Janine Jackson: The National Labor Relations Board has ruled that an employer’s misclassification of a worker as an independent contractor instead of an employee — meaning they would lack protections for unionizing and other collective activity — doesn’t violate the National Labor Relations Act, because it’s in no way coercive. In fact, the Board’s majority argued, the employer who communicates its legal opinion that workers aren’t employees is engaged in an act of free speech.
This is the same National Labor Relations Board that simultaneously maintains that Scabby, the giant inflatable rat that unions use to draw public attention to campaigns, does cross the line “from legitimate communication to unlawful coercion.”
If you’re having trouble squaring such positions with the 1935 National Labor Relations Act goals, which include not just protecting employees’ rights, but encouraging collective bargaining–well, you aren’t alone. Here to help us see what the NLRB is up to and what it means is Kate Bronfenbrenner, the director of labor education research and a senior lecturer at Cornell University’s School of Industrial and Labor Relations. She’s co-author and editor of several books on union strategies, including Global Unions: Challenging Transnational Capital Through Cross-Border Campaigns. She joins us now by phone from Ithaca. Welcome to CounterSpin, Kate Bronfenbrenner.
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Kate Bronfenbrenner: Great to be here.
Let’s just start with this recent ruling about independent contractors, clearly with reference to “gig economy” players like Uber and Lyft, who are spending millions to fight initiatives to classify workers as employees. This ruling followed on some earlier moves: a memo from the NLRB’s general counsel, Peter Robb, earlier this year, an opinion from the Labor Department; you could see which way the wind was blowing, couldn’t you, on this really important issue?
Yes, I mean, we can just see the big deal that’s happening out in California with AB 5, where they are about to pass legislation that will turn Lyft and Uber workers into employees. And Lyft and Uber are spending $90 million, they’ve announced, in order to try to reverse that if it becomes law. So they don’t want to pay their workers wages, but they’re willing to spend more money than it would cost, probably, to pay them as employees to fight that.
This is a huge deal for workers. If they are independent contractors, they not only are not eligible for minimum wage, they aren’t covered by health insurance, they’re not covered by all our labor employment law protections, and they don’t have the right to organize. Employers are willing to go to great lengths — “great lengths” is an understatement — to avoid having to have their employees covered by our labor and employment laws.
And it sounds like employers are getting kind of a green light from decisions like this one from the NLRB. It’s almost like a wink that says, “We’re saying which side we’re on on this very fraught and emerging issue around independent contractors.”
Well, we could just look at the appointees that came to the Board under Trump. The first appointee, John Ring, had to recuse himself from the first decision that came before the Board when he came through; he was actually involved in the company that the decision was on. He didn’t recuse himself, and then they had to reverse the decision, because he was actually involved with the employer.
It says a lot. Well, let’s pull back just a little bit and explain what the NLRB is. I mean, it’s kind of like the FCC, you’ve just indicated; it’s these five presidential appointees, it’s always going to be weighted by the party that’s in power. But right now, there’s just four of them, right? There’s a vacant seat.
Their rulings are binding, though, even if you’re not used to seeing them in the headlines, but they do have a legal effect in workplaces, right?
They do. And they’ve always been somewhat of a political animal in that the president, when there’s a vacant seat, they get to fill that vacant seat, but it’s never been an effort to have extreme people on the Board.
But under the Trump administration, the appointees have been extremists. And that has really changed the tenor of the Board.
I wanted to draw you out a bit on that, because I saw you cited in a piece by Bobbi Murray at Capital & Main, saying that it’s not uncommon, when an administration changes, when a new White House comes in, for National Labor Relations Boards to reverse some decisions, some preceding decisions, but that what’s happening now with the Trump NLRB is of a different order. What are you talking about there?
The decisions have been to reverse long-standing precedent, as opposed to reversing cases that have been always debated. So before, the trend was to reverse cases that have been always one of debate, where there was a one-vote difference. But now, the reversals have been on cases that had been upheld for decades. And that’s a very different trend. Longstanding principles before the Board.
Can you talk about a recent decision on how employers can stop bargaining? It sounds like it’s minutiae, and it’s huge in its impact, this new decision, calling for a new union election every time the contract is up for expiration…
The Board is now giving employers much more power to question the majority status of the unit. Before, it was up to workers to file a decert petition at the end of the contract. If workers wanted to decertify the union, it was up to workers to file decertification. (Decertification means that they no longer want the union.) But the employer wasn’t the one that initiated that, the workers did. The only way the employer could say that they felt that the union shouldn’t be there is if they had a really strong reason to believe the union no longer represented the majority. For example, that there had been a complete turnover in the workforce, that they knew that all the workers they had hired were no longer there.
But now the employer can call for an election, that there should be a decertification election, and not wait for the workers to do that; and they can do that every time the contract expires. So that’s a huge change.
And sort of throw everything into turmoil. It just seems like a tremendous lever to move over to the employers’ hand.
Most of all, it means the union has to spend energy; every time the contract comes up, a union has to spend its energy dealing with running through an election process, rather than working on building power for bargaining. And unions will probably win those, but it’s a negative effort, rather than the positive effort of building power for bargaining.
I think that although listeners may not have known about some of these NLRB decisions, they may not be surprised; they’re fitting in with a slew of anti-worker actions that we’ve seen from this administration, from letting companies that commit wage theft police themselves, and denying extension of overtime protections and undercutting antidiscrimination enforcement. We could go on and on. But I know that, at the same time as we see this administration trying to lock down this anti-organizing Board, we also do see a lot of tangible worker victories. Teachers, for instance, but then also the Fight for 15. If you expand your understanding of who “labor” is, there’s plenty to see right now that’s encouraging, don’t you think?
Well, we see young workers more excited about unions than ever before. And that means that the future will have more union support. That’s a positive trend that’s very exciting. We see an increased interest among white-collar workers, we see digital media is organizing, we see workers across the industrial spectrum organizing, that’s a new trend.
We also see the immigrant workers, despite all the pressures against them, what a frightening time it is, that they are organizing. And despite all the shenanigans about misclassification of workers, contract workers have been organizing for decades. And I think that it shows that no matter what employers do, workers still try to organize. So Uber workers and Lyft workers have been going on strike, trying to organize.
Yes, it seems that workers recognize that the playing field is not what it was, but there is, if anything, maybe I’m hopeful, but I do see a revival of worker-organized activity inside and outside of traditional unions, as we understand them.
Yeah. And there’s been a groundswell of organizing among low-wage workers, high-tech workers, and much of it is led by women of color.
We’ve been speaking with Kate Bronfenbrenner. She’s director of labor education research and a senior lecturer at Cornell University’s School of Industrial and Labor Relations. Thank you so much, Kate Bronfenbrenner, for joining us this week on CounterSpin.