Posts from Moshe Z. Marvit

When Scalia Died, So Did ‘Friedrichs’—And an Even Grander Scheme To Destroy Unions

Moshe Z. Marvit

Moshe Z. Marvit Attorney, Fellow, The Century Foundation

Conservatives had a great plan in motion to decimate unions. If Justice Antonin Scalia hadn’t died in his sleep, they almost certainly would have pulled it off.

First they got the Court to rule their way in 2014’s Harris v. Quinnwhich targeted home healthcare unions. Like "right to work" laws, the case sought to gut unions’ funding and diminish solidarity by saying that union members can’t be required to pay dues. The Court agreed, holding that the First Amendment does not allow the collection of fair share fees from home healthcare workers. The decision, written by Justice Alito and signed by the Court’s four other conservatives, also not-so-subtly invited further attacks on the funding and membership of unions.  

Next came Friedrichs v. California Teachers Association, which sought to expand Harris to impose right-to-work on all public sector employees. The conservative Center for Individual Rights (CIR) rushed Friedrichs to the Supreme Court by essentially conceding at every lower court that under current law, it should lose. Friedrichs could only win if the Supreme Court overturned 39 years of precedent that date back to the 1977 Abood v. Detroit Board of Education decision.

When the Court accepted Friedrichs, there was some hope that Justice Scalia might provide the critical vote to save public-sector unions. This was not because Scalia had any great love for labor—he did not—but because he understood the basic economic theory of free riders: Just like any other enterprise, it can be difficult for a union to get its members to pay dues when they can get all the benefits of the contract for free. Scalia had said as much in a 1991 concurrence-dissent, and many were hoping that he would exercise consistency with Friedrichs.

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Duquesne’s NLRB Filing Reads as a Brazen Threat To Adjunct Union Organizers

Moshe Z. Marvit

Moshe Z. Marvit Attorney, Fellow, The Century Foundation

Union busting has become big business in America. It’s so common that the run-of-the-mill variety hardly raises an eyebrow. Employers regularly hire anti-union consultants and hold captive audience meetings laced with subtle and not-so-subtle threats of disciplinary action or firings.

But every once in a while, employers try a novel union-busting tactic. In Pittsburgh, in a case that some have suspected is destined for the Supreme Court, Duquesne University has pushed the boundaries of employer intimidation.

On April 29, adjunct professors Clint Benjamin and Adam Davis testified under oath at a hearing at the National Labor Relations Board (NLRB). The topic was Duquesne University’s unwillingness to recognize the union that their colleagues overwhelmingly voted for three years ago. After the hearing, the regional director of the NLRB held that Duquesne had to negotiate with the union the adjuncts voted to represent them, United Steelworkers (USW). (Full disclosure: I teach a course at Duquesne Law School, which is a part of Duquesne University, but was not part of this bargaining unit.)

As expected, Duquesne appealed the decision, prolonging the NLRB process and delaying bargaining. However, deep in Duquesne’s appeal—footnote 16 on page 42, to be exact—Duquesne did something radical: It used the brief as a means to openly union-bust by sending out a clear message that anyone who opposes the University in this organizing campaign risks losing their jobs.

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Thanks to Labor Board Ruling, You Can Now Use Company Email to Organize a Union

Moshe Z. Marvit

Moshe Z. Marvit Attorney, Fellow, The Century Foundation

This week, the National Labor Relations Board (NLRB) issued a decision and a rule that could make organizing a union significantly easier for American workers.

First, yesterday the Board recognized that email is one of the primary ways that workers communicate, and that its case law and election rules needed to reflect this reality. The NLRB issued a landmark decision in Purple Communications which opens the door to allowing workers to use employers’ email systems for union purposes—and admitted that it had misunderstood in previous cases how email works. In doing so, it overturned a Bush-era Board decision, Register Guard, which allowed employers to prohibit use of company email for non-work related purposes, including organizing and union purposes, unless the employer can show special circumstances that justify specific restrictions.

In the 2007 decision, the Labor Board analogized email to other employer equipment—such as bulletin boards, telephones, photocopiers and televisions—and found that the employer had a “basic property right to regulate and restrict employee use of company property.” In dissent, Members Liebman and Walsh criticized the Board, stating that the decision “confirms that the NLRB has become the Rip Van Winkle of administrative agencies. Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.”

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A Textbook Example of a Boss’s Campaign to Destroy a Union

Moshe Z. Marvit

Moshe Z. Marvit Attorney, Fellow, The Century Foundation

A Textbook Example of a Boss’s Campaign to Destroy a Union

If you’d like a sense of what a boss’s campaign to try to destroy a union looks like in the 21st century, take a look at a recent NLRB decision against the University of Pittsburgh Medical Center (UPMC).

On Friday, a judge with the National Labor Relations Board (NLRB) ruled that the UPMC has engaged in a series of discriminatory practices against workers who have been trying to organize a union since 2012.

In the wide-ranging 123-page decision, one can see how a sophisticated anti-union campaign is run. The decision outlines in detail how the multi-billion dollar Pittsburgh hospital chain repeatedly violated the law in order to sow fear of organizing. Employees were surveilled and photographed, interrogated and threatened with discipline and arrest. Four were fired.  The decision also found that UPMC helped create and support a “company union”— an employer-dominated labor organization—in violation of federal law.

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The Latest Attack on Labor, From The Group That Brought Us ‘Harris v. Quinn’

Moshe Z. Marvit

Moshe Z. Marvit Attorney, Fellow, The Century Foundation

The Latest Attack on Labor, From The Group That Brought Us ‘Harris v. Quinn’

On the heels of its recent Supreme Court victory in Harris v. Quinn, the National Right to Work Committee and Legal Defense Foundation (NRTW) has initiated a bold new attack on unions.

In a recent fundraising appeal sent on August 10, the president of both organizations wrote that Harris “was just the beginning,” and that fair share provisions (or, as he called them, “forced dues”) were only “part of the problem.” Now, having succeeded in imposing a right-to-work model for home healthcare workers across the country, NRTW is gunning after a much greater and unexpected target: exclusive representation.

One of the bedrock principles of American labor law is exclusive representation, whereby a union represents all the workers in a bargaining unit after it shows majority support by the workers. In a new case filed on behalf of a few Minnesota home care workers, Bierman v. Dayton, NRTW is now arguing that a union elected by the majority of workers should not be permitted to represent anyone that does not choose to join.

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Union Matters

The Big Drip

From the USW

From tumbledown bridges to decrepit roads and failing water systems, crumbling infrastructure undermines America’s safety and prosperity. In coming weeks, Union Matters will delve into this neglect and the urgent need for a rebuilding campaign that creates jobs, fuels economic growth and revitalizes communities. 

A rash of water main breaks in West Berkeley, Calif., and neighboring cities last month flooded streets and left at least 300 residents without water. Routine pressure adjustments in response to water demand likely caused more than a dozen pipes, some made of clay and more than 100 years old, to rupture.

West Berkeley’s brittle mains are not unique. Decades of neglect left aging pipes susceptible to breaks in communities across the U.S., wasting two trillion gallons of treated water each year as these systems near collapse.

Comprehensive upgrades to the nation’s crumbling water systems would stanch the flow and ensure all Americans have reliable access to clean water.

Nationwide, water main breaks increased 27 percent between 2012 and 2018, according to a Utah State University study.  

These breaks not only lead to service disruptions  but also flood out roads, topple trees and cause illness when drinking water becomes contaminated with bacteria.

The American Water Works Association estimated it will cost at least $1 trillion over the next 25 years to upgrade and expand water infrastructure.

Some local water utilities raised their rates to pay for system improvements, but that just hurts poor consumers who can’t pay the higher bills.

And while Congress allocates money for loans that utilities can use to fix portions of their deteriorating systems, that’s merely a drop in the bucket—a fraction of what agencies need for lasting improvements.

America can no longer afford a piecemeal approach to a systemic nationwide crisis. A major, sustained federal commitment to fixing aging pipes and treatment plants would create millions of construction-related jobs while ensuring all Americans have safe, affordable drinking water.

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There is Dignity in All Work

There is Dignity in All Work