Building Trades Union Imposes Vaccine Mandate on Itself

Originally published in The American Prospect on August 25, 2021.
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As the country continues to wrestle with efforts to increase vaccination rates, an international building trades union took the rare step on Wednesday of stating clear support for vaccination mandates for its staff, its national collective-bargaining unions, and its affiliated local unions.

The International Union of Painters and Allied Trades (IUPAT), which represents 140,000 active and retired craftspeople in the U.S. and Canada, issued a statement urging the labor movement to “lead by example.” It goes further than other unions, which have generally stated that any vaccine requirement should be negotiated first at the bargaining table.

“We’re not looking for anything at the bargaining table, and we’re not looking at our support in return for something else,” said incoming IUPAT General President Jim Williams Jr. “We feel COVID is a true health and safety risk on the job site, and if the employers mandate it, we want to be supportive. There’s a ton of mandates that employers already put out for health and safety.”

Williams said his union lost 65 members to COVID-19 last year. “What we in unionized construction pride ourselves in is being the safest workforce in the industry,” he told the Prospect. “We’d be crazy to think that we’re promoting health and safety by not having our workforce vaccinated at this point.”

The IUPAT’s new stance will take shape in three ways. Beginning October 15, the international union will require all of its own non–bargaining unit office and field employees to show proof of vaccination. Given this new policy, their statement reads, “it is only reasonable that they apply the same approach to the interpretation of their national collective bargaining agreements.” In practice, this means that for the roughly 150 employers across the country who have agreements with the IUPAT, the international union is declaring that any employer vaccine mandate will be considered “consistent” with their contracts as currently written, and no grievances will be filed to contest such a requirement.

Lastly, the IUPAT is providing guidance to its local affiliates (known as “district councils”), which likely have the right to demand bargaining over vaccine mandates. “The IUPAT expects that each District Council facing this issue will consider the facts on the ground in their jurisdiction—trends in infection rates as well as local or state restrictions—and choose a course of action that best protects our members’ health and work opportunities,” the statement reads. “The General Executive Board is seeking to lead by example.”

The IUPAT’s position is nuanced. The union is encouraging immediate support for employer vaccine mandates, while also encouraging local affiliates to put support for the mandates directly into their contracts, to stave off the duty to file member grievances over the issue.

But negotiating the latter need not come before the former, as other unions have called for.

ABOUT TWO WEEKS AGO, KEY OFFICIALS in the IUPAT met together in Las Vegas and discussed vaccinations. The rise of the delta variant helped motivate union leaders to take a firmer stance. “There’s still a continued pandemic, and when people take their eyes off the ball, especially in the workplace, that’s when things get bad,” Williams said.

There’s broad support among the American public for vaccine mandates. The COVID States Project, a polling group out of Harvard, Rutgers, Northeastern, and Northwestern Universities, found earlier this summer that 64 percent of Americans backed the government requiring COVID-19 vaccinations, including 45 percent of Republicans. Morning Consult separately found even 38 percent of Republicans backed employer-mandated vaccine mandates.

In May, the U.S. Equal Employment Opportunity Commission said federal laws don’t preclude employers from requiring vaccination against COVID-19, though businesses may be required to provide workers accommodations for religious reasons and disabilities. Several unions have struck deals with employers on vaccine mandates, most recently the Walt Disney Co. with 40,000 workers at Disney World in Florida, who are represented by the Services Trades Council Union.

But for now, most international unions, even those actively encouraging vaccinations, have not gone as far as the IUPAT. Earlier this month, Lee Saunders, president of the American Federation of State, County and Municipal Employees (AFSCME), issued a statement saying that, with the delta variant spreading, vaccination is “more essential than ever.” But he stopped short of expressing support for employer mandates. “As employers establish vaccination policies, AFSCME will address the impact on workers through bargaining to ensure that the front-line heroes of this pandemic are treated fairly,” Saunders said.

Likewise, when Tyson Foods issued a vaccination requirement for its U.S. workforce earlier this month, the United Food and Commercial Workers (UFCW), which represents 24,000 Tyson meatpackers, issued a critical statement, saying employers should negotiate such policies with their workers first. “While we support and encourage workers getting vaccinated against the COVID-19 virus, and have actively encouraged our members to do so, it is concerning that Tysons is implementing this mandate before the FDA has fully approved the vaccine,” UFCW International President Marc Perrone had said. “This vaccine mandate must be negotiated so that these workers have a voice in the new policy.” (The UFCW separately supports a national mask mandate, and Pfizer’s COVID vaccine, Comirnaty, was approved by the FDA on Monday.)

SEIU, which is strongly encouraging vaccination for its members, also warns on its website that “employers may commit an unfair labor practice if they fail to bargain with the union before implementing a mandatory vaccination program.” Last week, when Oregon Gov. Kate Brown announced a new vaccine mandate for all health care workers, nursing home workers, and public-school employees, the local SEIU affiliate president released a statement noting, “When it comes to the vaccine mandate, there is no consensus among our membership. People strongly support the mandate and people strongly oppose the mandate. But I think we can all agree that having a say in how this new policy impacts our lives is a good thing.”

The American Federation of Government Employees, which represents unionized federal workers, said in late July that any new vaccine policy must be “properly negotiated with our bargaining units prior to implementation.”

The International Brotherhood of Electrical Workers is currently negotiating a vaccine mandate with AT&T, and attempting to find solutions like permanent at-home work for workers who oppose the mandate.

Some unions, including the Federal Law Enforcement Officers Association and the American Postal Workers Union, have come out against vaccination mandates writ large. Others, like the American Foreign Service Association and the International Federation of Professional and Technical Engineers, have expressed support for vaccine requirements. “We don’t think either our members or their mission should be placed at risk by those who have been hesitant to take a shot,” said IFPTE president Paul Shearon.

For his part, Richard Trumka, the recently deceased leader of the AFL-CIO, expressed his support for vaccination mandates just before his death. “If you are coming back into the workplace,” Trumka had said, “you have to know what’s around you.”

In New York City, Retirees Brace for Switch to Privatized Health Care

Originally published in The Intercept on August 19, 2021. Co-authored with Sam Mellins.
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STARTING IN JANUARY 2022, over a quarter million former New York City government workers and their dependents are set to be shifted off Medicare and on to privatized health insurance. Mayor Bill de Blasio and the Municipal Labor Committee, which represents retired New York City employees, announced the move in mid-July, following several months of scrambled protest from bewildered retirees.

The plan has been cast as a necessary measure to rein in mounting health care costs and reduce strain on the city’s budget. While public sector retirees in New York City are currently insured by Medicare, the federal government’s program for people over 65, the city reimburses them for outpatient care, as well as for a “Medigap” plan that offers additional services. City officials and union leaders have negotiated a deal that they claim will save upward of $600 million by switching to Medicare Advantage, the federally funded privatized health insurance program that launched ostensibly to give consumers more choice and reduce Medicare costs.

For months, union leaders have emphasized that despite distressing stories members may have heard about Medicare Advantage, the new plan will yield affordable care at the same level, if not better, for enrolled retirees and their dependents. But retirees who spoke with The Intercept and New York Focus expressed concerns that their health care will become less accessible over time, and health care experts say their fears are not unwarranted.

Retirees who do not want to switch to privatized insurance will have the option to remain in traditional Medicare, but they will need to pay a monthly premium, currently covered by the city, to access the same level of coverage they receive now. That rate is likely to be around $200 a month, estimates Stu Eber, president of the Council of Municipal Retiree Organizations, a group that advocates for retired city workers.

Eber predicts that this option will be infeasible for many older adults. “There are tens of thousands of people … whose pensions are less than $20,000 a year,” he said. “They can’t afford it; they have no choice. They’re going to be in this Medicare Advantage plan.” The new plan has been awarded to a coalition of Emblem Health and Blue Cross known as “The Alliance.”

Now that the plan has been approved, the city and labor committee are doubling down on their efforts to persuade the public that the switch is good policy and the coverage is nothing to be concerned about.

The city points to rising costs associated with traditional Medicare, which have increased nearly 50 percent over the past six years. To make up for the higher costs, co-pays for those who opt to stay in traditional Medicare will begin in January. A side-by-side comparison of the traditional Medicare option and the Medicare Advantage plan, released by the city, shows competitive rates and benefits between the two in the coming year. Some elements of the Medicare Advantage plan, such as annual maximum out-of-pocket costs and primary care physician visits, actually appear friendlier to beneficiaries.

benefit-comparison-1

“This new plan not only mirrors and improves on the GHI Senior Care Plan [the city’s traditional Medicare option], it also includes aggressive oversight to protect member benefits,” read one update from the United Federation of Teachers, the city’s teachers union. “Most importantly, under this plan, retirees will still have premium-free access to the same providers and hospitals they now use.”

One flyer from the Municipal Labor Committee says that savings will come from “subsidies” the federal government gives to Medicare Advantage programs because Medicare Advantage “relieve[s] it from much of the back-office tasks” associated with traditional Medicare.

But health insurance experts said that explanation doesn’t hold water. Under Medicare Advantage plans, the federal government pays private insurers, whereas under the current model, the federal government pays providers directly for care.

“It’s not that the federal government is paying for something they weren’t paying for before, it just changes the nature of how they pay,” said David Meyers, an assistant professor at the Brown University School of Public Health.

And indeed, when pressed for details, a de Blasio administration spokesperson acknowledged that “it’s a mischaracterization to call it a subsidy.”

In reviewing the cost-benefit comparison literature, Meyers told The Intercept and New York Focus that the proposed Medicare Advantage plan “appears to be somewhat generous as far as plans go.” He pointed to relatively low out-of-pocket maximum costs of $1,470 and supplemental benefits such as meal delivery on returning from a hospital stay. “It’s not obvious that this is a predatory sort of plan,” he said.

Another health policy expert agreed. “The outlook for the first year looks pretty good,” Tricia Neuman, executive director of the Kaiser Family Foundation’s Program on Medicare Policy, told The Intercept and New York Focus.

But concerns remain for retirees trying to figure out if they’re getting a raw financial deal. Some local health advocates, meanwhile, believe that the shift will create new disparities among New York City retirees across race and gender.

The New York Metro chapter of Physicians for a National Health Program, a national group of health care professionals who support single-payer health insurance, warned that the city’s Medicare Advantage plan will create a bifurcated system: Higher-income, predominantly white retirees will stay on traditional Medicare because they can afford the supplemental Medigap insurance, while lower-income retirees, predominantly people of color, will accept the more restricted Medicare Advantage plan.

Physicians for a National Health Program – NY Metro statement3 pages

The chapter further cautioned that the move to Medicare Advantage could result in gender disparities already demonstrated in worker pay. Among current New York City municipal workers, 58 percent of men earn $70,000 or more, compared to just 36 percent of women. “This disparity in income among retirees is likely to be even greater, since they worked for the city before many of the current measures aimed at decreasing inequalities in the workforce were put in place,” noted Leonard Rodberg, the New York Metro chapter’s research director and a municipal retiree.

These inequities have played out nationally, according to Meyers. “Medigap plans can often be quite expensive, so many lower-income people, who are often minorities, tend to enroll in Medicare Advantage at high rates and Medigap at lower rates,” he said.

Another top concern is whether the costs imposed on retirees would remain similar to traditional Medicare over time or whether the plan might shift more costs on to older adults in years to come.

The present cost-sharing arrangement has been locked in through 2026, a spokesperson for the de Blasio administration told The Intercept and New York Focus. But uncertainties surrounding federal funding of Medicare Advantage and less stringent pricing regulations than exist in traditional Medicare mean that the post-2026 future is less certain.

“This arrangement assumes that Medicare will continue to provide favorable payment to Medicare Advantage plans that enable them to provide extra benefits,” said Neuman. “That may continue into the future, but it may not.”

Many retirees are also concerned about the plan’s requirement that enrollees obtain permission from insurance companies before accessing certain recommended procedures. A significant portion of the savings achieved by most Medicare Advantage plans hinges on such preapprovals.

“Gatekeepers are never a good thing,” Eber said. “They stand between you and getting the medical assistance and tests that you need, when you need them.”

A spokesperson for the de Blasio administration said that services requiring such pre-authorization would include inpatient hospital admissions, skilled nursing facility admissions, rehabilitation services, complex radiology, prosthetics and orthotics, and transplants.

“To wait around for somebody to say, ‘Yes, you can have an MRI; yes, you can go to physical therapy; no, I don’t think you need this test or that test’ — I’m not interested,” said Jane Roeder, a retired city administrator.

Some retirees may even be receiving misinformation from their own union leadership regarding which services will require authorization under the new plan. A United Federation of Teachers spokesperson told The Intercept and New York Focus that the new Medicare Advantage plan “will have to adhere by the same ‘prior authorization’ requirements as [traditional] Medicare.”

But other than for “durable” medical equipment (such as walkers or oxygen tanks), prosthetics, and certain physician-administered drugs, traditional Medicare very rarely requires preapprovals.“

Diane Archer, president of Just Care, an informational site that offers health and financial tips to older people, said suggesting that retirees will get the same health care fundamentally obscures the differences between the two programs. “They may offer the same benefits, but the way Medicare Advantage plans ‘save money’ is by covering fewer services,” she said. “What few people understand is that ‘same benefits’ is very different from ‘same health care.’”

On top of pre-authorization, Medicare Advantage plans tend to come with more restrictive networks than traditional Medicare, which offers access to the vast majority of physicians nationally. “While the plan is PPO and claims to have a very large network, PPO plans can still guide you to specific providers,” said Meyers. “I can’t say if the plan will have a robust network in the NY area- if it does, it might be fine, but one of the largest benefits of [traditional Medicare] is that there are really no network restrictions.”

The city and union leadership argue that retirees need not worry. According to an FAQ published by the city’s Office of Labor Relations, 640,000 out of 850,000 Medicare providers nationally are contractually obligated to accept their new Medicare Advantage plan.

A de Blasio administration spokesperson dismissed concerns regarding whether the remaining 210,000 will accept the plan, noting that those providers will be compensated at the same rates that Medicare pays. In the case of recalcitrant providers, a call center will assist retirees in getting payments to relevant physicians, the spokesperson said.

According to the FAQ, as a last resort, retirees can pay their providers and submit the claims to the health insurance companies for reimbursement.

Notably, the city is touting the fact that Hospital for Special Surgery and the Memorial Sloan Kettering Cancer Center — two top-tier local hospitals that typically do not accept Medicare Advantage — have agreed to participate in their plan. But there is no binding legal obligation yet, a de Blasio spokesperson confirmed, though the administration expects to finalize an agreement with the hospitals before January. “Both facilities have agreed to continue to see our Medicare Advantage members on an out-of-network basis while negotiations are underway,” the spokesperson added.

But to some retirees, the assumption seems risky.

“How many hospitals are there in this country that don’t accept any Medicare Advantage plan? Why all of a sudden will they accept this one plan?” asked Eber, who noted that he represents retirees living all over the country. “We don’t share the confidence that the city and the Municipal Labor Council have. We hope they’re right, but the proof will be in the pudding come January.”

A spokesperson from Memorial Sloan Kettering declined to comment. Tracy Hickenbottom, a spokesperson for Hospital for Special Surgery, said, “We work with patients, payers and community leaders to demonstrate value and best serve as many people as possible. This enables us to offer acceptance of most major insurance plans for Hospital services, including several Medicare Advantage plans.”

NEW YORK MUNICIPAL retirees are not alone in wondering what an increased push toward Medicare Advantage means for them. As of this year, 42 percent of all Medicare beneficiaries are enrolled in Medicare Advantage plans, up from 24 percent a decade earlier. The Congressional Budget Office projects that share could hit 50 percent by 2026.

“Retiree health benefits have become a significant expense, and employers are looking for ways to meet their obligation and cut costs, which makes Medicare Advantage quite appealing at the moment,” said Neuman.

Despite so many people now on the privatized plans, researchers say they do not have a strong grasp of what kind of health care beneficiaries are actually receiving, especially those who are sickest or have the most complex needs.

This past spring, in an annual federally mandated analysis on Medicare, the Medicare Payment Advisory Commission wrote that “the current state of quality reporting in [Medicare Advantage] is such that the Commission can no longer provide an accurate description of the quality of care.”

The plans are also taking a toll on federal coffers, due to overpayments and disenrollments in the final year of life, among other factors. “There is no question that Medicare Advantage is unsustainable in the long term,” said Archer. “It’s driving up Part B premiums, eroding the Medicare trust fund, and costing taxpayers tens of billions a year more than traditional Medicare.”

While support for Medicare Advantage in Congress has been strong and bipartisan for some time, Politico reported on August 3 that some lawmakers and outside groups are pushing “some form of cuts” to the program as a potential source of savings in the budget reconciliation bill. Politically, it may also be easier for the federal government to reduce reimbursements to health insurance companies than to the providers it pays directly through traditional Medicare.

If federal support for Medicare Advantage decreases, costs may rise for city-insured retirees like Josephine Malaysz, who worked for decades as a nurse in the city’s public and private hospitals. Malaysz, whose husband is also a city-insured retiree, views the shift to Medicare Advantage as a poor measure of gratitude for the couple’s long careers in public health.

“My husband worked over 30 years as a paramedic — sometimes he would work 80 hours a week. He loved his job,” she said. “And when I was in the city hospitals, I gave my all to my patients.”

“We gave ourselves to the city, and now you’re retired, and here we go,” she added. “It’s just not respectful.”

Mission-driven and worker-driven: Inside the wave of nonprofit organizing

Originally published in Strikewave on May 28, 2020.
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In April, six nonprofits based in the nation’s capital — ranging from the National Women’s Law Center and J Street, to Friends of the Earth and Groundwork Collaborative — announced their plans to unionize with the Nonprofit Professional Employees Union (NPEU), a D.C.-based affiliate of the International Federation of Professional and Technical Employees (IFPTE). Meanwhile, workers at the ACLU of Northern California were laying the groundwork for their own unionization drive, which they announced at the beginning of May. When the vaunted civil liberties organization declined to voluntarily recognize its workers, they quickly filed for an NLRB election.

“A lot of these campaigns were going on before this whole pandemic, but I think the uncertainty has really brought into clear relief the need for a collective voice in both things like safety and PPE when we eventually come back to the workplace, and how funding cuts and all that is going to be dealt with,” said Paul Thurston, the organizing director for IFPTE. “It’s just getting people to the realization that you’re better off in an uncertain situation when you have the ability to advocate for yourself as opposed to whatever your boss dictates.”

Nonprofit workers organizing — and even striking — is not new. Labor unions like AFSCME and SEIU have long seen opportunity for growth in the nonprofit sector, a sector which expanded significantly in the second half of the twentieth century with a predominantly female and highly-educated workforce. Unions even once viewed organizing nonprofits as a central way to slow the privatization of public services; this was in part because they thought if wages went up in nonprofits then public entities might be less motivated to contract out. “In general that hasn’t really happened because nonprofit wages — union or not — haven’t kept pace with government wages,” said Jan Masoaka, the CEO of the California Association of Nonprofits. “And the other motivating factor for contracting — having greater control to hire and fire — has become more important to employers.”

As of 2017, according to federal labor statistics, there were nearly 12.5 million nonprofit workers  across the U.S, working in a range of organizations from hospitals and charter schools, to direct-service providers and museums, to advocacy groups and research institutions. The government does not track union density among nonprofits specifically. But just as there’s been recent momentum for new organizing in sectors like digital media and tech, the college-educated, millennial workforce toiling at nonprofits have taken notice, and inspiration.

“Having done this work for thirty years, I can say the workers we’ve been in contact with recently have more confidence in standing up for what’s right, and demanding their working conditions reflect the values of their own agencies,” said Cindy Schu, the organizing director for Nonprofit Employees United (NEU), an affiliate of the Office and Professional Employees International Union. “I do think a lot of it is coming from an increase in activism among younger workers who are devoted to social change.” In the last six months, Schu’s union has organized five new nonprofits — including a food bank in San Francisco, an organization supporting at risk-homeless LGBTQ youth in Little Rock, and another homeless youth service provider in Seattle. They represent “many dozens” of nonprofits, she said.

Thurston said it’s “been incredible” to see how many nonprofit workers reach directly out to their union, interested in organizing their workplaces to make them more sustainable. “You get into nonprofit work because you’re ideologically-driven, but all of these big nonprofit hubs are in extremely expensive cities and young people are not being given the resources or say in the organization for that sacrifice to make sense,” he said. “The outreach is, ‘I don’t want to quit my job, I love my job, and I want it to be better.’”

Both the NPEU and NEU went through rebrands a few years ago, updating their names so nonprofit employees could more clearly grasp who it is they represent. It appears to be working: the NPEU alone has more than doubled its size from 13 units a year ago to 27 today.

“I think people are more conscious of themselves as workers, and have also realized in the larger economic scheme of things that nonprofits are not special,” said Kayla Blado, the president of NPEU and the director of media relations at the Economic Policy Institute. “They’re still working at a job, they deserve to get paid, and frankly a lot of them are having bad experiences at nonprofits, which purport to be progressive and care about certain issues but the day-to-day can be really difficult and workers face discrimination.”

Organizing nonprofits often requires different tactics than organizing for-profit companies. Unlike at a fast food corporation, or Amazon, where workers can rally around principles of corporate greed and sky-high profits, many nonprofit workers generally like their jobs, are aware of funding constraints, and want to avoid bringing too much negative attention to their organization.

“It requires a little bit of massaging the messaging to fit the demographic of the folks, which extends to the public-facing campaigns,” said Thurston. “At Kaiser or a power company or Boeing, there’s no problem going ablaze through the media to say we’re doing this, and here’s all the anti-union stuff Boeing is doing. With nonprofits, any kind of bad press could hurt their organization and that’s not really what they want.”

Jeff Farmer, the organizing director at the Teamsters, which represents about 20,000 nonprofit workers, said over the years he’s emphasized to nonprofit staff that unions don’t have to mean an inherently adversarial relationship. “You don’t have to be anti-organization, or anti-employer, to be pro-union,” he said. “You just still want a voice, weeks of vacation, and to be treated like an adult.”

The main reasons cited for organizing nonprofits are often not primarily financial, but are more about increasing transparency, security, and participatory decision making. “People who work in nonprofits understand the economy is precarious and they know even if my job is good it’s not stable,” said Stephanie Luce, a professor at the CUNY School of Labor and Urban Studies.

Workers tend to frame their campaigns around making their organizations stronger, and more capable of preventing costly staff burn-out. Some policies NPEU workers have negotiated for, said Blado, include mandatory racial equity training, standardized pay-scales and tuition reimbursement, good parental leave, retirement accounts, and seats for workers on the board.  “No one is trying to force their workplace to go under for any reason,” she said. “We just want to strengthen the mission of the organization.”

But these demands don’t always sit well with nonprofit management, many of whom see themselves as very progressive — or at least want to be perceived as such. Two decades ago, Masoaka, the now-CEO of California Association of Nonprofits, co-led a project for the Aspen Institute to study how nonprofits have been experiencing the surge in unionization. Masoaka and her colleague interviewed 40 nonprofit executives, trustees, and staff in San Francisco and New York, and found the campaigns can prove particularly contentious, because both nonprofit workers and their employers often have strong emotional investments in their work, and the progressive bona fides of the employers are directly challenged.

Boss resistance generally looks different than the more brazen union-busting tactics from the corporate sector. More common, workers said, is it takes the form of guilt tripping, with management stressing that collective bargaining could mean cuts to staffing, programming, and therefore less services available for their vulnerable clients. Nonprofits are also often dependent on government funding and private foundation support — which managers point out can come with strings that prevent dollars from going to the types of demands workers are making at the bargaining table.

Sometimes managers even worry that donors will be upset by the prospect of a union, if that means donor contributions go less far to serving low-income and vulnerable people. “What we usually say to that is turnover is extremely expensive, and when workers leave, the quality of work goes down,” said Blado, who adds that in her experience many donors have been happy to see their organizations walking the progressive walk.

Paternalistic attitudes from nonprofit employers are also not uncommon, according to organizers. “They’ll say they’re not opposed to labor philosophically, but when their power is challenged it’s a really different story,” said Schu of the NEU. “I’ve seen a patronizing approach where the manager will say, ‘we’re all in this together, we’re a nonprofit and the work itself should be a reward,” added Farmer, of the Teamsters.

As for whether a nonprofit employer is more likely to voluntarily recognize their workers’ union than a for-profit — it depends. There’s certainly more pressure to do so, especially if the threat of bad press awaits. Paul Reilly, who has worked for the Washington-Baltimore Newspaper Guild since 2001, says the nonprofits his union has represented have been more likely to do voluntary recognition. (Disclosure: In 2017, I helped organize The American Prospect, a nonprofit, with the Washington-Baltimore News Guild. Management did voluntarily recognize us.) And nearly all the recent NPEU shops were also voluntarily recognized. Still Schu said in her experience it’s been more common for nonprofits to go through an NLRB election, though they always try and seek voluntary recognition first.

One area of nonprofit organizing that is genuinely new is political campaigns. The idea has been long discussed among campaign staffers, but because campaign work is so short-term, many established unions didn’t see the investment as feasible. Some unions also thought it could be a conflict-of-interest, because they endorse candidates and questioned whether they could represent the workers of a candidate they may or may not endorse.

“It’s something people have always talked about at drinks after work but no one really does,” said Meg Reilly, the president of the Campaign Workers Guild, which she co-founded in 2017. “We were told no by plenty of unions, so finally we just started our own.”

The Campaign Workers Guild was so successful in the 2018 cycle, representing about 40 campaigns, that now larger unions have hopped on the bandwagon, especially eager to represent the major Democratic presidential candidates. In the 2020 cycle, the International Brotherhood of Electrical Workers represented Elizabeth Warren and Pete Buttigieg’s campaign staff, the United Food & Commercial Workers Union represented Bernie Sanders’s staff, and the Teamsters represented Joe Biden’s. The Biden campaign contract, ratified in early May, includes overtime pay, 100 percent employer-paid health insurance, a six-day workweek, and a union grievance procedure.

The campaigns the Campaign Workers Guild have represented have only gotten voluntary recognition, and Reilly says the pressure is particularly intense on candidates to recognize their workers’ union, because the timelines are so short and the threat of being labeled a union-buster can be such a political nightmare for a Democratic politician. (The Campaign Workers Guild is nonpartisan but has not represented any Republican campaigns to date.)

While that pressure has been helpful, Reilly acknowledges the short timeline can sometimes serve as an obstacle too, since many people join campaigns for what they understand upfront to be exhausting sprints. “Sometimes people resist a union because they want their candidate to win, that’s why they’re working on the race, and so anything they feel could jeopardize that goal they say is not worth it to them,” she said. “Permanent organizations are different, the pressure levers are different. They may be strapped in for a longer fight but also have more time to work and build a stronger organization.”

Nonprofit workers, unionized or not, are bracing for a turbulent time as the economic recession sinks deeper from the coronavirus. Luce, from the CUNY School of Labor and Urban Studies, said the research has been “somewhat mixed” about how unions fare during a downturn. High unemployment definitely makes it harder for workers to unionize, she said, but sometimes unionization picks up when employees are faced with particularly bad working conditions and unusually stressful expectations.

“The pandemic has certainly hit many of our members hard,” said Schu. “We have members who work in shelters, on the streets, we represent really fragile folks and the services are going to be needed now more than ever.”

One goal for nonprofit unions amid the pandemic, Blado said, is figuring out how to leverage their positions to raise standards for essential workers who might be cleaning their offices, guarding security for their buildings, or simply not able to work remotely.

“Several of our units have bargained with management over ensuring there’s PPE and hazard pay,” said Blado. “We want to figure out how our nonprofit workers who are more privileged and fortunate can support essential workers and show solidarity.” On their list-serves, she added, NPEU has been mobilizing for donations and mutual aid.

Nonprofits are already bracing for money to dry up in the coming year. Reilly of the Washington-Baltimore Newspaper Guild said for those nonprofits that rely primarily on government funding, at least budgets for this fiscal year are already locked in. Next year, he said, is when things could start getting really tough.

“We’re going to see less foundation funding, less government funds, fewer personal donations, less in fees-for-service,” said Masaoka, noting that 37 percent of funding for nonprofits comes from fees-for-service like preschool tuition. “I’ve been wondering how unions are going to fare, and it could go either way.”

How Trump Could Dismantle Workers’ Rights with Another Four Years

Originally published in the April/May/June 2020 issue of The Washington Monthly
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From the perspective of the liberal policy establishment, Donald Trump has launched an aggressive and unprecedented assault on workers’ rights and the labor movement. From the perspective of the right, Trump has governed on labor almost exactly as any other Republican president might have.

“When he was first elected, I ventured his administration might be different from traditional Republicans in a few ways, including in its relations with unions,” Walter Olson, a labor policy expert at the libertarian Cato Institute, said. One of the president’s first meetings in 2017 was with leaders of the building trades, Olson noted. “But in the end, they have been very much in line with what you would have expected from, say, Carly Fiorina.”

In many respects, Trump’s administration has followed in the footsteps of Ronald Reagan and his acolytes, who pioneered the Republican playbook on weakening unions. From stacking his administration with anti-union ideologues to firing more than 11,000 striking air traffic controllers during his first year in office, Reagan set in motion a pro-corporate agenda that Trump has continued to push forward. In case there was any doubt about how the Trump administration regarded the conservative icon’s labor record, in August 2017 then Labor Secretary Alexander Acosta announced that Reagan would be inducted into his agency’s Hall of Honor.

One way Trump has taken aim at unions is through the National Labor Relations Board, or NLRB, which is the federal agency tasked with protecting the rights of private-sector workers and encouraging collective bargaining. Private-sector workers are barred from bringing workplace grievances through the courts themselves, so filing complaints with the NLRB—which has more than two dozen regional offices spread across the country—is how employees can seek redress if they feel their rights have been violated. If an issue can’t get settled at the regional level, it gets kicked up to the agency’s five-person panel in D.C., which issues a decision.

Trump’s NLRB has kept busy, handing down a spate of decisions that align with employer interests and overturn Obama-era decisions. In early 2017 the Chamber of Commerce, a powerful business lobby, published a wish list of 10 policies it wanted to see changed under the Trump administration. In less than three years, the NLRB addressed all 10 items on the list, even going beyond what the lobby requested in some instances. For example, new NLRB decisions make it harder for workers and union representatives to discuss issues on employer property, and give employers more power to unilaterally change collective bargaining agreements. Decisions like these tend to have modest immediate impact but become far more consequential as they have more time to take effect.

“Unfortunately, how the three Republicans on the NLRB seem to view their job is to weaken the law as it pertains to workers’ rights, but also amp up scrutiny of unions and penalties against them,” Lynn Rhinehart, a senior fellow at the left-leaning Economic Policy Institute (EPI), said.

Republicans say the flurry of Trump administration actions is a natural response to what they viewed as aggressive rule making by the Obama administration. “The perception on the Republican side is that Obama hit so many balls across the net, so [the administration] is responding by swatting balls back now,” Olson, the Cato Institute expert, said. “Generally, I think the business community just wanted to get some relief from all the new rules imposed by the prior administration.”

But beyond playing ping-pong with Obama-era dictates, the Trump administration has also been working to hollow out the NLRB. According to an EPI analysis, the number of full-time employees working in the agency dropped by 10 percent during Trump’s first two years in office, including 17 percent fewer regional field staff. Given that the nation’s roughly 129 million private-sector workers can’t bring their grievances through the courts, the fewer NLRB staff available to process their complaints, the fewer opportunities workers ultimately have to get justice.

Perhaps the clearest example of the Trump administration’s attitude toward unions is its treatment of federal workers. Over the past three years, with the strong encouragement of the president, agencies have taken steps to strip federal workers of their union rights and undermine their negotiated contracts.

“I have to admit federal workers have suffered,” Everett Kelley, the national president of the American Federation of Government Employees, said. “We’ve seen federal worker contracts just ripped up and replaced with contracts written by management that had no negotiations at all,” he said. Civil servants have been forced out, Kelley continued, while staff vacancies have been left unfilled.

Last October, the Trump administration instructed agencies to move as fast as possible to restrict unions in federal workplaces. One of the first, practical consequences was that many union reps, who for years had access to government agencies, were no longer welcome inside. In late January, the president took another step, issuing a memo that gave Defense Secretary Mark Esper the power to end collective bargaining for the Pentagon’s civilian workforce of roughly 750,000 people, more than half of whom are in unions. It’s not yet clear what Esper will do with that power.

A second term for Trump would likely bring more of the same, said Donald Kettl, a professor of public policy at University of Texas at Austin and an expert on the federal government. While past Republican presidents have tried to diminish federal unions, he said, few presidents have been as successful as Trump. “He’s skillfully found a way to use these issues to energize the [Republican] base,” Kettl continued, and he’s pursued tactics that don’t require legislative action. Trump has latched on to recurring conservative themes—his “deep state” attacks on bureaucrats are not radically different from Nixon’s “enemies list”—but his push has been “a more focused, concerted, and successful effort than the anti-bureaucracy campaigners have been able to muster in the past,” Kettl said.

If Trump’s first term was focused on making it tougher for workers to unionize, both conservatives and liberal policy wonks agree that a second term would likely mean more attention directed toward regulating gig workers. Generally, gig workers—like Uber drivers—aren’t afforded the protections of traditional employees, like minimum wage, overtime, unemployment insurance, and the right to join a union. Increasingly, though, labor advocates are building a case that many of these workers have been shortchanged; they’re functionally employees and should be protected as such.

It’s clear that the Trump administration disagrees. In one 2019 decision, the NLRB reversed an Obama-era ruling to find that SuperShuttle drivers were independent contractors, not employees. The agency’s general counsel, Peter Robb, another Trump appointee, reinforced that decision, issuing a memorandum declaring the same thing about Uber drivers. That sends a strong message to gig workers to not bother bringing any new cases to the NLRB on this topic.

Meanwhile, blue states have been pushing in the opposite direction. At the start of 2020, a sweeping new law known as AB5 went into effect in California, taking aim at the problem of misclassifying employees as independent contractors. Other states, like New York and New Jersey, are now following suit with their own versions of the law, and the Democrat-controlled House of Representatives passed its own bill in February that similarly would make it harder for employers to classify their workers as contractors. Other states, like Washington, are considering bills to allow for so-called “portable benefits”—where workers, regardless of whether they are employees or contractors, could accrue benefits on a per-hour basis, and these would be fully portable, like Social Security. (The Washington Monthly has championed this idea.)

Rachel Greszler, a labor policy expert at the conservative Heritage Foundation, said that while Republicans are interested in addressing some of the concerns faced by contractors and gig workers, their proposed reforms differ from laws like AB5. She suggested policies making it easier for contractors to pool together to finance their health insurance, using what are known as “association health plans.” Greszler also pointed to universal savings accounts, which would function similarly to employer-administered 401(k) accounts. The Trump administration supports both of these policies and has already taken steps to make association health plans available more broadly.

The decisions already issued by Trump’s NLRB could weaken the impact of California’s new labor law by confusing workers and deterring other states from moving forward with their own solutions. “I think it is probably very confusing to hear that you are not an employee and don’t have a right to collectively bargain under federal law, but that you are an employee for the purposes of California law,” said Sharon Block, an Obama Labor Department official and now a labor expert at Harvard Law School. “When labor rights are more complicated it makes it less likely that they will be invoked. It’s good lawmakers are moving forward in California, but this counter-signal from the federal government could have a chilling effect on workers who might otherwise assert their rights.”

Another four years of Trump, said Shaun Richman, a labor expert at SUNY Empire State College, would mean an even greater effort by the NLRB to try to stop federal labor law from adapting to “the modern workplace.”

“They are closing their minds to the ways that business models actually work, they don’t want the National Labor Relations Act to adapt to the fissured workplace,” he said. “It’s not an exaggeration to say four more years is an existential threat.”

State Workers Seek to Protect Labor Rights As Coronavirus Spreads

Originally published in The Intercept on March 21, 2020.

On Tuesday, a week after declaring a state of emergency due to the spread of Covid-19, Minnesota’s Democratic Gov. Tim Walz signed an executive order pertaining to his state’s 50,000 executive branch employees. The order extended paid leave to all state employees for absences like caring for children due to school closures, and authorized agency heads to waive parts of collective bargaining agreements so as to more easily deploy workers where and when needed. Minnesota law grants the governor such powers during such emergencies.

Publicly, unions representing these workers praised Walz for his action on paid leave, and offered only muted concerns about the collective bargaining measures — stressing they will monitor the situation to ensure employers do not abuse their new authorities.

Privately, though, unions were taken off guard by the governor’s actions, and were unable to get the state to agree to establishing guardrails in the order itself around preventing employer abuse.

Workers are concerned that other states, especially less labor-friendly ones, may follow Minnesota’s lead, and use the pandemic as a pretext to weaken unions in the long term. In California, some employers have been lobbying for a similar executive order, to free themselves of public-sector bargaining restraints. While state employees have made clear they’re committed to flexibly responding to the crisis, unions understand anti-labor managers have wielded emergencies to their benefit in the past.

On Thursday March 12, state union representatives had an in-person meeting with the Minnesota Management and Budget — an agency that governs personnel and finance issues — to check in about the novel coronavirus. In that meeting, which was described as “friendly and nonproductive” by an individual involved who was not authorized to speak about the discussions, union reps talked primarily about paid leave, and also raised concerns around telework, and safety equipment for health and correctional workers.  There was no discussion then of potentially waiving aspects of collective bargaining, and they all planned to meet again on Tuesday, March 17.

But on Monday, March 16, with less than an hour’s notice, the MMB emailed the unions an invitation for a conference call. It was on that call that state officials announced the draft of their forthcoming order, though they did not provide anyone on the call with a written copy of the text.

“It was received as a great surprise,” said one of the participants on the call. “A lot of questions were thrown out, and because we did not have the physical document in front of us, a lot of the questions were just like, ‘What did you say? What’s that phrase?’”

A few hours later union senior staff organized another call among themselves to discuss how to respond. They were less concerned about Walz and far more worried about how agency heads below him might interpret their new broad authorities. Many leaders of individual state agencies have been in charge since Republican Gov. Tim Pawlenty’s tenure, and are not supportive of unions. Under the new order, employers can change schedules, work locations, or work assignments without notice, whereas in the past employees were given a notice period to rearrange their lives.

On Monday evening, union leaders emailed MMB officials and Walz’s chiefs of staff to request the administration publicly commit to “working with union representatives to swiftly and fairly address issues that may come up as a result” of this proposed order. The unions specifically requested a sentence be added to this effect, and that the administration commit to saying this in a press conference.

But all they were able to win was the addition of a vague line saying, “When circumstances allow, Minnesota Management and Budget will work in partnership with the labor unions affected by any adjustments to the provisions of collective bargaining agreements or memoranda of understanding.”

When the executive order was signed on Tuesday, union leaders largely bit their tongues. “We are thankful for the Governor’s action in authorizing this new policy specifically to address COVID-19 leave,” stated the Inter Faculty Organization, which represents employees at Minnesota’s seven state universities. Walz was elected in 2018 with strong union support, and the IFO praised the paid leave measure for “setting the standard for the rest of the nation.”

The executive directors of American Federation of State, County and Municipal Employees Council 5 and the Minnesota Association of Professional Employees also issued a joint statement that recognized the “magnitude” of the executive order. “We won’t stand in the way of the state’s powerful response to the crisis, but we won’t idly sit by if that power is abused,” they said. The unions emphasized they had “worked with the State” to ensure the changes would be only limited to dealing with Covid-19.

In an emailed statement MMB Commissioner Myron Frans said his agency “is working in strong partnership with our union partners during this rapidly evolving emergency situation. We continue to work together with the shared goals of preventing the spread of COVID-19, keeping employees healthy, and providing critical services to the people of Minnesota.”

So far, rank-and-file members have not reacted negatively to the order — and have been focused more on the new expansive rights around paid leave, which they are happy with. Union leaders suspect the rubber will hit the road if and when cases of coronavirus ramp up in Minnesota, and working conditions start to change.

“We’re particularly concerned about things like conditions in prisons, where workers already deal with severe understaffing,” said the union source. And while their grievance procedures are technically unaffected by the executive order, the reality is the standard grievance process doesn’t move quickly enough during emergencies, meaning workers could be left without recourse in the event of employer abuse.

Some unionized state workers in California were recently threatened that their collective bargaining rights were soon to be waived too.

Ashley Payne, a state worker in Contra Costa County, one of the nine counties in the Bay Area, has been increasingly alarmed by the lack of safety protections for workers like herself who have been required to come into the office. She works in her county’s Employment and Human Services division, where she helps administer welfare.

As an elected officer for her union, SEIU Local 1021, Payne has been fielding concerns from colleagues about the lack of hand sanitizer, disinfectant wipes, and masks — including for social workers who have to do home visits.

On Wednesday, Annie Barrett, the division manager for Payne’s department, emailed staffers about working conditions under Covid-19, and said they were “exploring temporary telecommuter opportunities.” Payne forwarded the email to Jeffrey Bailey, her county’s labor relations manager, to say that while her union strongly supports this step, she wants to make it clear in writing that SEIU 1021 does not agree to making this change permanent. “We will not allow the County to exploit this crisis as a pretext for ushering in permanent changes,” she wrote. “We continue to expect timely notice of upcoming changes so we can Meet and Confer over changes to wages, benefits, and working conditions.”

In his emailed response, Bailey agreed the assignment of staff to work from home was temporary, but emphasized that things “are different” under emergency conditions (Emphasis in original).

“Furthermore,” Bailey wrote, “the state of California has informed us that the Governor intends to pass an executive order to temporarily suspend many of the provisions of the MMBA [Meyers-Milias Brown Act, the state law governing public sector collective bargaining] during this emergency period.”

Upon receiving this email, Payne reached out to her local’s leadership, who reached up the chain to the state level. Soon after Rene Bayardo, a lobbyist with SEIU California, emailed to say his team had looked into this threat, and suggested Bailey was wrong. “The indication from the [Newsom] administration is that public employers are asking to suspend MMBA but this is NOT under consideration,” Bayardo wrote.

Payne, who has worked at her job since 2014, said her employer has grown far less responsive to union concerns since the Janus v. AFSCME decision in June 2018. “Knowing what their track record is I’m not surprised they’re trying to bust the union,” she said. Rather than distancing itself from unions during the pandemic, Payne added, local government should lean into “much closer collaboration because we know our work best and we know how best to ensure safety.”

Bailey told The Intercept that he doesn’t have “any direct knowledge” of California Gov. Gavin Newsom’s plans with respect to MMBA. “I heard about it, as we say, ‘through the grapevine,’” he wrote in an email. “This has been discussed widely among public agencies, but I don’t have any specifics or inside information. … We are all assuming that the suspension would apply to things like the meet and confer obligations and notice requirements.”

Crystal Page, a spokesperson with California’s Labor & Workforce Development Agency, said Newsom “has been clear that California needs flexibility to respond” and that he “understands the importance of collective bargaining and the need to ensure workers have a voice on the job.”

Nelson Lichtenstein, a labor historian at University of California, Santa Barbara told The Intercept he hadn’t heard anything about moves to suspend collective bargaining in California, though acknowledged it is certainly not unprecedented for anti-union leaders to try and exploit crises to weaken labor.

Lichtenstein pointed to the aftermath of 9/11, when Congress created the Transportation Security Administration. Using legislative authority, a George W. Bush-appointed TSA administrator denied the 40,000 TSA workers collective bargaining rights, claiming it was necessary for national security. It wasn’t until 2011, under a new Obama appointee, that TSA workers finally won the right to bargain.

Another example was following Hurricane Katrina, when Bush unilaterally suspended federal law governing workers’ pay on federal contracts in areas of Alabama, Florida, Louisiana, and Mississippi. Bush justified his move by calling Katrina a “national emergency” and said ignoring federal rules around construction costs “will result in greater assistance to these devastated communities.”

“People were outraged, it was just so obvious he was using it opportunistically,” said Lichtenstein. About six weeks later, in response to the backlash, the White House reversed course.

Payne said she worries that if labor-friendly California does follow Minnesota’s example, it would quickly motivate many other states to follow, particularly Republican-controlled states. “This is why I feel we have to hold the line,” she said. “If California does it, then everyone else will be like, ‘We should have been doing this a long time ago.’”

A Small Chicago Firm Has Quietly Funded Nearly Two Dozen Anti-Union Lawsuits

Originally published in The Intercept on December 23, 2019.
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A lawyer who filed 21 class-action lawsuits against unions over the last two years has previously said that his lawsuits were not part of any concerted effort to target public-sector unions and that “the idea to bring these lawsuits was entirely my own.” It turns out, however, that his lawsuits are backed by a small finance litigation firm in Chicago, according to a court filing that has not been previously reported. The firm, Juris Capital, is in the business of bankrolling litigation upfront, making bets that it will enjoy an ample cut of a plaintiff’s proceeds.

Attorney Jonathan Mitchell filed his lawsuits in New York, New Jersey, Pennsylvania, Minnesota, Maryland, California, and Washington state in the weeks and months before the Supreme Court issued its decision in Janus v. AFCSME, a case that significantly weakened public-sector unions.

In its landmark Janus ruling, the Supreme Court said in June 2018 that public-sector unions cannot collect fees from workers who do not wish to be union members. The court deemed unconstitutional a longstanding practice of unions charging so-called agency fees to workers who did not opt to join a union but benefited from its bargaining nonetheless.

Mitchell’s litigation seeks hundreds of millions of dollars in retroactive payments from public-sector unions, refunds on behalf of workers ideologically opposed to ever having paid any union agency fees. Most states have two- to three-year statutes of limitations on these kinds of suits, while Minnesota’s goes back six years. In the immediate aftermath of the Janus decision, conservative legal foundations — including the Pacific Legal Foundation, the Buckeye Institute, and the National Right to Work Legal Defense Foundation — also filed similar lawsuits.

At the time of his initial court filings, Mitchell also had a pending nomination by President Donald Trump to serve as chair of the Administrative Conference of the United States, a federal agency dedicated to improving government administration. Tapping Mitchell, a former visiting professor at Stanford Law School and before that the Texas solicitor general, to lead the nonpartisan agency rankled some, as he had a long conservative legal record. (Mitchell’s nomination, which was not approved by the full Senate, was returned to the White House at the end of the last Congress, and he was not renominated this year.)

Mitchell’s law firm that brought the anti-union lawsuits, Mitchell Law PLLC, was registered in June 2018 — the same month as the Janus ruling. A month later, Noam Scheiber of the New York Times looked at Mitchell’s involvement in the lawsuits, writing that it suggested “a well-coordinated effort.” Mitchell declined Scheiber’s request to discuss the matter, citing his pending nomination “and my desire not to draw attention to the lawsuits.” Nobody knew who funded the work of Mitchell Law.

Not for lack of trying. Also in July 2018, Sen. Sheldon Whitehouse, D-R.I., who sits on the Senate Judiciary Committee, sent a letter to Mitchell, expressing his concern that the lawyer might be part of the same “coordinated, covert, and well-funded” effort to crush public-sector unions that led to the Janus ruling. Whitehouse requested, among other things, a list of all “persons or entities that have provided funding for or have a financial interest, including contingency interests” in the outcome of his post-Janus lawsuits, as well as details on how he identified plaintiffs for his suits.

In his response letter, Mitchell wrote that he “can assure you that I am not part of any ‘campaign’ or coordinated effort to litigate against public employee unions.” He claimed that the idea to “bring these lawsuits was entirely my own, and it was not made in conjunction or coordination with the Janus litigants or any of the entities that you mention in your letter.” He declined to share who was funding the litigation, citing attorney-client and “attorney-work product” privilege, but insisted that there was nothing covert about his efforts.

Thirteen months later, Mitchell had to file a rare disclosure form, providing information about his lawsuits that he’d never before had to share publicly. This was thanks to a rule in the U.S. District Court for the Northern District of California that requires mandatory disclosure of third-party funding agreements for class-action lawsuits.

In a filing dated August 13, 2019, Mitchell disclosed that “Juris Capital LLC has provided a non-recourse loan” to his law firm and that the “loan is to be repaid with the proceeds that Michell Law PLLC receives from any of the approximately 20 class-action lawsuits that the firm has brought against public-sector unions in the wake of Janus, including this case.” In sum, he concluded, “Juris Capital LLC therefore has a ‘financial interest in the subject matter in controversy.’”

Reached by phone, Mitchell declined to comment.

JURIS CAPITAL IS a decade-old privately held litigation finance firm incorporated in Chicago. Headed by David Desser, a self-described “pioneer in the commercial litigation finance industry,” Juris is one of just a few litigation finance firms in the U.S that provide upfront funding for pending litigation and take a cut of the plaintiff’s settlement or jury award. Desser once told the New York Times that overall, “our returns are well in excess of 20 percent per year” and that “we’re certainly beating the market.” While Juris is not required to identify its funders, media reports have previously described it as “backed by two hedge funds” and “a group of dedicated investors.”

Randi Weingarten, president of the American Federation of Teachers, blasted Juris for hiding its donors.

“While labor unions are forced to publicly disclose nearly every financial transaction they make, those plotting our demise hide behind front groups to plow dark money into bad-faith lawsuits that tie up union resources and hurt working people,” she told The Intercept. “It’s well past time that Juris is exposed for what it is: a dark-money vehicle trying to deny workers a voice at work and in our democracy.”

The AFT lost 84,500 agency-fee payers immediately after the Janus ruling, though it added another 88,000 members between November 2017 and November 2018. Many conservative groups have been running campaigns since June 2018 encouraging public-sector union members to disaffiliate altogether.

In many ways, the cases being filed against public-sector unions appear quite unusual compared to the kinds of cases Juris and other finance litigation firms typically invest in. Generally finance litigation firms look for low-profile cases, in which the chances of winning or settling are high, so as to prioritize quick, reliable returns.

In 2010, Desser described his firm’s approach like this: “We are cherry-picking the absolute best cases with a fact pattern that we can deconstruct. We’re not interested in winning 1 out of 10 like in the venture capital world, where you look for that home run. … We want to win 7 out of 10, with doubles or triples on our money.” Desser did not return The Intercept’s requests for comment.

So far, the wave of post-Janus lawsuits, both those led by Mitchell and those led by conservative legal foundations, have not yet proved successful, as trial courts across the country have unanimously accepted unions’ arguments in roughly 25 cases that they were acting in good faith prior to Janus and therefore, should not be held responsible for funding the agency fees charged prior to last year’s Supreme Court decision. In some cases though, unions have settled rather than take all the legal challenges through court. A spokesperson for the National Right to Work Foundation told Bloomberg Law in late November that the organization has settled 10 cases and recovered tens of thousands of dollars in agency fees.

While unions have so far had success in the lower courts, the post-Janus litigation is now moving onto the appellate level, where their fortunes could change. In November, the U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to endorse this “good-faith” argument in favor of unions, but six more appellate courts are set to decide on the issue soon. As Robert Iafolla noted recently in Bloomberg Law, “A single circuit ruling that rejects [this argument] would create a split that may pave the way for the issue to reach the Supreme Court.”

“I think in most cases, a finance litigation firm’s hope would be to not go to the Supreme Court, as that means it would be a case that is getting dragged on for years and years,” said Charles Agee, founder and CEO of Westfleet Advisors, a finance litigation consulting firm. “I think most litigation funders hope their cases settle before going to trial.”

Another possibility — though this, too, would be unusual — is that the lawsuits are being waged primarily to drain union coffers in defense. “Juris and others know that if you entangle unions in endless litigation, you can begin to starve our resources,” Weingarten of the AFT said. From this perspective, it’s a win-win for the plaintiffs — either they win and the investors take home profits, or they lose but the unions are still on the hook for hundreds of thousands of dollars in legal defense fees. One example lawyers point to of this sort of strategy is billionaire investor Peter Thiel backing a series of lawsuits against Gawker Media, including a case brought by Hulk Hogan, which ultimately bankrupted the company. Thiel described his investments as “one of my greater philanthropic things that I’ve done.”

Gary Chodes, who has worked in the litigation finance world for the last 15 years, told The Intercept that it would be really difficult to find out who was funding the post-Janus cases, though he has indeed seen some “politically oriented” lawsuits over the years. For example, he said, conservative-leaning think tanks supported Texas ranchers in lawsuits in which local governments used eminent domain to take away cattle ranchers’ water rights.

“Are those cases that will generate a lot of interest from the legal funding industry? No, they’re probably not economical winners,” he said. “But they’re important philosophical battles.”

Will Baude, a libertarian law professor who defended union agency fees as constitutional, told the New York Times that he would expect the Supreme Court to be less sympathetic to “good-faith” defenses than lower courts. “If I were the unions, I’d be really nervous,” he said.

Some of the post-Janus cases are also challenging the legal principle of exclusive representation, in which a union represents all workers in a unit if a majority of the unit endorses it. The majority rule principle is written into the National Labor Relations Act, and Catherine Fisk, an expert on labor law at the University of California, Berkeley told The Intercept that it would be “an extraordinary feat of judicial activism” if the Supreme Court struck that down.

Scott Barton, a spokesperson for Pacific Legal Foundation, told The Intercept that the law firm filed one post-Janus case in California this past summer but “have had no involvement with Jonathan Mitchell or his cases.” Lisa Gates, a spokesperson for the Buckeye Institute, told The Intercept that the think tank is involved in four cases (two in Ohio, one in Minnesota, and one in Maine) and “are not working with Jonathan Mitchell on any cases.” A spokesperson from the National Right to Work Legal Defense Foundation did not return requests for comment, though Mitchell told Whitehouse in 2018 that he was not working with them.

Asked about Juris Capital and whether he believes that Mitchell was sufficiently forthright during his nomination process, Whitehouse told The Intercept, “Jonathan Mitchell has a thriving anti-union law practice that appears to be an arm of the corporate donor campaign that gave us Janus v. AFSCME. The corporate interests behind that anti-worker campaign don’t want the public to see what they’re up to, but nominees for important federal posts need to tell the truth to Congress.”

Why Environmental Groups Are Urging Congress to Vote Against Trump’s North American Trade Deal

Originally published in In These Times on December 16, 2019.
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While Congressional Democrats made clear that they would not bring the United States-Mexico-Canada Agreement (USMCA) to a vote until it had the backing of the AFL-CIO, support they finally secured last week, Democrats appear comfortable voting on the replacement trade deal that has virtually no support from leading environmental groups.

A House vote could come in the next few days and on Friday December 13, ten environmental organizations, representing 12 million members, sent a letter urging Congressional representatives to vote against the proposed deal, which will replace the 25-year-old North American Free Trade Agreement (NAFTA).

“This final deal poses very real threats to our climate and communities and ignores nearly all of the fundamental environmental fixes consistently outlined by the environmental community,” the letter stated. The groups—which include the Sierra Club, Greenpeace and 350.org—noted that “the deal does not even mention climate change, fails to adequately address toxic pollution, includes weak environmental standards and an even weaker enforcement mechanism, supports fossil fuels, and allows oil and gas corporations to challenge climate and environmental protections.” The groups link to a two-page analysis produced by the Sierra Club that goes into greater detail about what the group sees as the deal’s environmental shortcomings.

House Democrats, meanwhile, have been touting the environmental provisions negotiated in USMCA, insisting they’re both strong and the best they could have feasibly achieved.

According to the environmental news organization E&E News, at a Politico event last week, House Speaker Nancy Pelosi described the USMCA as “substantially better” than NAFTA and said “we are very pleased with the environment [provisions].” While she conceded “we want more,” she stressed, “but we don’t have to do it all in that bill” and praised it for “talk[ing] about the environment in a very strong way.”

Rep. Suzanne Bonamici (D-Ore.), who co-led the House working group focused on environmental trade issues, told reporters at a press conference last week that “this is going to be the best trade agreement for the environment” and cheered its monitoring and enforcement provisions. Rep. Bonamici did not return In These Times’s request for comment.

Back in May, every Democrat on the House Ways and Means Committee, chaired by Rep. Richard Neal (D-Mass.), sent a letter to President Trump criticizing the draft agreement for its language around the environment, including its lack of “any apparent provisions directed at mitigating the effects of climate change.” Now the Committee is championing its work to shape the final text, saying the “revised version will serve as a model for future U.S. trade agreements.”

Having so many members of Congress support this agreement is especially frustrating for climate advocates because, in September, more than 110 House Democrats, including 18 full committee chairs, sent a letter to the president urging the new trade deal to “meaningfully address climate change” and to “include binding climate standards and be paired with a decision for the United States to remain in the Paris Climate Agreement.”

“While Democrats claim this deal improves on some environmental provisions, they have yet to explain how it meaningfully addresses climate change,” said Jake Schmidt, the managing director for the International Program at the Natural Resources Defense Council.

Climate advocates point to the growing problem of “outsourced” pollution—where wealthier countries like the United States and Japan take credit for improving their own domestic environmental standards, while then importing more goods from heavy-polluting countries. Critics say the current draft of USMCA does nothing meaningful to address this problem.

The trade agreement is being hailed for rolling back the Investor-State Dispute Settlement, controversial private tribunals that have enabled corporations to extract huge payments for government policies that may infringe on their profits. But Ben Beachy, a trade expert with the Sierra Club, says the agreement includes a major loophole for Mexico, where oil and gas companies will still be able to sue in those private tribunals.

“The approach the NAFTA 2.0 deal takes is recognizing there’s a problem but then allowing some of the worst offenders to perpetuate it,” he told In These Times. “It’s an unabashed handout to Exxon and Chevron: It’s like saying we’ll protect the hen house by keeping all animals out, except for foxes.”

Beachy says the deal overall “dramatically undercuts” the ability of the U.S. to tackle the climate crisis. “By failing to even mention climate change, it’ll help more corporations move to Mexico, and this is not a hypothetical concern,” he said. “We cannot simultaneously claim to fight climate change on one hand and enact climate-denying trade deals on the other. Do we really want to lock ourselves into a trade deal for another 25 years that encourages corporations to shift their pollution from one country to another?”

Karen Hansen-Kuhn, the program director at the Institute for Agriculture and Trade Policy, told In These Times the final agreement represents an even worse situation for farmers than under NAFTA. “On food and farm issues it’s definitely several steps back,” she said, pointing as an example to how USMCA will make it easier for companies to limit the information they provide to consumers about health and nutrition.

Emily Samsel, a spokesperson with the League of Conservation Voters (LCV), told In These Times that her organization informed members of Congress “that [they] are strongly considering scoring their USMCA vote when it comes to the House floor on LCV’s Congressional scorecard.” LCV was one of the ten environmental groups to sign the letter opposing the trade deal last week.

USMCA does include language requiring parties to adopt and implement seven multilateral environmental agreements, but the 2015 Paris Agreement is not among them. Getting the president to agree to putting anything about climate change or the Paris Agreement was always going to be a tough sell, considering Trump has promised to withdraw from the landmark climate pact. Still, environmental advocates insist House Democrats have real leverage that they should use more aggressively, particularly since getting the trade deal through Congress is Trump’s top legislative priority for 2019.

Democratic supporters of USMCA say the existing language is good enough for now, and that it will position the government well for when Trump is out of office. A spokesperson for Nancy Pelosi told The Washington Post that “the changes Democrats secured in USMCA put us on a firm footing for action when we have a President who brings us back into the Paris accord.” Earlier this year 228 House Democrats voted for a bill to keep the U.S. in the Paris Agreement.

U.S. labor groups have thus far remained mostly silent on the concerns raised by environmental organizations.

The International Association of Machinists and Aerospace Workers, which opposes the deal on labor grounds, did not return request for comment on the USMCA’s environmental provisions. The Communications Workers of America released a statement on Friday saying the deal includes some “modest improvements” for workers over NAFTA, but a spokesperson for the union told In These Times, “We don’t have any comment on the environmental provisions.” The BlueGreen Alliance, a national coalition which includes eight large labor unions and six influential environmental groups, has issued no statement on the trade deal, and did not return request for comment.

And the AFL-CIO issued a statement last week praising the deal, though noted “it alone is not a solution for outsourcing, inequality or climate change.” A spokesperson for the labor federation did not return request for comment.

The Biggest Strike in America Is About How Much Bosses Can Gut Your Healthcare

Originally published in VICE on September 18, 2019.
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When about 48,000 workers went on strike Monday against General Motors, they launched the largest American labor stoppage against any business since the financial crisis. The striking union—the United Auto Workers—is confronting vicious headwinds in the form of always-cheaper foreign labor, reduced car sales, and pressure to invest in electric and self-driving vehicles at a time of impending climate catastrophe.

On top of all that, workers formed picket lines because GM is trying to effectively cut their hard-fought healthcare benefits. According to the Center for Automotive Research, a Michigan-based think tank that receives some funding from auto companies, the average UAW worker pays about 3 percent of their health care tab, compared to 28 percent paid by the average American worker. Crain’s Detroit Business reported on Monday that GM’s initial contract offer asked workers to start paying 15 percent of their healthcare costs.

While such a move by an employer may seem fairly ordinary by contemporary standards, it wasn’t that long ago that Americans would have viewed this request as a huge scandal. In fact, experts said, that a once-mighty labor union is fighting tooth and nail to save generous health plans speaks to the economic precarity most Americans have grown to numbly accept.

“Having to pay large amounts of your health-care, that is still a fairly recent phenomenon,” said Erik Loomis, a labor historian at the University of Rhode Island and author of A History of America in Ten Strikes.

Loomis pointed to a 1983 labor stoppage where thousands of copper miners and mill workers went on strike for almost three years against the Arizona-based Phelps Dodge Corporation. “One of the key issues of that strike was that workers were so outraged by the request that they pay part of their health care,” he explained. “It was unprecedented, and yet today it’s become so normalized. Everyone complains about it, but employers just slowly force more and more of their costs onto their workers.”

Rather than ask why UAW workers pay so little in healthcare costs relative to others, Loomis said, the conversation should be framed around “workers defending what they have, and not letting companies cede more and more of their responsibility.”

Employer-based health insurance was actually something of a historical accident in the United States, led partly by labor unions that were barred from negotiating over wages during World War II. That led unions to begin focusing on other types of permissible fringe benefits, including employer-sponsored insurance. Many non-union companies followed suit, facing pressure to compete with unionized firms. Subsequent changes to the federal tax code made offering health insurance even more attractive for employers, so much so that 70 percent of the population was covered by private health insurance in the 1960s, up from nine percent in 1940.

Today, of course, when “job hopping” is common and the so-called gig economy means many workers are not full-time employees, it’s become painfully evident that tying health insurance to work is less than ideal.

Shaun Richman, who directs a labor studies center at SUNY Empire State College, said there is a strong case for “getting the boss out of the doctor’s office” altogether. Employer-based health insurance, he argued, “is plainly outmoded and is absolutely killing unions.” His thinking is partly strategic: Every time a union starts a round of contract negotiations, they almost invariably begin by fighting back against proposed healthcare cuts. “There’s simply no round of bargaining that employers won’t put healthcare on the table, and it’s been devastating,” Richman said.

Indeed, the fight over healthcare benefits is central to understanding the last few decades of labor disputes in the United States.

“The major issue we saw during labor walkouts in the 1990s and 2000s had to do with the restructuring of healthcare plans,” said Jake Rosenfeld, a sociologist at Washington University in St. Louis and author of What Unions No Longer Do. “Wages were really the secondary concern.”

Whether the auto workers can make their fight for affordable healthcare resonate with the broader public may be key to the UAW sustaining support for the strike in general. Alexander Hertel-Fernandez, a political scientist at Columbia’s School of International and Public Affairs, said auto workers might struggle to engender the same level of enthusiasm that striking teachers have across the country beginning last year. In fact, they might not even reach the same level of support as workers at other recent service-sector strikes like those at Stop & Shop grocery stores and Marriott hotels.

“My research and the work of others suggests that it may be easier for workers to build solidarity with their broader communities when they have daily interactions and are in the same social networks as the public,” Hertel-Fernandez said.

Still, as Rosenfeld pointed out, one thing working in the UAW’s favor is the clear profit margins enjoyed recently by U.S. auto companies. “GM is highly profitable now, and was bleeding money during the last 2007 walkout,” he said.

While the last UAW strike in 2007 ended after just two days, at least one union leader suggested Monday this labor stoppage could go on for much longer. On Tuesday, the White House reportedly began trying to broker a deal to end the strike, but GM also announced that it would be cutting off its share of strikers’ health benefits, shifting the burden to unions and telling workers they could apply for COBRA. On top of this financial blow, the average full-time UAW will be paid just $250-per-week while the strike stretches on—assuming the union’s strike fund holds up.

“They’re in a war for their lives, and the company is basically putting a gun to the unions’ head,” said Richman. “They’re saying we’ll reopen one of these factories if you agree to all these other concessions. I don’t think the UAW has much choice but to stand and fight, but this is not public education—schools can’t be shipped overseas. These jobs very much can be shipped overseas and have been. That threat is very real.”

8 Unions Have a Plan for Climate Action—But It Doesn’t Mention Fighting the Fossil Fuel Industry

Originally published in In These Times on August 26, 2019.
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On June 24, the BlueGreen Alliance—a national coalition which includes eight large labor unions and six influential environmental groups—released an eight-page document laying out its vision to curb climate change and reduce inequality. The report, dubbed Solidarity for Climate Action, marks a significant development in the world of environmental politics. It argues the needs of working people must be front-and-center as the U.S. responds to climate change, and rejects the “false choice” between economic security and a healthy planet.

While the report’s focus on public investment, good jobs and justice shares much in common with the federal Green New Deal resolution introduced in February, it also stands in tension with environmentalists who demand the U.S. work to transition more quickly away from oil, coal and natural gas. “We’d really like them to be stronger and more concise about what it means to move away from fossil fuels and transition to renewables,” said José Bravo, executive director of the Just Transition Alliance and speaking on behalf of the Climate Justice Alliance. Members of the BlueGreen Alliance say the ultimate goal should be to decarbonize the economy—to reduce CO2 emissions, but not necessarily end the fossil fuel industry itself, with its tens of thousands of high-paying jobs. Other climate groups say that won’t be enough, and humanity cannot afford to preserve industries that have caused so much environmental harm. This difference in vision will stand as one of the most fundamental political questions facing progressives in the next decade.

The report spells out a series of principles, including limiting warming to 1.5°C, expanding union jobs, modernizing infrastructure, bolstering environmental protections and rebuilding the nation’s manufacturing sector with green technologies. It also elevates the issue of equity, calling to “inject justice into our nation’s economy by ensuring that economic and environmental benefits of climate change solutions support the hardest hit workers and communities.” The BlueGreen Alliance emphasizes the disproportionate impact low-income workers and communities of color will face, and says those affected by the energy transition must receive “a just and viable transition” to new, high-quality union jobs.

To make its platform a reality, the BlueGreen Alliance endorses a host of specific policies and timetables, like reaching net-zero emissions by 2050, while being “solidly on a path” to that goal by 2030. Among other things, the report calls for measures like restoring forests and wildlands, cracking down on empl­oyee misclassification, making it easier to unionize one’s workplace, winning universal access to high-speed Internet, and “massive” economic investing in deindustrialized areas, “including remediating any immediate loss of tax base or public services for communities.”

Labor groups in the coalition include the United Steelworkers, the Utility Workers Union of America, the Service Employees International Union, the American Federation of Teachers, the Communications Workers of America, the United Association of Plumbers and Pipefitters, the Union of Bricklayers and Allied Craftworkers, and the International Association of Sheet Metal, Air, Rail, and Transportation Workers. The environmental organizations include the Sierra Club, the Natural Resources Defense Council, the National Wildlife Federation, the Union of Concerned Scientists, the Environmental Defense Action Fund, and the League of Conservation Voters.

Following the 2016 election, the coalition organized listening sessions with workers in communities that voted for Donald Trump, like in Macomb County, Michigan, and the Iron Range in Wisconsin. After those discussions, leaders started investing in broader polling, message-testing and focus groups. While opponents of regulating greenhouse gas emissions relish exploiting tensions between environmentalists and labor unions, Mike Williams, the deputy director of the BlueGreen Alliance, said it became clear from the research “that working people do quite care about climate change, but they also believe they should not be forced to make a choice between that and having a good job.”

“We went through a lot of iterations and a lot of conversations,” said Sara Chieffo, the vice president of government affairs for the League of Conservation Voters. “There was real unanimity that we were solving the twin crises of inequality and climate change.”

Jeremy Brecher, the co-founder of the Labor Network for Sustainability, which supports organized labor in tackling climate change, tells In These Times that he sees the Solidarity for Climate Action report as “quite a significant stepping out” for the BlueGreen Alliance. “The BGA was basically [created in 2006] to advocate for the growth and quality of jobs in the clean economy,” he said. “It did not take positions on targets and timetables for carbon reduction, clean coal and the KXL pipeline. It was a green jobs organization, which is important in terms of understanding where the BGA was coming from.” Brecher says the BlueGreen Alliance’s new statement “about the pace of greenhouse gas emission reductions and the absolute centrality and necessity of it is an extremely positive development.”

Evan Weber, the political director and co-founder of the Sunrise Movement, agrees. “I think the platform represents a really historic step forward for a number of the nation’s largest and most influential labor unions,” he said. “It leaves some questions about what needs to be done, and we’d like to see more ambition, but it is really meaningful that these groups and unions have come to the table and shown that they’re willing to move forward and not stay in the ways of the past.”

The Green New Deal resolution was introduced in Congress as the BlueGreen Alliance hashed out its own proposal. The leaders of some labor unions in the BlueGreen Alliance that represent workers in the fossil fuel industry—including the Steelworkers and the Utility Workers—have publicly voiced criticism of the Green New Deal, blasting it for a lack of specifics. The federal resolution “certainly took over a big portion of the national climate conversation, and a few of our partners were supportive, but there is also skepticism from the labor side,” said Williams. “As we were working we said we need to focus on our own process to see where we can forge alignment.”

Some hope the BlueGreen platform can serve as a policy blueprint for moving forward on the Green New Deal. SEIU, which represents 2 million workers, is both a BlueGreen coalition member and the first international union to back the federal Green New Deal resolution. “SEIU members know that we must take bold, immediate action on climate change, including holding corporations accountable for rampant pollution and ensuring good union jobs as we transition to a clean energy economy,” president Mary Kay Henry told In These Times. “That’s why we are proud to support both the Green New Deal, our North Star for what needs to be accomplished on climate change, and the BlueGreen Alliance’s platform, a roadmap for how we can get there.”

The League of Conservation Voters also endorsed the Green New Deal resolution back in February, and Chieffo told In These Times that her group sees the Solidarity for Climate Action report as “a really essential addition” to the conversation. “We are proud to endorse the Green New Deal and I think it’s incredibly valuable to have these eight powerful unions at the table laying out a proactive vision for how we tackle climate change.”

In These Times reached out to the original co-sponsors of the Green New Deal, Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Sen. Ed Markey of (D-Mass.), for comment on the BlueGreen Alliance’s report.

Anika Legrand-Wittich, a spokesperson for Ocasio-Cortez, said while she was unable to reach the Congresswoman for specific comment, she “confirmed with our staff that we have indeed worked with BlueGreen Alliance and share many of their goals.”

Giselle Barry, a spokesperson for Sen. Markey, pointed to a supportive tweet the senator posted following the report’s release. It signal boosted the BlueGreen Alliance platform, and reads, “Transforming our economy and combatting climate change will create millions of jobs, but it won’t be possible without our workers and their families. Great to see our allies in organized labor continuing to make climate action a top priority.”

New Consensus, a think tank working to develop policies for the Green New Deal, said in an email “We don’t have any comment on the BGA report at this time.”

Fossil fuels

Despite its generally positive reception, the Solidarity for Climate Action has not gone without critique — and some environmental groups and labor leaders have raised issues and questions about the platform.

“I don’t think it goes far enough in terms of moving us definitively off fossil fuels at the speed that is required,” said Weber of the Sunrise Movement.

Brecher, of the Labor Network for Sustainability, said while overall the report marks a “very big step forward” for unions, he thinks its language “can use a little tightening up” to prevent groups from having too much “wiggle room.” He specifically pointed to language that America should be “on a pathway” to reducing its emissions, and suggests that be more specific. “It is overall quite close to the Green New Deal resolution, which also has a little wiggle room,” he said. (For example, most action items in the Green New Deal come with the caveat of “as much as is technologically feasible.”)

Julian Brave NoiseCat, the director of Green New Deal strategy at Data for Progress, a progressive think tank, said his organization’s vision for climate action shares a lot of overlap with the BlueGreen Alliance platform. But he noted BlueGreen Alliance’s does not include a 100% clean energy commitment, nor explicit provisions to phase-out fossil fuels, and it does not include a 10-year mobilization, in line with the Green New Deal. He also said he wonders whether the BlueGreen Alliance would support a federal jobs guarantee, or some other federal work provision.

Erich Pica, the president of Friends of the Earth, a climate group, said while it’s significant to see the labor movement taking proactive steps on the environment, as well as seeing the report’s emphasis on justice and equity, he protested its lack of mention of fossil fuels, natural gas, oil or coal. “How do you have solidarity for climate action when you’re not proactively calling out the very fuel sources that we have to eliminate from the U.S. economy?” he asked. “It says a lot of great things about how we want the economy structured, but in many ways it papers over where some of the greatest disagreement is between parts of the labor movement and the environmental community.”

Pica also acknowledged that the Green New Deal resolution did not make any mention of fossil fuels. “We were critical of that, too,” he said.

Mike Williams, of the BlueGreen Alliance, said while he understands that critique, he also thinks “it’s a bit much” to expect this platform to call for banning fossil fuels. “Our goal is to get climate pollution out of our economy by a certain time to avoid as much warming as possible, so we established our platform with the methods we think will help get us to those goals,” he said. “The banning of fossil fuels — that’s pretty controversial to expect of the people who represent the human beings who work in that sector. This is tens of thousands of people who work in these industries, and for a union to step out and say we’re going to end your job and the promise of a new job is a wink and a nod and a handshake. Well America has never before followed through on any proper transition, save for maybe the New Deal for white dudes.”

From Williams’ perspective, demanding unions call for ending their own jobs, before any sort of real alternative agreement is in place, is simply unrealistic. “It’s so mind boggling to think that people who represent folks who work in those industries would jump so far out ahead of where their membership is, and without any real forthright and immediately implementable solution,” he said.

Pica, of Friends of the Earth, also critiqued the BlueGreen Alliance for making no gesture toward campaigns to keep fossil fuels in the ground. “It’s been the divestment fights, trying to get universities and cities to divest their money from fossil fuel companies, that has been the fuel of the climate movement over the last decade,” he said.

Williams said the absence of certain “buzzwords” doesn’t diminish from what the document accomplishes. “We’re on the same side, and I truly respect [the environmental critics] and I hear them, but this is about building a broader movement that can get bigger solutions across the line,” he said.

Carbon-capture technology

Perhaps the most polarizing policy endorsed by the Solidarity for Climate Action report is that of carbon-capture technology, a method backed by the Intergovernmental Panel on Climate Change, and supported by most of the labor movement. But among environmentalists it’s more divisive, as some argue it will prolong dependence on fossil fuels, be too costly, and make it harder to reduce emissions overall.

“The fact that it’s included in the BGA report I think is very unfortunate and something that realistically has no chance of making a significant contribution to climate protection,” Brecher said. “Some of the other environmental groups are more squishy.”

Pica called carbon-capture “an expensive detour to nowhere” that’s a “nonstarter and at worse feeds kind of feeds false hope.” In January more than 600 environmental groups sent a letter to Congress saying they will—among other things—“vigorously oppose” federal climate legislation that promotes “corporate schemes” like carbon-capture and storage. Brecher and Pica’s groups were among the signatories. While the Green New Deal resolution is ambiguous on carbon-capture, last week Sen. Bernie Sanders released his presidential climate plan, which includes opposition to the technology.

Phil Smith, a spokesperson for the United Mine Workers of America, a labor union not represented in the BlueGreen Alliance, tells In These Times that there are aspects of the report his union agrees with, “especially with respect to carbon-capture technology.” But he critiqued it as not specific enough when it comes to defining what a “just transition” means. The platform calls for “guaranteed pensions and a bridge of wage support, healthcare and retirement security” until an impacted worker finds a new job or retires.

“Coal miners want to know what the hell you mean when you say you want a ‘just transition,’” Smith says. “Training to drive a truck is not a just transition. Training a miner to earn half of what they’re making now is not a just transition. … Our concern is once laws get passed to phase out carbon dioxide in 10 years, if we’re going to have a ‘just transition’ then we needed to be working on that 15 years ago. It’s just meaningless words on paper right now, and we keep seeing it over and over.”

Moving forward, members of the BlueGreen Alliance plan to promote the policies outlined in their new platform through legislative advocacy and local community organizing. In late July, the coalition sent a letter to the chairman of the House Subcommittee on Environment and Climate Change, Rep. Paul Tonko (D-N.Y.), and its ranking member, John Shimkus (R-Ill.), encouraging them to consider the Solidarity for Climate Action platform as they proceed in Congress.

“I think the next phase of work is educating elected officials on what’s in the platform,” said Chieffo. “And then really rolling up our sleeves to craft the legislation and hopefully future executive branch options needed to deliver it.”

Amid Conservative Assault on Organized Labor, Democratic Lawmakers Are Advancing Laws to Expand Workers’ Rights

Originally published in The Intercept on August 5, 2019.
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PUBLIC-SECTOR EMPLOYEES IN states with Democratic majorities have made significant legislative gains in recent months, despite the U.S. Supreme Court’s landmark 2018 decision in Janus v. AFSCMEwhich found that unions could no longer collect bargaining fees from workers who do not pay membership dues.

More than 22,000 state workers in Nevada and Delaware gained the right to collectively bargain this year thanks to recently passed legislation. Colorado, home to more than 26,000 state employees, is expected to follow suit next year.

With Nevada and Delaware’s new legislation, passed this summer, there are now 26 states that recognize state employee bargaining rights, as do Puerto Rico and the District of Columbia, according to a spokesperson for the American Federation of State, County, and Municipal Employees, or AFSCME. Twenty-four states either outright prohibit collective bargaining or do not authorize meaningful bargaining, such as Wisconsin, which heavily curtailed the ability of public-sector employees to negotiate in 2011.

On the federal level, congressional representatives are also working to bolster the rights of public-sector workers, though any chance of enacting legislation is highly unlikely unless Democrats win the White House and the Senate and maintain their hold on the House of Representatives in 2020. On June 25, Sen. Mazie Hirono, D-Hawaii, and Rep. Matt Cartwright, D-Penn., reintroduced the Public Service Freedom to Negotiate Act, which would, for the first time, set a minimum nationwide standard of collective bargaining rights for the nation’s 17.3 million public employees. Among other things, public employees would be required to recognize their workers’ unions if they’re “freely chosen” by a majority vote, and employers would be required to bargain with workers over wages, hours, and other terms of employment. If public employers refuse, then the legislation grants the federal government the authority to intervene.

The bill is backed by 2020 presidential candidates, including Sens. Elizabeth Warren, Bernie Sanders, Amy Klobuchar, Kamala Harris, Kirsten Gillibrand, and Cory Booker.

This legislative push comes as organized labor was bracing for the worst following the Supreme Court’s Janus decision, which was expected to significantly deplete union coffers. In its 5-4 decision, the court struck down more than four decades of legal precedent and concluded that unions could no longer collect payments from non-dues-paying members in exchange for collective bargaining services. This opened the door not only for nonmembers to stop paying fees, but also for union members themselves to opt out altogether.

While the full extent of Janus’s blow to the labor movement may not be felt for several years, at a labor conference in February, public-sector union leaders said the first year’s impact had been less devastating to membership than expected. AFSCME President Lee Saunders said that while his union had lost 100,000 agency-fee payers since the court’s June decision, they had also managed to flip 310,000 agency-fee payers into dues-paying members. “For every member that we lost, we gained seven,” Saunders declared. Other unions reported relatively minimal losses, like the American Federation of Teachers, which lost 84,500 agency-fee payers after Janus, but also gained 88,000 new members between November 2017 and November 2018.

Still, many experts say the drop-off in membership could happen slowly, rather than an immediately significant decline. Michigan, which became a right-to-work state in 2012, has lost nearly 130,000 union members over the last seven years, or 16 percent of union membership. This year, Michigan unions have reported at least $20 million less in revenue than they did in 2012.

There’s also the risk that unions will have trouble recruiting new members moving forward. Mike Antonucci, a teachers union analyst, said recently that “current members are unlikely to resign in any great numbers. Over time, however, they will retire. The burden will be on the unions to recruit new members in the same percentages as they enjoyed pre-Janus.” The National Education Association saw a 0.5 percent increase in its membership compared to the year before, Antonucci found; however, New York accounted for 80 percent of that nationwide growth. By contrast, 10 state affiliates saw membership drops of 3 percent or more, including North Carolina, which saw a 6.8 percent drop in 2018.

IN THE FACE of the conservative assault on organized labor, workers and lawmakers in blue states are experimenting with new laws and forms of organizing to make it easier to unionize and negotiate on the job.

In Nevada, Democratic Gov. Steve Sisolak, signed a bill in June granting Nevada’s more than 20,000 state workers the right to collectively bargain, a right they’ve been denied since 1965. Sisolak, who was elected in 2018, pledged in his first State of the State address in February to get this legislation passed. His election placed the state government fully in Democratic control for the first time since 1992.

According to AFSCME, the legislation marks the largest expansion of collective bargaining for state workers anywhere in the country in the past 16 years. It benefits a broad swath of workers, including nurses, caretakers, and correction officers.

Conservative opponents of the bill argued that granting collective bargaining rights to state workers would hurt taxpayers and Nevada’s budget, even though there is little empirical evidence in support of that assertion. Local government workers in Nevada have been able to collectively bargain since 1969.

According to researchers at the Economic Policy Institute, a progressive think tank, state employees in Nevada earn between 1 and 13 percent less than their private-sector peers in total compensation, and their health care benefits are less generous compared to state workers in other parts of the country. Workers who advocated in Carson City for the legislation, however, went to great lengths to say that it was not just about wages and benefits, but also things like working conditions and safety. Rick McCann, head of the Nevada Association of Public Safety Officers, said for example that now his members can bargain over things like body-worn cameras and dashcams.

In order to get the bill passed, Nevada workers had to make some concessions. The legislation includes an amendment that grants lawmakers and the governor the final say over things like pay raises, regardless of what the workers negotiate. Compromises like this are common for public-sector unions. Still, labor leaders say that even having a seat at the table will be a huge step forward, and they will push for improvements to the law in the years ahead, if necessary.

Workers saw similar success this year in Delaware, where Democratic Gov. John Carney signed a bill in June granting collective bargaining rights to more than 2,000 state employees.

Since signing the law, state workers in Delaware have already begun to organize new unions. In late July, 340 workers at the Delaware Department of Motor Vehicles voted to form a union for the first time. They are joining Laborers’ International Union of North America Local 1029. Additionally, according to Michael Begatto, executive director of Council 81 AFSCME AFL-CIO in Delaware, dietary workers at the Delaware Veterans Home just voted to join AFSCME, and workers at the Office of the State Fire Marshal recently filed for an election.

Delaware Democrats have had a governing trifecta since 2009, but in the past, state workers faced “a reluctance” by some lawmakers and individuals in the executive office, Begatto said, noting that Gov. John Carney’s election in 2016 worked in their favor. “They balked at being able to go to the table as equals with workers,” he said. “This governor was more understanding; without him, this would not have happened.”

Unions in the state saw less of a decline in membership post-Janus than they had been expecting. “We were pleasantly surprised, as we were expecting a 20 to 25 percent reduction,” Begatto said. “Out of 7,000 members, we had only about 180 members opt-out.”

COLORADO WILL LIKELY be the next state to expand bargaining rights to state employees.

In this year’s legislative session, lawmakers in Colorado came close to achieving collective bargaining rights for its roughly 26,500 state employees, but the bill came to a halt because Democratic Gov. Jared Polis, who was elected last year, said he wanted more time to figure out how it would work in practice. In 2007, Colorado’s then-Democratic governor issued an executive order giving state workers the right to form a union, but not to collectively bargain. This bill would have codified and expanded that order.

Hilary Glasgow, executive director of Colorado Workers for Innovative and New Solutions, the state employee union, told The Intercept that she’s confident the bill will be passed in the next session.

“We know Governor Polis believes in collective bargaining, so where we’re at is him needing to understand all the ins and outs of what this means and how it can benefit not only the state and state employees, but also the citizens we serve in Colorado,” she said. “We’re going to be meeting regularly, as much as it takes, as often as it takes, to get to a place where we can introduce a bill on the first day of the next session that the governor and the union are behind.”

Glasgow and Polis released a joint statement at the end of April pledging to “enter into discussions to address outstanding issues surrounding House Bill 1273 and other issues affecting the state workforce and the people of Colorado that cannot be resolved in the few remaining days that exist in the legislative session.” The statement adds that “we are confident that we will successfully resolve these outstanding issues before the 2020 legislative session.”

Polis’s office declined to comment beyond the April statement.

Glasgow said collective bargaining rights are an important factor in addressing the state’s staffing crisis, which has escalated since 2009. A report published by the Economic Analysis and Research Network, a Colorado WINS partner, finds over the last decade that turnover among state employees increased by 73 percent. Colorado’s Department of Personnel reported last June that roughly one in every five positions in the state government was vacant. The high number of vacancies can place additional strain and responsibility on the workers who remain. A number of research studies support the idea that collective bargaining can help to reduce employee turnover.

“We’re seeing a steady decline in state workers and an alarming increase in vacancies,” Glasgow said. “We’re running roughly 10 percent behind the private sector on their total compensation plan, and what I think people don’t understand about state services is that a lot of them are highly dangerous behind-the-scenes work. There is expertise at the front-line level that can inform how they do their work in a way that makes it safer and better.”

The push for collective bargaining, Glasgow said, is rooted in a desire to make sure that this firsthand knowledge is taken seriously. “Workers need to have a venue to have those conversations so changes in their workplace can actually be implemented,” she said. “Right now, you’re at the benevolence of the governor and the cabinet as to whether they’ll hear you out.”