Category Archives: Labor Unions

Ceasing Dues Checkoff Is Lawful After Expiration

Source: Kimberly Kemper, Employment Alert, Vol. 37 no. 3. February 5, 2020
(subscription required)

About 13 months after the expiration of parties’ contract, Valley Hospital Medical Center stopped deducting and remitting to the Local Joint Executive Board of Las Vegas employees’ dues. The employer took this action after five days’ notice and without providing the Union an opportunity to bargain. The agreement had contained a dues checkoff agreement to be used by employees requesting dues checkoff. The National Labor Relations Board (NLRB) held that the employer lawfully ceased checking off and remitting employees’ union dues after its contract with the union expired, overruling Lincoln Lutheran of Racine, 362 N.L.R.B. 1655, 204 L.R.R.M. (BNA) 1234, 2014-15 NLRB Dec. (CCH) P 16018, 2015 WL 5047778 (2015), and returning to the longstanding precedent set by Bethlehem Steel Co. (New York, N.Y.), 136 N.L.R.B. 1500, 50 L.R.R.M. (BNA) 1013, 1962 NLRB Dec. (CCH) P 11163, 1962 WL 16787 (1962), enforcement denied and remanded, 320 F.2d 615, 53 L.R.R.M. (BNA) 2878, 47 Lab. Cas. (CCH) P 18409 (3d Cir. 1963)For over half a century, this unilateral action was lawful under NLRB precedent beginning with Bethlehem Steel.

The Impact of Janus on Public Employee Unions So Far

Source: Irma Rodríguez Moisa, Nate J. Kowalski, Jay G. Trinnaman, and Eric T. Riss, Employee Relations Law Journal, Vol. 45, No. 3, Winter 2019
(subscription required)

The authors examine the primary effects of the U.S. Supreme Court decision in Janus , particularly for California employers under the Meyers-Milias-Brown Act.

Development on a Cracked Foundation: How the Incomplete Nature of New Deal Labor Reform Presaged its Ultimate Decline

Source: Leo E. Strine Jr., Harvard Public Law Working Paper No. 19-48, November 22, 2019

From the abstract:
Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal’s failure to eradicate ideological divisions, racial inequities, and anti-labor power structures rooted in our nation’s history compromised the ultimate success of the NLRA, the protection of labor in the international trading regime, the effectiveness and prevalence of American labor unions, and the overall leverage of American workers.

The reply then addresses two related realities: 1) the New Deal idea that all workers deserve economic security, safe working conditions, and a fair say over the terms and conditions of their employment remains sound; and 2) but that idea cannot be realized unless it is backed by legal force in the institutions of law that govern a now global economy. Put simply, the original vision of FDR calling for a global New Deal must be implemented if American workers and their international brethren are to receive fair treatment.

Labor Antitrust’s Paradox

Source: Hiba Hafiz, Boston College Law School Legal Studies Research Paper No. 521, Last revised: 19 January 19, 2020

From the abstract:
Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers’ wages.

The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial enforcement can police labor markets without substantial amendments to existing law, bypassing the current impasse in Congress. Further, unlike labor and employment law, labor antitrust is uniquely positioned to challenge industry-wide wage suppression; suing multiple employers is increasingly challenging in work law as a statutory, doctrinal, and procedural matter.

But current labor antitrust proposals, while fruitful, are fundamentally limited in two ways. First, echoing a broader antitrust policy crisis, they inherit and reinvigorate debates about the current consumer welfare goal of antitrust. The proposals ignore that, as a theoretical and practical matter, employers’ anticompetitive conduct in labor markets does not necessarily harm consumers. As a result, workers’ labor antitrust challenges will face an uphill battle under current law: where consumers are not harmed, labor antitrust can neither effectively police employer buyer power nor fill gaps in labor market regulation left by a retreating labor law. Second, the proposals ignore real synergies between antitrust enforcement and labor regulation that could preempt the rise of employer buyer power and contain its exercise.

This Essay analyzes the limitations of current labor antitrust proposals and argues for regulatory sharing between antitrust and labor law to combat the adverse effects of employer buyer power. It makes three key contributions. First, it frames the new labor antitrust as disrupting a grand regulatory bargain, reinforced by the Chicago School, that segregated labor and antitrust regulation to resolve a perceived paradox in serving two masters: workers and consumers. The dominance of the consumer welfare standard resolved that paradox. Second, it explains how scholarly attempts to invigorate labor antitrust fail to overcome this paradox and ignore theoretical and doctrinal roadblocks to maximizing both worker and consumer welfare, leaving worker plaintiffs vulnerable to failure. Third, it proposes a novel restructuring of labor market regulation that integrates antitrust and labor law enforcement to achieve coherent and effective regulation of employer buyer power. It refocuses labor antitrust claims on consumer welfare ends and relegates worker welfare considerations to a labor law supplemented and fortified by the creation of substantive presumptions and defenses triggered by labor antitrust findings as well as labor agency involvement in merger review.

Union Membership Byte 2020

Source: Hayley Brown and Hye Jin Rho, Center for Economic and Policy Research (CEPR), January 22, 2019

From the abstract:
CEPR’s annual Union Membership Byte gives an in-depth analysis of union membership by sector, gender, race, ethnicity, age, education, nativity, industry, occupation, and by state (including the District of Columbia). The decline in Black union membership stood out amid declines in overall unionization rates in both the private and public sectors. The overall union membership rate fell to 10.3 percent, dropping by 0.2 percentage points between 2018 and 2019. This represents a loss of 170,000 union jobs. The union membership rates for both private and public sector workers fell for two consecutive years. These reductions reflect a downward trend that has persisted over the last several decades in the US. Although Black workers remain the most heavily unionized racial group at 11.2 percent, they experienced the largest decline in membership in 2019, losing 215,000 members. In comparison, unionization rates for whites fell to 10.3 percent, Hispanics fell to 8.9 percent, while Asian unionization rates rose to 8.8 percent.

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Clean Slate for Worker Power: Building a Just Economy and Democracy

Source: Sharon Block and Benjamin Sachs, Labor and Worklife Program, Harvard Law School, January 2020

From the summary:
Since the founding of the country, concentration of power in the hands of a small minority has been recognized as a threat to the viability of American democracy. Today, the struggle to preserve democracy in the face of extreme wealth concentration is acute because we live in a historical moment when vast disparities of economic power have been translated into equally shocking disparities in political power.

With this report, we offer an intervention that promises to help stop the self-reinforcing cycle of economic and political inequality. By proposing a fundamental redesign of labor law, our aspiration is to enable all working people – including those who have been excluded by systemic racism and sexism – to create the collective economic and political power necessary to build an equitable economy and politics.

Inclusiveness
Labor law reform should expand protections of the law to address systemic racial and gender oppression.

Universal Representation
Pathways to worker power should track corporate power and be universal, providing multiple forms of voice for all workers without employer interference.

Sectoral Bargaining
We recommend creating a system of sectoral bargaining in which agreements are binding on all firms in the sector.

Solidarity and disparity: Declining labor union density and changing racial and educational mortality inequities in the United States

Source: Jerzy Eisenberg‐Guyot, Stephen J. Mooney, Amy Hagopian, Wendy E. Barrington, Anjum Hajat, American Journal of Industrial Medicine, Early View, December 17, 2019
(subscription required)

From the abstract:
Background:
Recently, United States life expectancy has stagnated or declined for the poor and working class and risen for the middle and upper classes. Declining labor‐union density—the percent of workers who are unionized—has precipitated burgeoning income inequity. We examined whether it has also exacerbated racial and educational mortality inequities.

Methods:
From CDC, we obtained state‐level all‐cause and overdose/suicide mortality overall and by gender, gender‐race, and gender‐education from 1986–2016. State‐level union density and demographic and economic confounders came from the Current Population Survey. State‐level policy confounders included the minimum wage, the generosity of Aid to Families with Dependent Children or Temporary Assistance for Needy Families, and the generosity of unemployment insurance. To model the exposure‐outcome relationship, we used marginal structural modeling. Using state‐level inverse probability of treatment‐weighted Poisson models, we estimated 3‐year moving average union density’s effects on the following year’s mortality rates. Then, we tested for gender, gender‐race, and gender‐education effect‐modification. Finally, we estimated how racial and educational all‐cause mortality inequities would change if union density increased to 1985 or 1988 levels, respectively.

Results:
Overall, a 10% increase in union density was associated with a 17% relative decrease in overdose/suicide mortality (95% confidence interval [CI]: 0.70, 0.98), or 5.7 lives saved per 100 000 person‐years (95% CI: −10.7, −0.7). Union density’s absolute (lives‐saved) effects on overdose/suicide mortality were stronger for men than women, but its relative effects were similar across genders. Union density had little effect on all‐cause mortality overall or across subgroups, and modeling suggested union‐density increases would not affect mortality inequities.

Conclusions:
Declining union density (as operationalized in this study) may not explain all‐cause mortality inequities, although increases in union density may reduce overdose/suicide mortality.

Untapped Power: The Strength of Asian American, Native Hawaiian, and Pacific Islander Working People

Source: Asian Pacific American Labor Alliance (APALA) AFL-CIO, November 2019

Asian American, Native Hawaiian, and Pacific Islander (AANHPI) workers are the fastest growing working age population in the United States, overrepresented at the lower and higher ends of the labor market – meaning that our communities experience wide income disparity. And yet AANHPI working people are often overlooked and under organized. As our immigrant and working class communities are under attack, it is increasingly important that the labor movement, community-based organizations, and policymakers take into the unique challenges and needs that AANHPIs face as well as recognize the common issues and experiences that this community shares with all workers.

We wish to impart the urgency with which the labor movement and policymakers must continue to organize and protect AANHPI communities in order to secure safe, healthy, and prosperous livelihoods for all working people and to harness their political potential to drive progressive change. In short, the labor movement stands to grow stronger from organizing AANHPI workers, and AANHPI communities stand to benefit from uniting together and joining the labor movement.

This report takes a look at who AANHPI workers are, what barriers we face, and how advocates, policymakers, and the labor movement can fight for AANHPI communities and all workers.

As unions and the labor movement come under attack, it becomes increasingly important to organize Asian
Americans, Native Hawaiians, and Pacific Islanders — the fastest-growing population in the United States.
There are more than 21 million AANHPIs, comprising roughly 5% of the population. …. In 2017, AANHPIs had a poverty rate of 11.1%. Native Hawaiians and Pacific Islanders had the highest poverty rates at 16.1% and 18.3% respectively. Notably, roughly 3 in 4 (72%) Asian American low-wage workers are immigrants; this is significant as Asian Americans account for over one-quarter (27.1%) of the immigrant population in the U.S. …. In 2018, union members had median weekly earnings of $1,051, which was $191 more than their non-union counterparts. Asian American union workers had median weekly earnings of $1,119, which was 2.5% higher than their non-union counterparts who earned $1,092. The union advantage is even greater for Asian American women, who had median weekly earnings of $1,033, compared to their non-union counterparts who made $929 a week — an 11% difference. ….

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Union workers more likely than nonunion workers to have retirement benefits in 2019

Source: Bureau of Labor Statistics, U.S. Department of Labor, TED: The Economics Daily, October 25, 2019

Ninety-four percent of civilian union workers and 67 percent of nonunion workers had access to retirement benefits through their employer in March 2019. Access means the benefit is available to employees, regardless of whether they chose to participate. Eighty-five percent of union workers and 51 percent of nonunion workers participated in an employer-sponsored retirement benefit plan. The take-up rate—the share of workers with access who participate in the plan—was 90 percent for union workers and 77 percent for nonunion workers.

Employees Accuse Google of Developing ‘Surveillance Tool’ to Prevent Unions

Source: Ryan Gallagher, Bloomberg, October 24, 2019

Google employees are accusing the company’s leadership of developing an internal surveillance tool that they believe will be used to monitor workers’ attempts to organize protests and discuss labor rights.

Earlier this month, employees said they discovered that a team within the company was creating the new tool for the custom Google Chrome browser installed on all workers’ computers and used to search internal systems. The concerns were outlined in a memo written by a Google employee and reviewed by Bloomberg News and by three Google employees who requested anonymity because they aren’t authorized to talk to the press.

The tool would automatically report staffers who create a calendar event with more than 10 rooms or 100 participants, according to the employee memo. The most likely explanation, the memo alleged, “is that this is an attempt of leadership to immediately learn about any workers organization attempts.”