Shaun Richman

May 21, 2018

Supreme Court Guts Workers’ Rights in Murphy Oil

With their decision Monday, May 21, 2018 in Murphy Oil, the Supreme Court has just gutted workers’ rights to act collectively to battle wage theft and discrimination. Murphy Oil is a gift to corporations, allowing them to force their workers to sign a class action waiver as a condition of employment. Justice Neil Gorsuch authored the 5-4 decision that might as well have read, “Because we have the votes.”

A class action waiver is when a worker waives – that is, gives away – their right to band together with other workers, access the courts, and force their employer to stop doing something discriminatory, dangerous, or otherwise wrong.

Class action lawsuits had been one of the most powerful ways for workers to win back-pay awards for employer misconduct. Arbitration, which takes place outside of the courts, is far more favorable to employers. That is doubly true when a worker must go it alone. Even if a worker can afford legal representation (instead of pooling the cost with dozens or hundreds of workers), they face the employer with only the facts and circumstances of their individual case.

The Murphy Oil decision consolidated a number of cases weighing the legality and constitutionality of class action waivers. In one case, Epic Systems, the Seventh Circuit Court ruled that the waivers violated the National Labor Relations Act’s protections for workers of workers’ concerted activity. The National Labor Relations Board (NLRB) agreed, and so did President Obama’s Solicitor General – until President Trump took the unusual step of reversing the United States’ official position on a pending Supreme Court case.

Murphy Oil follows a series of Supreme Court decisions favoring arbitration since 1991. Employers have matched that enthusiasm by increasingly requiring workers to sign employment agreements that include mandatory arbitration clauses. Most non-union employers now require employees to sign one – and 30% explicitly forbid their workers from taking class action, restricting their legal rights.

Arbitration is a funny thing in U.S. labor history. Although union activists tend to think of it as a positive thing – a recourse to a neutral third party at the end of a grievance procedure – it has not always been seen as, well, neutral.

Leftist critics frequently decried arbitration during the era where employers refused to sign contracts or formally recognize unions as the legitimate representatives. In the early 20th century, many unions called off early bruising strikes after the employer agreed to abide by an arbitrator’s decision.

In those days, “arbitration” basically meant asking for a nominally “progressive” lawyer or politician to the throw the workers a few scraps while almost always rejecting the union’s demand for formal recognition as the on-going bargaining representative of those workers.

The sea change in unions’ appreciation for the value of binding arbitration dates to 1935. That’s when the newly created NLRB provided the force of law to make employers bargain with duly recognized unions. What resulted was a routine of signed, written contracts covering wages, hours and working conditions – and dispute resolution procedures that included an appeal to a neutral third party over a violation of the contract or a disagreement about what some of the words on the page meant.

The crucial distinction here is that by being included in collective bargaining agreements, the recourse to arbitration was, by definition, the exercise of a collective right and the culmination of the collective power that it took unions to win those rights. That’s what the conservative majority on the court just stole from non-union workers.

In the Seventh Circuit, Judge Diane Wood first asserted that class action waivers violate labor law. She has been incredibly creative in the way that she issues pro-labor opinions. She also advanced the legal theory that so-called “right-to-work” laws violate the Takings Clause of the Fifth Amendment. Why was she not President Obama’s nominee to replace the late Antonin Scalia on the Supreme Court?

It’s a reminder that any party that wants labor’s support must advance judicial nominees who “look like America” and who have a demonstrated track record of protecting, if not expanding collective rights, including workers’, consumers’ and others.

Class action waivers have come under scrutiny in the #MeToo era, where high-profile harassment survivors are arguing for a “carve out” when class-action waivers hinder redress for gender discrimination. But as writer E. Tammy Kim writes in yesterday’s New York Times, “For decades, the spread of forced arbitration and its twin demon, the class-action waiver, have slowly eroded Americans’ civil rights….To unleash the full power of #MeToo, we must fight for much more: a rejiggering of the economy that begins with collective action and unbridled access to the courts.”

As with many matters in the Trump era, workers can still defend their rights at the state level. Many community organizations are looking to replicate a California law called the Private Attorneys General Act (PAGA) of 2004. It grants workers the power of the state when seeking redress on a wage and hour claim. Because the state is not a party to employment agreements, the forced arbitration clauses are unenforceable when workers use the PAGA process.

Workers have won big through PAGA, upheld by California’s highest court in 2014. Wal-Mart, for instance, paid out $22.7 million in minimum wage violations. “The possibility of a PAGA case changes the calculus for a company, so that they would invest more in compliance and not be as cavalier about the labor standards,” Rachel Deutch of the Center for Popular Democracy (CPD) told Bloomberg news. CPD is a network of community organizations and unions pushing, among other policy reforms, the PAGA strategy in cities and states. That’s where the fight continues tomorrow.

[This post originally appeared at Unionist.com]

May 11, 2018

Drop all the bridge tolls, tax the billionaires

The toll on the Verrazano-Narrows Bridge is too damn high.

I realize that it’s a time-honored tradition for Staten Islanders to beat our breasts and complain about how “forgotten” and taken for granted we are. Don’t let me steal your birthright from ya, but there are hundreds of thousands of New Yorkers who have to go over the river and through the woods and across two expensive bridges to get to Grandma’s house in New Jersey. They feel your pain.

A $17 bridge toll, a free ride for tourists on the ferry and $2.75 for a subway train that’s as likely to break down as get you to work on time is an inequitable system for all parties involved.

Writing in these pages, columnist Tom Wrobleski points to the toll-free East River bridges and notes, “They’re one of the few examples of government totally overlooking a revenue source.”

He suggests “toll equity.” I would humbly propose that our problem is one of a lack of imagination and memory.

Once upon a time, all bridges were intended to be free to cross. Tolls were merely temporary fees charged to travelers to pay back the bond money borrowed to fund their construction. The Brooklyn Bridge was a legendary expenditure of time and money to construct. The bridge was never for sale, but horse-drawn carriages had to rent it for the first few years until toll revenue had paid off its creditors. Now it, like the other East River crossings that were built before 1909, is free to commuters.

What changed? A man named Robert Moses began consolidating power as a public works planner in the 1920s.

When it comes to Moses’ legacy, there are two camps. Some give him all the credit for the highways, byways and thousands of acres of parkland scattered throughout our region. The rest of us curse his name during our interminable commutes.

Moses hated buses and trains and wasn’t that fond of the idea of black and brown people having too many of options for traveling beyond their neighborhood slums. His dollars-over-pennies “master planner” budgeting is why traffic is so awful. One example: the reason traffic backs up for a couple of miles before the Brooklyn-Battery Tunnel, as thousands of cars cram into the one-and-a-half lanes that lead from Brooklyn into Queens, was that Moses was convinced that the vast majority of drivers would always and forever need to get into lower Manhattan instead. (And that we’d all be driving instead of taking buses, boats and trains in to work.)

Moses couldn’t win an election to save his life. But he concurrently headed up various New York public authorities between 1924 and 1981. The authorities were governed by mayoral, county and gubernatorial appointees – none of whose terms expired at the same time – making Moses uniquely immune to direct accountability to voters.

To keep his appointed boards of governors in check, Moses hid behind his fiduciary responsibility to the bondholders who financed the impressive highways and bridges he built.

And he kept on borrowing money to build them and raising the tolls on them in order to maintain that responsibility to the bondholders that he used as an excuse to disagree with and flat-out ignore the governors and mayors that we-the-people elected under the misguided notion that they should be accountable to us and not some megalomaniacal man who didn’t even drive a car.

Restoring the tolls on the free bridges along the East River has been a favorite solution of tax-loathing billionaires like former mayor Mike Bloomberg ever since the city of London introduced “congestion pricing” under socialist mayor Ken Livingstone in 2003.

But all of these bridges really should be free from tolls, and our mass transit system deserves a massive reinvestment and a radical expansion. Staten Islanders deserve everything from high-speed ferries on the South Shore to an R train that crosses the Verrazano and a PATH train that connects a West Shore light rail line to Bayonne, Jersey City and lower Manhattan.

My preferred solution is to do something much closer to the spirit of socialism and tax the crap out of the billionaires who rely on the bridges, subways and buses to help the rest of us schlubs drag our sorry butts to work every day.

[This op-ed originally appeared in The Staten Island Advance.]

May 11, 2018

Republicans Are Hard at Work to Turn Staten Island Blue

Is Donald Trump an albatross around the neck of congressional Republicans? By appealing to his base and embracing the polarizing strategies that he has brought to new heights, will they cost themselves the last few swing districts in Trump-abhorring blue states?

We New Yorkers might have the best view of the GOP’s struggle to stay afloat in America’s big cities right here on Staten Island. Republican Dan Donovan, who has represented New York’s 11th Congressional District for all of a term and a half, is in the fight of his political life in the June 26 GOP primary.

Our ex-con ex-Congressman, Republican Michael Grimm—fresh out of jail—is running against Donovan to reclaim his old job. Grimm has gone full fascist in order to win the backing of former White House consigliere Stephen Bannon, as part of Bannon’s effort to destroy what’s left of the Republican establishment.

Grimm gushed over Bannon’s early and enthusiastic endorsement. His campaign materials studiously avoid any policy stances of substance. Instead they emphasize his past military and law enforcement credentials and—of course—putting America first. He has pledged—and maintained—fidelity to what he calls “President Trump’s agenda,” adding, “Anyone that’s against that agenda needs to get out of the way.”

On the Democratic side, Purple Heart veteran Max Rose is leading a crowded field. He has more cash on hand than any candidate vying for New York’s 11th District, raising three times as much money as Donovan this year. (Full disclosure: I knocked on doors to get signatures to put Rose on the Working Families Party ballot line. I found a lot more enthusiasm for him than my Republican neighbors demonstrate for Donovan.)

In recent weeks, Donovan has been scurrying to the right. His latest “Hail Mary pass” was to introduce a bill in Congress banning so-called “Sanctuary Cities” from receiving federal funding, despite having voted against a similar bill last June.

Indeed, until recently Donovan had been doing all of the things a moderate Republican would traditionally do to win re-election in a swing district in a blue state. This time last year, he was co-authoring an op-ed in The Washington Post with a Dreamer, grasping for “common ground” with the most sympathetic of group of undocumented immigrants. He’d even won the backing of the state AFL-CIO.

That was before Grimm began taunting him in the Staten Island Advance as “Desperate Dan” and initiated a juvenile slap war in which each besmirched his rival as a “liberal.” In far-right Bizarro World, each had committed the unforgiveable sin of not always voting in lock-step with John Boehner and Paul Ryan to keep health insurance as expensive as possible for working people.

These attacks seem to have made Grimm the favorite of the party’s shrinking base. A recent poll commissioned by the Democratic Congressional Campaign Committee showed Donovan trailing Grimm by ten percentage points in the upcoming primary. Donovan’s camp has dismissed the polling as so much fake news, but his complete about-face on immigration issues suggests the poll is a lot closer to the truth than they’re willing to admit publicly.

Hence his complete reversal on immigrants and sanctuary cities. And a costly reversal it is: His attempt to save himself in the primary will make it exquisitely difficult for him to win in November—should he even make it that far.

I realize that Staten Island has a national reputation as a conservative enclave in perpetual rebellion against the rest of “liberal” New York City—but the reality is a lot more complicated. There are more than twice as many registered Democrats and independents (even a sprinkling of socialists) on Staten Island than there are Republicans. One in five residents were born in another country, and anti-immigrant rhetoric still sounds anti-immigrant to the documented and undocumented alike.

The ongoing demographic “big sort”—where people choose to live in communities where their neighbors are more likely to share their values—encourages the political parties to campaign to their base and focus on turnout. That probably means that the Democrats’ best hopes for retaking the House lie in California, New Jersey, and—yes—Staten Island, NYC.

As the GOP’s rural voters increasingly embrace an extremist and reactionary agenda, the party becomes more of a fringe movement in diverse working-class communities like Staten Island’s north shore and the Brooklyn neighborhoods that have been saddled with us in NY 11. Winning the majority of a Republican minority is not going to be enough to win elections in a district like ours.

Whatever your opinion on Sanctuary Cities policies—which commit local law enforcement to do the barest minimum of cooperation with federal immigration authorities seeking to deport law-abiding undocumented residents—the fact is that it is currently settled law in New York City, and that is not an issue that is on the ballot in November. Yet Donovan’s bill proposes to deprive his constituents of a lot of our federal tax dollars. How do you stand before the voters in a general election on that kind of track record?

Grimm—the apparent GOP primary frontrunner—has long been a national embarrassment for Republicans. You might remember him from the time he threatened to “break” a reporter “like a boy” on live camera. He was under a cloud immediately after he won his first election when suspicious cash bundles raised by a foreign national quickly sparked a federal investigation.

Grimm’s former girlfriend got a slap on the wrist conviction for the clumsy violation of campaign-finance law. She didn’t roll on her former paramour, however, so he didn’t get convicted for that particular crime.

But the FBI investigation revealed a sordid history of tip-stealing at his Upper East Side health-food store. He was indicted on 20 counts ranging from tax evasion, lying under oath, and hiring undocumented workers. He eventually pled guilty to one count of tax evasion and served eight months in prison (but not before he won re-election in a 2014 race that the national Democrats also had high hopes for).

Would Grimm’s ignominious presence as the once-again standard-bearer for the GOP cause the establishment to beg Donovan to stay in the November race as a kind of “Never (Again) Trump?” Unless he withdraws, Donovan’s name will be on the ballot in the general election no matter what. Thanks to New York’s fusion voting laws—which allow third parties to co-endorse candidates as a kind of ideological “Good Housekeeping” seal of approval—his name will appear on the third- and sixth-place lines—the Conservative and Independence parties—on the November ballot. The choice for the Republican establishment may well come down to their deciding to split the vote of their diminished legions or let ex-con Grimm carry their banner in an ugly—and presumably embarrassing—defeat in November. There are not a lot of scenarios here that look good for the GOP retaining a toehold in NYC.

[This article originally appeared at The American Prospect.]

May 10, 2018

Good job! New York State shows climate work can be union work

What if we could take bold steps to create thousands of good union jobs that also help save the environment? That’s the proposal of a New York State coalition of unions and environmentalists. Building trades, energy and transport workers unions have banded together to address the dual problems of inequality and climate change across New York State – and they’re winning.

Without public policy that protects workers’ livelihoods as part of protecting the environment, many workers have to choose between good jobs or a healthy environment – a growing concern in New York State, and elsewhere. Climate change has hit New York hard. There was Super Storm Sandy as well as Hurricane Irene, unprecedented snowstorms, and more recently, Lake Ontario flooding, all of which have devastated communities across the state.
To ensure cleanup and prevention jobs are good ones, Climate Jobs NY (CJNY) is a union-driven campaign to implement a pro-worker, pro-union, good-climate program in New York State. CJNY has already won an increase in funding for solar and energy efficiency work in public buildings along with a Project Labor Agreement requirement for the work, labor representatives on a statewide working group, and a prevailing wage requirement for all of the state’s renewable energy solicitations. But CJNY has bigger ambitions: a plan to construct high-speed rail, develop a robust offshore wind industry in New York, and put solar on as many public buildings as possible.

The plan for the building sector calls for reducing energy use in all public buildings by 40% and retrofitting all public schools to reach peak energy efficiency by the year 2025. That’s an ambitious timeline, considering the 212 million square feet of real estate owned by the state. It would also be huge for workers: every $1 million dollar investment in commercial building retrofits creates between 13 to 17 new jobs, all of which, under this plan, would be good jobs.

The energy plan calls for using the 100 million square feet of public school rooftops to harness two billion watts of solar energy, with a further two billion watts produced through the construction of large solar utilities throughout the state. Meeting those energy goals could create up to 210,000 new jobs in construction and installation of solar panels. The plan also calls for the generation of 7.5 billion watts through offshore wind – a project that would generate another 17,000 jobs.

“This initiative represents the best hope for protecting my members,” said Utility Workers Local 1-2 President James Slevin, while simultaneously “ensuring new energy jobs are good union jobs, and addressing climate change.”

The transportation plan calls for a $20 billion investment in restoring the New York City subway system to a state of good repair and an additional $14.71 billion for expanding statewide regional railroads. The subway work would create 20,000 jobs, while the statewide railroad investment could add almost 300,000 more.

This campaign grew out of a Cornell University initiative to find the overlapping self-interest in addressing the inequality and climate crises facing all New York State workers and residents, according to Lara Skinner, associate director of the Cornell Worker Institute. “The Climate Jobs NY campaign shows that ‘jobs versus the environment’ is a false choice.”

“We started by asking the people who do the work what might help. By starting with people who do the work of building our buildings, moving New Yorkers around, and powering both, we knew we’d find solutions that the usual debate leaves out,” Skinner said.

The “usual debate” might be best reflected in the battle over the proposed construction of the Keystone XL pipeline, which bitterly divided unions over the question of creating jobs or protecting the environment. Some politicians and corporations like to stoke those divisions, offering environmental exploitation as an engine of good jobs. President Trump’s campaign bluster about bringing coal mining back to West Virginia is just one example of this.

After Super Storm Sandy, Skinner launched a four-year process of figuring out a pro-worker, pro-union environmental agenda would look like, called Labor Leading on Climate. The slow and steady approach, which included a lot of meetings, trainings, and a research report) paid off, as unions created the CJNY campaign and now champion what’s known as a “just transition” to a more equal economy and one that respects environmental limits. “Unless we’re talking about good jobs and a good environment, the conversation just doesn’t go anywhere productive,” says Skinner.

That’s why CJNY calls for a “just transition” for workers who lose their jobs due to climate protection policies. Without public policy that protects workers’ livelihoods as part of protecting the environment, many workers feel the need to cheer environmentally harmful job creation.

But Christopher Erikson, Business Manager of IBEW Local 3, points in another direction “We need an energy transition to clean energy and we need to do it so we protect the good union jobs of those who construct, operate, and maintain power plants in this country,” he says.

Skinner agrees. “Jobs in the clean energy sector are growing – solar and wind installers are among the fastest growing jobs in the U.S. right now,” says Skinner. “If labor isn’t involved, there’s a good chance these won’t be union jobs.” For example, a 2014 plan by New York City Mayor Bill deBlasio to install solar panels on two-dozen school building was going to be done on a non-union basis until a coalition of unions, environmental justice organizations and community groups intervened to negotiate a Project Labor Agreement.

Labor leaders – from stewards to the New York State AFL-CIO president– see the potential. “Expanding the state’s commitment to renewable energy projects is not only an opportunity to make New York a leader in the clean energy industry,” adds NYS AFL-CIO President Mario Cilento, “it’s an investment in long term, sustainable middle class jobs in our state.”

[This piece originally appeared at Unionist.com.]