Trump cancels pay raise due to federal workers in January

By DARLENE SUPERVILLE

August 30, 2018

WASHINGTON (AP) — President Donald Trump is canceling pay raises due in January for most civilian federal employees, he informed Congress on Thursday, citing budget constraints. But the workers still could see a slightly smaller boost in their pay under a proposal lawmakers are considering.

Trump said he was nixing a 2.1 percent across-the-board raise for most workers as well as separate locality pay increases averaging 25.7 percent.

“We must maintain efforts to put our Nation on a fiscally sustainable course, and Federal agency budgets cannot sustain such increases,” said Trump. The president last year signed a package of tax cuts that is forecast to add about $1.5 trillion to federal deficits over 10 years.

Trump cited the “significant” cost of employing federal workers as justification for denying the pay increases, and called for federal worker pay to be based on performance and structured toward recruiting, retaining and rewarding “high-performing Federal employees and those with critical skill sets.”

His announcement came as the country heads into the Labor Day holiday weekend.

Democrats immediately criticized the move, citing the tax cuts Trump signed into law last December. That law provided steep tax cuts for corporations and the wealthiest Americans, and more modest reductions for middle- and low-income individuals and families.

“Trump has delivered yet another slap in the face to American workers,” said Democratic National Committee Chairman Tom Perez.

Under the law, the 2.1 percent raise takes effect automatically unless the president and Congress act to change it. Congress is currently debating a proposal for a slightly lower, 1.9 percent across-the-board raise to be included in a funding bill that would require Trump’s signature to keep most government functions operating past September.

Unions representing the 2 million-member federal workforce urged Congress to pass the 1.9 percent pay raise.

“President Trump’s plan to freeze wages for these patriotic workers next year ignores the fact that they are worse off today financially than they were at the start of the decade,” said J. David Cox Sr., president of the American Federation of Government Employees, which represents some 700,000 federal workers.

“They have already endured years of little to no increases and their paychecks cannot stretch any further as education, health care costs, gas and other goods continue to get more expensive,” added Tim Reardon, national president of the National Treasury Employees Union.

Cox said federal worker pay and benefits have been cut by more than $200 billion since 2011.

Congress has approved legislation to give military service members a 2.6 percent pay raise, the biggest in nine years, but funding for the pay raise has not yet been approved.

In July, the Trump administration sharply revised upward its deficit estimates compared to the estimates in the budget proposal it sent Congress in February. The worsening deficit reflects the impact of the $1.5 trillion, 10-year tax cut, as well as increased spending for the military and domestic programs that Congress approved earlier this year.

The administration’s July budget update projected a deficit of $890 million for the fiscal year that ends Sept. 30, up from the February estimate of $873 billion. The $890 billion projection represents a 34 percent increase from the $666 billion in 2017.

For 2019, the administration is projecting the deficit will top $1 trillion and stay above that level for the next three years.

The only other period when the federal government ran deficits above $1 trillion was the four years from 2009 through 2012, when the government used tax cuts and increased spending to combat the 2008 fiscal crisis and the worst economic downturn since the 1930s.

Rep. Gerry Connolly, D-Va., who represents many federal workers, blamed what he said was Trump’s mismanagement of federal government.

“His tax bill exploded the deficit, and now he is trying to balance the budget on the backs of federal workers,” Connolly said.

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Shame on Trump denying blue collars 2.1% raise. Trump claimed the economy is skyrocketing - if it is true, then why deny a 2.1% raise to blue collar!

Longtime Trump driver's overtime lawsuit moved to private arbitration

Brendan Pierson

August 30, 2018

NEW YORK (Reuters) - A lawsuit by a former personal driver for U.S. President Donald Trump who has claimed that Trump’s company failed to pay him for thousands of hours of overtime has been moved from federal court to private arbitration, the man’s lawyer said on Thursday.

The man, Noel Cintron, claimed in his lawsuit last month the Trump Organization had not paid him for 3,300 hours of overtime in the previous six years. He filed a notice in Manhattan federal court on Thursday that he was dropping the lawsuit.

Larry Hutcher, a lawyer for Cintron, said the dispute had been transferred to private arbitration but did not comment further.

A spokeswoman for the Trump Organization did not immediately respond to a request for comment. The company said in a statement last month that Cintron “was at all times paid generously and in accordance with the law.”

Trump was not a defendant in the lawsuit.

Cintron’s lawsuit had claimed that the unpaid overtime totaled $178,000, at $54.09 per hour, and could have been higher but for a statute of limitations. Cintron sought damages that his lawyer said at the time could reach $400,000.

Cintron said he drove for Trump, his family members and his businesses for more than a quarter century, averaging 50 to 55 hours weekly, until the Secret Service took over driving responsibilities in 2016.

He said his salary was raised to $68,000 in 2006 and then to $75,000 in 2010, but the latter increase required him to surrender health benefits. Cintron said this saved Trump $17,866 in annual health insurance premiums.

U.S. judge rejects Trump directives easing ability to fire federal workers

Reuters Staff

AUGUST 25, 2018 

WASHINGTON (Reuters) - A U.S. federal judge on Saturday rejected key elements of President Donald Trump’s May executive orders that would make it easier to fire federal employees and reduce their ability to bargain collectively.

Judge Ketanji Brown Jackson, of the U.S. District Court for the District of Columbia, said in a court order that Trump’s orders, which also would reduce the amount of time low-performing employees had to improve their performance before being fired, “undermine federal employees’ right to bargain collectively.”

Trump signed three executive orders in May that administration officials said would give government agencies greater ability to remove employees with “poor” performance, obtain “better deals” in union contracts and require federal employees with union responsibilities to spend less time on union work.

The directives drew immediate criticism from the American Federation of Government Employees, which said the moves would hurt veterans, law enforcement officers and others.

Jackson ruled that while the president has the authority to issue executive orders relating to federal labor relations, the orders cannot “eviscerate the right to bargain collectively” as envisioned in a long-standing federal statute.

“The President must be deemed to have exceeded his authority in issuing (the orders),” Jackson ruled.

Brett Kavanaugh Ruled Against Workers When No One Else Did

By Dave Jamieson

07/10/2018

His dissents involving undocumented meatpacking workers and a death at SeaWorld tell us a lot about the worldview of Trump’s Supreme Court pick.

WASHINGTON ― In 2005, a group of workers at a meatpacking plant in Brooklyn voted to join a union. Their employer, a kosher meat wholesaler called Agri Processor, fought the organizing effort as best it could. Once the workers were unionized, the company refused to bargain, arguing that most of them weren’t covered by collective bargaining law because they were undocumented immigrants.

Ultimately, neither the National Labor Relations Board nor the majority of judges on a panel for the U.S. Court of Appeals for the District of Columbia Circuit agreed with Agri Processor. The only one who did was Brett Kavanaugh, the circuit judge who wrote a dissent in the case and is now President Donald Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court.

The Agri Processor case provides a window into Kavanaugh’s thinking when it comes to workers’ rights. Like the conservative justices he would join at the Supreme Court, Kavanaugh has tended to side with employers in workplace disputes. If confirmed, he would almost certainly continue the Supreme Court’s run of business-friendly rulings in contentious, precedent-setting cases that have weakened labor unions and class-action lawsuits in recent years.

Yet despite his conservative track record, it’s unlikely that the seating of Kavanaugh would create a dramatic rightward shift in the court when it comes to labor law. That’s because the justice he would be replacing was already a reliable vote for management in major decisions. 

Though often a swing vote on social issues, Kennedy tended to side with the conservative wing in blockbuster employment cases, including two from this term: Epic Systems Corp. v. Lewis, which made it legal for employers to require workers to sign class-action waivers, and Janus v. AFSCME, which will likely decrease union membership by making the entire public sector right-to-work.

“The bottom line, [Kavanaugh] will be a justice who will understand the employer’s perspective, and I don’t think it will be a significant change from Justice Kennedy in that regard,” said Steven Suflas, a management-side attorney at Ballard Spahr law firm who argued a case before Kavanaugh. 

Kavanaugh has understood the employer’s perspective in plenty of cases beyond Agri Processor. In 2014, he dissented in a 2-1 decision upholding the Occupational Safety and Health Administration’s fines against SeaWorld in one of the most closely watched workplace safety cases in recent years. 

OSHA used what’s known as the general duty clause to cite SeaWorld for safety violations after the whale Tilikum killed trainer Dawn Brancheau in 2010. SeaWorld challenged the citations, but the appeals panel sided with OSHA, ruling that SeaWorld knew its protections for trainers like Brancheau were insufficient and that it could have prevented her death had it taken the proper steps.

Kavanaugh disagreed. He compared working at SeaWorld to playing a sport like ice hockey that comes with inherent dangers, and, unlike his colleagues on the panel, argued that OSHA doesn’t have the legal standing to regulate it.

“When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants?” he asked.  

Jordan Barab, a former OSHA official during the Obama years, wrote Tuesday on his blog Confined Space that the SeaWorld case shows Kavanaugh to be “a threat to workers and to OSHA.”

“Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed,” Barab wrote. “Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had ‘assumed’ the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.”

The AFL-CIO labor federation and several unions came out strongly against Kavanaugh’s nomination. The Communications Workers of America pointed to a handful of cases Kavanaugh decided that it considered anti-worker.

In one of them, Kavanaugh ruled against a group of Verizon employees represented by the International Brotherhood of Electrical Workers. The workers had displayed pro-union signs in their cars on company property where the public could see them ― a move that Verizon claimed ran afoul of the union’s agreement that it wouldn’t picket Verizon. After the NLRB ruled in favor of the workers, Verizon appealed the case and Kavanaugh sided with the telecom giant. (Verizon owns HuffPost’s parent company, Oath.)

“Based on his record, we can expect that Judge Kavanaugh will continue to protect the interests of already powerful corporate CEOs instead of working families,” the Communications Workers of America said in a statement.

Sharon Block, a former member of the NLRB who is now a professor at Harvard Law School, said Kavanaugh’s dissent in the Agri Processor case concerns her most.

In that case, Agri Processor claimed that undocumented workers were not covered by the National Labor Relations Act of 1935 because a more recent law ― the Immigration Reform and Control Act of 1986 ― said it was illegal to knowingly employ them. (A detailed breakdown of the case can be read here.) 

The majority of the D.C. Circuit panel disagreed with that reasoning, noting that the Supreme Court had ruled in a 1984 case that undocumented workers were indeed employees for the purposes of collective bargaining law. 

In his dissent, Kavanaugh argued that undocumented workers were no longer employees under the law due to the 1986 law passed by Congress. In Block’s view, Kavanaugh’s opinion sidestepped Supreme Court precedent and denied workers safeguards they deserved regardless of their legal status.

“It shows a willingness to go out of his way to write a whole group of people out of the protection of the [law],” said Block. “And I find that to be troubling.”  

The future looks bleak for New York's unions

GREG DAVID

July 9, 2018

Supreme Court ruling dims forecast for organized labor

The labor movement in New York faces its biggest test in decades following the U.S. Supreme Court decision that public-sector workers who decline to join a union cannot be forced to pay fees. The immediate repercussion will be a blow to some unions' finances, but the real impact will play out over several years.

New York is the most unionized state in the United States. Although private-sector unions represent far more of the workforce in New York than nationwide (17% compared with 6%), the real strength of organized labor here comes from the public sector, where a little less than 70% of employees belong to unions. That's twice the national percentage. (All New York numbers come from the indispensable State of the Unions report published each September by the Murphy Institute at the CUNY Graduate Center.) In all, 1.9 million workers in the state belong to unions, according to the federal Bureau of Labor Statistics.

The immediate problem for the unions is that this month they will lose the fees paid by nonunion workers, like me. (I direct the business reporting program at the Newmark School of Journalism at CUNY; fees are deducted from my paycheck even though I have elected not to join the Professional Staff Congress union.) District Council 37 in the city faces the biggest immediate hit, followed by the union representing teachers in the CUNY system. The United Federation of Teachers faces the least impact.

More important is whether the unions will lose members who joined only because they were going to have to pay dues whether they did or not. When Wisconsin ended agency fees and limited the scope of public-sector bargaining over contracts, union membership plunged by 40%, noted Daniel DiSalvo of the Manhattan Institute.

Unions have already stepped up their efforts to convert fee payers to members. The Professional Staff Congress at CUNY added two full-time organizers to what had been a staff of five, according to a Gotham Gazette report. And some 200 union members have been talking to co-workers one-on-one about the importance of supporting the union. Already the union claims it has increased membership of full-time professors to 94% from 86%.

Gov. Andrew Cuomo pushed a bill through the Legislature that will make it harder for workers to leave a union. And he and Mayor Bill de Blasio have promised to give unions special access to recruit new workers and to limit personal information conservative groups could obtain to send anti-union material to current and potential members.

The law and other efforts are clearly subject to a legal challenge. The governor's actions are ironic, given that he spent his first term fighting with state unions to impose wage freezes and with teachers unions about charter schools and evaluations. It's another sign of how he has moved to the left.

In the end, DiSalvo argued, union membership in New York will drop by 15% to 30%. If the loss is in the neighborhood of one-third, union clout in the state will recede dramatically.

Free speech for public employees restored — Justice Alito plays the long game.

Matthew Froys

June 28^th, 2018

Matthew Forys is the chief of staff at Landmark Legal Foundation, which filed an amicus brief in support of Mark Janus in Janus v. AFSCME.

The Supreme Court upheld the free speech rights of state and local public-sector workers in Janus v. American Federation of State, County, and Municipal Employees and overruled an anomaly in its First Amendment jurisprudence: 1977’s Abood v. Detroit Board of Education. At issue in Janus was whether state government workers who don’t want to join the union representing them could nevertheless be forced to pay fees to support the union under a union security agreement. These objecting workers, known as “agency-fee payers,” were thus compelled to subsidize a group whose ideas they oppose as a condition of employment. Under Abood, the First Amendment rights of agency-fee payers were only impinged to the extent that the fees were used by the union for political or ideological activities not germane to collective bargaining. Today, the Court overruled Abood and held that compelling nonmembers to subsidize private speech on matters of substantial public concern violates their free speech rights. This ruling is not a surprise after Justice Samuel Alito’s sharp criticism of Abood in Knox v. SEIU (2012) and Harris v. Quinn (2014).

The issues in Abood and Janus stem from the congressional response to tumultuous labor disputes occurring in the late 19th and early 20th centuries. Strikes shook the country with shocking levels of violence. The Great Railway Strike of 1921 involved 400,000 workers and resulted in multiple deaths, sabotage and kidnapping. It also helped spur passage of the Railway Labor Act of 1926. The RLA granted collective-bargaining rights to railroad workers to prevent disruption of interstate commerce caused by labor disputes. It was later amended to address the issue of “free riders” – nonunion workers who received the benefits of union representation but didn’t want to pay for them. The solution was to allow “union shop” security agreements that require union membership as a condition of employment.

After more labor strife in the depths of the Depression, Congress passed the National Labor Relations Act in 1935 to promote labor peace and to equalize bargaining power between workers and employers. The NLRA granted collective-bargaining rights to most private-sector, but not government, workers. The Taft-Hartley Act amended the NRLA in 1947. It implicitly allowed “agency shop” clauses that require payment of fees from all employees, but not union membership. It also allowed states to pass “right-to-work” laws that ban union security agreements. Sixteen states did so within 10 years, and there are 28 now. States did not begin granting collective-bargaining rights to public sector workers, however, until 1959. Many states used the NLRA as a model, but there is significant variance in their scope. In right-to-work states, unions may be the exclusive representatives of workers, but can’t compel financial support from objectors. Thus, a regulatory patchwork over union security agreements developed in the states.

Union security agreements were challenged in two major RLA cases. In Railway Employees Department v. Hanson, the Supreme Court in 1956 upheld union shop agreements, stating: “Industrial peace along the arteries of commerce is a legitimate objective.” No First Amendment violation was found because the only conditions were payment of dues, fees and assessments, but “assessments … not germane to collective bargaining” would present “a different problem.” Five years later, in International Association of Machinists v. Street, the court held that the RLA did not allow unions to use objecting workers’ money on political activity that they opposed. Unfortunately, the boundaries of what is germane or political were difficult to draw and plagued the Supreme Court for years.

The Abood court relied on these cases to uphold an agency-shop arrangement arising from Michigan state law, stating that “the desirability of labor peace is no less important in the public sector, nor is the risk of ‘free riders’ any smaller.” Justice Potter Stewart’s opinion in Abood failed to subject the infringement of the objecting teachers’ First Amendment rights to strict scrutiny. The Abood court applied private sector RLA precedents to the public-sector union context and, at least with regard to the collection of fees, did so “without any focused analysis.” The court failed to appreciate the distinctions between private-sector and public-sector unions, such as the inherently political nature of collective bargaining with the government. The personal interests at stake are different when discussing wages, pensions and benefits in the public and private-sector contexts.

Contrary to Justice Elena Kagan’s claim, Alito’s opinion does not “weaponize” the First Amendment. It strengthens it by protecting the free speech rights of a political minority. The NLRA was justified by the need to equalize the bargaining power between labor and employer. Even the ultraconservative Chief Justice Howard Taft wrote: “Union was essential to give laborers opportunity to deal on equality with their employer.” But the objecting schoolteacher has had greatly unequal bargaining power with the union over the payment of fees. Under Chicago Teachers Union v. Hudson, unions must determine agency fees based on an audit of their prior year’s expenditures and give the nonmembers a financial notice explaining how the fee was calculated. The example given in Illinois shows how objectors are left in the dark about the final numbers.

The national consensus is breaking down on many policy issues, so one can expect more challenges to compelled speech in which Janus will be cited, even though it arises out of the public-sector context. The free speech implications of Masterpiece Cakeshop v. Colorado Civil Rights Commission remain to be fully fleshed out and there are florists, bakers and dressmakers on the left and the right who don’t want to be compelled to support ideas they dislike. At the time of this writing, a petition for certiorari is pending before the court, Fleck v. Wetch, that challenges the compelled speech of mandatory bar dues. This issue was raised and immediately dismissed by Justice William Douglas in Hanson but looks different today. Janus will certainly be a check on mandatory bar associations interested in staking out policy positions too removed from the regulation of the legal profession.

The practical effect of Janus on public-sector unions will be significant. According to the Mackinac Center, they may lose three million union members and agency-fee payers and perhaps hundreds of millions of dollars in dues or fees. Several union-friendly states anticipated a loss in Janus and have already crafted measures to ameliorate the damage. New York, New Jersey and Washington have made union recruiting easier. Unions will have access to new employees’ personal contact information in New York and New Jersey and union representatives will be allowed to meet new hires for recruitment pitches during work hours in all three states. Maryland may soon follow suit. New York also enacted a state tax deduction for union dues. Before Janus was issued, some suggested a more radical approach: devising a way to have the government reimburse the costs of union representation.

The more interesting question is how labor will address the statutory right of exclusive representation now that agency fees have been struck down. It is clear that Alito thinks in the long term and today he hinted that exclusive representation is an avenue for future challenge: “Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees.” Unions have argued that the right to speak on behalf of all workers in a bargaining unit, not just union members, is an expensive burden that justifies compelling free riders to contribute funds. This right brings a corresponding duty of fair representation, requiring unions to represent the interests of all employees, even nonmembers, without discrimination. Now that one leg of this stool has been removed, unions will re-evaluate whether to keep working on behalf of objectors during collective bargaining and the grievance process or let them fend for themselves.

There will be disruption in the workplace in the short term. There may be multiple unions in a public-sector office. Some unions may try to bring back the right to strike to be effective and gain support. Alito’s opinion requires clear and affirmative consent before money can be taken from nonmembers but is short on details for how that works for existing agreements and what happens next. In the long term, though, unions will be forced to compete for support and all workers’ freedom of speech will be protected. Today’s opinion upholds the Jeffersonian ideal that it is “sinful and tyrannical” to compel someone “to furnish contributions of money for the propagation of opinions which he disbelieves and abhors.”

JANUS v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES

https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf