Weekend News & Commentary – August 15, 2021

In the midst of The New York Times’ efforts to beat back a union drive among hundreds of its technology and product staffers, management-side lawyers representing the company accidentally leaked a private strategy memo to the union seeking to represent its employees. Indeed, last week a senior partner at Proskauer Rose sent an email to Times management detailing various strategies the company could take to limit the scope of the prospective unit of tech workers or otherwise weaken the union, but somehow cc’d an organizer for the New York chapter of the NewsGuild, the very union against which the strategic memo was aimed. This comes after the Times rejected the union’s request for voluntary recognition upon a showing of majority support and instead demanded a representation election with the NLRB, with both sides now in discussions over the size of the prospective unit for representation purposes.

As the Daily Beast reported, the contents of Proskauer’s advice to the Times discussed management’s potential goals, which included ensuring that supervisors are not involved in the union, seeking the “smallest bargaining unit that is justifiable,” or seeking “the bargaining unit where we are most likely to win an election” and thereby defeat the unionization effort. Moreover, based on Proskauer’s outline of potential paths for the paper to take, the Times opted for the most “aggressive” option: limiting the unit’s size as much as possible to under 400 employees, even though doing so could increase the union’s chances of winning the election. In response, one NewsGuild organizer reportedly stated that “the slideshow demonstrated how the paper was not holding an election to ensure all voices were represented, but rather to make the union as weak as possible.” Tensions rose further on Wednesday when hundreds of Times tech workers held a half-day work stoppage in protest of the company’s refusal to voluntarily recognize the union as well as to raise awareness about pending NLRB complaints regarding the company’s alleged unlawful polling of employees’ union support during the run-up to the election.

Meanwhile, as Tascha noted earlier this week, the Supreme Court blocked part of New York’s eviction moratorium that had been imposed in response to the COVID-19 pandemic, leaving thousands of New Yorkers potentially subject to eviction proceedings. In an unsigned order that left the three liberal justices dissenting, the Court enjoined enforcement of a provision in the state’s law barring the eviction of tenants who file a form certifying that they have suffered economic setbacks as a result of the pandemic, and which doesn’t require the submission of corroborating evidence in court. According to the Court’s order, this provision violated the court’s “longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” since the provision essentially left landlords unable to challenge the tenant’s certification and denied them a hearing. However, the Court left the remainder of the New York law in place, including a provision, which the landlords did not challenge, that instructs housing courts not to evict tenants found to have suffered a financial hardship in the course of its proceedings.  Additionally, in response to the Court’s order, incoming New York governor Kathy Hochul promised to “strengthen the eviction moratorium legislation.”

In other news, a group of Senate Democrats penned a letter to FTC Chair Lina Khan and Acting Assistant AG Richard Powers urging them to take action to “curb the use of antitrust law as a tool against labor organizing by workers often classified by their employers as independent contractors.” The letter, signed by Senators Leahy (D-VT), Warren (D-MA), Klobuchar (D-MN), Brown (D-OH), and Padilla (D-CA), describes how the Clayton Act and Norris-LaGuardia Act were meant to exempt labor organizations from suppression under earlier antitrust laws as unlawful “restraints of trade,” but in practice courts have read these exemptions too narrowly, leaving workers classified as independent contractors legally banned from unionizing under antitrust laws. The Senators noted that this outcome has increased misclassification incentives, allowing employers to weaponize antitrust laws against its workers’ organizing efforts. As a result, although much of antitrust law is judicially created, the Senators urged other forms of agency action. Namely, they advocate for the DOJ and FTC to issue joint guidance outlining a more expansive definition of the antitrust labor exemption, as well as to adopt internal rules to deprioritize the prosecution of worker organizations under the antitrust laws.

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