By Neil Cosgrove
Finally, after a decade-long economic expansion, wages are increasing modestly. But the hole our government and thriving capitalists have ardently dug for American workers over the past 40 years still exists. And the Trump administration, despite the faux populism that helped The Donald get elected, seems determined to dig that hole still deeper.
Take, as one local example, a National Labor Relations Board (NLRB) panel’s recent 3-0 decision to reverse the regional NLRB office’s and an administrative judge’s determination that the Pittsburgh Post-Gazette must pay 2018 health insurance premium increases for employees represented by six unions. A contract that expired March 31, 2017 would have required the paper to pay those increases, but the Post-Gazette has chosen not to seriously negotiate a new contract in the past 2 ½ years. All three panel members were Trump appointees.
“The Trump Administration’s anti-union posture gave us no realistic hope of winning at that level,” Newspaper Guild of Pittsburgh President Michael Fuoco e-mailed members following the decision.
Just as Pittsburghers benefit every day from the efforts of the Post-Gazette’s editorial, printing, and distribution employees, so do many who use Super Shuttle vans to wend their way through often heavy traffic to the airport. Well, back in January another NLRB panel voted not to allow Super Shuttle drivers to be treated like actual employees, rather than “independent contractors,” consequently also denying them the right to form a union. The vote for the decision was 3-1, with the one dissenter the lone Democratic appointee to the panel, as reported by Slate.
Back in 2005 Super Shuttle decided to change “from a model of using employees to using so-called independent contractors,” writes Slate’s Terri Gerstein. “Drivers were required to buy a specified model of van (costing about $30,000) or lease it from the company. They had to buy insurance from a designated insurer, pay all driving expenses, and pay fees for using the company’s IT system.” Super Shuttle has complete control over a driver’s work, and the driver is essential to conduct of the company’s core business. So how are those drivers not employees?
Perhaps recognizing what unions are up against in Trump’s NLRB, Tom Conway, new president of the United SteelWorkers, has urged Google to “encourage” HCL, “a contracting firm that helps staff Google’s offices,” to recognize the Pittsburgh Association of Technical Professionals. HCL workersjust recently votedto have that association represent them in collective bargaining. This vote will, no doubt, cost money-bloated Google some extra coin, since “misclassifying workers as independent contractors saves 30 percent on payroll and other expenses,” Gerstein estimates.
Meanwhile, the Steelworkers keep seeking growth through organization of workers in quite different enterprises than their “core industries.” Here in Pittsburgh USW has successfully organized adjunct college faculty and, most recently, Carnegie Library employees. After a close but failed vote to organize University of Pittsburgh’s graduate student employees in April, the union has successfully argued before the Pennsylvania Labor Relations Board that Pitt illegally influenced the results. A new vote has been ordered by the PLRB.
Pitt’s overall strategy bears some similarity to that of other local companies and institutions resisting unionization. The idea is to delay engaging in serious collective bargaining until such time as union organizers finally give up, or sufficiently anti-union agency members or judges have been put in place. Last year’s Supreme Court Janus decision, enacted by the court’s 5-4 conservative majority, has resulted in public service unions losing revenue, although not membership. The Post-Gazette’s lawyers kept appealing adverse NLRB rulings until they finally got a panel in the national office that agreed with them.
Pittsburgh’s Duquesne University may be the most egregious example of this approach. Its adjunct faculty voted to organize as a union in 2012. In response, the university kept appealing the NLRB’s insistence that Duquesne bargain in good faith with their adjuncts. Finally, in March, 2018, the agency’s national office ruled that the bargaining needed to begin. At that point Duquesne decided to challenge the NLRB’s ruling in the federal District of Columbia appeals court.
Oral arguments took place in that case in early 2019, but the court has still not issued a judgment. When it does, it could very well go against Duquesne, as the court still has seven judges appointed by Democratic presidents, and only four appointed by Republicans. If the university does lose, will it be a surprise if they appeal to the Supreme Court, especially after the Janus decision? (The DC court’s Chief Judge, incidentally, is Merrick Garland, famously blocked by Mitch McConnell from appointment to that same Supreme Court. The fifth vote in favor of eliminating fair-share dues for non-union members was Neil Gorsuch, the judge who finally took Antonin Scalia’s seat after Trump was elected.)
At least until January, 2021, Duquesne’s approach, while unfair and abhorrent, could be effective. According to Ballotpedia, Trump has been able, by far, to appoint more federal appeals court judges (43) than any other modern American president at this point in a first term. Does anyone believe these appointees have a soft spot in their collective hearts for union organizing?
Neil Cosgrove is a member of the NewPeople editorial collective and the Merton Center board.
NewPeople Newspaper VOL. 49 No. 8. October, 2019. All rights reserved.