Category: Worker Rights

ODE TO A HERO WHO JUST HAPPENS TO BE MY WIFE

Melissa Nelson is retiring this week as director of collective bargaining for The NewsGuild-CWA, the union representing media employees and other workers. In the infamous words of Joe Biden – as cleansed by the AP – that’s a big f—ing deal. So big, in fact, that this space is giving a temporary pass to the inanity and profanity of national politics, in order to pay tribute to a genuine hero.

So as to avoid being Sean Hannityized, let me disclose a potential conflict of interest: I have a spousal relationship with Melissa. But I also spent 31 years working for the same union, and copiously followed her amazing journey, drawing more and more awe with every step she took. In other words, I’m an expert witness. This is my testimony:

When I met her, Melissa was an advertising artist at the Hearst paper in Albany, NY. The labor movement really needs to build a monument to the Hearst Corporation. If that outfit hadn’t paid its women artists considerably less than their male counterparts, the NewsGuild would be without one of its greatest legends. Worse, I would still be single. Fortunately, the injustice of pay inequity ignited a passion in Melissa that propelled her into the calling of union activism. It was an all-consuming tour of duty that went from rank-and-file agitator, to local president, to full-time Guild staffer in Philadelphia, to directing the national union’s collective bargaining operation in Washington, DC.

That last sentence, particularly for those who don’t know her, is opaquely encyclopedic. Every union has activists and staff. What Melissa brought to the table was a unique package of style, substance, class, and grace, all served with a special sauce of forceful and respectful advocacy.

Melissa Nelson teaches new Guild leaders about collective bargaining.

To me, Melissa’s breakout moment came about 25 years ago. This is when I knew for sure that she was destined to play a key leadership role in the union. It started as an ordinary exchange at the bargaining table. She was making a pitch for one of our proposals. A boorish, over-testosteroned management guy, accustomed to the centuries-old rooster game of one-upmanship through interruption, tried to cut her off. Melissa was in mid-sentence when he flashed a sneering smirk and said, “Well, that isn’t true . . . “ Without skipping a beat, Melissa leaned across the table to face her adversary. In a quiet, calm-but stern voice, she said, “No, no, no. Do not interrupt me. I wasn’t finished. You need to listen to what I am saying, and then it will be your turn to talk.”

I braced myself for a major explosion. I had verbally dueled with this troll many times and knew he was not easily quieted. There was a momentary silence, the two of them leaning deeply into their respective sides of the table, just staring at each other. Finally, the management guy spoke, using a tone that reflected a meekness and contrition I’d have sworn was not in him: “I’m sorry, Melissa, please continue.” Damn! I later asked the troll about the exchange. He called it a “flashback to elementary school”, adding that he almost said, “Yes, teacher.” It was an amazing moment.

The anecdote perfectly captures Melissa and her rare and immensely effective communication style, one that is firm, assertive and honest, yet delivered totally free of threat or hostility. The volume is low, the tone pleasant, and the verbiage tight and succinct. The result is a message laced with respect, thus inviting respect in return. When it comes to managing conflict, it doesn’t get much better than that.

Melissa has spent decades using that style to make life better for so many people: victims of sexual harassment, unequal pay, unjust discipline, discrimination and mistreatment; employees in search of better pay and working conditions, dignity and respect. Her voice, so carefully crafted in her estimable manner, has carried with it all the voices of the workers she represents.

But that’s not all, not by a long shot. Melissa’s real gift – her legacy – to this union is her uncanny ability to connect with members, local leaders and staff in a way that amps them up, makes them stronger, better, more confident. She has spent years perpetually plugged into the lives of Guild activists from coast to coast. She knows their strengths and weaknesses, the content of their contracts, their management’s every quirk and idiosyncrasy. She also knows the names and ages of their children, their family vacation plans and how their parents are doing. To her, leadership is, at its core, relational.

Somehow, without the use of a single algorithm, Melissa has spent the past decade using all of that instinctively processed data to guide, mentor and advise an entire national union, one person at a time. We’re in the middle of dinner, and someone from Kenosha calls in a panic over contract negotiations. Or a bankruptcy in Boston. Or more massive layoffs in Denver. Or the sale of the paper in Akron. And in each case, I smile with wonder and pride as Melissa calmly and confidently listens, reassures, offers needed information and counsel, and then guides the caller to land the plane safely. Each time that happens, the union grows a little stronger because the folks on the other end of those phone calls are learning and building confidence, secure in the knowledge that they are not alone.

This has not happened without taking a toll on Melissa. The stress has been enormous, and its chief cause has been the exponential increase in the demand for help, and an insufficient number of hours in a day to provide it. As a result, her voicemail and email inboxes are perpetually jammed by cries for help. How do you triage all that? Is a layoff more critical than a bankruptcy? Which do you take first, the pay cuts call or the pension freeze? This has been her life. And despite the stress, it has brought her enormous satisfaction from knowing that she has made a difference.

Through it all, Melissa never once unplugged – not from her phone, her email, or any other form of engagement. She is constitutionally incapable of disconnecting. She knew that most of the people reaching out to her had workloads every bit as hectic as her own. They were counting on her. There is no way she wouldn’t be there for them. That’s because Melissa saw her work, not as a job, but as part of a movement. For the movement to succeed, leaders need to keep on moving. And that’s just what she did. As a result, she can retire now fully assured that the movement she nourished with every ounce of energy she had will keep right on moving. After all, those movers learned from the best.

MOTHER LODE OF VULGARITY WINS FEDERAL COURT REPRIEVE

Warning: If slang words entailing a hard “ck” sound invoke trauma, hysteria or bad middle school memories, please cover your eyes. For the rest of you, here’s the good news: “motherfucker” got a thumbs-up from three federal appellate judges. The decision may not rise quite to the level of Brown v. Board of Education, but it was music to ears of disgruntled employees, particularly those who have a m’fer for a boss.

What a long, strange judicial trip it’s been for this nasty moniker, the titular pinnacle of George Carlin’s Seven Dirty Words. According to those who study these things, motherfucker made its jurisprudence debut in a 1889 Texas Court of Appeals case, Levy v. State. A witness testified that Defendant Levy was a “God damned mother-f–king bastardly son-of-a-bitch.” The legal precedent established an expletive hierarchy, allowing every word except m’fer to be spelled out. A decade later, however, the same Texas court reversed itself and filled in the blanks. The case at hand involved a murder defendant who argued justifiable homicide on the basis that his victim had called him a “mother-fucking-son-of-a-bitch.” Twenty years after that, according to a book by historian Henry Louis Gates, a young man ordered to fight in World War I, fired off a letter to the editor of a Memphis newspaper calling his draft board “low-down motherfuckers”. He was court-martialed and did 10 years of hard labor.

Thanks to the United States Court of Appeals for the Second Circuit, motherfucker has come a long way, etymologically speaking. Here’s the deal: Back in 2011, workers at a New York catering company, Pier Sixty, were trying to form a union. Shortly before the vote, one of the organizers, Hernan Perez, was berated by his boss, Bob McSweeney. On his break, Perez, smartphone in hand, punched out a Facebook vent about the encounter. Here, unedited, is what he posted: “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and entire fucking family!!!!! What a LOSER!!!!! Vote YES for the UNION!!!!!”

As you might imagine, Pier Sixty management did not shower Perez’s Facebook page with likes. Instead, it fired him. Therein began an intense six-year search for the true meaning of motherfucker by some of the best legal minds in the country. Under federal labor law, bosses are generally prohibited from disciplining workers who are acting together for the betterment of working conditions. In this case, Perez didn’t just call McSweeney a “nasty motherfucker,” he called him that in the context of a union organizing campaign. In labor law parlance, that is called “protected concerted activity.” In other words, you can’t be fired for that.

But wait, there’s more. There are limits to this protection. What if Perez had no Facebook access during that catering event and, instead of calling McSweeney a motherfucker, had, say, dumped a three-bean salad on his boss’ head? Under labor case law, an employee loses protection if the concerted activity is “opprobrious”. (In the interest of saving you a click, that means pretty darn bad.) So, exactly one century after some poor guy got 10 years of hard labor for calling his draft board a bunch of m’fers, thanks to Facebook and an angry union organizer, the legal system was posed to answer a question many of us had never pondered: Is motherfucker opprobrious?

Imagine the scene in the mahogany confines of justice: ponderous thinkers in black robes, judges accustomed to complex sentences packed with words like collateral estoppel, subrogation, tortfeasor and habeas corpus, studiously examining a vocabulary they’ve hidden from their children. They pour through the case law, decades of testimony about angry employees calling their managers everything from “stupid fucking moron” to “egotistical fucker”, from a “fucking asshole” to a “fucking crook”, without crossing the opprobrious line. But now they were faced, in a very literal sense, with the mother of them all.

Lawyers for Pier Sixty, with straight faces included in their $650-an-hour rate, argued that Perez went well beyond the common pale of vulgarity when he pulled his supervisor’s poor, innocent mother into the mix. Yes, they stipulated, their client’s managers had, indeed, discovered new conjugations of the f-word on a daily basis. They admitted the bosses said the following to their charges: “Are you guys fucking stupid?”; “a fucking little Mexican,” and a “motherfucker who should eat shit.” But, but, but, they insisted: the vile, disgusting words Perez used are “distinguishable from a passing epithet uttered in frustration”. When he said, “Fuck his mother and his entire family,” the corporate lawyers insisted, this worker was getting personal and involving his boss’ family members. And that, they said, is as opprobrious as it gets.

That argument was respectfully rejected, first by an administrative law judge, followed by the National Labor Relations Board, and then by the Second Circuit appellate panel. They concluded that Perez was not literally proposing sexual intercourse with his supervisor’s mother or other family members; he was simply dissing the guy himself. Any teenager could have explained that to the learned judges. But these kind of weighty matters need expert opinion, so they plowed through numerous academic treatises (here and here) on the use of mother-denigrating slang as a means of verbally attacking an adversary.

As a result of all this litigation. Perez won his job back. M’fer means many things to many people, but whatever it is, thanks to the Second Circuit Court of Appeals, it is not opprobrious. Let’s hope this case does not end up before the U.S. Supreme Court. Who knows what those motherfuckers would do with it?

TECH JOBS: SEXUAL HARASSMENT WITH BENEFITS

During the last decade of my career as a union rep, the biggest challenge was trying to hang on to basic benefits that had been won years ago. In the beleaguered newspaper industry, that battle was all uphill. We reduced sick leave and vacation time. We froze pensions and scaled back medical insurance. The pain was aggravated by almost daily reports from the booming tech startups that were offering a smorgasbord of benefits to die for (here and here): one year of paid leave for new mothers and fathers, on-site child (and dog) care, acupuncture and improv classes, free meals, midday siestas in a “nap pod,” $4,000 in “baby cash” for employees with newborns, and unlimited paid vacations.

As accomplished as I was at making outrageous arguments with a straight face, I would have had a hard time staying in character while pounding the table over nap pods. Besides, our entire focus was on trying to maintain some semblance of medical insurance and a modest retirement plan. Those shiny tech benefits formed a cruel oasis in our desert of retrogressions. Based on recent developments, however, all that glitters in Silicon Valley employee relations is not, by any stretch of the imagination, gold. As Paul Harvey used to say, here’s the rest of the story:

Despite its cutting edge image, the tech industry is a bastion of sexual harassment, a throwback to the pre-Clarence-Thomas days when male supervisors didn’t differentiate between the workplace and a pick-up bar, five minutes before last call. According to Fortune Magazine, 60 percent of the female tech workforce say they have experienced unwanted sexual advances on the job, most of them from a superior. Some 39 percent of those women said they did not report the harassment out of fear it would hurt their careers.

Susan Fowler was not among that 39 percent. She recently quit her engineering job with Uber because of what she described as a culture of rampant sexual harassment. She described her experiences in a blog post that has managed to shed a glaring light on what had been a dirty little secret of tech employment. Fowler said her manager repeatedly asked her to have an affair. She went to Uber’s Human Resources Department where, to her astonishment, she was told that it was the guy’s first offense and they were not inclined to take any action beyond a warning. Fowler said she later learned that her manager had made similar overtures to several other female subordinates, all of whom had also gone to HR and gotten the same “first offense” line. More women have since come forward with related accusations against other managers. In a quick clean-up effort at damage control, Uber brought in former attorney general Eric Holder to help with a corporate-wide sexual harassment investigation.

This kind of predator conduct was common in most workplaces 30 years ago. It went hand-in-hand with a male-dominated hierarchy and the subservient role carved out for women workers. Sexual harassment is a large umbrella. It includes unwelcome sexual advances, requests for sexual favors, lewd and offensive gender-based comments and related harassing behavior based on sex. All of that was perfectly legal until the late 1970s when federal courts, for the first time, ruled that the Civil Rights Act’s prohibition against sex discrimination covers sexual harassment. That led to seven-figure damages against employers who failed to protect their employees from sexual harassment.

All of a sudden, companies were adopting strict no-harassment policies and training supervisors to keep their hands and ribald thoughts to themselves. A lot of whining men stumbled through the 1980s, blathering to each other about how “a poor guy just doesn’t know what he can do or say these days”. By the mid 1990’s most of them had figured it out. That’s not to say sexual harassment came to an abrupt halt. It never left us, but the law and threat of punitive damages changed the workplace culture and dramatically slowed it down.

And then the tech boom hit, and it was the 1970s all over again. These nerdy, otherworldly digital gurus who redefined the workplace to make it fit a whole new approach to functionality, came programed with a manly way of thinking that had been outlawed 40 years ago. Since Susan Fowler blew the whistle on Uber, scores of women from other tech companies have come forward with their horror stories. Haana told the Guardian that her Silicon Valley manager put his hand up her shirt and groped her while they walked down the street after an off-site meeting. Joe told a leading tech blog that he witnessed a top executive repeatedly hit on and touch female staffers Joe supervised. Joe went with the women to report the incidents to the CEO but nothing was done.

Here’s how Wired.com described the culture of tech workplaces: “Kegerators, or at least well-stocked beer fridges, are standard fixtures at tech companies, right up there with ping-pong tables and beanbag chairs. Some, like GitHub and Yelp, even offer multiple brews on tap. Conferences and meetups are awash with free drinks.”

Clearly, this industry has carved out an alternative universe for a work environment, replacing the conventional office’s structure and rigidity with a party-like atmosphere that intentionally blurs the line between work and fun. Unfortunately, that’s not the only line being discarded. Title VII of the Civil Rights Act does not contain a sex discrimination exemption for cool, innovative tech companies. A word of caution to women seeking employment there: nap pods, child care and oodles of paid time off are worthless without a guarantee of a workplace free of discrimination and harassment. Sadly, such a venue seems to be a rarity in the tech industry.

PROTECTING WORKERS FROM A NEW FOXX IN THE HOUSE OF LABOR

In keeping with what headline writers are calling our new “post-factual” world, Rep. Virginia Foxx, R-NC, the incoming chair of the House labor committee told Reuters this week that unions are no longer needed because there are so many laws in place to protect workers. Her assertion approximates the level of accuracy in the absurd and discredited claim that Hillary Clinton was running a child sex slave ring out of a D.C. pizza joint.

The way things are going right now, it would not be a surprise if some disgruntled worker marched into the district with an AK-47, demanding that Fox’s committee enforce his right to a dental plan and paid vacation. The truth of the matter is that those rights don’t exist without a union contract. As they used to say in this town during the days of civility, the Distinguished Committee Chair from the Great State of North Carolina is badly mistaken.

The United States has always taken a minimalist approach with respect to protective labor legislation, giving wide berth to market forces (also known as managerial discretion) and collective bargaining in determining an employer’s workplace practices. Since union penetration in the private sector is hovering between six and seven percent, that means the vast majority of the country’s workers are pretty much at their bosses’ mercy when it comes to pay, working conditions and job security.

Yes, there are some minimal guarantees and protections imposed by law, but they are a drop in the bucket compared to what most other industrialized countries have done to protect workers. For example, the last major piece of protective labor legislation in the United States was the Family and Medical Leave Act. Adopted in 1993, it required employers to give their workers up to 12 weeks of unpaid leave a year to care for sick family members or themselves. Most other countries mandate more than 12 weeks of fully paid leave for the same purpose.

Throughout Europe, employees are protected by law from unfair discharges. A worker is able to contest a firing before a government tribunal or an appointed neutral third party. Discharged European employees are entitled to severance pay by law. The United States is the only country adhering to the common law principle of “employment at will,” meaning that, absent a union contract or a claim of discrimination, workers can be fired for any reason or for no reason. There is no law mandating severance pay.

The new House labor chair certainly can’t be talking about pay when suggesting that legal protections for workers have eliminated a need for unions. The current federal minimum wage is an utterly unlivable $7.25 an hour. The battle for a $15 an hour minimum has been spearheaded by organized labor and has had success in a limited number of very progressive blue states and municipalities. Ironically, two days after Rep. Foxx talked about the abundance of legal protections for workers, President-elect Donald Trump nominated as his labor secretary a fast food company CEO opposed to increasing the minimum wage.

As the head of the Carl’s Jr hamburger chain, Labor Secretary-to-be Andy Puzder found himself on the receiving end of countless DOL complaints over the firm’s alleged failure to comply with the country’s exceedingly low standards on pay and work hours. This is not a guy who is apt to obliterate the need for unions by forcing companies to treat their workers fairly. He has already indicated he wants nothing to do with the Obama labor department’s move to nearly double the wage threshold for overtime eligibility. A new rule was set to take effect Dec. 1 requiring employers to pay time-and-a-half for more than 40 hours in a week to nearly everyone making under $47,476 a year. That would have meant a raise for more than 4.2 million employees. However, the rule change was held up by a last-minute injunction from a federal judge in Texas. Nobody expects the Trump administration to pursue an appeal.

On the other end of the spectrum from those forced to work more than 40 hours a week is a growing contingency of part-time workers who toil below the safety net of most government regulations. A recent study showed that the number of people involuntarily working part time because they could find no other work has increased by 44.6 percent since the pre-recession level of 2007. In most cases, this means lower pay, no benefits and a constantly shifting work schedule that makes it almost impossible for these employees to hold a second part-time job to make ends meet. With the exception of a few cities like Seattle and San Francisco, no government entity has seriously attempted to protect these folks.

Despite the false campaign-induced hopes of many in the beleaguered working class, it is abundantly clear that the Trump-Puzder-Foxx team is not about to enact new protections for workers. Instead, they will attempt to weaken or eliminate the few that are now in place. That means, with all due respect to Congresswoman Foxx, the only real protections for employees will be those they and their unions manage to negotiate. With this corporate crowd in charge, the need for labor unions and collective bargaining has never been stronger.

WELLS FARGO CEO: THE MINIONS DID IT

Anyone who really hates banks has got to love Wells Fargo CEO John Stumpf. The guy went public today for the first time since his company was accused of major shenanigans. He made Old Man Potter, the villain banker from “It’s a Wonderful Life” look like a good Samaritan. Wells Fargo was fined $185 million last week after it was caught creating more than 2 million bogus accounts without customer consent.

After several days of silence, the bank’s boss told the Wall Street Journal that neither the company’s culture or values were to blame. No, not at all. The dirty rotten scoundrels were the miscreant employees who dared to sully the Wells Fargo brand by their corrupt actions. He wants the world to know that the bad apples were immediately fired. All 5,300 of them. That’s right: thousands of low level employees somehow simultaneously created more than 2 million fake accounts, presumably in the dark of night without anyone at an executive level being any the wiser.

With a straight face, Stumpf broke all corporate records for throwing the most employees under the bus at one time. Additional busses had to be summoned. “I wish it would be zero,” the CEO told the Journal, “but if they’re not going to do the thing that we ask them to do – put customers first, honor our vision and values – I don’t want them here. I really don’t.”

And just what, pray tell, would the Wells Fargo vision and values entail? According to a lawsuit filed by the City of Los Angeles, the bank imposed a goal on its employees of selling at least eight financial products to each customer, calling it the “Gr-eight Initiative.” The suit says district managers monitored employee progress toward the goal so closely that they reviewed their performance with them four times a day, at 11 a.m., 1 p.m., 3 p.m. and 5 p.m. “The sales pressure from management was unbearable”, a former employee told CNN. Jobs were on the line.

The lofty sounding term, “goal” is a euphemism in most sales environments, meaning that those who don’t meet the goal are fired. To keep their jobs, 5,300 employees created phony credit card and other accounts for customers who never authorized them or knew they existed. This cross-sell campaign was so successful for Wells Fargo that its executive vice president for sales, Carrie Tolstedt, made $9 million in total pay last year, a reward, according to CNN, for “continued growth in primary checking customers” and other metrics. She is scheduled to retire at the end of the year with a $124 million package. The fact that Tolstedt’s performance came, at least in part, on the backs of the 5,300 discharged minions who phonied up all those accounts apparently squares just fine with Wells Fargo’s “vision and values”.

The company paid the regulatory fine without admitting or denying guilt. Even banks, of course, are entitled to mount a defense while maintaining the presumption of innocence. On the other hand, if I were a juror, and applying common sense to these facts, there is no way I could find that 5,300 employees independently came up with the same scam at the same time, allowing a totally innocent corporate management to benefit, right up until they were caught. There is but one guilty party in this caper and that is the Wells Fargo vision and values that pushed employees to reach a goal at any cost.

SUBCONTRACTING THE AMERICAN DREAM

Just when we thought this whole craze of farming out good American jobs to third world countries couldn’t get any worse, the Air Force is now giving uniformed pilot work to Afghan and Iraqi subcontractors. The New York Times reported yesterday that the reconnaissance missions against the Islamic State and other terrorist groups are largely piloted by local drone contractors. And I thought it was bad when newspapers shipped out the copy editing function to people in India for $4.95 a day, even though they didn’t know if Snelling was a street, an avenue or a nail salon.

At least the defense department has some internal limits on subcontracting, a seemingly foreign concept in the private sector. According to the Times, the contracted drone pilots can’t be used to kill someone. They can go on spying missions and locate the target to be killed, but the button that actually obliterates the enemy – and any civilians who get in the way – must be pushed by a real, live Air Force employee. Still, it seems that we are perilously close to being able to completely contract out the next war.

Of course, that would be a real bummer for the economy. World War II was one of the country’s biggest economic booms. It created so many jobs, even women were allowed to work, at least until the guys came home. But, whether in war or peace, nobody in charge is really giving much thought to what happens when all the real jobs are gone.

The University of Michigan’s Gerald Davis has a new book (“The Vanishing American Corporation”) addressing what might well be the most urgent and perplexing problem facing our economy: the permanent disintegration of employment. Gone are the days, Davis says, when employees were the lifeblood of a corporation. Instead, they are anathema to the new corporate goal of serving only the economic interests of shareholders. And that, Davis notes, is much better done with contractors, collaborators and any other source that can be kept off a permanent payroll and benefit schedule. Following the lead of Nike, Apple, Sara Lee and others, the dominant industry trend right now is for companies to focus on design and brand management with a drastically scaled down employee force, and then contact out all manufacturing and other work to east Asia or a similar venue.

To make matters worse, according to Davis, the new digital startups all follow the same personnel architecture: a very limited number of employees and a gazillion-and-a-half freelancers and contractors. He offers a staggering illustration: the combined workforces of Google, Facebook, Yelp, Zynga, LinkedIn, Zillow, Tableau, Zulily and Box is less than the number of employees who worked for Blockbuster in 2005. In other words, millions of jobs have gone and are not coming back. The growing trend is quickly moving from stable employment to serial and multiple contracting gigs. Think Uber and Airbnb mixed with, say, freelance landscaping. For many, the American Dream has become a struggle to meet basic security needs.

The most frightening thing in this election year – well, one of them anyway – is the total silence on how to overcome this toxic structural employment problem. Hillary Clinton has proposed massive retraining programs for people needing a job, but has said nothing about where those jobs may come from in this employment-adverse economy. Bernie Sanders pushed for a major jobs program through infrastructure repair, a meaningful but incomplete and temporary fix. Donald Trump says he will create “really, really great, jobs, I mean totally terrific jobs” without offering a hint as to the how or what.

Meanwhile, the “sharing economy,” with its low-pay-as-you-go contracting and no retirement plan in sight, keeps right on growing and, by default, rewriting and rewiring the new American Way of Life. Surely there must be someone on Capitol Hill or in the White House who can stop this train long enough to figure out how to build an economy that serves us all. If there isn’t, maybe we can contract someone to do it for us.