Give Mayor Adams a No Confidence Vote
New York has a fugitive from justice occupying Gracie Mansion, and no clear plan for eviction. The City Council must pass a non-binding resolution declaring Eric Adams unfit to lead and unwelcome to remain as mayor, adding to yesterday’s call for him to resign from Speaker Adrienne Adams. Only then will those who still retain power over him have the ethical high ground and democratic consent to remove him.
Adams was already unfit to lead after he was indicted under federal bribery and campaign finances charges. But with no impeachment provisions in the City Charter, it looked like his fate would be determined by a jury of his peers and, separately, a million or so New York voters. Ever since Adams cut his quid pro quo deal with the Trump administration to hold his indictment in abeyance while he cooperates with the president’s unpopular mass deportation drive, the city has been in a democratic crisis.
The one person with the legal authority to remove Adams is Gov. Hochul. While Hochul catches all kinds of political heat for her long, drawn-out hesitation, she’s not wrong to be concerned about the precedent she would set by removing a democratically elected mayor from office.
“Democratically elected” is doing some heavy lifting in these abstract concerns. We should not forget that among Adams’ alleged crimes, he stole tax money earmarked for fairer elections by making large foreign donations look like qualified, small donations from actual New York voters. The result, one could argue, was a stolen election in 2021. But, as urgently as Adams needs to become an ex-mayor, removing him from office will set a precedent fraught with the potential for abuse.
Why has nobody in the Council thought to take up a “vote of no confidence” in the mayor? Universities are no stranger to unaccountable executives and occasional unethical behavior from our leaders. And while we have a degree of representative governance, usually in the form of a faculty or academic senate, our powers are often as toothless as the City Council’s is in this case.
But a “vote of no confidence” — a bill of particulars outlining the ways that a leader has disappointed the community and violated its norms — still holds enormous moral authority, as well as public embarrassment. So much so that the mere rumor of a drafting document has been known to inspire an embattled provost or chancellor to “return to the faculty” to avoid the black mark of censure on their reputations.
Some college presidents decide to weather the storm, hoping to placate enough constituents so that the motion fails for a lack of votes. Those who stick around and suffer a formal censure from their governing academic body usually — but not automatically — face removal from office by a higher power (typically the university’s board of trustees, or the state’s governor).
The practice of demonstrating that a leader has lost majority support is derived from parliamentary systems, where a formal “no confidence” vote is proof that the leader cannot govern; that the government must be dissolved and new elections scheduled. In those cases there is always a ceremonial president or king whose sole purpose is to act on a no-confidence vote.
We will be in uncharted waters if a group of clear-eyed Council realists begin circulating a resolution condemning the mayor and calling for him to resign or be removed. I have few allusions that Adams can be shamed. His alleged crimes were so tawdry and clumsy that a normal politician would be tempted to flee the country out of pure embarrassment. And the spectacle of being Donald Trump’s plaything, Adams’ very freedom predicated on how quickly and enthusiastically he can agree with the wannabe dictator makes one wonder just how bad could minimum security prison be.
But if Adams continues to stubbornly hold out, even after he has officially lost the confidence of the City Council that he needs to effectively govern, then Hochul will be on much firmer ground in using the power vested in her to finally get him out of Gracie Mansion. Better still, the Council will have essentially created the precedent that the governor does not have the authority to unilaterally remove a mayor from office; that she can only do so after a local legislative body has officially denounced and condemned its executive.
In any event, it is time for the Council to assert its authority.
[This post originally appeared at New York Daily News.]
What we owe gig workers
Labor advocates and allies in Albany are feuding over a draft bill that aims to grant some union rights to precarious workers who toil at irregular hours and less regular wages for app-based “gig” employers like Uber and Lyft. This family feud is all the more frustrating because there’s a perfectly reasonable New Deal-era state law still on the books for when workers slip through the cracks of a patchwork of worker protections and fissured workplaces.
The current bill purports to do the same by creating a system of “sectoral bargaining” for gig workers, while severely restricting the number issues they can bargain over, outlawing their ability to strike and robbing them of their unemployment insurance by replacing their statutory protections as workers with an opportunity to collude as a guild of “entrepreneurs.”
Everywhere from the House-passed PRO Act, which would amend the National Labor Relations Act (NLRA) to make the process for forming a union fairer and available to misclassified freelancers, to the California legislature’s attempts to plug the holes in the current NLRA by properly classifying gig workers as statutory employees with rights, the app bosses try to codify a third class of worker lacking both the agency to set their own price and hours of labor like a traditional independent contractor and the ability to form democratic unions of their own choosing to bargain — and, potentially, strike — over the working conditions that the app bosses dictate.
What’s crazy is that, unlike the newly passed California law that Uber circumvented through a massively expensive — and deceptive — ballot initiative, New York has had, this whole time, a functioning state agency that will protect the right to organize and certify a union for any private-sector workers that federal labor law leaves behind. Because the Supreme Court had a track record of overturning any protective legislation for workers when New York Sen. Robert Wagner drafted the NLRA, he decided to justify the law’s constitutionality in Congress’ power to regulate interstate commerce. In 1935, that was defined far more narrowly than today.
For example, a hotel standing entirely within a state’s borders did not count. Therefore, New York passed a so-called “baby Wagner Act” that created a similar regulatory framework for private-sector workers left out of the New Deal. Most of the first 20,000 workers that the Hotel Trades Council won the right to bargain on behalf of in the 1930s and 40s were organized through elections — and card check certifications — conducted by the NY State Labor Relations Board. Stuck with the bizarre constitutional framework of arguing that human rights are rooted in protest activity’s impact on the economy, the civil rights movement expanded NLRB jurisdiction to retail, hospitality and service industries. By the mid-1960s, unions stopped turning to the state Labor Relations Board and in 2010 its responsibilities were assumed by the Public Employment Relations Board. Most people that know of PERB think of it as the state agency that punishes public sector teachers and subway workers for going on strike, but it actually can be an engine for private-sector worker organizing.
Legislative progressives, or a governor willing to exercise some leadership, could settle the gig worker controversy by directing PERB to aggressively protect and encourage the right to organize for all private-sector workers under their jurisdiction. And as the Biden administration wrests control of the NLRB from Trump’s anti-union appointees, we could have two labor boards competing for who offers workers a better deal.
This was the dynamic when I directed the American Federation of Teachers’ charter school organizing division during the Obama years. In blue states like New York and Illinois, we got public-sector labor laws that gave the workers a right to organize through card check. When the NLRB staked a claim to the jurisdiction, the federal agency touted its more robust right to strike. It was a compelling argument.
We live in a time when billion-dollar companies will spend millions of dollars and thousands of hours to resist their workers’ attempts to win a couple more bucks an hour. As a campaign director, I struggled with the impulse to strike a deal when a powerful boss signaled a desire to negotiate. And Uber like so many of the gig economy digital platforms — hemorrhaging investors’ dollars, struggling to maintain a workforce with pitiful wages, breaking all kinds of laws — are under enormous pressure to make peace with anyone who will take a settlement. With deep respect and solidarity to the organizers and legislators who are working with Uber on this deeply flawed bill, a better deal is possible if you start from the position that the actually existing labor laws should apply to these digital scofflaws.
[This article originally appeared in the New York Daily News.]
Usher in a new day for labor: The courts can’t be counted on to protect workers anymore; Congress needs to pass new laws
As the Supreme Court prepares to decide whether the 1964 Civil Rights Act protects gay and transgender people from workplace discrimination, it seems, at least to me, unlikely that a bench dominated by five very conservative men will protect gay employees.
This should be a wake-up call: We cannot count on the courts to protect our rights in the workplace. We need a Congress that will actually pass laws, and high on the list of legislative priorities should be a “just cause” law that would protect every employee from unfair terminations.
Common as a legal standard of employment across much of the industrialized world, and here routinely negotiated into union contracts, “just cause” is the principle that no employee can be fired without a legitimate, serious, work-performance reason.
Such a legal standard would empower workers to speak out about pay disparities, to combat sexual harassment and to complain about unsafe working conditions. It would give workers the power to say no to requests that fall outside the bounds of their duties or propriety.
In short, it would finally correct what has become a deeply imbalanced employer-employee relationship.
Lawyers for the Trump administration insisted at Tuesday’s high court arguments that it’s the responsibility of Congress, not the courts, to update the law to protect LGBT workers. They may be wicked but they are not wrong. The failure of Congress to do much in the way of legislating employee protections in the last quarter-century has created a vacuum that the courts have filled with a political agenda that is hostile to government regulations and worker rights.
Take 2018’s Epic Systems decision, in which the high court ruled that employers can force employees to submit accusations of unfair or discriminatory treatment to private arbitration, foreclosing class action lawsuits. To accomplish this, they radically reinterpreted the 1925 Arbitration Act.
A Congress that actually passes laws could simply overturn EPIC Systems, and make whatever narrow new standard the court defines in the current LGBT discrimination case moot. Of course, that will require a new president and a Democratic majority in the Senate that removes the filibuster as a convenient excuse for inaction. Progressive activists who will work their tails off for a Democratic majority in 2020 should demand no less than a Congress that takes swift action to give us all better job protections.
It’s encouraging that almost all of the Democratic candidates for president have produced detailed platforms for worker power, union representation and employee protections. Sen. Elizabeth Warren, of course, has a plan to protect gay and transgender workers. She also has a plan to protect workers from discrimination on the basis of pregnancy. And another to protect disabled workers. And another to protect employees who wear dreadlocks.
The fact that she proposes to amend the law in at least nine places to protect a ridiculously long list of categories of workers who continue to face discrimination belie the need for a universal right like just cause.
No worker is going to be told that the reason they are being fired is because they are gay. An employer will always invent a performance-based justification. Even if gay workers were protected by the Civil Rights Act, that law — like all current protections against unfair terminations — puts the onus on the employee to prove the ulterior motive.
A just-cause law would flip that burden onto the employer, where it belongs.
Mayor de Blasio was the first of three presidential candidates in the crowded field to have campaigned on a just-cause law; of them, only Bernie Sanders now remains. Still, it is electrifying to see one of the frontrunners for the nomination supporting a bold reform to end the everyday tyranny of the non-union workplace and to bring us in line with the kind of rights that hundreds of millions of workers the world over take for granted.
This is the future of Democratic labor policy. At least, it ought to be.
[This op-ed originally appeared in the New York Daily News.]
Rats have speech rights, too: Unions, protests and balloons
Outside a strip mall on Staten Island, a giant balloon rat lies deflated. I can’t imagine a less auspicious scene for the free-speech fight of the century. But it’s here the Trump administration has chosen to argue that free speech is for corporations — and not for workers. And it’s here that unions have an opportunity to reverse decades of anti-union legal dogma.
Last month, the National Labor Relations Board sought an unprecedented injunction against Laborers Local 79 in Staten Island to stop them from inflating a rat balloon. Previously, agency staffers leaked word that Peter Robb, Trump’s NLRB general counsel, “hates” the rat and was determined to exterminate it.
The NLRB is a federal agency tasked by statute to protect the rights of workers. But under Republican administrations, it does the opposite.
Now, by taking aim at the inflatable rodent, the NLRB invites a First Amendment challenge. Conservative jurists have spent centuries trying to keep unions as far from free speech rights as possible — unless it can be used as a weapon against unions. In last year’s Janus vs. AFSCME case, the conservative majority upended a 40-year-old precedent by inventing a free-speech right for public sector workers to refuse to pay union fees.
If Scabby the Rat winds up before the Supreme Court because unions claim that popping their balloon is a violation of their First Amendment rights (which it clearly is), the justices will be faced with squaring Janus with free speech in favor of forming a union.
Some history. Unions have long been subject to speech restrictions that would never be applied to a corporation. One reason is that our nation’s main labor law, the National Labor Relations Act, is constitutionally rooted in Congress’ authority to regulate interstate commerce and not in workers’ constitutional rights. Another reason is the anti-union Taft-Hartley Act, which outlawed solidarity.
Today, we think of the act’s “right to work” provisions as its biggest attack on labor. But the ban on strikes and boycotts against companies that do business with an employer in a labor dispute — on pain of multi-million dollar fines — has actually been the greater sap on union power and organizing prowess.
Essentially, Trump’s NLRB is using the act to argue in federal court that cartoonish vermin are a “signal” to engage in “illegal” boycotts, and inherently coercive. They’re leaning hard on outdated stereotypes about union thugs and broken kneecaps.
Even on Staten Island, which has one of the highest unionization rates in the country, no one is going on strike or refusing to shop at ShopRite because of a balloon. The rat doesn’t coerce; it merely makes a mockery out of a union-busting boss.
Before he joined the NLRB, Robb was a construction-industry lawyer. He’s probably spent countless billable hours listening to thin-skinned real estate developers like Donald Trump complain about rat balloons outside their windows.
The Southern District court, often a problem for Trump, rejected the NLRB’s request for a preliminary injunction on Monday. But the case will move forward. A government agency is making a value judgment about the form and content of unions’ speech that has nothing to do with coercion or its impact on commerce. The AFL-CIO must wage this free speech fight.
It’s an opportunity to challenge the entire premise of a legal regime that is directly responsible for the decimation of the labor movement.
Corporations have every legal tool at their disposal to resist workers’ unionization efforts and the economic power to subcontract and reclassify the last remaining union jobs. Taft-Hartley denies workers the right to even ask fellow workers across corporate lines to leverage their own economic power to help them gain or maintain their labor rights. When it passed in 1947, one in three workers belonged to a union. Today it’s less than one in 10, even though polls show that at least half of all workers want to join a union.
Workers either have free speech rights and equal protection under the law, or the courts are where democracy goes to die.
[This op-ed originally appeared in the New York Daily News.]