Does the New Overtime Rule Really Affect Nonprofits and Organizers?

overtimeNew Orleans     Randy Shaw, the executive director of the Tenderloin Housing Clinic and its burgeoning empire, first challenged me to think about whether the new FLSA overtime guidelines would prevent any future prospects of building a farmworkers’ movement or an ACORN, both of which famously focused on building an army of volunteer and professional organizers working “long hours at low pay,” as ACORN advertised for years. The new overtime rules, long overdue, as more and more people are realizing, double the level of eligibility for overtime from a 2004-floor of a bit over $23,000 per year to the mid-$47000 range. On organizing programs that are not easily shoehorned into a 40-hour grid, such a jump seems like a huge budget buster and dream crusher. Both the US Public Interest Research Group, the Nader-created group of researchers and students, and Judicial Watch on the right had both expressed fears of the new rules impact and how it would hurt their work.

Looking into this all more carefully and going back to the basics, I remembered our many tussles with the fine men and women of the Department of Labor’s Wage and Hour Division, an understaffed and overworked group, I mean this seriously, the likes of which has few parallels in government. At different times we were able to establish organizers as discretionary employees and therefore properly salaried, which still maintains. I also remembered once on a Local 100 review shaking the investigators hand as he left, having concluded in the mid-1980s that we were not involved in sufficient interstate commerce. To make the story shorter, I finally shook myself back from my stupor and went back to the basics.

At one level, the gross expenditures to establish coverage under the Fair Labor Standards Act (FLSA) is $500,000, so a huge number of nonprofits in general and organizing efforts in specific are far under that number and face years of work to have any worries in this regard. More importantly, a DOL Wage & Hours circular dated as recently as August 2015 reminds one and all that nonprofit organizations existing for charitable, education, and similar purposes are in fact exempt from coverage of the FLSA and that this is a long settled matter in the courts as well. The circular importantly for membership-based organizations like ACORN and the original UFWOC, says that dues, gifts, donations, and the like are NOT counted at establishing the gross revenues, and in ACORN’s case those were the revenues period. Furthermore, the coverage threshold is established by commercial activity, and the DOL is clear that a nonprofit can also separate out the workers and revenue involved in any sales or commercial work so that only those workers are under the FLSA. The same separation can be done for any individual staff involved in regular interstate commerce like phone calls and travel between states.

So, why did ACORN worry about these issues for its organizers? First, ACORN was a complicated organization as any look at the more than 130 “banned by Congress” list would establish, yet we operated under one organization-wide salary and seniority schedule, so the mix-and-match would have diluted that solidarity of mission and commitment. Secondly, we were involved in hundreds of living wage fights, and the “optics” were sometimes issues, including the one legal test where we challenged the coverage in California. It was easier to raise the minimum of our scale in 2004 at the last FLSA adjustment on overtime to over the threshold and more clearly differentiate hours for non-field staff. Nonetheless, that doesn’t change the fact that we believed under the FLSA, like all other similarly situated nonprofits that we were legally exempt, and we threw in arguments over freedom of speech and association into the mix as well.

Why are the US PIRG and Judicial Watch worried? Obviously, I can’t be sure. The PIRGs contract a lot of their fundraising to a for-profit, which may have been part of their concern. Judicial Watch is a unit of other conservative operations to the best of my knowledge, so there might be issues that are not immediately obvious. For the most part though, if they were willing to take the heat, they could still cook the same way even in the new kitchen.

So in short, yes, a farmworkers movement could be built again under FLSA with the additional argument I believe still exists that all of its $5 per day and room and board were volunteers under the FLSA guidance, and an ACORN could also be organized again. The obstacles to doing so are many and mountainous, but they are not the FLSA or the new overtime rules.

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Union-backed Walmart and McDonalds’ Campaigns Face Uncertain Futures

DSC_6745New Orleans    The emperor with no clothes is not a pretty sight, and it’s almost as bad when the finger pointing at him is Dave Jamieson, a labor reporter for the Huffington Post in a piece entitled “Labor Groups are Taking on Walmart and McDonalds. But Who Will Fund the Fight?” I don’t have anything against him or the Huff Post, but this was a story we knew would be coming, the only surprise might be that it took so long to get here, and it still seems to catch us unprepared with our pants around our ankles.

The trigger for this tale is the annual meeting of Walmart gearing up in Bentonville, which has also become an annual action by organizations trying to force one of the world’s largest retailers to more accountability and better practices and standards for its workers. This year OUR Walmart is once again on the scene, but now divorced from its supporter and financier, the United Food and Commercial Workers (UFCW) union and trying to go on its own. A decade ago, UFCW did much the same thing with a competing effort called WakeUp Walmart not so much as to organize but to keep their brand and jurisdictional claims alive and compete with the SEIU-backed WalmartWatch and the multi-union effort we ran to prove that Walmart workers could be organized in Florida and to establish that we could stop their expansion with aggressive work and community allies both in the US and India. New leadership at UFCW jettisoned the program support for OUR Walmart leaving them trying to keep the flame alive, all of which seems terribly reminiscent of our earlier efforts.

Jamieson asks the simple question no one likes to hear in public about the viability of OUR Walmart and the sustainability of its effort without a deep-pocketed sponsor. He raises the same question about the multi-year expenditure that SEIU has made to organize McDonalds in companion with its support of the Fight for $15 campaign. SEIU has been resolute in its commitment to these efforts. Both campaigns can claim significant victories. Walmart did move on wages at the bottom. Not to $15 per hour but up to $10 across the board at a cost of billions. SEIU has seen dividends from its Fight for $15 in cities like Seattle and Los Angeles and in states like California and New York where it has significant membership, so they can claim some success from their advocacy. McDonalds does not seem to have moved any closer to the union than Walmart has moved towards UFCW, though closer observers with better information than I have claim that SEIU’s strategy is global, is sound, and may still yield significant organizational victories as well.

And, that’s the rub. Unions are not foundations. They have to eventually see members and dues or some direct benefit from the expenditure of dues or the reaction will be predictable, just as is was with UFCW’s leadership change. And, when it comes to funding, foundations are not a substitute for workers and their dues or workers and their unions. Foundations will shine a bright penny for a minute, but they will never double down to the level needed to get to scale in fighting giant enterprises like either of these companies.

Can OUR Walmart create a real workers’ movement at the giant retailer with a strategy that produces sufficient organization and membership that will finance a long struggle? It’s possible, we proved that in Florida, but that’s a 10, 20 or 30 year project, and would represent the life work and sacrifice of many to survive, and, even surviving, would, having proven the concept, still need support at some point to get to scale. The same transition will need to occur in the McDonalds’ campaign, but hopefully with the continuity of SEIU’s support and assistance.

No one else is going to finance these struggles without workers carrying a huge part of the weight. The publicity is great, but smoke and mirrors is not organizing. David Rolf of SEIU’s big Washington State local, was quoted as saying, “The old model has failed several generations … We should encourage these experiments, but we shouldn’t romanticize it. We still haven’t figured this out.” Certainly, he’s right, but his remarks must seem gratuitous to organizers and workers deep in the struggle. OUR Walmart has proven that the day of reckoning for such experiments comes quickly, so the time for figuring it all out for all of these organizing projects remains now, before it’s too late.

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Please enjoy Beck’s Wow. Thanks to KABF.

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Brits and Texans Agree – Attack Unions Where it Hurts – Dues Collection

union-yes-logoNew Orleans  Conservatives of all stripes and nationalities seem to have settled on a killer app for delivering a death blow to unions: block the dues collection mechanism!

Short memories will recall that earlier this year there were fierce legislative battles in Missouri, Oklahoma, Texas and elsewhere whose sole objective was to eliminate the ability of public employees to have their dues paid to unions or employee associations through payroll deductions from their checks. The legislation state by state was almost identical with small adjustments place to place only in severity and breadth. Some states exempted no public employees from state to municipal to schools. Others were more selective, like Texas, and tried to favor certain employee groups like police and fire. Most of the legislation was cranked out on the Koch brothers’ ALEC template. The objective was transparent: cripple unions.

Unions and their allies were both good and lucky in the 2015 legislative sessions and managed to block passage of most of these Wisconsin-wannabe measures. It’s not clear how long the streak can continue. The Texas Tribune reports that Texas Lieutenant-Governor Dan Patrick has already started loading up the big guns on this bill for the 2017 session, partially by making it an election primary issue for the committee chair that in his view botched the process preventing the bill from emerging for a vote in the recent session. Patrick is assigning the bill to committees in advance of the session so that it is stripped of any problems. Even the favored few public employee groups that escaped elimination last year seem likely to be on the chopping block in the coming bill. It’s a heckuva a way to build solidarity in the house of labor, although that may not be enough to save us.

The problem is that the Republicans hold the whip hand in Texas and many other southern and border states coming perilously close to the kind of daunting, no holds barred, no prisoners taken one-party rule that can be found in parliamentary government elsewhere. The recent victory of the Conservative Party in the United Kingdom giving them majorities rather than a coalition government, has led them to propose amendments to the Trade Union Act that would eliminate all payroll dues deductions for any public employee group, hoping to decimate the membership of the largely public workers’ union, Unison, and other unions with public members that have long been the backbone of the Labour Party. There will be little that can stand in their way, and state by state we are facing a similar challenge in the United States now.

In Texas they are clear. This has little to do with the workers and whether they need or want union representation on the job. Proponents like the Lieutenant-Governor and his allies are clear this is all about making sure that unions have a depleted treasury and will be limited in the amount that they can donate politically to their opponents. It’s all about running the well dry. Workers and their unions are collateral, ideological damage standing in the way of naked political self-interest.

The clock is ticking for unions and even with Herculean efforts the damage will be extensive.

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A Demand for Old School Union Reps: Arbitrations!

arbitrationNew Orleans  The New York Times has run a three-part series on the galloping trend of corporations, both large and small, overtly or slyly forcing consumers and even non-union workers to agree to arbitration procedures that block their access to courts and to joining with others in class action litigation on larger concerns. The stories are horrendous and unsurprisingly expensive, and thousands of words later there is no mystery to the bottom line that the deck is totally stacked for the corporations. Law school professors referred to the movement to arbitrations as the “privatization of the justice system.” And, like so much in our neoliberal world, too often it is the consumer bringing the complaint that ends up paying for the process rather than the company which is already saving money in legal fees and settlements that they would have incurred in courtroom proceedings.

Obviously this trend to excessive arbitration needs to be stopped, but in the classic way that an individual problem seems personal, rather than political, and given the corporate influence in converting so much of government into crony capitalism, it is hard to believe the Calvary is coming or that relief will make it to us soon. This level of rampant injustice speaks to a huge gap in accessible and affordable representation in these kinds of civil procedures where formal legal training and licensing is not required. There is a subset of the labor movement that might be able to meet some of this huge demand though. For all of the decades long battle to move the labor movement to an organizing culture, the “servicing” model still has huge and deep support and a generation of union staff that lived through the process has extensive experience in handling arbitrations, and that’s old school union reps. Where are they now that we really need them?

There are few local union staffers that have spent more than a year or two in service to the membership that have not been schooled in the hard knocks experience of written grievance procedures up to the point of formal arbitration hearings. Picking arbitrators, writing up the paperwork, preparing to argue the case with the member, and negotiating the settlement when one is available are all core skills that virtually all union reps have been forced to acquire. Most learn to do anything that they can to avoid arbitration because of the time and expense, but for many there is no choice and invariably arbitration can’t be avoided. To dissuade filings of job discrimination complaints, including by gender and race, the United Kingdom now requires the grievant to pay 1200 pounds or about $1500 to even file. The cost for unions like Unite, the largest in the UK, has been about 9 million pounds per year, since they pay the cost for their members, effectively reducing the income they have for anything else. A big union like SEIU’s 32BJ in New York does 2500 arbitrations annually with three arbitrators conducting hearing virtually five days a week. My point is simple: unions may not like arbitrations, but they know them like they know the back of their hand.

Is there a way to use all of that residual skill to fill the gap for tens of thousands that are caught in a bewildering process with the odds stacked against them and lawyers out of their price range? I would think training legal advocates and putting out the call for old school union reps with time on their hands and these skills in their heads, might be something worth all of us coming together to try and organize. God knows it’s needed!

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Workers’ Committees

SomosUnPuebloUnido-RallyLittle Rock     Sometimes it helps to get a gentle reminder of what we know, but don’t always practice. At our union we live and breathe “majority unionism” by which we mean trying to organize as many workers as we can, in as many ways as we can, with or without demanding direct recognition or collective bargaining, but by trying to organize workers to be union members where they work to protect and advance themselves, act collectively, and build power on the job. Some people call this minority unionism because the union does not have exclusive representation rights on the job which are common in collective bargaining agreements in North America, though this strategy of direct membership recruitment is common in many countries around the world from France to India and beyond.

A piece by Steven Greenhouse, the former labor reporter and now freelancer for the New York Times, recently detailed the success that Somos Un Pueblo Unido, a 20-year old immigrant rights group was having in Santa Fe and elsewhere in New Mexico by assisting in organizing workers’ committees and winning important victories for workers in low wage and service industry jobs that are largely non-union, but desperately need protection and organization. The committee structure allows the workers to trigger the protections for collective action provided by the National Labor Relations Act for workers acting as a group that is not available to individually aggrieved workers. Few civilians realize that the NLRA offers virtually no protection for unions, but lots of protection for workers, especially when they are engaged in concerted activity.

Greenhouse quotes several experts on this score:

“A lot of people thought the National Labor Relations Act could be used only during unionization campaigns,” said Andrew Schrank, a labor relations specialist who recently became a professor at Brown University after teaching at the University of New Mexico. “They’re finding that the National Labor Relations Act is much more expansive than many people thought.” Richard F. Griffin Jr., the labor board’s general counsel, said a 1962 Supreme Court case — involving a spontaneous walkout because a factory was so cold — makes clear that the National Labor Relations Act protects nonunion workers, too. “It’s important that people understand that the law applies to all private sector workplaces and protects activity outside the context of union activity,” Mr. Griffin said.

Somos has put together a good track record using these tools thus far. They have filed charges with the Phoenix office of the NLRB in 12 cases, and 11 complaints of unfair labor practices were won for workers as diverse as carwash attendants, hotel housekeepers, and restaurant workers. Needless to say perhaps, Somos has won reinstatement for many of these workers along with backpay. Not only that but in many cases once the workers have organized they have also realized they were victims of wage theft and other labor violations leading to some six-figure settlements paid out to workers from employers for violations of the Fair Labor Standards Act as well.

Supposedly other workers centers in other cities are taking a look at the Somos track record. For our part we’re glad to have fellow travelers after all of these years, and it helps us hew to this path of direct organizing to win power on the job now with or without the employer’s consent but using all the tools we have at our disposal from citizen wealth to direct unionization.

In my organizer’s Spanish I think Somos Un Pueblo Unidos means All the People United. It’s hard to imagine a better slogan for working men and women in any language.

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Hand Collecting Dues is Very Difficult, Payroll Deductions Matter

fraternity-collection-agency-320x179Frankfurt      The latest word from insiders and lobbyists in Austin is that for the minute the bill to block all payroll deductions for public employees is bottled up in committee.Of course it could change in an instant.   The latest word from Baton Rouge has two bills that might have been primarily directed at teachers but seem to include all public  employees steaming ahead towards potential passage.   The rightwing, Republican assault on unions is in full flower.   Where right-to-work bills are not flourishing, either statewide or county by county in Kentucky or almost city by city in Illinois, and blocking all payroll deductions are not in vogue with Republican controlled legislatures, eliminating prevailing wages is also on the docket in a handful of states as well.

These issues matter.   Sure some can pay by bank draft, and that’s how all of our Texas and Arkansas members in Local 100 United Labor Unions are now being enrolled along with their payroll deduction, but it’s still harder, which is the point of the legislation after all.

I’m in route to Bengaluru, Chennai, and Hyderabad on my annual visit to India to spend time on the ground with ACORN’s organizers.   We have a lot to celebrate in Karnataka and Tamil Nadu.   Our union of hawkers and other street sellers now has enrolled 35,000 members, 29000 of those in the last year.   It takes the breath away and speaks to the immense talent and hard work of Suresh Kadashan,   ACORN’s organizer there.

The problem for this visit though is how to more successfully solve the problem of collecting dues from our members so that we can grow to the next level and deepen the organization.  We are organizing informal workers without employers, so there is no possibility of any payroll deduction, because there is no payroll.   Our members live by their labor on a daily basis.   Our dues rate is deliberately set low, less than a dollar per month, but the trick is how to collect it from members in scores of markets and hundreds of streets in a half dozen cities in several states.

The organizing was done by hard working committees at the each market fanning out and enrolling the members with the organizer bouncing from place to place, training, coordinating, advising, and always moving the organization forward.   Practically speaking though the organizer cannot be the dues collector; there’s not enough time or space for one person to be routed to 35,000 every month.  As fast as the organization has grown since my last visit a year ago, there’s also not enough trust, market-to-market, baked into individual leaders to convince the members to cough up their hard earned rupees for dues, nor in the main are there bank accounts that might be drafted on the daily exchanges of hawkers in their all-cash business.   Construction trades for a century or more used hiring halls to control the flow of labor and handle dues collection, monitor work sites, and create jobs, but informal work needs no hiring hall.    It’s a job that requires hustling and with hawkers it’s largely stationery.   In fact our biggest campaigns revolve around protecting market locations and viability.

If it’s not hard enough to organize unions in the first place and get to scale and density in the second place so the union has real power, now we have the problem of sustainability. We have our work cut out for us!

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My Liftin’ Days Are Done ( Boilermakers Lament ) by  Rusty Rivets

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