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.

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 )

Will Quicker NLRB Elections Make a Difference?

watermark.phpHouston           The National Labor Relations Board’s (NLRB) new rule has survived numerous delays, Congressional attacks offset by a threatened veto, and huge corporate pushback to finally find dry ground and take effect.  We have not seen the corporate equivalent of the zombie apocalypse, so the country still stands.

For all the hype the rule itself is “not all that” really.  This is not card-check, where the majority of workers’ signatures would be enough to bypass an election and win recognition of the union.  This is not a guaranteed quick election within a prescribed number of days of the union filing for representation along the model of Quebec or similar jurisdictions.  The heart of the rule is that it obviates management lawyers’ effort to delay the election on play-pretend questions about whether or not certain workers belong in the voting and bargaining unit or invite pie-in-the-sky legal theories to push the election date longer and longer.  The new rule doesn’t eliminate these challenges as much as it postpones them, letting workers and their unions vote first, and deal with the mess later.  There will still also still be pre-election hearings when there are not stipulated elections, but significant efficiencies have been baked into the new rule to allow simultaneous notifications, electronic submissions, full statements of position, and more localized decisions rather than being caught in the Washington NLRB timeless gridlock.

Many believe that this will shorten the time between filing and elections drastically, but some of that is more in the nature of company lawyers squealing like stuck pigs.  In the most recent fiscal year 2013 report the NLRB noted that the median time between filing and elections was 38 days and 37 days with an election agreement but 59 days with a hearing, now it would be theoretically possible, if the bureaucratic stars and moon lined up, to have an election as early as two-weeks after filing.  No surprise that comparatively corporate America was calling this an “ambush” or “quickie” election, if it might be one-third the time previously.

How much difference will this change make to unions and our declining numbers?  First, it is hard to tell, since clearly it will take some time for union organizing strategists and tacticians to think through the types of campaigns that would be best suited for the new rule and train field organizers in how to maximize its potential.  There is certainly no question from all past studies that victory goes to the fleet when unions face an election under the NLRB.  Win rates have been statistically over two-thirds even under the old rules when elections were held with a modicum of promptness.   Even if this new rule was Christmas, which it definitely is not, it will take some time to embrace after years of unions resisting the quagmire of the NLRB and its hyper legalistic procedures favoring management so extravagantly.  A whole generation of union organizers is clueless about dealing with the NLRB, so that’s a problem in assessing the rule’s immediate potential.

The early filings say something, but may be just a blip on the screen.  There were about 140 filings between the rules full implementation and now, leading to an average of about 56 petitions per week under the new rule.  More recent reports of the NLRB indicate that the average representation petition filings have been about 38 per week, which is almost a 50% bump.  That’s still way too little too late, and may even be a statistical aberration where organizers might have held petitions for a week or two waiting for the new rule’s start date.

The short story is that the new rule represents an opportunity, not a panacea for workers and their unions.  It won’t be enough to stem the tide, but might help where the will needs a way.

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Turner Corn – Union Man Dues

NLRB Quickstepping in Right Direction for Workers

email*304xx2122-1415-0-0New Orleans    How much it will help is going to be an ongoing debate, but there have been a number of recent decisions by the National Labor Relations Board (NLRB) that all seem to be in the right direction, so it’s worth keeping score.

The NLRB has now ruled in a significant case that workers have the right to use company emails for concerted activity, unless there are exceptional reasons to the contrary. In terms of mass communications between each other and with unions, this is significant, since email addresses are more likely to be accurate as the lingua franca of communications than the ever shifting terrain of home addresses. For organizers, company systems that are organized rationally with standard addresses might also prove useful. Certainly we found this to be the case in organizing San Antonio city workers and sharing e-bulletins during organizing drives.

The NLRB has also finalized its rule making procedure on speeding up elections and more quickly resolving any employer challenges. This rule doesn’t take effect until April 2015, but will actually make a difference for unions seriously involved in organizing. Academic studies have long established that the winning percentage of unions drastically improves even when elections are held in less than 30 days. The possibility that elections could be held in half of that time finally gives the advantage more clearly to the “runner” trying to win union recognition than to the employer hunkering down behind lawyers and legal delays. Much of the change here will be tactical, and whether unions that have more recently eschewed elections and the NLRB will find this change enticing enough to lead to a change in strategy will be an interesting question in the coming year.

Another ruling has opened up higher education and overturned the old Yeshiva decision several decades ago creating managerial exemptions for tenured professors particularly and religious institutions of higher learning especially. Universities will now have to prove there is religious content in their teaching that crosses the line between church and state. On the managerial question, given the explosion in the number of adjunct teachers and professors, the NLRB ruled squarely that these days the old rule simply doesn’t apply because the nature of the teaching job has changed radically. True that! There has been more organizing movement in higher ed, so this could be a breakthrough.

Finally, the joint employer ruling that has ensnared McDonald’s and caused trepidation among franchise-based business was finalized when complaints were issued for a host of workers involved in job actions with the company. Does this give the workers an edge on higher wages or union protection? Not so much, but it does change the game and extract a price, which Mickey D’s and many others will be paying for quite a while, if this ruling stands.

None of this will stop the decline of unions, but making the NLRB relevant again has value in protecting workers, and the best of union organizers will take these small openings in the door and figure out a way to drive trucks full of unorganized workers through them. Coupled with more security for undocumented workers next year, and we might see union membership move the needle in the right direction for a change.

Volkswagen Initiative Even More Interesting Than Advertised

dfp1111chattanoogauawNew Orleans   The actual announcement of the new employee relations rules for the Volkswagen plant in Chattanooga, Tennessee, was actually even more interesting than the early leaks and advertisements from the United Automobile Workers (UAW). What the company really did, very expressly, is initiate a huge private sector program of “meet and confer” bargaining with organizations based on their level of worker support in the plant. If this works it might, as many of us have argued over the years in advocating “majority” unionism, point to a path where we can make progress with giant employers that have eluded any kind of worker organization for decades.

Admittedly, one of the things that I found attractive about the policy, was the fact that the company called it their Policy on Community Organization, recognizing perhaps more subtly than they even realized how much the weight of the potential new dawn for labor could rest on a better understanding of the potential and promise of deep, patient community organization methodology to achieve its purposes. The policy provides different levels of access and frequency of meetings based on levels of worker support at 15, 30, or 45%. The UAW at the point has indicated that it has majority support in its newly founded Local 42, while one of the anti-union groups claims to be nearing 15% support.

The company is also very clear that this new policy will not be a path to exclusive representation. I had wondered in an earlier report how they would navigate the political and community perils in Chattanooga had they provided voluntary recognition based on a majority showing by the UAW. They seem to be very aware of this as well, leading me to guess than if, and when, exclusive representation comes, there will be an election before it happens. Even picking the 45% level of support indicates recognition of the NLRB and labor law issues that surround this policy.  If a company verifies and agrees that a union has more than 50% support of the workforce, a union can file an 8(a)5 charge for the company’s failure to bargain and failure to recognize the union as the exclusive representative of the employees.  Clearly, VW does not want to be caught in that trap, and the UAW has also undoubtedly agreed privately with the company that they will not push them into that position either.

As importantly the UAW and its officers are embracing “members only” representation which is also widely practiced in labor relations around the world where multi-union bargaining is the norm.  Gary Casteel, the UAW Secretary-Treasurer issued a statement saying that their only concern with the new rules is making sure they were now going to be able to represent their members.

As importantly the UAW and its officers are embracing “members only” representation which is also widely practiced in labor relations around the world where multi-union bargaining is the norm. Gary Casteel, the UAW Secretary-Treasurer issued a statement saying that there only concern with the new rules is making sure they were now going to be able to represent their members.

Both “meet and confer” and “members’ only” representation have been common in United States public sector unionization and are actually prevalent still in Southern right-to-work states where exclusive representation is still rare for teachers, state, and local public workers. “Meet and confer” bargaining has also been a frequent way station for unions in developing their base, as it was for many home health care workers over the last number of decades.

For the UAW this is still a breakthrough in organizing foreign carmakers, and if it works in Chattanooga, could finally provide them with a path forward in organizing this sector, which they badly need. But, for all workers in the United States, this could also point the way to many more breakthroughs for private sector workers where union density is still heading to only 5% of total private sector employment. Embracing these strategies could finally rebuild the labor movement through aggressive organizing, effective member representation, and patient bargaining, if we can make this work.

The old days are gone, and it’s time to get past them and embrace the future, and we may be seeing it now in Chattanooga.

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Please enjoy an early Merry Christmas with Lucinda Williams’ Have Yourself a Merry Little Christmas and Beth Orton’s River from All is Bright, from Amazon Music and courtesy of KABF.

NLRB Ruling May Not Ease Organizing, but Could Reduce Precariousness of Labor

mcdonald-mascotNew Orleans    The decision of the U.S. General Counsel of the National Labor Relations Board (NLRB) that McDonald’s acts as a “joint employer” in relation to its franchisees and therefore bears some responsibility for unfair labor practices by those franchisees is stirring extensive debate, all of which is good for workers, whatever the current outcome and final determinations in the future after endless litigation. Simply put, one of the many modern crises faced by workers has been the tenuous and often uncertain relationship to their employers making them more temporary, more contingent, and more precarious. Attaching a lifeline more firmly back to the original decisions makers, the ultimate paymasters, and the deepest pockets with the most to lose can’t do anything put help such workers and create some semblance of stability no matter how slight.

According to Times labor reporter, Steven Greenhouse:

 

Legal experts also predicted that Tuesday’s ruling would lay the foundation for an expansive decision by the labor board that would apply this broad “joint employer” standard to other industries and companies besides McDonald’s and fast-food chains. They anticipated that perhaps manufacturers, real estate management firms or cleaning companies that use temp agencies or subcontractors would also be declared joint employers. “It’s one of the most significant board actions in quite some time,” said Peter Kirsanow, who served on the N.L.R.B. under President George W. Bush. “If this approach is adopted and upheld, it’s going to be fairly significant. There will be a fairly serious domino effect on various industries. We’re going to look at the effect on contingent workers, temporary employees, those that are sent out by staffing agencies.”

 

If any of this hold true, even temporarily, during this period of glasnost while everything shakes out, informal and precarious workers at the bottom of the employment chain to the big boys could find less wage theft, slightly higher wages, and some minimal benefits often ignored. Just having them all run scared from top to bottom, creates opportunity. Furthermore, as the concept and protection of “bargaining unit” work has either eroded or been eviscerated in collective bargaining agreements by subcontracting outside of the protected workforce, the Browning-Ferris case brought by the Teamsters as they try to include subcontracted workers under the direction of the employer in the election and bargaining unit could be a huge protection for existing union workers and those under agreements.

Will any of this make union organizing easier? I’m still not so sure that’s the case. Even including subcontracted workers in an election is tricky, since most subcontractors are on 30-day cancellation contracts keeping them on tender hooks and therefore more vulnerable and susceptible to pressure by contract supervisors still outside the reach of unfair labor practices. Franchisees with more authority or franchisees with tighter links to the brand or corporation are still a thousand flowers blooming out there that are exceedingly difficult to pluck for organizers. Brother Craig Becker, former NLRB member and now general counsel for the AFL-CIO most optimistically says, “McDonald’s has a working-class clientele and it has to be concerned of how it’s perceived on how it treats its workers.” Boy, I wish that were true, but Walmart continues to serve as the most outstanding case in point, and workers with small paychecks are core customers for Walmart, McDonalds, and hundreds of other companies, because they have been forced to look the other way to stay within their pay.

So call this a potential win for workers and keep your fingers crossed that this is the way it breaks, rather than separating them even farther from a lifeline to the larger company, and keep on your knees praying that we get an actual break in making it easier to organize such workers sometime in our lives.