China May Drop the Stock Market, but India is in Turmoil

Screen Shot 2015-09-04 at 9.51.50 AMKiln, Mississippi     So while all the big whoops worry about their 10ks, plummeting stocks on Wall Street, and whether or not the Fed raises interest rates in Wyoming, what are the rest of us supposed to do? We have grown men and women believing in unicorns and giving them billions. What’s up that that? I thought only very small children and Rainbow Brite believed in unicorns?

No one seems to have a grip on China and one report contradicts another. The economy is collapsing, they are laying off 300,000 soldiers even while they are motor boating into international water space when President Obama is hiking in Alaska, and still more people are buying Apple’s gadgets over there. Somehow China owns a big hunk of America, but it’s a daily mystery to most of us. So, let’s take a break and take a look at India. There’s a democracy of sorts and a country maybe we can understand.

Here’s what we know: India is somewhere between topsy-turvy and turmoil!

Prime Minister Modi took office in a rightwing rout as the BJP, a conservative communalist party swept the long serving Congress Party out of office. Modi had been the governor of Gujarat and, pretending it was Texas, he had campaigned on the supposed economic miracles in the state. Others were less sure. There was still the persistent question about his role in not stopping the slaughter of Muslims in the state some years ago which had been serious enough to deny him a visa for entry into the United States up until like yesterday almost. Much of his platform seemed to be economic development or else, and it is hard to ramrod such a program through a country with even a semblance of democracy.

Attempts to gut the nation’s labor laws to pave the way for business were met this week by a general protest strike called by ten unions that organizers estimated involved 125 million workers. Al Jazeera quoted ACORN India and our hawkers’ union organizer, Dharmendra Kumar, saying

The Modi government has turned a blind eye towards the problems being faced by the labor class. The government must rethink its labor policies. Modi has made a mockery of us by telling the world to come and manufacture in India because it has the cheapest labor.

Kumar also repeated the call for an increase in the monthly minimum wage “from $72 to $226 be extended to the informal sector.”

Ok, you say, but maybe this is just us. Well, I don’t think so.

This week the Modi government also withdrew its proposals for seizing agricultural land for either government infrastructure projects or corporate economic development, which had been a centerpiece of his program to jump-start the economy and make the country more business friendly. Land issues have been wildly contentious in states throughout the country. Modi got a reminder that rapidly urbanizing India is still almost half rural and agrarian.

And, then there’s the mess in Gujarat. Friends volunteering in Gujarat’s largest city had offered to help out while in the state, and I’d demurred saying we continued to not be comfortable working in Gujarat, but thanks all the same. We got an email saying that demonstrations of 300000 to half-million people in the city had led to them being housebound for days as the military was mustered and the state feared a return of communal violence. The issue was triggered when one of the major castes totally almost 15% of the total state population known as popularly as the Patels hit the streets demanding either an end to the reservation or quota system of affirmative action in employment and education for long discriminated against groups or that they should be made a registered caste themselves and allowed to compete for the reserved slots. Reading the story in the Times, Journal, or other western sources and you are clueless, but this is the “fire next time” in India, and it is hard to believe that managing such a crisis is Modi’s strong suit given his history in Gujarat.

Good luck with figuring out China and believing in unicorns, but keep an eye on India. There’s a reason that Obama has established a “hotline” to Modi in India now. Something big is boiling there!

Integrating the Suburbs

Chicago.CBL.protest-aKiln, Mississippi    Peter Drier, comrade, housing expert, and professor at Occidental College in Los Angeles, made an interesting point in a piece he wrote recently about segregation. Reflecting on Ferguson, Missouri, although it could have been hundreds of places he wrote:

Sociologists have invented a way to measure segregation called the “index of dissimilarity,” which shows the percentage of black (or Latino, or Asian) households that would have to move to achieve racial balance across the region. In the St. Louis area, at least 70 percent of all black families would have to move if every part of the metro area was to have a mix of black and white families that reflects their proportion in the entire region.

We’re talking Katrina-level displacement in one urban area after another. Little surprise that most community-based organizations concentrate on improving the communities where low-and-moderate income families, who are often also minorities, live, rather than making their major campaign integrating the suburbs.

Drier is clear that if that were our mission, we would be taking on a mission of Herculean proportions. Our people can’t handle the sticker shock of the suburbs, when means finding affordable apartments, but

…there simply aren’t enough apartment units in most suburbs, especially the more affluent ones. This is due to the widespread practice of suburban “exclusionary zoning”—not only in St. Louis, but in most metro areas. Rentals comprise half of all housing units in cities, but only one-quarter of those in suburbs, and many suburbs have almost no rental housing at all. The Section 8 program won’t help break down residential segregation if there aren’t enough suburban apartments to rent. It would be like giving people food stamps when the supermarket shelves are empty.

The last nationwide study of the Section 8 program’s success rate, conducted in 2000, found that 31 percent of families with Section 8 vouchers couldn’t find an apartment to rent, but the figure varied from city to city; in Los Angeles, 53 percent of families with vouchers had to return them unused; in New York City, 43 percent of the families with vouchers came back empty-handed. The scarcity of apartments was certainly the major cause of families’ inability to take advantage of their housing subsidy, but racism played a role, too; the 2000 study found that whites had a higher success rate than blacks of using their Section 8 subsidy to rent an apartment.

There are things that can be done, and Peter lists several of them.

We can “ban discrimination by landlords,” and recent decisions of the United States Supreme Court should technically make that easier to do so because we would only have to prove “disparate impact,” rather than deliberate intent. But, private landlords do not have to accept Section 8 vouchers, the program is voluntary for them, so it would only be possible to punish landlords who were willing to allow Section 8 in the first place. Secondly, we could mandate that suburbs have to build a certain number of apartments not simply that a small number of any that are built have to be reserved as affordable. Thirdly, we could greatly expand the number of Section 8 vouchers. Though Section 8 is one of the largest housing programs for low-income families, it is based on a lottery and is not an entitlement only benefiting about 25% of those eligible, and that’s if they can find a place to use their vouchers, which many cannot. This is a vicious cycle that returns us back to square one in many cases.

We can hold our breath, but few of these recommendations are likely to find enough love in Congress and its Republican majority that survives largely because of its firm commitment to racial gerrymandering constructed on a legacy of racial segregation in suburban and exurban metropolitan areas that is vital to their future as well. Absent a new civil rights movement focused on integrating the suburbs and based on a consensus about its need and desirability that does not exist today, count on the “dissimilarity index” and the putative Republican majority both coexisting happily for years to come, even if a sad situation for the rest of us.

Hospitals Shirking on Financial Assistance

view-overall-inpatient-billKiln, Mississippi    When the doctors’ union, the American Medical Association Journal of Ethics rings the bell on the horrid practices of hospitals, you know we have a tiger by the tail – and we’re in danger of continuing to be hurt badly!

The Journal looked at 140 hospitals to see how they were preparing for the mandatory rule taking full effect this January under the Affordable Care Act of providing financial assistance to lower income families. What they saw wasn’t pretty, although we could have told them that from our close inspection of many hospital IRS 990 forms in Texas, Louisiana, Arkansas, and other states.

First the Journal confirmed the fact that finding the information, even for them, and certainly this has been the case for us, was like finding a needle in a haystack. They looked at a random sample of 140 hospitals across fourteen states. In their survey, they found that half of the institutions did not say on their websites whether they were public, private, or nonprofit. Needless to say, their reporter was web savvy which also wouldn’t be true of many families desperate to find if the hospital offered any help. So, transparency, not! Also, not surprisingly, they found that for-profit hospitals generally had not voluntarily created financial assistance policies in line with what nonprofit, tax exempt hospitals are now required to do.

But here comes the real rub in what the Journal found and it goes to the heart of the vagueness of the IRS requirements for financial assistance in this new rule:

…hospital financial assistance policies vary significantly in terms of generosity and terms. Among the sample of financial assistance policies from 140 hospitals, eligibility cutoffs for financial assistance ranged from an income of 100 percent of the federal poverty level (FPL) to 600 percent of the FPL. Many hospitals with financial assistance policies offered free care to those with incomes up to 100-200 percent of the FPL and sliding scale discounts above that threshold. However, some hospitals did not offer any free care and only offered moderate discounts even to the poorest patients. Of the hospitals in the sample that provided eligibility information based on insurance status, a quarter excluded those with insurance from their financial assistance policies altogether.

Bottom line, if your wallet is a bit light, you better start doing some research so that when you get sick you can find that 600% hospital or you are up a creek with no paddle. And, for those hospitals that exclude any lower income family from financial assistance if they have any insurance at all regardless of the deductible, we, and all those like us, need to start figuring out a way to challenge their tax exempt so-called charitable status.

The Journal was also clear about the hospital rip that starts with the “rack” rates for cares or charge master rates.

Hospitals routinely charge uninsured patients undiscounted “chargemaster” prices, the “rack rates” or list prices of the health care industry, while government and commercial payers receive substantial discounts of 50 percent or more of the chargemaster prices for their members

Yes, you are hearing this right. If you are covered with insurance, your bill is discounted. If you are uninsured and out of luck, your bill is essentially doubled!

The Journal argues that California provided a model that would have been immeasurably better and that has worked well for hospitals and patients in that state.

California’s Hospital Fair Pricing Act… limits how much California hospitals may charge uninsured patients who earn less than 350 percent of the FPL or insured patients whose medical bills exceed 10 percent of household income

Unless a miracle happens in the next several months, like the old song, we’re all going to wish we were living in California. When the doctors of all people in the AMA start calling out hospitals as bloodsuckers, you know we’re in a fight for our lives.


Please enjoy the Wallflowers’ Back to California

Creepy but Reassuring to Read Hillary Emails

Screen Shot 2015-09-01 at 9.56.45 AMKiln, Mississippi    Let us be clear and make no bones about it, it was a huge misjudgment for Hillary Clinton to use a private email address and server while Secretary of State. No organization in their right mind would ever have allowed it, and it establishes an unfamiliarity with working for others, as opposed to yourself, which is worrisome at a very fundamental level in my view. There’s the whole transparency thing, which worries me less. She’s got folks gunning for her figuratively and literally, so it is not unreasonable to be cautious about information. The accountability issue is more my concern and the ability to subsume self-interest to collective enterprise.

Saying that she stubbed her toe does not equal believing she should take a fall. And, reading the actual reports of her emails is reassuring in some ways because there seems little smoke or fire. Long emails from your daughter giving you a heads’ up that essentially Haiti is going to hell in a hand-basket and it could end up on Mom and Dad’s shoes is good advice and what every parent should hope to hear from their children. Hearing from Chelsea that the State Department website is archaic and sucks, especially when Hillary as Secretary of State in all likelihood never did more than cast a passing glance at it every blue moon is also a tip from a young one bringing Mom back to modernity that would be invaluable I would think. Who knows what this really says about Hillary, since there were no reports of her action upon getting the down-low from her daughter, but definitely Chelsea’s stock went up in my book.

As did Hillary’s in a weird way. I like the fact that she might be perversely flattered that a robber used a Hillary mask in a heist, even if her tongue was in her check. Be honest with me, that’s hilarious, and the spot on response from the Clinton family lawyer, David Kendall, profiled recently as a courtroom killer of rare powers, assuring her that though robbers have used Nixon masks repeatedly and Reagan masks as well, she might be the first Democrat so honored, is also just plain a hoot. Even the reports of her wondering about the real skinny on White House gossip or whatnot is a fair play. She was riding for the brand, so she should care what was happening at the ranch house. This kind of stuff in my view makes her look human, and Hillary desperately needs to be seen more often as human, rather than a 21st century calculating machine.

Then there’s the tempest in the teapot aspect to all of this that leaves you feeling like you are peeping at someone’s personal emails over their shoulders. The skinny on that according to The New York Times on these emails that were…

4,368 documents totaling 7,121 pages, posted online …by the State Department as part of a monthly disclosure ordered by a court after the revelation that Hillary Rodham Clinton had used a private email server while she was secretary of state. The department initially said it had redacted information from roughly 150 emails because they contained sensitive information, then reduced that estimate to 125. The information was deleted because “confidential” materials — the lowest classification of government intelligence — had been discovered in the correspondence. None of the documents were marked classified at the time they were sent, said Mark Toner, a spokesman for the State Department.

Best join me in laughing about bank robbers in Hillary masks, because up close this little dust-up is starting to seem little more than boring no matter how bad it looks from a distance.


UC’s, AC’s, and ULP Procedures Available to Expand NLRB Joint Employer Ruling

Screen Shot 2015-08-31 at 9.12.31 AMKiln, Mississippi    The decision in Browning-Ferris by the National Labor Relations Board clearly means a lot to subcontracted workers as we have discussed and their ability to bring the real power of the company, not their contractor to the bargaining table. The key in organizing new workers will be a deep understanding of the work situation of the potential bargaining unit sufficient to file initially for representation from joint employers, not just the outfit whose name is printed on the workers’ pay stubs.

It is well known that organizing the unorganized is hard and exacting labor already, now bringing in the joint employer will also be easier said, than done. Since the burden is on the union to establish the status, almost invariably without initial access to the contract between the subcontractor and the main company, much of the argument will have to be made based on a detailed understanding of the workplace and its rules. The contract establishing company prerogatives, either exercised or inherent, would not emerge without a subpoena, if there were a hearing, or board demand after the union’s filing of the petition. Under the new rules most of the hearing issues, if there are any as determined by the Regional Director, are after the election, so this will mean a quicker election but sealed ballots, as was the case with Browning-Ferris and the Teamsters, if a hearing is scheduled. This will be interesting.

We know from the decision that the Board has already ruled that any cases pending where petitioners had argued there was a joint employer status would find relief now. But what about subcontracted workers already under contract by unions? What relief do they get from the joint employer decision? Is there even a way to use the ruling to expand the unit already under contract given this new NLRB decision?

The simplest way to go would be to file an Amended Certification of AC petition with the board it would seem to me. According the NLRB’s Rules and Regulations:

The Employer or Union can file an AC Petition (1) to resolve an ambiguity in the description of a certified unit, (ii) to reflect a change in the duties of certain Employees in the unit, or (iii) to reflect a change in the identity of the bargaining agent.

The Browning Ferris decision was silent on existing units, so we are speculating obviously, but, hey, you make your case and take your chances. If it doesn’t work there is always the unfair labor practice route.

Conferring with Doug Young, our excellent Austin-based attorney, it also seemed to us like a unit clarification procedure might work in a situation where the union was seeking to add workers to the bargaining unit and trigger the joint employer status at the same time. A UC-petition, as it is known under the National Labor Relations Act, allows either a company or a union or in some cases both to petition the Board to determine issues like the placement of workers not initially part of the representation certification or decision and direction of election if circumstances changed in the workplace. Importantly, a unit clarification also allows for accretion or adding workers to the bargaining unit if an expansion of job titles or diverse workers had enlarged the unit. A finding that there is a “community of interest” with the existing bargaining unit, would either lead to an automatic accretion if the number of the additional workers is relatively small, often through voluntary compliance or recognition by the employer, or a new election among the added workers or the entire bargaining unit depending on the circumstances. If there is a UC-hearing, then it works just like an RC-hearing if there had been one on the initial filing. The new rules on elections give the Regional Director discretion on whether or not to allow a brief to be submitted by the attorney for the union or the company. That being the case, this process might not be seamless, but it will be quicker than in the past. I bet in the Browning Ferris case that the Teamsters already represented BFI workers and were organizing a new unit of the subcontracted recycling employees. In this situation the union would be going the other way and trying to accrete the primary company employees, especially if a small number like the BFI situation. Maybe a stretch, but still might be good exercise.

The other way to go, and perhaps the surest route, I would think would be simply to make a demand in bargaining that the big boss come to the table to bargain on the issues where they call the shots, and then to file an unfair labor practice 8a5 charge if they refuse to comply. The downside to my knowledge is that nothing has really sped up the ULP procedures. Evidence would be submitted by the union and reviewed by the Region and then “agenda-ed,” as they call it, to determine whether or not the Region will issue a ULP charge against the company, and then barring a company’s voluntary compliance, which I would rarely expect, it would be set for a hearing some, and more likely many, months away before a NLRB Administrative Law Judge, then a decision, then possible appeals, court challenges, etc, etc, etc. I’m not saying that would take forever, but it would absolutely take months, maybe years, so I’m not sure it’s the quickest route, even if it is the most accessible.

On the bottom line we won’t know until unions start jumping in the water and trying to swim.


Please enjoy A Fragile Tomorrow’s One Way Ticket (Featuring Joan Baez and the Indigo Girls)

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.