Commentary - Part 3 of 3
Understanding Organized Labor: The Employee Free Choice Act
Author: John Kretzschmar
Publication: Prairie Fire
Date: March 2009
Organized labor has long known about the weakness of the National Labor Relations Act (NLRA). For well over 30 years, unions understood it was no longer an effective tool for supporting organizing and bargaining. They complained that anti-union corporations and their consultants used the long period between employees showing an initial interest in forming a union and the actual National Labor Relations Board (NLRB) supervised election to create a hostile environment in which to hold the election. Additionally, unions had concerns about weak remedies and sophisticated employer strategies to avoid first contracts.
In 1977, there was a failed bipartisan attempt to address these failings and return the NLRA to its original intent. The bill easily passed the House and had the votes for passage in the Senate, but it failed because of a Senate filibuster. Supporters fell one vote short of ending the filibuster. The U.S. Chamber of Commerce called the defeat “a resounding victory for the American people.”Let’s look more closely at how the NLRA currently works, or more accurately, doesn’t work.
The NLRA provides two avenues that employees may use to bring a union into the workplace. First, the majority of employees can sign union authorization cards indicating their interest in unionization. This process is called majority sign-up. Or alternatively, the employees can opt for a representation election supervised by the NLRB. But the reality is that currently the employer, not the employee, gets to decide which of the two options are used. And the vast majority of companies prefer the election process—and here’s why.If there are no intervening delays, there are one to two months of elapsed time between when employees go to the NLRB and request a representation election and when the NLRB conducts it. This variation in time depends on the region of the country and the workload of the NLRB. The waiting period is typically used by companies, who’ve been trained by or who hire union-avoidance consultants, to “prepare” the workforce for the election.One key to union prevention is insuring unequal access to the “voters.” During this period, outside union organizers are routinely barred from the workplace. This limits the union’s ability to effectively communicate with the entire potential bargaining unit. Unions are forced to rely on irregular communications with potential voters away from work.In 2007, Gordon Lafer of the University of Oregon critiqued the current state of the NLRA and cited Alfred DeMaria, author of “
How Management Wins Union Organizing Campaigns.” According to Mr. DeMaria, “Unions are at a severe disadvantage in the communications battle. Home visitations are expensive and time-consuming, [off-site organizing] meetings are sparsely attended because they take place on the employee’s own time, and union organizers can rarely ensure that all voters will even receive the union flyers that organizers hand out. On the other hand, management has the employee under its control for eight hours a day.”Critical to the anti-union message is laying out a laundry list of dire consequences that the company wants the employees to have prominently in their heads on election day. These anti-union methods are time-tested and obviously effective.
The vast majority of companies regularly hold mandatory closed-door meetings following carefully written scripts aimed at evoking an anti-union sentiment. Every potential voter who’s chosen must attend or suffer discipline. Under current law, employers can legally go so far at these meetings as to ban employee speech that’s considered pro-union!Additionally, studies show that 91 percent of companies ensure that first-line managers hold one-on-one meetings with every employee they supervise. These supervisors, who have the most control over the employee’s job, reinforce the company’s anti-union message and identify union supporters for special treatment. The special treatment is intended to create fear of what might happen if they vote to support the union.
Martin Jay Levitt is one of the early union-avoidance consultants. He left the field over 20 years ago and later wrote a “tell all” book, “Confessions of a Union Buster.” Mr. Levitt emphasized that union-avoidance is a results-oriented business. He brags that he lost only four of the 200 elections he was involved in, and he helped his employer avoid a first contract in three of the four “union wins.”Mr. Levitt characterizes the whole field of union-avoidance this way: “Union busting is a field populated by bullies and built on deceit. A campaign against a union is an assault on individuals and a war on the truth. As such, it is a war without honor. The only way to bust a union is to lie, distort, manipulate, threaten, and always, always attack.”
It shouldn’t be surprising that in his book Mr. Levitt characterizes the weakness of the NLRA as an asset in effective union-avoidance. Mr. Levitt, who can still be found on the Internet talking about his old profession, makes it clear: “As with most labor laws, however, the rules are largely ineffective. Worse: the hands of a union buster can quite easily twist those [NLRB] rules into a precision weapon against the union.”
Mr. Levitt always advised a company to refuse voluntary recognition of the union, regardless of whether the vast majority of employees had signed union authorization cards. After all, the goal is to keep the union out of the workplace. Forcing a NLRB election and finding ways to delay that election creates the critical time needed for the consultants to work their magic.
Mr. Levitt is not alone in his analysis. John Logan of the London School of Economics commented on the importance of aggressive hierarchical employer communication in 2006 when he wrote, “delays [in the NLRB supervised election] extend the duration and effectiveness of the employer campaign and undermine employee confidence in the effectiveness of both the union and the labor board.”
Threats of job loss play an important role in preparing the workforce for the election. It’s common for profitable employers to legally predict that there “may be” a job loss if the employees choose a union. It’s rarer, but not unheard of, that a company illegally threatens to close up shop if the union wins. And because actions are louder than words, one tactic that’s especially powerful is shrinkwrapping equipment, plastering it with shipping notices and placing it in clear sight of the employees just before the election. However it’s communicated, the company message is clear: support the union at the risk of your job.
Marc Gunther, a senior writer for Fortune Magazine, looked at a much darker employer behavior in the June 5, 2006, edition: “Workers are routinely fired or discriminated against for supporting unions, most employers hire anti-union consultants to block organizing drives, and some go so far as to close down work sites when employees vote for a union.”
The NLRA just doesn’t have the teeth to stop a company’s illegal behavior. Union researchers, who’ve checked NLRB data, find that an employee is illegally fired in 20 percent of union organizing drives. During the 1950s, when union density was high, the NLRB found that companies broke the law in ways that required them to reimburse workers for lost wages at a rate of about 1,000 per year. In contrast during the last dozen years, the number of employer lost-time Unfair Labor Practices (ULPs) has averaged 20,000 per year! Not all of these back pay ULPs are related to union organizing, but their number says a lot about the current effectiveness of the NLRA.
Anti-union consultants know they have many tools at their disposal short of firing an employee for supporting a union organizing drive. Human Rights Watch issued a 2005 report entitled “Blood, Sweat and Fear,” explaining labor/management relations in U.S. meat and poultry plants. One section described an unsuccessful 2001 organizing attempt at Omaha’s Nebraska Beef. In Nebraska and elsewhere, the report detailed multiple examples of employer intimidation and coercion of workers that didn’t include firing employees. The reality is that companies annually commit many ULPs over and above the 20,000 lost-time ULPs mentioned earlier.Today the NLRA is so weak that it’s no longer viewed as a disincentive to illegal behavior. Senator Tom Harking (D-Iowa) believes that the “penalties [for violating the NLRA] are so minimal that employers can write them off as a cost of doing business.”
It’s amazing that even with this resistance, thanks to “selected” targeting, unions are able to squeeze out election victories just over 50 percent of the time. But a union win, as Mr. Levitt notes, does not insure a first contract. Consultants advise companies to work the edges of the NLRA in order to delay or deny the negotiation of a first contract. According to NLRB records, only 38 percent of unions are able to attain a first contract within a year’s time, and fully a third of new unions are never able to come to an agreement with their intentionally hesitant employers.
So if the NLRA isn’t working as originally intended, what’s the solution? Labor unions and their allies support the passage of the Employee Free Choice Act because this bipartisan piece of legislation promises to return the NLRA to its original promise and once again level the playing field. Employers and their allies oppose it for the same reason they originally opposed the NLRA: It limits the employer’s freedom to unilaterally control everything that goes on in the workplace. Nevertheless, if enacted, the Employee Free Choice Act will make three simple, straightforward, common sense changes.
First it would let employees, not companies, choose the method for bringing a union into the workplace. Employees would have the freedom to use majority sign-up. And if after examination of the cards, if the NLRB determines that a majority supports it, the employees have a union. Some states, like Oklahoma, currently permit majority sign-up for municipalemployees. Additionally, it would permit employees, if they want, to opt for a NLRB-supervised election, as is commonly done now.Anti-union advocates predict there will be widespread examples of illegal union pressure used to get employees to sign authorization cards. This type of behavior is already a ULP under the NLRA. Historically, companies have been free to bring these charges of intimidation against unions in the past. An anti-union group examined NLRB records for just such union activity, and it identified 113 instances over 60 years. Upon closer examination by a union-friendly group, that number was reduced to 42 actual occurrences. Compare that number with the tens of thousands of employer ULPs annually, and think about which is the bigger problem.
Second, the Employee Free Choice Act increases penalties for employer lost-time ULPs. At present, companies who are guilty of violations have to post a notice stating they broke the law. Additionally companies have to compensate employees who they illegally discharged with back pay, minus any wages the employee earned in the meantime. The change would make the company responsible for triple back pay, and in cases of willful repeated violations, add civil penalties up to $20,000 per violation. The NLRB is also required to go to court and seek injunctive relief to reinstate illegally fired union supporters. Currently only the company is entitled to mandatory injunctive relief when the NLRB identifies a union ULP.
Lastly, the Employee Free Choice Act would guarantee that newly organized employees get a first contract. If after 90 days of negotiation there is no contract, the government will provide both sides with 30 days of mediation. And if after mediation there is still no contract, the government will provide an arbitrator, who will determine what should be in that first contract. This so-called “interest arbitration” is similar to what has happened for over 50 years in Nebraska’s public sector when management and the union can’t agree on contract terms.The economy is not like the weather; it is influenced by public policy.
Today, responsible unionized companies negotiate with their employees regarding wages, benefits and work rules. Often their increased labor costs put them at a disadvantage when competing in the free market. There are two obvious ways to address this imbalance. One is to continue a market-worshiping, trickle-down national economic policy that further weakens and reduces unionization. This direction promotes the reverse auction process where the lowest bidding employee, who can do the job, gets the job. It’s a continuation of the race to the bottom that pits American employees against others in the most desperate nations of the world. We’re already experiencing the greatest economic inequity since the 1920s, and continuing this policy will lead the nation back to widespread use of child labor, an end to the social safety net and the death of the American Dream. The second policy option is to again make it a national priority to level the playing field between employer and employee and promote unionization. That option, over time, leads to a growing middle class, shared economic prosperity and increasing social mobility. It’s our civic duty to influence which option is chosen.