Erin Johansson: Author Archive

NLRB rules resident doctors have right to form union

Richard Scarry wrote in his classic children’s book that “Everyone is a worker: Farmer Alfalfa, Blacksmith Fox, Stitches the Tailor,” and yes, even “Doctor Lion.” The folks over at the National Labor Relations Board must understand this simple truth. The agency just ruled that resident doctors at St. Barnabas Hospital in New York City are workers, not students, who have the right to form unions and collectively bargain. This ruling upheld a 1999 Board decision that medical interns and residents are statutory employees with a right to organize under the National Labor Relations Act.

The residents at St. Barnabas overwhelmingly voted to form a union last year, yet the hospital challenged their right to organize, arguing they were students, not employees.

Update June 11: the NLRB released the vote count totals today: the vote was 119-2 in favor of the union.

 

The NLRB: Policing Repeat Offenders with a Water Pistol

As a mother I’ve learned that regardless of his repeated assurances, my toddler will only stop harassing his little brother when there are real consequences to his misbehavior (i.e., no more train video). Yet when the National Labor Relations Board (NLRB) charged Consolidated Biscuit with illegally harassing its union supporters–despite the company’s pledge to stop in two previous settlements—the agency didn’t provide any real consequences.

Rather than pursuing an injunction and contempt-of-court charges against the company to prevent further violations, they decided to negotiate yet another settlement. This milquetoast response to a habitual unionbuster illustrates why we need the Employee Free Choice Act, which would increase penalties for unlawful employers, and require the use of injunctions to curb employers’ bad behavior when there’s reasonable cause to believe that someone’s rights have been violated.

 

NLRB In Legal Limbo, Swift Action by Senate Needed

Two contradicting court decisions issued last week leave the National Labor Relations Board in legal limbo.  For the past 16 months, Wilma Liebman and Peter Schaumber have jointly issued 400 decisions, preventing a major backlog of cases while the Board was down by three members.  Yet the U.S. Court of Appeals in Washington just held that it was invalid for them to issue two-member decisions, while a federal appellate court in Chicago upheld the validity of their decisions.  It will likely take a Supreme Court decision to clear up the legal matter.

It is all the more imperative now that the Senate swiftly confirm President Obama’s nominees for two vacant Board seats. If the Board is forced to re-examine all of those cases when another member is appointed, it must do so quickly in order to minimize the damage done to workers.  Behind each of those cases are real people who are waiting for their union to be recognized, waiting for their employer to come to the bargaining table, and waiting to collect backpay for a wrongful termination.

 

New Labor Board Appointees Signal Change Is Coming

The National Labor Relations Board may once again be a worker-friendly agency which actually fulfills its mission to promote democracy in the workplace.

President Obama has announced that he is appointing Craig Becker and Mark Pearce to fill two open vacancies on the Labor Board.  Both men have a history of advocating on behalf of workers and for reforming labor law through direct legal work and in academic posts.  If confirmed, they will join Chair Wilma Liebman and Member Schaumber, with one vacancy remaining.

For more info, check out the American Prospect.

 

The Weakest Federal Employment Law

If I were a scurrilous lawyer advising a new employer on federal employment laws, I would tell them not to worry about violating the National Labor Relations Act (NLRA). When an employer violates any of the three major federal employment laws covering minimum wage, discrimination, or safety, they must at least pay fines or damages. Yet there are no penalties assessed on employers who commit unfair labor practices under the NLRA. Check out this new chart released by American Rights at Work, which illustrates just how poorly the costs of violating labor law compare with the costs of violating other employment laws:

Federal Employment Laws

Read more »

 

One Quarter of the Workforce Without the Right to Organize

According to new numbers released by American Rights at Work, 33.5 million people—24% of the workforce—have no legally-protected right to form a union. This is an embarrassing number for an advanced democracy like ours. As a Human Rights Watch report noted, large exclusions of workers from the protections of the National Labor Relations Act (NLRA) “run counter to international human rights standards compelling broad protection of workers’ freedom of association.”

Why are so many workers without the right to organize? The NLRA excludes several classes of workers, including public employees, agricultural workers, and independent contractors, and many states have failed to pass laws extending coverage to these employees. Additionally, decisions by the Bush Labor Board have excluded employees with minimal supervisory duties, disabled janitors, graduate student assistants, newspaper carriers, and other categories of workers from the law’s protections. And employers are increasingly misclassifying their employees as independent contractors, denying them the right to form unions and gain other employment law protections. Read more »

 

Workers Left Out of NLRB Settlement Process

A friendly reminder to staff of the National Labor Relations Board: your agency exists to protect the interests of workers—not the employers who break the law. I’m compelled to bring this up because of the recent actions taken by a regional NLRB office to settle a complaint against an employer without any input from the nurses who brought the charges.

In May of this year, nurses at Legacy Hospital in Portland, OR, filed unfair labor practice charges with the NLRB, alleging their employer illegally barred nurses from discussing the union in all areas of the worksite, and called in security to escort nurses off the property for engaging in union activity. On September 30, the NLRB issued a complaint charging the company with illegally suppressing union activity, and scheduled a hearing for October.*

Yet without consulting with the nurses, the NLRB canceled the hearing and settled the charges with the hospital, which simply agreed to post a notice describing the nurses’ rights under the law. None of the nurses’ concerns were addressed. Read more »

 

Anti-Union Firings Left Unanswered by the NLRB

When a worker is fired for union activity, the impact of that firing extends not only to the individual worker, but to her coworkers that receive the anti-union message from the employer.  According to new research by American Rights at Work, for every worker  fired, 395 coworkers receive the message: support the union and get the pink slip. Employers are very effectively chilling union activity with few consequences.

The National Labor Relations Board (NLRB) only gets a small percentage of fired workers back on the job—leaving the employer’s anti-union message to go unanswered.  Between 1999 and 2007, only 11 percent of the 86,000 workers that filed charges alleging they were illegally fired for union activity received an NLRB offer of reinstatement. Thirty-five percent accepted some form of settlement, rather than waiting for the lengthy NLRB process to get their jobs back. Read more »

 

Union Organizers Assaulted, NLRB Doesn’t Bother Pursuing the Case

If you’re attacked while peacefully protesting, you’d expect to have someone to turn to for justice. If you’re attacked while picketing outside a workplace, it’s natural to turn to the National Labor Relations Board—the agency charged with protecting workers’ freedom of association. Yet when five union organizers in Los Angeles filed charges with the NLRB alleging they were brutally attacked by employees with 2×4s sent by Herix and Golden Gate Steel, building contractors they were picketing, the NLRB Regional Director actually dismissed the charges.

According to the lawyer representing the union organizers, Ellyn Moscowitz, the NLRB just informed her they decided not to pursue the case since it wasn’t clear who started the violence. Moscowitz noted, however, that the only witness claiming the organizers started the violence is the owner of the contracting companies that were picketed for alleged safety violations.

Undaunted by the NLRB’s decision, the organizers are continuing to pursue justice. They recently filed a civil suit with the Los Angeles Superior Court, alleging the companies unlawfully assaulted them because of their protected involvement in a labor dispute. Luckily, these organizers can seek protections from a state law when the federal government has left them out in the cold.

If the NLRB has a good defense for dismissing this case without even pursuing a complaint and administrative law judge trial, I’d be happy to hear it.

 

Half a Million and Counting

The anti-union Employee Freedom Action Committee is spending millions to run advertisements depicting majority sign-up as a new, off-the-wall, and anti-democratic process that, if the Employee Free Choice Act passes, will allow unions to intimidate employees into joining.

Yet new research by American Rights at Work reveals that with little fanfare, more than half a million Americans have already formed unions through majority sign-up since 2003. In fact, majority sign-up is now more commonly used than the National Labor Relations Board election process—no surprise given that research has found it to be less coercive. Read more »