Worker Centers: Emerging Labor Organizations – Until They Confront the National Labor Relations Act

Source: David Rosenfeld, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2

… Two new books dramatically illustrate the long-term failures of workers and their traditional institutions and effectively describe the efforts of the worker center movement to fill the void in advocacy for low-income workers. … Predictably, the employer filed a charge with the NLRB asserting that CULA was acting as a “labor organization” within the meaning of the NLRA and was engaged in illegal picketing. … Moreover, it would not seem likely that a worker center could easily shed the attachment of labor organization status without taking decisive steps to eliminate activity which reflected “dealing with employers.” … Thus, the worker center would have to cease dealing with every employer to stop acting as a labor organization. … The Board in CULA flatly rejected the suggestion that representation of employees before state agencies was “dealing” with employers and related to its labor organization status. … If the NLRB, the Department of Labor, or other agencies that enforce workplace laws determine that worker centers meet the test of “labor organization,” this would create a substantial impediment, if not an insurmountable barrier, to the growth of the worker center movement. … For low-wage immigrant workers, the activity may encompass walkouts, picketing, confronting the employer, demanding higher pay, and many other activities all without the involvement of any labor organization. … Morris has no choice but to accept full labor organization status since he is arguing for NLRA sanction for bargaining. …

Pregnancy in Pieces: The Potential Gap in State and Federal Pregnancy Leave

Source: Sarah Stewart Holland, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2

… Pregnancy, childbirth, and bonding with a newborn are part of a continuous experience and should be treated as such under the Family and Medical Leave Act and complementary state leave laws. … As the Gerety decision shows, however, pregnant employees facing gaps in coverage have not always been successful when alleging disparate impact under anti-discrimination statutes. … The FMLA does not automatically cover a pregnant employee, like Gerety, who wants to use medical leave for illness related to gestation before childbirth. … While some employees, like Gerety, may be able to meet this higher standard because of the high-risk nature of their pregnancies, a pregnant employee attempting to receive medical leave for normal pregnancy-related illness would face a much stricter standard than a pregnant employee attempting to receive medical or parental leave for childbirth. … Specifically, Gerety would have exhausted her pregnancy-related illness leave two months before the birth of her twins, and she would have faced a larger gap without coverage then she actually faced under Hilton’s leave policy and the FMLA. … Second, courts continually refuse to see pregnancy as a medical condition unique to women and, therefore, that any leave policy affecting only pregnant women should be seen as per se discrimination as stated in the PDA. …

Shiftwork and the Law

Source: Robert C. Bird and Niki Mirtorabi, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2

… Professors Bird and Mirtorabi examine and describe shiftwork, the growing practice of working non-traditional hours, particularly in the evening and at night. … ” Shiftwork weakens these bonds between parent and child by reducing contact time and requiring children to remain quiet when the shiftworker sleeps during daylight hours. … If the court in Witter can reject ADA coverage for an employee claiming a psychiatric disability not related to shiftwork, then a court likely will have little difficulty rejecting a pilot’s ADA claim based upon an impairment tied to a particular shift. … Furthermore, the employer’s actions changing the plaintiff to the night shift to accommodate a white employee constituted a component of the harassment leading to an intolerable work environment, and thus constructive discharge. … Without much discussion, the court concluded that “it could not be determined as a matter of law that a permanent transfer to the night shift cannot constitute an adverse employment action. … If at least one court can conclude that working in the face of unnecessary pain and injury can constitute a material disadvantage in employment, certainly transfer to shiftwork, with its host of physical and mental risks, can constitute an adverse employment action under conditions where the effect of shiftwork will be the most severe. …

Legal Protections for Atypical Employees: Employment Law for Workers without Workplaces and Employees without Employers

Source: Katherine V.W. Stone, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2

… Professor Stone examines the legal consequences of the changing nature of employment relationships for the growing number of American workers who do not have traditional employment relationships or workplaces: temporary workers, independent contractors, and homeworkers. … That is, to be covered, a temporary worker has to prove she is an employee and not an independent contractor. … The proposition that the temporary agency rather than the user firm is the statutory employer of a temporary worker is based on a legal fiction. … When a temporary employee suffers discrimination on a job assignment, that employee can, in theory, sue both the user firm and the temporary agency. … Workplace discrimination will most likely come from the employer where a person works, not the temporary agency. … Hence a temporary worker has protection against employment discrimination but must complain to the temporary agency as well as the user firm if it wants to get the benefit of suing both entities. … However, when an employee works for a temporary or leasing agency and is placed with a user firm, questions arise as to which employer’s workers’ compensation insurer has responsibility for a workplace injury. … Some have held that both the user firm and the temporary agency are the “employer” for purposes of the exclusive remedy of workers’ compensation. … If the homeworker is actively engaged in work when the injury occurs, then it is more likely workers’ compensation will apply. …

Unions Facing the Future: Questions and Possibilities

Source: Peter Fairbrother, Glynne Williams, Ruth Barton, Enrico Gibellieri, and Andrea Tropeoli, Labor Studies Journal, Winter 2007, Volume 31, no. 4

The current circumstances of trade unions are subject to extensive debate. As a contribution to these debates, three sets of issues are addressed: how unions organize and operate in relation to members, how unions reposition and rebuild themselves against changing forms of ownership and different managerial practices, and how unions attempt to face the challenges of multinational capital. Unions have sought to renew and revitalize themselves by changing organizational practices or changing aims and ambitions, as well as by recomposing past relationships, especially between unions and state bodies. These themes are addressed via three case studies chosen to exemplify particular aspects of union organization and activity. The study concludes with a comparative evaluation of the three cases in terms of the principles of union renewal.

Why We Should Support the Employee Free Choice Act

Source: Julie Martínez Ortega, Labor Studies Journal, Winter 2007, Volume 31, no. 4

….The proposed legislation, if enacted, would make a real impact on workers trying to form unions and bargain collectively. It would also provide a vehicle for educating the public and elected leaders about the obstacles that workers face when they try to organize. We agree with Professor Adams that workers’ rights are under attack both in the United States and abroad. However, we disagree with his critique of EFCA. We believe it to be a critical part of the strategy to achieve workplace democracy.

Adam’s critique of EFCA centers on three main points. He argues that it would not significantly advance the ability if U.S. workers to organize, that an international human rights approach would be better that altering U.S. labor law, and that real change in labor law will not happen without a broad social movement.

Why the Employee Free Choice Act Deserves Support: Response to Adams

Source: Sheldon Friedman, Labor Studies Journal, Winter 2007, Volume 31, no. 4

As Roy Adams correctly notes, the workplace rights crisis in the United States is so dire that it demands urgent attention from every thinking person who cares about democracy, human rights, and social and economic justice. Of the sixty million nonunion workers who tell pollsters that they want a union in their workplace, last year fewer than seventy thousand – a proportion so small as to be almost insignificant –succeeded in forming one via the NLRB process.

Of these, many will never attain an initial collective bargaining agreement and fewer still will forge an enduring collective bargaining relationship with their employer. …. In at least a quarter of these NLRB organizing campaigns, one or more of the union supporters was illegally fired, and in more than half, the workers faced direct or thinly veiled threats that their workplace would close or move if they formed a union (Bronfenbrenner 2000; Mehta and Theodore 2005). Illegal firings and threats of workplace closure, moreover, were just the tip of the iceberg of the employer campaigns that these workers were forced to endure (Logan 2002)…

…Many more workers than that tiny few did form unions and win initial contracts last year, but they did it in spite of the Board’s stacked-deck process by circumventing it via successful campaigns for card check and employer neutrality.

The Employee Free Choice Act: A Skeptical View and Alternative

Source: Roy Adams, Labor Studies Journal, Winter 2007, Volume 31, no. 4

The AFL-CIO, along with its ally American Rights at Work, has invested a great deal of time, energy, and money in promoting passage of the Employee Free Choice Act (EFCA). Those of us who believe in collective representation hope that this initiative will fulfill the hopes of its promoters and produce a major advance in the number of workers with a collective voice at work. However, with Republicans in continuing control of Congress and the White House, the odds against passage if the Act would seem to be high. However, there are reasons to believe that, even if the Act should pass, the results will, unfortunately, fall short of expectations.

Among the key elements of the Free Choice Act that are intended to spark new organizing are card check certification, first contract arbitration, and stiffer penalties for employers who offend the law. Since employers commonly commit unfair labor practices during certification election campaigns and stonewall during the negotiation of first contracts, American unionists believe that the establishment of procedures designed to counter those practices will significantly improve the labor movement’s organizing prospects.

Moving Beyond Political Deadlock: Health Reform Initiatives in States

Source: Rachel Degolia, Perspectives on Work, Summer 2006, Volume 10, no. 2

The Massachusetts health reforms approved in April 2006 are indicative of a larger trend among states, in the absence of federal action, states—on the front lines of dealing with the nation’s health care crisis—have begun to take the lead on comprehensive health care reforms.

The state experiments bubbling up around the country illustrate not only the potential for real progress, but also the problems and pitfalls of state-based health care reform. As a result of state-level health policy developments, reform advocates must grapple with new challenges. These include the need to anticipate and address the political and social consequences of state mandates and to help states devise strategies for curtailing rapidly rising health care costs.

The Hidden Cost of Jobs without Health Care Benefits

Source: Ken Jacobs, Perspectives on Work, Summer 2006, Volume 10, no. 2

In the last half of the twentieth century American health care financing emerged as a dual system: private, employer-sponsored care for most people was supplemented by public care for the poor and elderly. Today, however, rising health insurance premiums, shifting industrial composition, increased use of temporary and part-time workers, and a weakened bargaining position of workers in the labor market are factors leading to a marked shift in the nature of health care coverage for American workers.

Declining job-based coverage affects not only health care access and quality for those who are not covered; it also creates hidden costs for employers providing coverage and for taxpayers. Even worse; companies that pare down health benefits or adopt changes that make coverage unaffordable for workers undermine the market position of competitors, forcing them to follow suit as well. These, too, are hidden costs of non benefited jobs. Lawmakers at all levels in the United States are concerned about these issues and are looking for innovative solutions.