One of the issues that has received scant attention in the news reporting of the firings of eight U.S. attorneys is any mention of the employment at-will doctrine--a doctrine that union-represented employees, including these union-represented attorneys, in this country aren't at all worried about. Job applicants and new employees are often perplexed to read -- in a job application, employment contract, or employee handbook -- that they will be employed "at will." They are even more troubled when they find out exactly what this language means: An at-will employee can be fired at any time, for any reason (except for a few illegal purposes, spelled out below). If the employer decides to let you go, that's the end of your job -- and you have very limited legal rights to fight your termination. How come union-represented folks aren't concerned about at-will employment? Because union-represented workers are protected from unjust discipline and termination by their union contract, virtually all of which contain some form of a "just cause" provision. Simply stated, a just cause provision requires the boss to have a legitimate reason in order to discipline or discharge employees. A typical union contract just cause provision reads:
Under the legal doctrine of employment at-will, which the ACLU rightfully labels "a relic of 19th-century antilabor laws," unless there is some sort of a contract between you and your employer that says differently, or you live in the state of Montana, you are employed at the whim of your employer:
Employment At Will: What Does It Mean?
"If you are employed at will, your employer does not need good cause to fire you. In every state but Montana (which protects employees who have completed an initial "probationary period" from being fired without cause), employers are free to adopt at-will employment policies -- and many of them have. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.
With respect to nonprobationary employees, disciplinary action, including termination of employment, shall be for just cause only. Unless the nature and circumstances of the offense warrant a more severe sanction, such discipline shall be progressive and shall be limited to written warning, disciplinary probation, suspension without pay, and dismissal.
Look though you might, you'd be hard-pressed to find a real definition of just cause in any union contract. That doesn't mean, however, that there isn't a widely-accepted definition of that crucial clause. In 1966, arbitrator Carroll R. Dougherty, in a now classic labor arbitration case, articulated seven tests of just cause:
A just cause provision in a union contract is the greatest nullifier of an employer's common law right to terminate employees at-will, which makes it a principle reason why employers fight tooth and nail to prevent their employees from organizing.
It seems to me that the firings of the eight U.S. attorneys was politically-motivated, but, would their firings for "performance-related reasons" be upheld if they were covered under a just cause provision? To find the answer to that question, take a look at test question number five and let me know what you think.
Thursday, April 19, 2007
Employment-at-will lawyers
Tuesday, March 27, 2007
Thwarting workers
On March 1 of this year Congress passed the much needed labor law reform bill known as the Employee Free Choice Act of 2007 (EFCA), and a vote on the senate version of the bill is expected soon.
As currently written, EFCA would modify the National Labor relations Act (NLRA) in three important ways. First, it would require stronger penalties for violation of workers rights to organize. Second, it would provide for mandatory mediation and arbitration for first-contract disputes if needed. And third, it would allow workers to form or join a union on the basis of signed authorization cards from a majority of the employees.
Through a massive campaign of disinformation, corporate executives and their Republican representatives are exerting a vigorous effort to prevent EFCA from becoming law--but not for their stated reason of preserving the right of workers to select union representation by the use of a secret-ballot election. EFCA would not, as their disinformation campaign would have folks believe, abolish secret ballot elections in union representation elections. Under EFCA, workers could still certify their union representation choice through a secret-ballot election if that's what they wanted to do. Plus, establishing a union through signed authorization cards is already permitted under current law.
So why, then, are corporate executives adamantly opposed to EFCA? Because what EFCA would do is to eliminate management's ability under the current law to insist on a so-called secret-ballot election when presented with signed union authorization cards from from a majority of its workers--even from 100% of the workers! By being able to insist on an election, management gains weeks and weeks of time of time during which they put on a virulent, one-sided and many times illegal anti-union campaign designed to intimidate and coerce their workers from joining or supporting a union. It is this time frame that corporate executives are really fighting so hard to preserve, and it is no surprise that they are doing so through the use of lies and misrepresentation--the very same tactics they use every day in this country to thwart their employees right to freedom of association.
Sadly, the NLRA has become a union-avoidance tool of management (pdf file). EFCA would help to restore the NLRA to its intended purpose, which, as the law itself says (in the last paragraph of Section 1), is to "[encourage] the practice and procedure of collective bargaining and...[protect] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection."
(NOTE: a version of this post, edited by the editors of the newspaper, appeared in today's edition of The Bryan-College Station Eagle.)
Saturday, February 24, 2007
EFCA alone not enough
Journalist and author Joe Conason penned a dead-on piece over at Salon.com yesterday on the two-faced position of Bush and Cheney in vigorously advocating democracy and liberty abroad while promoting the vigorous suppression of it here in this country:
Nobody talks about the democratic way more fervently than George W. Bush and Dick Cheney, who have so often proclaimed that the historic mission of the United States is to expand liberty around the world. The Bush administration frequently denounces governments that suppress free speech, intimidate citizens and tamper with elections, expressing outrage over violations of human rights and self-determination in states such as Cuba, Iran, Myanmar and Zimbabwe.
So what would our great advocates of democracy say about a regime that routinely deprives people of their livelihood for speaking out freely on public issues? What would they say about a place where citizens are forced to listen to propaganda -- or where voters have to run a gantlet of armed police to enter a voting booth? How would they describe a system that distributes bribes, spies on dissidents and threatens everyone who dares to vote the "wrong" way with the direst possible consequences?
If they told the truth, they would be forced to admit that those awful conditions still exist on American soil, oppressing millions of workers whose employers use such tactics to prevent them from forming or joining a labor union. (Remainder of story here, and I recommend it as a good read.)
Conason's latest book, It Can Happen Here: Authoritarian Peril in the Age of Bush, is now out and AlterNet has an excerpt from it here.
And building on an excellent post by Ezra Klein at TAP about the Employee Free Choice Act (EFCA), Nancy Scola's "Who Workers Fear" piece at MyDD yesterday helps debunk the "but-the-union-will-intimidate-the-workers" smoke-screen raised by corporate and other anti-labor interests in protest of EFCA. At trip to both of those posts I also recommend.
Like Klein and others, I don't think EFCA would pass a senate filibuster, or garner enough votes to override a certain veto by Bush. There's more than sufficient objective evidence to warrant the reforms in the National Labor Relations Act (NLRA) that EFCA provides, but I don't see it getting out of the senate in the 110th Congress.
Even when it is passed into law, which I believe will be the case in the 111th Congress, I also don't see EFCA resulting in increasing union membership in this country to a level I think is necessary for labor unions to serve as the major organized voice for democracy, liberty and progressive politics in this country. But don't get me wrong, the argument that EFCA will not add significantly to union membership rolls is not an argument for not passing it. In addition to allowing the National Labor Relations Board (NLRB) to certify workers' choices for union representation based solely on the submission of valid signed union designations from a simple majority of the workers, EFCA would also provide two other important and much needed revisions to the NLRA:
- stronger penalties for violation of employee rights when workers seek to form a union and during first-contract negotiations, and
- mandatory mediation and arbitration for first-contract disputes.
But, in terms of serving as the catalyst for huge U.S. union membership growth, I think EFCA alone will not be responsible for that. Sure, I think union membership will increase as a result of EFCA, as it rightly should, but I believe such growth will be relatively modest. If EFCA were responsible for, say, a 15% increase in union membership ranks over the 2006 level (an increase of about 2.3 million members), that would certainly be terrific and nothing at all to scoff at. But for reform to result in an increase of union membership to the level, say, of 1/3rd of the workforce, an increase of over 27 million union members from the 2006 level, our brainwashed culture would need a frontal lobotomy to change the philosophical disorder that is one of the primary contributors responsible for the ultra-low unionization rates in the U.S.--the doctrine of individualism.
Tuesday, February 20, 2007
NLRB Secret Ballot - in name only
"A secret-ballot election is the American way" cry the anti-union pushers in protest of the Employee Free Choice Act (EFCA), which, in addition to making other long-needed corrections in labor law, would require employers to recognize a union where a majority of the workers designate a union to represent them through signed authorization cards. Such card-check recognitions are perfectly legal under current law. Employers, however, are not required to honor such designations by their workers and may insist that the workers use a so-called secret-ballot election conducted by the National Labor Relations Board (NLRB) to establish their union even if 100% of the employees provide the NLRB with signed authorizations designating the union as their bargaining agent. The EFCA would allow workers to have their union certified as their bargaining agent by the NLRB if a majority of them have signed valid authorizations.
But why do I say it's a "so-called" secret-ballot? University of Oregon Professor Gordon Lafer answered that question at a Congressional hearing two weeks ago:In the American democratic tradition the principle of the secret ballot is not simply the fact that you go into a voting booth and pull a curtain and nobody sees what you do. It is your right to keep your political opinion private to yourself before, during and after the act of voting; that you can't be lured or coerced into a conversation that is designed to make you reveal your political preferences. In the NLRB, while the vote does take place in a booth where nobody sees what you're doing, management is allowed to engage in a series of behaviors in the lead up to the vote that force the vast majority of workers to reveal how they're going to vote long before they ever step into the booth.
Listen to Professor Lafer testifying two weeks ago before the U.S. House of Representatives Subcommittee on Health, Employment, Labor and Pensions Hearing on Strengthening America’s Middle Class Through the Employee Free Choice Act:
Folks, it's simple: if the NLRB union representation election process were free and fair we wouldn't today be talking about the need or not of an Employee Free Choice Act. But the record is abundantly clear: management's unlawful conduct is rampant in the leadup to a union representation election. According to the NLRB, 31,358 workers received backpay in 2005 as a result of illegal firings and other unlawful discrimination by employers. It is impossible for American-style democratic free and fair elections to take place in such an evil atmosphere.
As professor Lafer pointed out in his written statement, "the [NLRB election] system is profoundly broken, profoundly undemocratic, and...profoundly un-American."
Sunday, February 04, 2007
Employee Free Choice Act reform
PaulVA over at group blog MyDD wrote a good post last Thursday, How Employers Get Away With Highway Robbery, which I recommend you taking in if you'd like to get a clear understanding of the corrupt state of labor law in our country today.
There's a tiny piece of his post, though, that I'd like to expand on here. PaulVA said:
"Employers who illegally fire workers for union activity are only required to pay back wages minus what the worker has earned in the meantime."
Actually, the "back wages" part? That's only in theory and not fully true in practice. And the part about interim wages? That's not quite the whole story, either.
In every case of illegal discharge of an employee that I brought to the National Labor Relations Board (NLRB) in my 30 years as a union rep where the NLRB (aka the "Board") indicated to the employer that it would issue a formal complaint against it if it didn't informally settle the case, or where the illegal discharge went to a formal hearing and was settled by the parties prior to the closing of the trial, the employer would offer something less than 100% reimbursement, usually 75-80% (but sometimes less) of the actual full amount of wages stolen from the worker by the illegal discharge. In almost all of those cases the NLRB agent or attorney assigned to the case pressured the union and/or the worker to accept the employer's less than full backpay offer. Typically, the NLRB agent or attorney would insist that the case wasn't as strong as the union or worker believed it to be and, they'd say, there was a good chance of an adverse ruling from the administrative law judge. Better to take the guaranteed 75% (minus taxes and interim earnings*), they'd say, than to chance losing it all. Further, it doesn't matter whether the union, which investigated, prepared and filed the unfair labor practice charge (ULPC) against the employer in the first place, is agreeable to the employer's offer or not. The Board will accept employer offers to settle the case for less than full backpay whether the union likes the offer or not.
In theory I understand and don't generally argue with the reasoning that a guaranteed half-a-loaf is better than an unguaranteed full loaf. Union reps use that same rationale at times in negotiating a settlement of a worker's grievance with an employer. But I don't know of any union that take that approach as a matter of pro forma policy with each and every grievance, which in my experience is damn near what the NLRB staff did with discharges and other ULPCs involving potential backpay. Some NLRB regions were worse at this than others, but it happened all the time in every region I had cases in.
Board agents and attorneys were always mindful of not adding anything more to their caseload and they were also keen to show settlements of cases for their end-of-period reports. The easiest way for them to accommodate such concerns is to settle cases as early and as informally as possible, even if it means settling for less than full restitution of a worker's lost wages. When that approach is the modus operandi, however, it seriously interferes with securing the "make whole" remedy for the worker that the law is supposed to ensure and for showing the illegally fired employee's co-workers, who have been watching the process intently to see what happens, that the law really protects their union and concerted activities.
By the time the NLRB's investigative machinery gets to the point where the employer is told by the Board that they will be taken to trial unless they voluntarily settle the unfair labor practice, the employer and the NLRB agent know full well that the fired worker is by then anxious, and many times financially desperate, to settle. It doesn't take much talking on the Board agent's part, therefore, to convince the worker to accept the employer's 75% offer--an amount the employer always makes contingent upon the worker agreeing to waive his or her right to reinstatement. And what real choice does the worker have? Put yourself in that worker's shoes. You've been fired for union activity and are having a hard time getting a new job, or one that pays equally well as the one you were fired from. Bills (including medical bills because you lost your medical insurance when you were fired) are piling up and the family's being forced to make financial sacrifices. Would you waive your right to return to work (for an employer who grossly violated your rights and paid and treated you so miserably in the first place that you and your co-workers sought out union representation to make improvements) to get a cash settlement of a portion of the wages that were stolen from you? In my experience, virtually every worker caught in this situation agreed to those employer terms.
*As to the deduction of interim earnings, the real situation here, too, is different than what it appears to be. If a fired worker can't establish to the satisfaction of the employer and the Board that he or she has made a dedicated and verifiable effort to secure employment elsewhere from the moment they were fired, they will not be eligible for any backpay, let alone a partial payment of one.
In addition, as PaulVA pointed out in his post, punitive damages, which are effective in detering a guilty party from pursuing such illegal acts in the future, are not assessed against employers found guilty of illegally firing employees because of their union activities.
So, what we have here in the real world is that an employer pays a less-than-full (and tax-deductable) backpay award to an employee it fired (provided the employee has assiduously sought work for the entire period of the discharge) because management identified the worker as a union "pusher," and in the process they get the illegally fired worker to waive his or her right to reinstatement to their former job. That's not a penalty for the employer; it's a fuckin' key victory for it in its anti-union campaign! It's a key victory employers intentionally seek out because it most assuredly will not go unnoticed by other employees that the worker fired for union activity never returns to work with that employer. The message couldn't be louder or clearer: "Mess around with that union, bub, and you're outta here." The employer doesn't have a better weapon in its anti-union arsenal to thwart a drive by its workers to unionize, except, maybe, for the threat of closing the operation down or outsourcing the work if the workers elect union representation--a threat used by company bosses and their union busting consultants in every organizing campaign I worked on in three decades.
All-in-all, the system truly sucks big time and is sorely in need of the minimal reforms proposed under the Employee Free Choice Act.
Friday, January 26, 2007
14.6 million union members
According to a report issued yesterday by the U.S. Department of Labor's Bureau of Labor Statistics, 14.6 million wage and salary workers were union members in this country last year, down slightly from the 2005 level.
The 2006 union membership rate for private industry workers was 7.4 percent, while the rate for all government workers was 36.2 percent.
Why the great disparity between the private and public sectors unionization rate?
One good reason is that about one-third of the workers in the private sector are not entitled to union representation under the National Labor Relations Act (NLRA). Private sector employees excluded from union representation by law include: self-employed individuals, domestic workers, farm workers, workers employed by a parent or spouse, confidential employees, supervisors, and managerial employees.
In a 2005 paper, Paula B Voos of Rutgers University described the very different situation in the public sector:
Even though public sector labor relations statutes commonly have been modeled after the NLRA in many respects, they also have major differences both from that law and from one another. When Adrienne Eaton and I reviewed these statutes in 2002, we found that eleven of them provided collective bargaining rights not only for first-level supervisors, but also for individuals at higher levels in the management hierarchy; these states were Alaska, Connecticut, Florida, Hawaii, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New York, and Washington. New Jersey, for instance, gives rights to employees up to the level of "managerial executive." Hence, a greater proportion of the workforce is eligible for union representation in the public sector.
If a greater proportion of a given workforce is eligible for union representation, it only stands to reason that the union membership rate is going to be higher in that workforce. Although the eligibility factor accounts for a goodly portion of the disparity between the private and public sectors unionization rates, it doesn't account for all of it.
Another significant factor for the disparity is the huge and ongoing losses of unionized manufacturing jobs in this country. Deindustrialization over the past decades has cost millions of union members their good-paying jobs. Technology can account for the loss of many of those jobs, but millions of manufacturing jobs were also exported overseas or to Mexico, a phenomena that hasn't been seen yet with federal, state or local government jobs. In 1950 about one-third of all jobs in this country were in manufacturing. By 2005, however, manufacturing represented only about 11 percent of all U.S. employment. But, considering that only about half of those manufacturing jobs are jobs typically open for union representation (the remainder are sales, design, distribution, financial planning, clerical, and human resources positions, etc.), it's not really surprising to see a report of only a 7.4 percent unionization rate in the private sector.
However, I think the biggest reason behind the disparity is corporate resistance to unionization, which is vastly more prevalent in the private sector than in the public. Many of the governmental entities that allow for some sort of labor relations activities with their public employees are officially neutral with respect to discouraging or encouraging their employees to unionize. I'm not saying that employer resistance is nonexistent in the public sector, just that it doesn't at all come close to the wretched level in the private sector. In a recent study on this issue the Center for Urban Economic Development at the University of Illinois at Chicago found that:
[U]nion membership in the United States is not declining because workers no longer want or need unions. Instead, falling union density is directly related to employers’ near universal and systematic use of legal and illegal tactics to stymie workers’ union organizing.
Kate Bronfenbrenner's widely referenced and highly respected September 2000 report to the U.S. Trade Deficit Review Commission found that sixty-eight percent of manufacturing employers made threats to close all or part of the plant during the organizing drive.
Not only are threats of plant closing an extremely pervasive part of employer campaigns, her report also found they are very effective: "The election win rate associated with campaigns where the employer made plant closing threats is, at 38 percent, significantly lower than the 51 percent win rate found in units where no threats occurred."
Here are a few more statistics compiled by the AFL-CIO on private-sector employer resistance to unionization:
Employers that hire consultants or union-busters to help them fight union organizing drives: 75%
Employers that force employees to attend one-on-one meetings with their own supervisors against the union: 78%
Employers that force employees to attend mandatory, closed-door meetings against the union: 92%
Employers that threaten to call the U.S. Citizenship and Immigration Services during organizing drives that include undocumented employees: 52%
Workers in 2003 who received back pay because of illegal employer discrimination for activities legally protected under the National Labor Relations Act: 23,144
Percentage of unions newly formed by workers whose employers do not agree to a first contract within two years: 45%
____________________________
Sources: Kate Bronfenbrenner, Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages and Union Organizing, Cornell University, Sept. 6, 2000; Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States Under International Human Rights Standards, 2000; Membership survey for the AFL-CIO, Peter D. Hart Research Associates, 2005; National Labor Relations Board annual reports; Federal Mediation & Conciliation Service annual report, 2004.
Employer suppression of unionization and a dysfunctional labor law is so egregious in the private sector that in 2000, Human Rights Watch published a report that concluded:
"[L]egal obstacles tilt the playing field so steeply against freedom of association that the United States is in violation of international human rights standards for workers."
Clearly, the evidence is overwhelming, all of the cards in the deck are stacked against U.S. private-sector workers who dare to form or join a labor union. Research, though, shows that 59 percent of currently unorganized American workers would like to have collective bargaining agent. There can be little doubt that overt employer opposition is a major cause of this unfulfilled demand--and a major cause of the disparity between the private and public sectors unionization rate.
Friday, January 19, 2007
Why EFCA?
I've written about the need for the Employee Free Choice Act (here, here, and here), but the following commentary in The American Prospect online edition by Bruce Raynor, president of UNITE HERE, provides a powerful and poignant example of everything that's been wrong for the past quarter century with the National Labor Relations Act and National Labor Relations Board:
Losing By Winning
What one NLRB case this year tells us about our broken collective bargaining laws.
By Bruce Raynor
Web Exclusive: 12.21.06
"There's no reason to subject the workers to an election."
In the past year, full-page ads taken out in The New York Times, Washington Post, and Wall Street Journal by the anti-union organization Center for Union Facts featured this quotation and my picture, alongside pictures of Cuban leader Fidel Castro and North Korean leader Kim Jong Il. Then, the caption: "Who Said It?"
Here's the answer: I said it. And I believe it. And the National Labor Relations Board issued a decision in August that shows just how right I am.
Eight years ago our union made the mistake of putting our faith in the current NLRB election system on behalf of a group of tough, dedicated, largely immigrant warehouse workers at the Goya Foods facility in Miami, Florida, who were looking to improve their economic lot and to be treated with respect and dignity on the job. Now, in 2006, these workers have won every single legal decision brought before the NLRB, but they have not gotten good raises, a union contract, better treatment or any other improvements. If this is winning, it's hard to imagine what losing looks like.
Back in 1998, workers at Goya Foods of Florida, the largest Hispanic-owned company in the United States, voted overwhelmingly for union representation by UNITE (now UNITE HERE) by a combined vote of 83 to 31 in two separate elections. These elections vicious "vote no" campaigns by company management, which included harassing workers who supported the union, threatening workers, and holding mandatory meetings full of anti-union diatribes. In an amazing show of courage and mutual support, the Latino workers persevered and won the union election in the giant Florida warehouse of this very profitable company. The workers were looking for a solution to their problems of poor treatment, low wages, expensive health insurance, and supervisor favoritism, and hoped they had found it by electing to have union representation.
After the union was certified at Goya, the company embarked on a concerted campaign to frustrate the workers' desires. The plan was to utilize the delays and the lack of powerful remedies inherent in our country's labor laws to weaken and divide the Company's employees to the point where they would give up on forming a union.
The workers and their union representatives fought back tenaciously. We forced the company to the bargaining table and kept them there. We organized rallies, car caravans, meetings, and other public events to keep the workers' spirits up and to involve the Miami community in our struggle with a company that largely serves the Latino community. We filed scores of charges with the National Labor Relations Board, challenging the company's recalcitrant conduct in bargaining, their unilateral changes in working conditions, and their discriminatory treatment of those who dared to openly support the union.
Eventually, the NLRB's General Counsel charged Goya with at least twenty-three separate, textbook violations of U.S. labor law, including the usual threats of job loss, plant closings, interrogation, discrimination in work assignments, and the firing of at least four union supporters. Later in 1999, the Company ceased bargaining with us and -- illegally -- withdrew recognition of our union.
The union, the workers, and the General Counsel took the case to a trial under federal labor law before an Administrative Law Judge in June 2000. In February 2001, the judge ruled in favor of the union and workers on every single issue in a well written and thoughtfully reasoned decision. He ruled that the four Goya workers were fired illegally for supporting the union and recommended that the NLRB order their reinstatement and back wages (no penalties are provided by the National Labor Relations Act). He found the company guilty of threats against workers who supported the union, interrogation of union supporters, and failure to bargain in good faith as required by federal law.
Of course the Company appealed -- creating another delay of justice. But by July of 2001, the record was complete: the briefs were in, the Board had the transcripts and the exhibits, and the case was, as they say, "ripe for decision."
I don't know what the Board was doing over the next five years and two months.
(please go here for remainder of article)
In the last Congress, close to a majority of representatives in the House (216) and in the Senate (44) co-sponsored the Employee Free Choice Act. Given the political makeup of the current 110th Congress, we should see a majority in both houses signing on as co-sponsors once this most important piece of legislation for workers' rights is introduced in a couple of weeks.
Tuesday, December 05, 2006
Freedom of association rights fix
The Employees Free Choice Act (EFCA) (S. 842 and H.R. 1696) is the result of the long-brewing frustration with the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB), a bit of which I wrote about in two previous posts (here and here). EFCA is designed to close loopholes in the NLRA that have allowed employers to harass, coerce, threaten and penalize workers who try to form unions and to refuse to bargain in good faith when new unions are formed. The following is from the AFL-CIO's summary (pdf file) of EFCA provisions:
- Certification on the Basis of Signed Authorizations
- First-Contract Mediation and Arbitration
- Stronger Penalties for Violations While Employees Are Attempting to Organize or Obtain a First Contract
a. Mandatory Applications for Injunctions: Provides that just as the NLRB is required to
seek a federal court injunction against a union whenever there is reasonable cause to believe that the union has violated the secondary boycott prohibitions in the act, the NLRB must seek a federal court injunction against an employer whenever there is reasonable cause to believe the employer has discharged or discriminated against employees, threatened to discharge or discriminate against employees or engaged in conduct that significantly interferes with employee rights during an organizing or first contract drive. Authorizes the courts to grant temporary restraining orders or other appropriate injunctive relief.
b. Treble Back Pay: Increases the amount an employer is required to pay when an employee
is discharged or discriminated against during an organizing campaign or first contract drive
to three times back pay.
c. Civil Penalties: Provides for civil fines of up to $20,000 per violation against employers found
to have willfully or repeatedly violated employees’ rights during an organizing campaign or first contract drive.
At least 213 House of Representative members (including about 14 Republicans) are co-sponsors of the EFCA House version (including the representative of my TX district, Chet Edwards, D-TX-17), and at least 44 Senators (including one Republican) are co-sponsors of the EFCA Senate version. (These numbers do not include any of the incoming members of the newly-elected 110th Congress.)
Employers, their shills and anti-union right-wingers argue that if enacted EFCA would deprive workers of their democratic rights to vote for or against union representation in a secret-ballot election (because of EFCA's card-check union certification provision). Let's put that spurious claim to bed right now: when it comes to workers' freedom of association, there isn't any "democratic" or "free" choice in the workplace. And anyone who argues differently is either ignorant of the facts or a liar or both.
Through the use of finely-tuned but aggressive deceitful trickery, corporations and their lawyers and consultants have turned inside out the law that is supposed to protect workers' rights of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. (Some examples of that trickery are here, here and here.)
But with respect to card-check certification, it has always been legal (and still is) under the NLRA for an employer to recognize a union based solely on the fact that a majority of its workers sign a card designating the union as their bargaining agent. Every union that I'm aware of, including the two I worked for, IUE (now IUE-CWA) and UNITE (now UNITE-HERE), have historically used majority card-check (verified by an impartial, outside third-party) to attain employer recognition as the bargaining agent. Examples:
- 130 workers used the card-check process at USF Bestway in Phoenix, AZ this month to certify that they desired the Teamsters to represent them.
- Last year a little over 5,000 janitors in Houston received employer recognition for their union (SEIU) through a card-check procedure. (Just two weeks ago, in fact, the Houston janitors secured their first contract, which will more than double their income within the next 24 months.)
- North Syracuse Police officers and staff this month secured employer recognition of their union through a card-check.
- Thousands of Cingular Wireless workers secured their union representation through card-check.
To sum it up, the law has failed and the process is broken. The repairs provided under the Employee Free Choice Act, however, will go a long way to restoring the law to its original intent, that is, to encourage the practice and procedures of collective bargaining and to assiduously protect the free association rights of American workers. EFCA should pass the 110th Congress, but the next president, not the current failed one, will be given the honor to sign it into law.
Monday, December 04, 2006
Freedom of association rights problems
(This is part two of my Freedom of association frustration post.)
On June 20, 1964, three courageous young civil rights workers drove into Neshoba County, Mississippi to investigate the burning of an all-black congregation church where just a month earlier they had urged the congregants to register to vote. Michael Schwerner, James Chaney and Andrew Goodman never left Neshoba County alive. The day after they arrived, on Father's Day, June 21, they were murdered (Chaney was beaten and tortured before being murdered) by depraved racists and then buried in an earthen dam on a farm six miles northeast of the city of Philadelphia, Mississippi. (A Neshoba County deputy sheriff and 17 others, all Ku Klux Klan members, were indicted for the crime; seven were convicted in 1967 and an eighth in 2005.)
On March 1, 1973, a little less than nine years after their murder (and three years after the seven indicted Klansmen finally went to prison for their involvement in this crime) I drove into Philadelphia, Mississippi to help organize production and maintenance workers at an electrical manufacturing plant there. It was my first organizing assignment with the International Union of Electrical, Radio and Machine Workers of America, AFL-CIO (IUE), and unlike Schwerner, Chaney and Goodman, some months later I got to drive back out of Neshoba County again.
In 1973 the IUE (now merged with the Communications Workers of America) had hired me and about 11 or 12 others from around the country to serve on their recently-created Organizing Task Force. Our principle job on that task force was to organize "runaway shops," that is, factories that had closed their northern IUE-represented shops and moved lock, stock and barrel to the south for the purposes of taking advantage of low-wage southern labor and opening up anew as a non-union entity. As I recall it, that electrical manufacturing plant in Philadelphia, MS wasn't one of the runaways, but my experience during our organizing campaign there nevertheless served as a real awakening to me in terms of the harsh and frustrating worlds of civil rights and union organizing.
As I cited in my earlier post, the first section of the National Labor Relations Act (NLRA) in part states that it is the public policy of the United States to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. Oh, were it so.
In spite of that righteous and noble policy, the truth is that with near impunity employers spy on, threaten, harass, intimidate, coerce, discipline, discriminate against, and fire workers for their support of or involvement in forming or joining a labor organization. Employers also throw up numerous phony legal and quasi-legal issues that serve to intentionally and interminably delay and otherwise thwart the holding of a secret-ballot union representation election for the workers. Employers get away with doing all these things and much more because for the most part the law and the federal agency created for effectuating the law's purpose, the National Labor Relations Board (NLRB), long ago ceased to fully function as intended and called for under the law's stated policy.
In 2000, the world's preeminent human rights organization, Human Rights Watch (HRW), issued a report of their research into attempts by American workers to form unions and bargain with their employers. Their research showed that "freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it." Some of Human Rights Watch's principal findings based on their research into this issue include:
Finding: Delays in NLRB and Court Procedures
Delays in the U.S. labor law system arise first in the election procedure. NLRB elections take place at least several weeks after workers file a petition seeking an election. In many cases, the election can be held up for months by employers who challenge the composition of the "appropriate bargaining unit."
An employer can also file objections to an election after it takes place, arguing that the union used unfair tactics. It takes several months to resolve these objections. But even when the NLRB rules in workers' favor and orders the company to bargain with the union, the employer can ignore the board's order. This forces workers and the NLRB to launch a new case on the refusal to bargain, often requiring years more to resolve in the courts. In many of the cases studied for this report, workers voted in favor of union representation years ago, but they are still waiting for bargaining to begin while employees' appeals are tied up in court.
Long delays also occur in unfair labor practice cases. Most cases involve alleged discrimination against union supporters or refusals to bargain in good faith. Several months pass before the cases are heard by an administrative law judge. Then several more months go by while the judge ponders a decision. The judge's decision can then be appealed to the NLRB, where often two or three years go by before a decision is issued. The NLRB's decision can then be appealed to the federal courts, where again up to three years pass before a final decision is rendered. Many of the workers in cases studied here were fired many years earlier and have won reinstatement orders from administrative judges and the NLRB, but they still wait for clogged courts to rule on employers' appeals.
Finding: Discrimination Against Union Supporters
Firing or otherwise discriminating against a worker for trying to form a union is illegal but commonplace in the United States. In the 1950s, workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In the 1960s, the number climbed into the thousands, reaching slightly over 6,000 in 1969. By the 1990s more than 20,000 workers each year were victims of discrimination for union activity - 23,580 in 1998, the most recent year for which figures are available.
An employer determined to get rid of a union activist knows that all that awaits, after years of litigation if the employer persists in appeals, is a reinstatement order the worker is likely to decline and a modest back-pay award. For many employers, it is a small price to pay to destroy a workers' organizing effort by firing its leaders.
Finding: "Predicting" Reprisals
Under U.S. law, employers and anti-union consultants they routinely hire to oppose workers' organizing have refined methods of legally "predicting" - as distinct from unlawfully threatening - workplace closures, firings, wage and benefit cuts, and other dire consequences if workers form and join a trade union. A "prediction" that the workplace will be closed if employees vote for union representation is legal if the prediction is carefully phrased and based on objective facts rather than on the employer's subjective bias.
This fine distinction in the law is not always apparent to workers or, indeed, to anyone seeking common-sense guidance on what is allowed or prohibited. Unfortunately for workers' rights, federal courts have tended to give wide leeway to employers to "predict" awful things if workers vote for a union.
One prediction a court found to be "carefully phrased" was made by the owner of an Illinois restaurant where workers sought to form a union and bargain collectively. In a tape-recorded speech in a captive-audience meeting the owner stated, "If the union exists at [the company], [the company] will fail. The cancer will eat us up and we will fall by the wayside . . . I am not making a threat. I am stating a fact. . . . I only know from my mind, from my pocketbook, how I stand on this." The NLRB found this statement unlawful. A federal appeals court reversed the board, finding the employer's statement a lawful prediction that did not interfere with, restrain, or coerce employees in the exercise of the right to freedom of association.
At an Illinois auto parts plant where workers began organizing, a supervisor told workers, "I hope you guys are ready to pack up and move to Mexico." Again, the NLRB found that the statement was a plant closing threat. And again, the appeals court overturned the finding by the NLRB. The court said the statement was "a joke, not a threat."
Finding: Forced Attendance at Captive-Audience Meetings
Almost without limits, employers can force workers to attend captive-audience meetings on work time. Most often, these meetings include exhortations by top managers that are carefully scripted to fall within the wide latitude afforded employers under U.S. law - allowing "predictions" but not "threats" of workplace closings, for example -to deter workers from choosing union representation. Employers can fire workers for not attending the meetings. They can impose a "no questions or comments" rule at a captive-audience meeting, and discipline any worker who speaks up.Finding: Special Vulnerability of Immigrant Workers
International human rights principles apply to all persons regardless of immigration and citizenship status. In the United States, Human Rights Watch found workers' rights violations with particular characteristics affecting immigrant workers in nearly every economic sector and geographic area examined in this report. For many, the vulnerability of their undocumented status and related fear of deportation are the most powerful forces inhibiting their exercise of the right to organize and bargain collectively.During NLRB election campaigns employers commonly threaten to call the Immigration and Naturalization Service (INS) to have workers deported. Immigrant workers are often afraid to come forward to file unfair labor practice charges or to appear as witnesses in unfair labor practice proceedings because they fear their immigration status will be challenged.
Finding: Even Legal Immigrants Unprotected
About 30,000 temporary agricultural workers enter the United States each year under a special program called H-2A giving them legal authorization to work in areas where employers claim a shortage of domestic workers. H-2A workers have a special status among migrant farmworkers. They come to the United States openly and legally. They are covered by wage laws, workers' compensation, and other standards.But valid papers are no guarantee of protection for H-2A workers' freedom of association. As agricultural workers, they are not covered by the NLRA's anti-discrimination provision meant to protect the right to organize.
H-2A workers are tied to the growers who contract for their labor. They have no opportunity to organize for improved conditions and no opportunity to change employers to obtain better conditions. If they try to form and join a union, the grower for whom they work can cancel their work contract and have them deported.
Finding: Surface Bargaining, Weak Remedies
Even after workers form a union and bargaining begins, employers can continue to thwart workers' choice by bargaining in bad faith - going through the motions of meeting with the workers and making proposals and counterproposals without any intention of reaching an agreement. This tactic is called "surface bargaining." The problem is especially acute in newly organized workplaces where the employer has fiercely resisted workers' self-organization and resents their success.
Finding: Nullification of the Right to Strike by the Permanent-Replacement Doctrine
Under U.S. labor law, employers can hire new employees to permanently replace workers who exercise the right to strike. This doctrine runs counter to international standards recognizing the right to strike as an essential element of freedom of association. Considering the U.S. striker replacement rule, the International Labor Organization's Committee on Freedom of Association determined that the right to strike "is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally" and that permanent replacement "entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights."
Despite the fact that a majority of the production and maintenance workers in that Philadelphia, Mississippi electrical manufacturing plant signed a card authorizing the IUE to serve as their bargaining agent, they didn't win their secret-ballot union representation election. And the reason they didn't is because that employer engaged in all of the violations of worker rights described in these HRW findings and then some, including discrimination and harassment against African American and Native American workers for their support of the IUE, and physical intimidation of workers and the organizing staff. (I don't recall there being any authorized or unauthorized immigrants working at that plant during that organizing campaign, but there is no doubt that employer would have readily engaged in the conduct described by HRW in their findings relative to immigrant workers had there been any of them.)
During my close to 30-year career as a labor union representative, virtually every union representation election I personally worked on or had intimate knowledge of was permeated with these and numerous other employer violations of workers' rights to organize and bargain collectively. Such violations are not isolated instances; they are the core and substance of management's massive endeavors to ensure their employees do not form or join a labor union. Long building and intense worker and union frustration levels with this situation have resulted in tactics designed to avoid using the NLRB and in efforts to reform the law to return it to its intended purpose.
On paper, American workers have the human and legal right to represent themselves in their workplaces. In real life, however, they do not have a free and fair means for exercising their right to organize and bargain collectively. The law and process fails them and that reality needs to change. A current proposal before Congress to do just that will be the topic of my next post.
In memoriam:
(A good introduction to this civil rights history is here and here.)
Friday, December 01, 2006
Freedom of association frustration
The frustration with our dysfunctional federal immigration policy that's driving local communities to pass housing ordinances that fine landlords who rent to unauthorized immigrants (for example, my posts here and here) is no different from the frustration driving labor unions, workers and other organizations to push for card-check union representation certification.
Although it's not well know, and not in the slightest made clear or in any manner promoted by the National Labor Relations Board (NLRB) (aka, the "Board"), under the National Labor Relations Act (NLRA) it is the public policy of the United States to encourage the practice and procedure of collective bargaining. The very first Section of the NLRA (Findings and Policies) states:
It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.Unfortunately, the system developed by the NLRB for American workers to secure union representation has today become so corrupt that it doesn't come anywhere close to fulfilling that policy--or living up to the most fundamental tenets of democracy.
The primary mechanism used by the NLRB for workers in the private sector to secure union representation under the NLRA (aka the Wagner Act, and which was also amended by the Taft- Hartley Act) is a secret ballot election administered by agents of the NLRB.
The way this NLRA/NLRB union representation process has historically worked, is that after securing signatures on authorization cards from a majority* of workers designating the union to serve as their collective bargaining agent, the union files a certification of representative petition with the NLRB and at the same time also turns over to them the signed authorization cards to support the petition as a showing of interest. The end goal of this process is for the Board to conduct a union representation secret ballot election among those workers for the purpose of certifying the union as the employees' collective bargaining agent. (*Although the NLRB technically only requires authorization cards be signed by 30% of the bargaining-unit workers to officially commence their election process, the actual practice used by the two major unions I worked for and the unions I knew of during my 30 years in the labor movement was petitioning the NLRB only after a majority of the workers signed up. Even though allowed to do so by NLRB rules, unions will almost never petition with less than 50% of the workers signing authorization cards for legal and practical considerations, including the knowledge that you probably would not prevail in a representation election that requires a majority vote with just a 30% showing of interest.)
The problem is that the NLRB secret ballot process has become so dysfunctional that it now serves as the major impediment to the intent and purpose of the law. Lots of folks are mighty upset and frustrated with a broken immigration policy and lots of folks are mighty upset and frustrated with this broken NLRA policy. That frustration is what's driving radical reform of both policies.
So, what are the problems with the NLRB policies and procedures? I'll write about that in my next post, but in short, ineffective enforcement and interminable delay top the list. (If you'd like to learn more now about this issue, I recommend this report (pdf file) by Dr. Gordon Lafer, an associate professor at the University of Oregon and/or Why the NLRB is Pretty Worthless by Nathan Newman.)
