is in great measure in your own hands, through your ability to organize and carry out creative alternatives, through your daily efforts to ensure the three “L’s” (labor, lodging, land) and through your proactive participation in the great processes of change on the national, regional and global levels. Don’t lose heart!

Medical Debt, Organizing Reunions, and Restorations

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Pittsburgh    The Pittsburgh ACORN Family Reunion Picnic organized by ANEW Institute in Homestead was battling bad weather forecasts and real raindrops that moved the affair from the park to the porch of the Baker House on 11th.  The score of folks who came by couldn’t have cared less, because they got to see the progress on the renovation of the building which will be their future office, and even more so they wanted to talk.  About issues.  About education.  About health.  About the community.  About ACORN.  About building organization again in all the smaller communities on the Southside and what they called the Mon Valley after the great Monongahela River, one of the three rivers defining Pittsburgh and western Pennsylvania.

One of the picnickers had worked for the giant University of Pittsburgh Medical Center, now universally in this area as UPMC with a skyscraper highlighting their letters looming over the cityscape.  UPMC is reckoned as the largest hospital system in the country.  One thing led to another though and the more we talked about hospitals, healthcare, and citizen wealth, the more impossible it was to not talk about medical debt.  A quick poll of the celebrants of ACORN’s 45th birthday found that one-third were carrying medical debt now and still facing persistent health problems.  It was also clear that all of folks raising their hands qualified for charity care and all of them were caught in the gears of the giant UPMC system.

Later when we took a quick look at the UPMC numbers it was unsettling to say the least.   38 hospitals with almost 60,000 workers and over $10 billion dollars in program service revenue, yet the amount of charity care they provided was hardly better than 1% when the national average for nonprofits is over 6%.  There were horror stories of “point of service” collection tactics where patients, even those on Medicare, were being asked to pay down payments and deductibles before being admitted or treated in the emergency room at least until an advocate joined them and forcibly raised the issue of charity care.

Maybe UPMC doesn’t get it or thinks they can get away with it, because this is just the standard operating procedure in the Pittsburgh area.  One woman told a moving and tragic story about being “naïve,” which must be a euphemism for having been robbed. She had bought a house using the always sketchy rent-to-own system and the landlord-owner tried to sell the property after she had sunk $30000 in improvements into the house. There was nothing but home cooking in this tale where politicians and others ganged up on her family in the thievery.  The court ended up agreeing with her that she was robbed but she still didn’t recover either the money or the house because of various technicalities.  The trigger for the story had been her testimony for how much ACORN had meant to her and the fact that they stood with her in the fight and were clear this was predatory and a crime.

The chicken was good and the beans were great, but people left talking about how, just as ACORN had done in the past, they needed to organize their communities again and build ACORN in the future.  What a great way reunion and a great way to celebrate a birthday!

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Ziggy Marley – “Family Time”