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Labor Relations News Update March 28, 2014

Today’s Labor Updates:

Trans-Atlantic Labor Union Calls for Higher Labor Standards in US-European Union Trade Agreement

Wildcat Strike: Northwestern Football Players Allowed to Unionize

Understanding China and its unions

Legislation would Effectively Prevent NLRB’s Representation Election Rule From Moving Forward


March 26, 2014, 2:19 p.m. EDT

Trans-Atlantic Labor Union Calls for Higher Labor Standards in US-European Union Trade Agreement

Will Oppose Deal If Standards Not Strengthened; Other Concerns Not Addressed

Workers Uniting, a three million member trans-Atlantic labor union, today issued a call to European Union and U.S. trade negotiators to strengthen social and labor protections in the proposed Trans-Atlantic Trade and Investment Partnership (TTIP).

“We view TTIP as a threat to the rights of workers in Europe,” said Len McCluskey, General Secretary of UNITE the Union in the UK and Ireland. “We can’t afford to import America’s low labor rights standards.”

“American and European workers deserve a better deal,” said Leo W. Gerard, International President of the United Steelworkers (USW), which represents workers in the United States, Canada and the Caribbean. “Our governments’ narrow focus on greater protections for companies must be transformed to include expanded rights and protections for workers.”

The USW and UNITE formed Workers Uniting in 2008.

In its statement, Workers Uniting calls for the TTIP to include a tax on financial transactions to support social programs – a measure already endorsed by 11 European countries.  The statement also demands that the European Works Council directive, chemical safety standards, and other European social legislation be expanded to include American workers.

The Workers Uniting statement also demands that existing procurement regimes be left intact and that public services be excluded from TTIP. The statement rejects Investor-to-State Dispute Settlement, noting that Germany and France oppose this provision.

Workers Uniting joins a chorus of opposition from trade unions, including the German Metalworkers Union, to the current TTIP negotiations. Worker rights and social protections must be placed at the center of any agreement.

CONTACTS: Benjamin Davis: (202) 550-3729

Simon Dubbins: +44 7785 265964

SOURCE Workers Uniting


Wildcat Strike: Northwestern Football Players Allowed to Unionize

Labor Relations Insight by Phil Wilson

The floodgates are open: Northwestern University football players will soon vote on whether or not to join a union. In a groundbreaking decision Peter Sung Ohr, Regional Director of Region 13 in Chicago, found that Kain Colter and about 84 other scholarship football teammates are “employees” under the National Labor Relations Act. These players will therefore be allowed to vote in an NLRB supervised election in a few weeks.

The decision is a results-driven tour-de-farce. It starts from the conclusion: football players are employees. The decision then distinguishes and creatively mis-characterizes the life of a student-athlete to get to its conclusion. Exactly no effort was put into thinking through how this decision might actually be applied in the real world, or its implications for student athletes and universities across the country. It’s a public relations disaster for Northwestern, its football program and the NLRB.

To fully understand the problems with this decision you just have to think about how it applies to other student athletes or those who receive scholarships for other school-related activities. The decision argues that students are “employees” when they:

  1. Spend a lot of time on a non-academic subject;
  2. Contribute to something that makes money for the university;
  3. Get scholarships worth significant monetary value; and
  4. Are under control of their coaches

How exactly are universities supposed to apply this decision? Perhaps the best way of analyzing this question is looking at some of the unasked (and definitely unanswered) questions about today’s decision. Here are some of mine:

  1. How many hours a week of practice and playing makes you an employee? Is it 20 hours? 40 hours? 10 hours? When exactly does a student athlete turn into an employee?
  2. Is time spent traveling to and from a game while studying count as “work time” or “student time”? Is time spent talking football while playing beer pong or watching yourself on ESPN “work time” or “student time”?
  3. This decision only applies to the profitable sports. For most schools that means only the football players are employees (maybe the men’s basketball players at a few schools – Go Blue!) If the football team isn’t profitable are those players suddenly students?
  4. Why is the enterprise defined as just the football team? Why wouldn’t you define the enterprise as the athletic department who “employs” all student athletes at the university? If the athletic department doesn’t make much money or loses money (many of them DO lose money) then are the football players students?
  5. What about female athletes? Their sports virtually never make money. So only males who play football and get a scholarship have rights under the NLRA?
  6. How much compensation makes you an employee? Walk-on players are excluded in the decision, but what if you get a partial scholarship? A year-to-year scholarship? Just your room and board covered?
  7. What about non-sports activities. You’re in the band but not majoring in music. You spend hours practicing and have to follow a strict schedule. Why aren’t you an employee?
  8. When I am suspended from a game for saying that my offensive coordinator isn’t getting the ball in the hands of the “playmakers” aren’t I engaging in protected concerted activity? Has my university committed an unfair labor practice?
  9. Now that I’m “paid” $76,000 per year, which tax bracket am I in? More important, what is income tax? Do I really have to pay it?
  10. Do I get paid overtime for weeks when I “work” (i.e. play a game, lift weights and watch a lot of football on TV) for more than 40 hours? Since I don’t actually receive any pay, am I working for less than minimum wage?
  11. Since CARA (aka the Steelworkers) will be acting as agents for the “employees” does that cancel out all of their scholarships? After all, that’s what the NCAA rules require when you engage an agent to represent you (hat tip to Pat O’Mara for pointing out that little gem).

These questions may sound snarky (guilty as charged) but they are real. If college athletes are employees under the NLRA, they are probably employees under the FLSA and other statutes. If their scholarships are wages they owe taxes. The already blurry line of “protected concerted activity” becomes an absurdity when applied to college students. And since these rules only apply to private universities they also immediately put these schools even further behind in college athletics.

Instead of thinking through the full implications of making college athletes “employees” under the NLRA the Regional Director instead made the politically expedient decision. It will be applauded by labor unions across the country and the Board in Washington DC. But the decision is a huge mistake.

This case will take years to resolve. Prospects and their parents will not understand exactly what this means. If my son goes to NU does he have to join the Steelworkers? Does he have to pay dues? Will he have to go on strike? What about my daughter – she is being recruited to play basketball. Is she going to be stuck in the middle of this stuff too?

It won’t be long (heck, it’s probably happening already) before rival coaching staffs start asking these questions in the living rooms of top recruits. These decisions are already very tough for young high school students. Rival teams will definitely use it to their advantage. And how long will a talented coaching staff stick with a program plagued by this uncertainty?

Northwestern has competed well in the Big Ten while facing significant disadvantages. Many of the other public universities have far superior endowments and facilities. Nevertheless, Northwestern has found a way to compete at a high level against these unfavorable odds. But Northwestern athletics has never faced an obstacle like today’s desperate labor movement and the NLRB.

Only time will tell, but this isn’t going to be decided anytime soon. My guess is the NLRB will rubber stamp this decision. Northwestern will then refuse to bargain with the “union” and courts of appeals – perhaps the Supreme Court – will ultimately decide whether some student athletes are also employees under the Act. In the meantime Northwestern has one more (giant) hurdle to overcome as it tries to get back on top of the Big Ten. As a Michigan fan (Go Blue!) I’ve already explained why I think this is a good decision – but it is colossally bad labor policy.

Understanding China and its unions

by: Wadi’h Halabi

March 27 2014

In the world workers’ movement there is much confusion about China and its unions. This paper compares China to a ‘union risen to state power’ – a special organization of the working class – and China’s labor unions as a subcommittee of this union in state power. The labor unions are charged with the important task of protecting workers’ interests in the workplace. Other important tasks of the ‘union in state power’ include economic development, education, public health, equality for women, youth and nationalities, environmental protection, and much more.

To maximize its strength, the ‘union in state power’ needs both relatively-independent and effective subcommittees (including labor unions) addressing necessary tasks, and periodic harmonizing mechanisms and bodies to balance between those tasks. This is because even a ‘union in state power’ must make the best out of a bad situation.

‘China as a union risen to state power’ helps explain why the education and standard of living of workers in China has climbed in recent decades, even though labor unions in China have not been particularly effective (although they are becoming more so). In capitalist countries, unionized factories generally have stronger safety and health protection for workers compared to non-union factories, even when the unionized factories lack effective safety-and-health subcommittees. The analogy also helps us understand that the exploiters’ antagonism to China is like their antagonism to unions: it is a class antagonism. The material foundations and common interests exist for cooperation and unity between unions worldwide, China’s unions included.

In April 2010, Richard Trumka, president of the AFL-CIO, the main federation of labor unions in the US, spoke at Harvard University. A coal mine explosion in West Virginia a few hours before his talk had left 29 miners missing and feared dead. Their fate weighed heavily on him.

I asked Brother Trumka if he would support mine-safety cooperation between US and Chinese unions. His answer was positive. He cited health-and-safety cooperation with mining unions in other countries, such as South Africa. The emphasis was in the right places. Then he added: “But [unions in China] are not real unions.”

Unions do differ in some ways in China, Vietnam and Cuba, compared to unions in capitalist countries. But how? Indeed — What is China itself?

This was the question posed to me by a worker-intellectual, founder of a labor research center, shortly before his first trip to China in April 2008. “I don’t know what China is,” he said to me. “Is it capitalist? Is it socialist?” His uncertainty mirrors widespread confusion about China in the world workers’ movement.

This worker-intellectual came from a family of Teamsters, the union of truck drivers; he had once been a fuel truck driver himself. One of the things I really liked about him was that when he referred to the Teamsters, it was without a snicker, even though he was conscious of the Teamsters’ shortcomings. He understood that it was, above all, a union, a workers’ organization, facing huge obstacles and challenges in the face of capitalist hostility.

I said to him, “China is as if the Teamsters had risen to state power atop a great upsurge that broke the old ruling class’s power.” He smiled. I think he understood.

Unions in China are like “subcommittees” of unions in capitalist countries.

China is like a union risen to state power, a special form of workers’ organization, with a government and army. This workers’ organization in power must now address not only defense of workers’ interests in the workplace – the traditional task of unions – but a thousand other necessary tasks as well: food supply, economic development, education, equality for women and national minorities, environment, public health, and other tasks . And it must find a balance between them, under conditions where it must make the best out of a bad situation. If it seriously fails at any of these tasks, it risks being busted or “decertified” — a term used in the US when workers actively or passively drive out a union that had until now represented them. Decertification leaves workers without protection against the exploiters. The same thing happened to workers in the Soviet Union after 1991.

Complicating matters in a ‘union in state power’, China included, is that workers generally form a minority of the “membership”. Workers are the state’s social base, but a majority of the residents are not workers – they are peasants, self-employed, youth, managers, intermediate layers, officials, plus a small but significant minority of exploiters, owners of private businesses, small and large.

China’s labor unions are like a very important subcommittee of the union in state power, with two very important responsibilities: to defend workers’ interests in the workplace, and to shape overall state policy. More on that shortly.

First, let’s apply this analogy to unions in capitalist countries. The Teamsters, for example, may have several subcommittees that address necessary tasks, such as organizing, safety-and-health, and civil rights (to achieve equality for African American or women workers).

The safety-and-health subcommittee may find that certain practices or chemicals threaten workers’ health and should be discontinued. Yet, discontinuing those practices could also lead to unemployment for many African American workers, who are routinely assigned the most dangerous work by the bosses. A potential contradiction thus exists between the union’s safety-and-health and civil rights subcommittees. The organizing department, another subcommittee, may require so many resources that it leaves little for safety and health or civil rights tasks. How such contradictions are resolved requires harmonizing mechanisms between the subcommittees, and ultimately will reflect the general level of labor organization, consciousness and power.

Continuing with this analogy: In order to be effective, each subcommittee of a union needs some independence from other subcommittees as well as from the overall leadership. Without that relative independence, it is difficult for subcommittees to be effective. But without the harmonizing mechanisms, it can be very difficult for the union to balance between its many tasks.

A union in state power that champions economic growth at the expense of defending workers in the workplace will weaken its social base. But poverty will distort and can compromise the state’s entire structure. So will continued social inequality or environmental destruction. This is why periodic harmonizing mechanisms are also necessary for the union in state power. It needs to reconcile the priorities of the various subcommittees and develop the state’s overall policy and decision-making.

Even ‘unions risen to state power’ must make the best of a bad situation. While they have much greater resources than unions in capitalist countries, they do not have unlimited power. They face the exploiters’ hostility and anarchic economy at every turn.

Both kinds of unions, whether in power or under capitalist rule, must therefore balance between many necessary tasks, no small feat. A leadership that is unable to reconcile contradictions between subcommittees may place them under its discipline, or even abolish them. But then the necessary tasks of the subcommittees are unlikely to be carried out well, if at all, and the appropriate balance between tasks will not be reached.

Labor unions in China are like a subcommittee of the “union risen to state power.” Their very important responsibility is to defend workers’ interests in the workplace — AND to participate in shaping overall state policy. Thus, unions’ responsibilities in China include not only addressing wages, benefits and working conditions but also having a voice in over-all tasks, such as environmental policy or setting prices, to give just two examples.

The government of a union risen to state power is not the same thing as the state. The government is best understood as one of the state’s “subcommittees” addressing two vital tasks, organizing economic development and defense against exploiters’ inevitable attempts to bust the union. The state, on the other hand, is the sum total of all the “subcommittees”, including government and labor unions, that are addressing necessary tasks, AND the harmonizing mechanisms required to develop overall policies.

Ideally, each of the necessary subcommittees of the “union risen to state power” should be relatively independent, effective and strong in its own right. Also ideally, the periodic harmonizing mechanisms must be developed to balance the contradictions between the subcommittees. Achieving both is very difficult, yet it is ultimately essential. The Soviet Union was unable to resolve this balance, and fell to counter-revolution 74 years after it was formed. What happened to the Soviet labor unions after Yeltsin seized the government offices in Moscow and began to attack workers?

A general principle applies: a workers’ organization and its sub-organizations will be as effective as the corresponding interest and control from below, and the coordination and harmonization from above. This requires worker empowerment and education, internal democracy, and prompt and effective two-way flows of information in order to arrive at decisions.

Much has come together.

In summary, the relationship between the Chinese state and its labor unions is like the relationship between a union in a capitalist country and one of its subcommittees. There will be many uncomfortable moments in the process of reconciling contradictions between union subcommittees (tasks). Why? Because the resolution of differences between the tasks of subcommittees is not obvious. But as long as the subcommittees remain committed to the union’s overall interests and power, productive solutions will be found while serious errors will be avoided and lesser errors corrected.

A surprising conclusion from this analysis is that strong subcommittees of a union — or union in state power — can actually weaken the union. How? The overall structure can be weakened if the harmonizing mechanisms have not been developed. A strong and effective safety-and-health subcommittee is very desirable in a unionized factory. But if that strength is achieved at the cost of other tasks, such as those of the civil rights (equality) or organizing subcommittees, the whole union can be weakened. The same is true for a union in state power. In turn, the leadership can weaken a union if it fails to develop and use the harmonizing mechanisms.

Much then has to come together to strengthen labor’s organizations, whether in state power or under capitalist rule. All this while working to overcome capitalism’s limitations and forced ‘competition’ among workers, limitations that constantly require our organizations to make the best out of a bad situation.

Why are Chinese workers’ standards of living rising without effective unions?

One way to see this analogy between unions and unions-in-state-power is as follows: In capitalist countries, safety and health protections for workers in unionized factories tend to be stronger than in non-union factories. This is true even when the unionized factories lack effective safety-and-health subcommittees. How could that be? Because there is a union in the factory.

In China, the education and standard of living of workers in China has risen even though unions have not been particularly effective (although they are becoming stronger). How could this be? Because the Chinese state itself is a “union risen to state power.”

Effective labor unions can strengthen the Chinese and similar ‘unions in state power’, such as Vietnam, Cuba, and People’s Korea; the critical requirement is that for effective balancing mechanisms to harmonize the unions’ tasks with those of other necessary ‘subcommittees’, including the government (economic development and defense). Similarly, an effective safety-and-health subcommittee will strengthen a labor union, provided the union also has the mechanisms to balance the union’s many challenges.

Exploiters’ antagonism to China is like their antagonism to unions.

In 2009, the capitalist media repeatedly broadcast the false claim that the bankruptcy of General Motors and Chrysler was due to auto unions’ “greed” and “Cadillac health plans”. No mention was made of the massive overcapacity in the industry, or the general crisis of capitalism. The exploiters’ state then acted to greatly weaken unions and cheapen labor. The action was backed by the courts, police and prisons. Today, the capitalist media are making the equally bogus claim that postal worker unions’ “greed” and “plush pensions” are bankrupting the US Postal Service, and public workers’ unions are similarly bankrupting local governments. These false claims are then used to attack the unions, cut wages and plunder union pension plans.

How many times have the capitalist media also claimed that China is behind the loss of jobs in the US, that China is trying to poison our children, or that its “currency manipulation” is bankrupting the US?

The exploiters’ antagonism to China is like their antagonism to unions here, a class antagonism. It reflects the fear and hatred of the exploiters towards organization of the exploited.

China is a special form of labor organization, a ‘union risen to state power’. It is in world labor’s interest to defend China and similar states– and their unions — against the exploiters’ attacks, just as it is in our interest to defend the Teamsters and other unions.

It is in labor’s interest to develop cooperation among all of our class’s organizations, in power or not, flaws and all, to enable humanity to overcome capitalism’s cruel and deepening limitations.

This paper was prepared for a US-China Labor meeting at the University of Massachusetts, Amherst, May 28, 2011. US-China Labor meetings are dedicated to facilitating understanding between unions in the US and China, with the goal of developing cooperation around necessary tasks, such as environmental tasks, organizing or international labor solidarity. This article is dedicated to Maja Weisl of the CPUSA and the Center for Marxist Education and one of my teachers, who died shortly after helping shape this article. A version of this article was posted on the PA blog in November 2011.


Legislation would Effectively Prevent NLRB’s Representation Election Rule From Moving Forward

Posted on March 27, 2014

By Ilyse Wolens Schuman, Michael J. Lotito

As a preemptive strike against a final “ambush” representation election rule, Republican lawmakers in both chambers introduced legislation that would blunt its intended effects. In February, the National Labor Relations Board reissued its controversial proposal that would not only expedite union election procedures, but also fundamentally alter the way elections are carried out, and remove many employer due process rights. The reissued proposal was substantively the same as that initially introduced in June 2011, which triggered over 65,000 comments.  The Board will hold public hearings on this proposed rule in the coming weeks.

In response, Sen. Lamar Alexander (R-TN) and Reps. John Kline (R-MN) and Phil Roe (R-TN) on Thursday introduced bills that would prevent several of the proposed rule’s provisions from materializing.  Specifically, the Workforce Democracy and Fairness Act would address many of the procedural aspects of the proposed rule, while the Employee Privacy Protection Act would create privacy safeguards for information employers are required to provide to unions during election campaigns.

The first bill would, among other things:

  • Ensure union elections take place at least 35 days from the day the petition is filed. The Board proposed rule would cut this timeframe by roughly half.
  • Allow employers at least 14 days to prepare their statement of position, and afford them the right to raise additional concerns should they arise throughout the pre-election hearing.  The proposed rule would set the pre-election hearing for as early as seven days after the petition is filed, and would require an employer to raise all issues at this time, or forever waive them.
  • Reaffirm that the Board must determine the appropriate bargaining unit before the union is certified, and address any questions of voter eligibility beforehand.  The proposed rule would push voter eligibility issues until after the election is held, even though certain employees might actually be supervisors ineligible to vote in the first instance.

The second bill would give employers seven days in which to provide employee contact information, known as the Excelsior list, to the union. The bill would also clarify that the Excelsior list would include employee names and one employee-selected method for contacting the employee. By contrast, the proposed rule would require employers to provide a preliminary voter list including the names, work locations, shifts and classifications of unit members by the opening of the pre-election conference. In addition, the proposal would require employers to provide a final voter list within two days after the election is scheduled. This final list would have to include the names, addresses, phone numbers and email addresses of the employees. This proposal has raised many privacy concerns, as discussed during a recent House committee hearing held to examine the Board’s proposed rule.

In a press release, Rep. Kline said:

At a recent meeting with board Chairman Mark Pearce, we laid out our concerns with the proposal and its consequences for workers and job creators. However, it’s exceedingly obvious the board is determined to advance this radical scheme no matter the damage inflicted on our nation’s workplaces. Congress cannot just stand by and do nothing. The commonsense legislative approach we are proposing today will strengthen the rights workers and employers have enjoyed for decades.

More information on these bills can be found here.


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