Last week I dedicated the post to a few relevant EEOC matters I had come across. This week, I came across a wealth of labor law related topics that I think merit a post dedicated to the topic. (And that is not even taking into account the advice memo released by the NLRB on Tuesday which concluded that rideshare drivers should be classified as independent contractors rather than employees.) Of course, even for those that might not find labor law (or the National Labor Relations Board) to be entertaining, I still think there is something here for everyone.
As always, below are a couple articles that caught my eye this week.
Fight Intensifies Over Unionization Efforts By Delta Flight Attendants & Ground Workers
Late this week, the ongoing fight by Delta flight attendants and ground workers to unionize took a turn when a complaint was filed with the National Mediation Board alleging Delta was engaged in “systematic, widespread, and egregious forms of interference with employee choice” in regard to unionization. (Reports had started to trickle out that Delta had posted signs in employee break rooms, suggesting spending money on things such as video games or sporting events was a better use of money than putting it toward union dues. These posters were largely met with scorn and disdain once they reached Twitter.) As Josh Eidelson at Bloomberg writes, Democratic Senators Bernie Sanders and Elizabeth Warren have even jumped into the fray, accusing Delta of engaging in foul play to prevent the nearly its 40,000 flight attendants and ground workers from unionizing. Something tells me this unionization effort by these Delta employees has a long way to go before there is a resolution. Not to mention, we are on the eve of a Presidential election where 20+ Democratic candidates will be hungry to make a name for themselves and rally a traditionally strong Democratic base (unions). Stay tuned.
Protecting the Right to Organize Act Introduced by Democratic Representatives & Senators
At the end of April, the Protecting the Right to Organize Act was introduced in Congress which, if passed, would provide sweeping changes to collective bargaining rights and increase penalties for employers that are found to have violated labor laws. The legislation, which boasts 140 House and Senate co-sponsors, would be a boon to employees and labor groups if it manages to pass Congress. However, with a Senate that maintains Republican control, although the Protecting the Right to Organize Act will likely clear the House, I would not expect enough support in the Senate exists to ensure passage. (And that does not even take into account Republican President Donald Trump who could veto the legislation if it reached his desk. I am highly skeptical that even if Congress found enough votes to pass the legislation, that there would be enough votes to override a veto.)
Unfair Labor Practice Charges Have Dropped Nearly 11% in the Past Few Years
Put this one under the "win" column for pro-employer groups: Since President Donald Trump took office, there has been a nearly 11% drop in unfair labor practice charges with the National Labor Relations Board ("NLRB"). In fiscal year 2017, there were 9,900 charges filed with 9,600 charges being filed in the following fiscal year. (This is a drop from fiscal year 2016 when 11,100 charges were filed with the NLRB. In fact, the number of charges filed by unions had not dipped below 10,000 since at least 2011.) There has been speculation that the drop in unfair labor practice charges is a result of unions wanting to keep issues away from the NLRB which might be used to reverse existing precedent. (With an NLRB that has a decidedly pro-employer tilt, this is likely a good strategy.) For the time being, until the NLRB takes on a more labor friendly approach, it would not surprise me to see the number of unfair labor practice charges remain at these low levels...or possibly even dip a bit lower.
Democratic Presidential Candidate Beto O’Rourke Supports Fair Share Fees
Earlier this month at the United Steel Workers Local 310, a campaign stop in Iowa, Beto O’Rourke answered a question in which he indicated his support for fair share fees. For those not familiar with fair share fees, these are the fees charged to non-union members to cover the costs of collective bargaining work done by the union. Readers might recall that these type of fees were deemed by the United States Supreme Court to be in violation of the First Amendment and therefore unlawful (in regard to public sector unions.) Irrespective of that case, O’Rourke has made clear his intention to support a fair share law should he become President.
Following the Recent Independent Contractor Classifications For Rideshare Drivers, Eyes Turn to the States
It goes without saying that there has been a wave of developments in recent months in regard to how rideshare drivers are classified and whether they are entitled to unionize. (In short, if these workers are independent contractors, they are not protected by federal labor law and cannot unionize. If they are instead found to be employees, they would fall under the protection of federal law law and be able to unionize.) With the memo coming from the NLRB recently finding that these rideshare drivers are independent contractors (coupled with the Department of Labor opinion letter reaching the same conclusion), those hoping that these workers would be classified as employees have looked to the states for ‘help.’ As this article from The Mercury News points out, many anticipate California could be the first state to step in, given the ‘ABC Test’ that was created (which is more receptive to finding workers are employees) as well as attempts to codify that ABC Test. For the time being, with an employer friendly NLRB and Department of Labor, more labor friendly states like California are likely the lone bright spot for those hoping for increased protections for those rideshare drivers and others working in the gig economy.
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