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Health Care and the Freedom to Form Unions

The following is based on remarks offered at the Health Care Industry Conference in Chicago on March 21, 2007.

The U.S. health care system is in deep crisis. The number of Americans without health insurance is fast approaching 50 million. The number of uninsured has risen by five million during George Bush's watch.

Millions more Americans have inadequate coverage, or have coverage that's way too expensive for them to afford.

The U.S. spends more on health care, in relation to the size of our economy, than any other nation on earth -- but we get less for our money than nearly every other industrialized nation -- less life expectancy, more infant mortality, worse public health.

It's high time to address the nation's health care crisis through comprehensive national health insurance that covers everyone. An important resolution adopted by the AFL-CIO Executive Council earlier this month calls for this. Most other industrialized nations adopted national health insurance decades ago.

Apart for the lack of national health insurance, one of the biggest reasons for the rising number of people without health insurance is the long-term corporate and right wing attack on the labor movement and collective bargaining in this country. Non-union workers are five times more likely to lack health insurance coverage than union members. So it is no coincidence that as the freedom to form unions has come under attack -- as more and more workers are non-union while fewer are protected by a union contract -- that the number of people in this country who lack health insurance has increased.

So if you want to fix the health care mess in this country -- we not only need national health insurance -- we need to restore workers' fundamental human right to form unions and bargain collectively! But that's not the only reason we need to protect the freedom of workers' to form unions.

Here's the central defining economic fact of the last thirty years and more: since 1973, the productivity of the US economy has risen by more than 75%, yet the purchasing power—real wages—of non-supervisory workers is lower today than it was in 1973. Why? A key reason for the widening gap between the wealth workers produce and what they are paid for their labor—probably the key reason—is the disappearance of effective legal protection for workers' freedom to form unions and bargain collectively, especially in the private sector. In 2006, the percentage of workers who have unions fell to just 12%; in the private sector it fell to 7.4%, the lowest percentage since before the Great Depression of the 1930s.

The enemies of working families will tell you that the reason for these low and declining percentages is the fact that workers today no longer want unions. Nothing could be further from the truth. Extrapolating from the latest survey by pollster Peter Hart, sixty million non-union workers want a union in their workplace-four times the number that have a union. Peter Hart has been tracking the percentage of workers who want a union in their workplace since 1994 — and an earlier survey posed the same question in 1984. According to these polls, the percentage of non-union workers who want a union has been increasing for more than 20 years -- 58% among non-managerial workers.

Yet despite the fact that so many millions of workers want a union, only a handful-fewer than 70,000-succeeded in forming one using the NLRB's current process last year. Many more workers than this did form unions, but they did so by going around-rather than through-the NLRB process.

And why are so few workers able to form unions via the NLRB process? The answer is clear: that process is broken. It no longer protects the basic freedom of workers to form unions and bargain collectively. In fact, the NLRB process has become a death trap for workers who are struggling to form a union.

The NLRB process allows and indeed encourages lengthy, confrontational campaigns aimed at snuffing out union support. Weeks and months of employer threats, intimidation, surveillance, coercion, and even firings — usually orchestrated by professional consultants — are now the norms, as are months and years of debilitating delays.

Political scientists who have studied this broken process find it a parody of democracy. The process concludes with an election, but nothing else about it is free or fair. Due to weak remedies for violating the law and delayed enforcement, the process rewards unethical and unlawful employer conduct, like threats, intimidation, retaliation, and reprisals, in order to keep workers from choosing a union. One side — the employer — has lopsided access to workplace communications, campaign funding, and the voters themselves; the other side has virtually no access and is almost completely shut out.

We are fighting back — with the campaign for the Employee Free Choice Act.

The Employee Free Choice Act is the most important legislative proposal since passage of the Wagner Act to protect the fundamental human right of America's workers to form unions and bargain collectively. Earlier this month, the Employee Free Choice Act — HR 800 — passed the US House of Representatives. This is a tremendous accomplishment. Who would have thought a year ago that in 2007 the House of Representatives would pass this historic landmark bill?

The Employee Free Choice Act does three critical things: it provides for union recognition based on democratic majority sign-up, it provides for first-contract arbitration, and it provides for stiffer and quicker penalties for illegal employer conduct.

Democratic majority sign-up provides for certification of a union when a majority of the employees at a workplace has signed written authorizations stating that they want to form a union. Workers seeking to exercise their fundamental human right to from a union would no longer be forced into the meat-grinder of the federal representation process. The representation process facilitated by the Act allows workers an opportunity to choose collective bargaining without fear, coercion or the current confrontational process that routinely spirals into divisiveness and bitterness. The Employee Free Choice Act will honor workers' choices, discourage employer interference, and create more democratic workplaces.

The Act's first-contract arbitration provision addresses another widespread human rights violation: even after workers jump through all the hoops under current law and succeed in forming unions, employers refuse to agree to initial collective bargaining contracts nearly half of the time. In most cases, the failure to reach agreement results from employers' delaying tactics and unwillingness to bargain in good faith. The only remedy under current law for this denial of workers' rights is to send the parties back to the bargaining table for more bargaining. The Employee Free Choice Act would give newly formed unions and employers access to mediation and, if necessary, binding arbitration in order to achieve initial collective bargaining agreements on a timely basis.

Last but not least, the Act will strengthen penalties for illegal employer conduct. Penalties are so minimal under current law that employers have little incentive not to break the law to prevent employees from forming unions. As a result, illegal employer conduct has skyrocketed: according to the NLRB. In 2005 more than 31,000 workers received back pay because of illegal employer discrimination for activities protected under the National Labor Relations Act — up from 6,000 in 1969 and fewer than 1,000 per year in the 1950s. The Employee Free Choice Act provides for triple back pay when workers are fired illegally, fines of up to $20,000 for illegal conduct, and injunctive relief so illegal employer conduct can be dealt with promptly.

Now the fight moves on to the Senate. There already are 46 Senate cosponsors and hearings on the bill have been scheduled for March 27 by the Senate Health, Education, Labor, and Pensions Committee, Chaired by Sen. Edward Kennedy. We anticipate a tough fight in the Senate. We intend to position the Employee Free Choice Act and the struggle to protect workers' rights as a defining issue in the 2008 Presidential election.

We need to educate working families about the importance of passing the Employee Free Choice Act; we need to reach out to the wider community about this; and we need the progressive community and every level of the labor movement to impress this on every politician you are in contact with.

We are running a nationwide grassroots legislative campaign.

In the coming weeks as we head towards a majority and then a vote on the Employee Free Choice Act in the U.S. Senate, hundreds of thousands more employees will take action in support of the legislation through petition campaigns at the worksite.

This campaign will deploy a "Stewards Army" of thousands of union members at worksites across America to convince U.S. Senators to champion these issues. Additionally -- across the country -- in States, cities, municipalities, and townships, elected leaders will pass resolutions in support of the Employee Free Choice Act.

All U.S. Senators will hear directly from workers several times about the grueling obstacles workers face when trying to form unions in roundtable meetings and mass actions.

In 2008, with your help and hard work we will elect a Senate and a President who will pass the Employee Free Choice Act in 2009 and sign it into law!

On October 2, 2006 the Bush—appointed Republican majority on the National Labor Relations Board (NLRB) issued one of the most far-reaching decisions in the agency's seventy—year history, thereby delivering its most stunning blow yet to workers' rights. In Oakwood Healthcare and International Union, UAW — a 3-2 decision split along party lines — the NLRB ruled that certain charge nurses in an acute care hospital in Michigan were supervisors and therefore ineligible for federal labor law protection of their fundamental human right to form a union and bargain collectively.

The NLRB's new and expansive definition of who is a supervisor threatens to strip remaining federal labor law protections from millions of workers, will worsen the nursing shortage, and will undermine patient care in the nations' rickety healthcare system. The ruling moves the United States even further out of compliance with international norms regarding the protection of basic workplace rights, and continues the steady unraveling of a labor law system that is failing the nation's workers an frustrating their efforts to achieve justice on the job.

Under the new test set forth in Oakwood, workers can now be deemed supervisors even if they spend as little as ten percent of their time overseeing co-workers, provided they do so on a regular schedule. Part-time rotating charge nurses who assign other nurses or nurses' aides to particular patients can now be considered supervisors by the NLRB — even though these charge nurses have no power to hire, fire, or discipline their co-workers. The Bush Labor Board's ruling stretched the interpretation of who is a supervisor far beyond the clear intent of Congress, far beyond NLRB precedent, far more than necessary to comply with the Supreme Court's 2001 Kentucky River decision that gave rise to the ruing, and far out of step with workplace reality.


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In a blistering dissent from the decision rendered by the Board's Bush — appointed Republican majority, the NLRB's tow Democratic members warned that the ruling "threatens to create a new class of workers under Federal labor law: workers have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees." At risk, ultimately, are the most basic workplace rights of virtually every professional worker — a fast-growing group projected to account for nearly a quarter of the workforce by 2012 — plus many other highly skilled workers in no-professional occupations.

Workers now deemed supervisors pursuant to the Board's new ruling will lose all remaining protections under federal labor law of their fundamental human right to form unions and bargain collectively. Employers can now fire such workers with complete impunity if they attempt to form a union in their workplace. To make matters worse, employers will now be able to draft these supervisors in name only to serve as front-line shock troops in anti-union campaigns. Those who refuse to participate in these employer campaigns — or who show insufficient zeal — risk discharge.

The Oakwood decision included yet another bonus to employers bent on resisting unionization — and the army of union-busting consultants and law firms who sell services to them: a clear roadmap of how to tinker with workers' job duties in order to meet the newly expansive test that the NLRB will use to determine whether workers are supervisors. The decision also widens the scope for employers and their consultants to tie up workers' organizing campaigns in knots with endless appeals and delays. Oakwood, furthermore, opens up new opportunities for employers to remove workers from long-established bargaining units and even to refuse to renegotiate collective bargaining agreements with long-established professional and skilled workers' unions.

The Board's ruling also jeopardizes patient care and risks worsening the nursing shortage in the nation's crisis-ridden healthcare system. Nurse unions lead the way in advocating for lower patient-to-nurse ratios and limits on mandatory excessive overtime, both of which have major consequences for patient car. It is no accident -- and has been documented by solid scholarly research -- that heart attack survival rates are higher for patients in hospitals where nurses have a union than in hospitals where nurses do not have a union. By improving pay, benefits, training and working conditions, unions help alleviate the nations' critical shortage of nurses by making the nursing profession more attractive to enter and remain in. This is no time to roll back legal protections for nurses who want to form unions and bargain collectively.

Shock waves from Oakwood will be felt in virtually every occupation and industry throughout the US economy. According to a July 2006 report form the Economic Policy Institute (EPI), an expansive definition of supervisor such as the one promulgated in Oakwood puts more than eight million private sector workers at risk of losing remaining federal labor law protections of the freedom to form unions and bargain collectively. Workers at risk of being deemed "supervisors" by the Bush Labor Board and who could therefore lose their union rights can be found in nearly every occupation and industry.

Oakwood drove yet another nail in the coffin of a labor law regime that is failing the nation's workers. Oakwood gives workers and their unions even more reason to steer clear of the Act and the Board. But that is not a long-term solution to the nation's serious crisis of workplace rights, a crisis just make worse by the Bush Labor Board in Oakwood.

What we need to do is to urge Congress to override Oakwood by legislating a more reasonable definition of supervisory status. The RESPECT Act is the vehicle that will do this — Rep. Andrews (D-NJ) is the lead sponsor in the House, and Sen. Dodd (D-CT) is the lead sponsor in the Senate. Their bill was introduced on March 22.

But despite the importance of these fights for federal legislation to protect workers' rights, we can't wait for legislative victories to help workers form unions in their workplaces in the here-and-now.

We know we need to organize more and more and more — and we need to work to continue to change our unions to develop the capacity to grow.

Capacity development means moving resources to organizing. So we are pleased that last summer 6 AFL-CIO affiliates moved $150 million new dollars into organizing — the largest single in vestment in organizing in the history of the American Labor Movement.

Capacity development means putting our best staff on organizing, training them rigorously and holding them to high standards. It means making sure we practice the fundamentals of good organizing such as: one-on-one communication and house calls, strong communications, effective targeting, and moving workers to action.

Capacity development means hiring and training researcher — campaigners so we can identify and exploit the vulnerabilities of our employers, and find ways to organize outside the broken NLRB system.

And it means developing enough capacity to organize at scale — large enough campaigns to change the dynamics of an industry or a region.

AFL-CIO affiliates are doing good, big organizing. One campaign that is particularly exciting is in Chicago where AFSCME is helping approximately 10,000 nurses, techs and service employees form a union at eight hospitals affiliated with Resurrection Health Care (RHC).

The campaign has received widespread support in the Catholic community and throughout Chicago, including;

- Attempts by influential clergy and religious to appeal to Resurrection management to dialogue with the union and allow workers to organize

- A sign-on statement from more than 1,000 Catholic priests and religious and lay people published in the Chicago Sun-Times

- The generation of more than 5,000 post cards from Catholic religious and lay leaders asking Cardinal George to help resolve the dispute

- A Call for Dialogue from interfaith clergy that was published in the Chicago Sun Times

- A resolution from the Association of Chicago Priest supporting the employees and calling for dialogue

- Fifty-five leading Catholic scholars generated an open letter published in the National Catholic Reporter in support of Resurrection workers' right to organize

- A letter to the company from both U.S. Senators and every Democratic Member of the US House of Representatives urging card-check/neutrality

- And attempt by US Rep. Jan Schakowksi, together with a group of nurses to meet with the company — only to have the doors locked on her

- A recent rally headlined by Senator Obama, President McEntee and President Sweeney attended by 3,000 people in support of the campaign

The workers at Resurrection will win

We can not and should not separate the fight for healthcare from the fight to restore the freedom to form unions and bargain collectively. These are both fundamental human rights which are completely intertwined. We can, we must win, these fights.

Brothers and sisters, we are in an exciting and sometimes terrifying moment. With the passage of the Employee Free Choice Act in the US House we have achieved a milestone some never thought possible. And everyday more Americans know we have to fix our healthcare crisis.

It is up to us to continue to build the collective will and power to take a yearning for change and make it real and fundamental.

Stewart Acuff

Stewart Acuff is the Utility Workers Union of America (UWUA) Chief of Staff and co-author of Getting America Back To Work.

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