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Labor Comes Away With a Rare Victory
On December 21, the NLRB (National Labor Relations Board) approved rule changes that will help streamline the union election process. Historically, one of biggest hurdles facing membership drives has been management’s use of stalling tactics. Management knows that the more time it has to intimidate, flatter, threaten, cajole, and otherwise confound the workforce, the better its chances of keeping the union out.
Indeed, stalling has become their weapon of choice. Through the use of convoluted legalistic maneuvers companies have been known to postpone union elections for months, even years, after employees have signed cards saying they wished to vote. Stories of management obstructionism are legion. A good example of an obstructionist campaign is California’s central valley growers’ response to the relatively new UFW (United Farm Workers), back in the 1970s.
The first thing the growers did was challenge the eligibility of every voter. Nothing wrong with that; nothing wrong with making sure everything is kosher when you’re conducting an election. But management was aware that many of these pickers were migrants and transients, that many of them lived in work camps and makeshift compounds strewn all over the valley, and that verifying every single voter’s legal residence was going to be a tedious and time-consuming process. But tedious and time-consuming was precisely what the growers hoped for.
After voter eligibility was confirmed, they began their sabotage campaign. Knowing that Mexicans are Roman Catholics, and that these honest, hard-working rural folk were socially conservative, they inundated them with virulent anti-union propaganda, claiming that organized labor’s connection to the Democratic Party meant that their monthly union dues would be spent on building more abortion clinics, legalizing drugs and prostitution, and promoting homosexual marriages.
Is that where you want your hard-earned union dues to go?! they asked. To kill babies?! To encourage two men to become husband and wife?! The growers terrorized these decent, unsophisticated people with cultural horror stories. Nasty business. On the other hand, in the view of the professional union-busters hired by the companies, it was all in a day’s work.
As to the NLRB’s latest decision, there is no way management is going to go quietly into the night—not on rule changes that give labor more flexibility. This NLRB ruling is far from over. Union-management disputes at this altitude aren’t like sporting events, where the losing team, disappointed as may be, crosses the field and exchanges gentlemanly handshakes with the winners.
Here’s the response from Katherine Lugar, EVP for public affairs at the Retail Industry Leaders Association: “This decision erodes employers' free speech and due process rights and opens the door to rushed elections that will deny employees access to critical information.” Not only have business groups already portrayed the modest rule changes as a violation of the Bill of Rights and the 14th amendment, but the U.S. Chamber of Commerce (the biggest lobbying group in the world, incidentally) has filed a federal lawsuit to prevent implementation.
In truth, the final draft isn’t that radical. Basically, it boils down to prohibiting the company from engaging in frivolous stalling tactics—tactics that would be immediately obvious to any pilgrim who took the time to examine them—and giving the employees a fair shot at voting in a timely manner. The new rules are scheduled to take effect April 30, 2012.
A provision in one of the earlier drafts—requiring the company to supply the union with employees’ e-mails and phone numbers—was removed from the final version. Business groups insisted it was purely a question of privacy, that while giving out mailing addresses was acceptable, supplying e-mails and phone numbers (even in this Electronic Age) was a violation of the U.S. constitution. And they said that with a straight face.
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Show AllKnowing that Mexicans are Roman Catholics, and that these honest, hard-working rural folk were socially conservative, they inundated them with virulent anti-union propaganda, claiming that organized labor’s connection to the Democratic Party meant that their monthly union dues would be spent on building more abortion clinics, legalizing drugs and prostitution, and promoting homosexual marriages.
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The problem is at least as much the RCism as the exploitation of it. No matter that I'm strongly pro-union, I find it hard to criticise the growers for using the workers' prejudices against them. Were the workers not in thrall to the lying RC church, such tactics wouldn't work.
I find it especially hard when I think of the increasing overpopulation, as the excess humans demanded by church edicts flow northward into the US, where the incomers continue to maintain a birthrate 2.4X (iirc) that of the next most fecund group.
In 2009 in the US 16% of the population was Hispanic and they produced 42% of new births. I don't believe it's ethnic as much as it is religious core teaching.
This so-called "victory" is hollow indeed. I find Maired's comments interesting. I was not aware of that angle.
But there are deeper structural flaws with all NLRB rules and rulings: among other things they are weak as written (the author notes the watering down of this one) and THEY MUST BE ENFORCED.
Here is how the game works:
1) During union organizing drives and attempts to get new or better contracts (or simply keep what workers have) all employers commit egregious violations of (weak) labor laws called Unfair Labor Practices (ULPs). They also often violate civil and criminal laws with impunity.
2) After long and complex legal procedures, the ULPs go before a local NLRB hearing officer, then can be appealed to a regional NLRB panel and then can be appealed to the National Labor Relations Board (NLRB) in Washington, DC. (The NLRB in DC is currently in limbo because Obama and the Congress have failed to appoint and approve a quorum of three members. So that involves a whole new round of litigation).
Once all that is completed (the process takes months to years), the parties (usually employers) may appeal to a federal Circuit Court of Appeals and then the U.S. Supreme Court. Now we're literally talking decades. Meanwhile the worker(s) are legally fired and/or disciplined. A select few are hired as union organizers.
3) Wherever in the process a worker or workers get their jobs back, whatever money they made in the meantime is deducted from any judgement they may win. Many are forced to take jobs in the grey or black markets to avoid paying those penalities. And if they lose, they get nothing.
4) Often the penalties are much less than job reinstatement or granting lost wages. One of the most common is that employers must post notices saying that they won't commit the ULP again. Many don't even bother to do that because the consequence is..well, another ULP.
5) Unfortunately U.S. labor unions are complicit in the legalistic circus known as the NLRB. They have gone along with the game since the passing of the National Labor Relations Act (Wagner Act) in 1935.
However, it is a convenient way of telling workers: "We're trying to do something; we really are."
Worse, it inevitably leads to unions being run by their lawyers, further alientating organizers and members from elected leaders. It is hard to sneeze in this context without getting permission from a union attorney.
Oh, did I mention that if unions do attempt to challenge the game, they can be fined out out of existence and their leaders jailed? Look up the Taft-Hartley Amendement of 1947 to the National Labor Relations Act (NLRA) -- the Wagner Act of 1935.
Oh, and there's this too: Union Solidarity was made illegal by Taft-Hartley. That is: it's illegal for unions -- even different locals of the same union -- to take part in "secondary boycotts" on behalf of other unions or locals usually barring legal solidarity strikes, boycotts and other joint actions.
And by-and-large, nonunion workers (except in organizing drives) are out of the game altogether, lacking the resources to play it.
So what do we do? The answer is as clear as it is difficult. WE STOP PLAYING THE GAME. Which means the willingness to engage in serious non-violent civil disobedience and direct challenges to so-called labor laws.
The Occupy folks are giving us a sense of where we need to take the labor movement, if there is still one that matters at all.
Solidarity,
tj
"The NLRB in DC is currently in limbo because Obama and the Congress have failed to appoint and approve a quorum of three members."
NLRB currently has three members and a quorum. That's how this new rule got passed.
Correction: Obama has appointed members, but the Republican Congress refuses to approve them. Right wing obstructionists, as usual.
That's not a correction. I was correct that there are currently three members and that is enough for a quorum.
Good for NLRB. But, I wonder how this slipped past Obama, and what he'll do to undo the new rule.