Joint Employer Status Sure is Confusing – and Important!

254-time-clock-484107197-738x415tsNew Orleans    In the world of workers what should be the simplest question to answer is becoming one of the most confusing, and important. The question is: who do I work for? The answer, too often these days, is god only knows? To make matters even more complicated both the National Labor Relations Board and the Department of Labor Wage and Hour Division are trying to come up with more coherent way of solving the mystery of who is really the responsible employer fitted to modern working conditions. And, that’s the good news, though the differing definitions are still going to leave many workers lost in a quandary.

The McDonalds’s cases brought before the NLRB by the Service Employees in their Fight for $15 organizing campaign to try and hold the parent company responsible for unfair labor practices by the franchisees is going to sort this out, one way or another, in some ways for unions in coming years. Additionally, the NLRB has allowed unions to file more easily – at least in theory – for bargaining units including directly employed and subcontracted workers as joint employers. Not sure how well that is going yet? I know Local 100 United Labor Unions raised the issue in bargaining with nursing homes to see if we could automatically accrete any housekeeping or dietary units that might be subcontracted in the future, and we didn’t get as far as we could spit with the issue, but it was an interesting conversation and a warning to the employer that we now thought we had a tool to jam up the works, if they went that direction, which many homes had gone in the past.

The DOL is going several different ways in trying to straighten out a path to the future, but none of this reads easily. One digest I read summarized it this way:

“Horizontal joint employment,” the guidance says, occurs when an employee works for two or more employers that are separate only in a technical sense. “Vertical joint employment” occurs when one employer uses an intermediary, like a staffing agency, to employ workers with whom it maintains what amounts to an employer relationship.

I hope that’s clear!

With the NLRB the issue revolves around who controls the workplace. The DOL seems to be looking at how high the walls are between workers in the same workplace. If it’s a captive entity with only a thin layer of Sheetrock between one and the other, they are joint. In some cases it also seems the test is likely to move towards who has the deepest pockets as well. Since we are talking about wages and hours, I would bet who really controls the time-clock on the job also could have a heavier burden on any pay violation in this area.

In these days and times, we pretty much have to wait until the lawyers and courts get through with finding the holes and trying to plug them up. The good news for workers is bound to be that they will be better for the struggle to clarify the mess, but it’s hard not to get a sinking feeling for unions and for many workers we are a long way from fixing this problem of “button, button, whose got the button” when it comes to grabbing an employer and holding the boss accountable for fair wages for a day’s labor.


Grinding out a Hollow Victory under the NLRB for Garbage Workers

8965564-largeLittle Rock   For more than twenty years, Local 100 has represented “hoppers” in New Orleans as well as other cities in south Louisiana and Texas. Hoppers, gunslingers, or whatever they might be called are the laborers at the rear end of garbage trucks, handling the business end of the enterprise, making sure the content of the filled cans gets into the “hopper” which is the large cylinder that rotates and compacts the garbage on the route. Even as the process has become more mechanical with lifting arms and special cans, many an 80-gallon piece of plastic is still heaved into the hopper to keep the routes speeding along from house to house. This is hard, sweaty, and often dangerous work.

These workers for decades have been subcontracted by municipally privatized sanitation contractors like Waste Management or Browning-Ferris or smaller companies to temporary employment agencies. Some unions and organizers along with the general public wrongly assume these workers are company employees when and if they notice them at all and believe that if they are temporary or casual, they are not covered by the National Labor Relations Act, but of course they are. When we won these elections in the 1990s, we bargained the workers up from minimum wage and archaic employment practices like “Chinese overtime,” still common in the industry for such workers. It was front page news in the Wall Street Journal at the time.

After Katrina hit New Orleans 10 years ago, garbage service was provided by FEMA for a while, meaning that all the workers and contractors disappeared. When they came back under the now disgraced and jailed Mayor Ray Nagin, there were new companies and new contractors. We were able to establish that one new contractor, Milton Berry, was a successor, and we attempted to bargain a contract with them. There was a problem though and a big one. Berry had unilaterally rolled back wages, so we filed charges to recover the losses while trying to bring this outfit up to the 21st century and modern worker protections. Easier said than done, because all Berry really had going for himself was a knack for cutting corners and some lawyers who didn’t care about anything but getting their hourly rate. We got 10j injunctions. We endured appeals to the 5th Circuit Court of Appeals. Anything to wind down the clock. Berry lost the contract for the hoppers, but the lawyers kept on.

The final order has now come out more than seven (7) years after we filed the initial charges. The NLRB ordered Berry and his wife, as owners of M & B Services to post fifteen (15) notices of their illegal activity, but no hoppers will ever see these notices because Berry no longer has a place of business in New Orleans. He has been ordered to pay $223,781.00 in back pay and $42,292 in interest through September 22nd, a figure that will keep rising until payment, from the total bill of $266,000 now. The checks supposedly have to be received by the NLRB in their offices by no later than the middle of October. No question, if you read the order, after all of these years Local 100 and the workers have a victory in hand.

Rosa Hines, Local 100’s New Orleans office director, who has handled this case throughout this period should frame the order and put it near her desk somewhere in the office. That way we and the workers will have something to remember from this struggle, because after all of this time it is unclear that any of them will ever see a dime.

The NLRB order reads this way in finding culpability:

M&B Services, Inc; Berry Service, Inc. (Berry I); Berry Services, Inc. (Berry II); Berry Transportation, LLC; Milton Berry, an Individual Charged with Personal Liability; Carolyn Berry, an Individual Charged with Personal Liability.

Milton Berry’s business address is now in a New Orleans suburb. Carolyn Berry, his wife, has a business address in Magnolia, Mississippi. Their businesses are small potatoes, but having been led down a bad road by their lawyers’ exploitation of the deadening legalistic bureaucracy of the NLRB and the playground it allows scofflaws, they are now personally on the hook for $260,000.

The next lawyer they hire will probably be a bankruptcy specialist, not a labor law exploiter. The Berry’s will have a sad tale to tell at family dinners about the evil of unions. Meanwhile the union and the workers seven years later will have something they can look at in a frame with the slim chance of ever seeing a dime of back pay and the ongoing struggle of still trying to work on wages still lower than they enjoyed a decade ago.

Maybe there is hope in the new joint employer decision of the NLRB that allow justice to be won from the primary contractor, but that’s a fight next time. For now there’s no celebration over a hard won victory this time.


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.


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.


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.