Entry for March 12, 2007

This cartoon from a Labor Day 2006 exhibit by Labor Arts, referred to the impending Republican-majority National Labor Relations Board (NLRB) vote 3-2 along party lines on September 29, announced October 3, to define nurses, building trades workers, newspaper and television employees and others as “supervisors.”

The Economic Policy Institute policy president Lawrence Mishal (email) and policy director, Ross Eisenbrey (email), had predicted in “Supervisors in Name Only” that

hundreds of thousands of employees could be stripped of their contract protections and [over seven] millions more across the economy could be denied the right to form unions or engage in collective bargaining.

*

During the Great Depression, American workers had the right to unionize and strike, but employers had the right to fire workers for doing so and easily hired replacements. The National Labor Relations Act, 29 U.S.C. §§ 151-169, enacted July 5, 1935, during labor strife set off by such labor practices established the NLRB to protect commerce 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.

*

For union membership trends before and after this protection, I looked at the Bureau of Labor Statistics (BLS)’s Current Population Survey (CPS), which records union status of the employed since 1983. BLS Economist Karen Kosanovich (email) provided its Directory of National Unions and Employee Associations for 1930 to 1980. The latter is not entirely comparable, showing dues paying union members, including unemployed members as well as members on strike, layoff, or retired and excluding members of professional and public employee associations.

In 1930 3,401,ooo, 6.8 % of the working population were union members and the number fell to 2,689,000 (5.2 %) in 1933. By 1937, this number had risen to 7,001,000 (13.0 %) and reached the highest percentage in 1953 of 26.9, or 16,948,000 members. By 1978, membership reached the high of 20,246,000, although this was 19.8% of workers. The 1983 CPS, with the new reporting scheme, showed 17,717,000 members (20.1%). This percentage has fallen until the 2006 figure is 12% or 15,369,000 workers.

The Center for Economic and Policy Research’s (CEPR) Dr. John Schmitt (email, blog) and Ben Zipperer (email) analyzed the 2006 CPR and found that while union membership had fallen .5 % overall in 2006 from the previous year, there was 1.3 % drop in the manufacturing sector. Figures would have sunk even lower, if not for the relatively high rate of public sector unionization at 36.2 percent, which

accounted for almost half of union members, even though public-sector employment comprised less than one-fifth of the economy.

*

The current Republican majority on the National Labor Relations Board (NLRB) includes attorneys who represented companies against unions in labor disputes, including the recess-appointed Peter Kirsanow, an African American whom Ted Kennedy (D-MA) criticized as

an ardent foe of basic worker protections, including the minimum wage and prevailing wage laws, and … a vehement opponent of affirmative action.

On February 5, 2007, the NRLB announced its January 31, 3-2 vote, like that of September 29, 2006 , along party lines to reverse a series of Clinton-era decisions, so that now

a decertification petition filed after the occurrence of alleged unfair labor practices by the employer, and prior to settlement of those charges, should not be dismissed…

These decisions continue the trend George Miller (D-CA) identified July 13, 2006, in “President Bush’s National Labor Relations Board Rolls Back Labor Protections. ” Law Professor James J. Brudney (bio, email) did likewise in “Isolated and Politicized: The NLRB’s Uncertain Future” (October 2005). His footnotes list decisions accessable by case number at the NRLB website.)

This rollback of protection led Miller to introduce H.R. 800, which authorizes card check-off campaigns to establish union representation, rather than allow employers to require NRLB -runelections. In “Neutrality Agreements and Card Check Recognition: Prospects for Changing Labor Relations Paradigms,” Brudney (February 2007) questions the rhetoric of those who draw analogies between the secret ballot in union elections and general political elections and suggests that changes may be in order.

Brundley refers to labor law in Canada and Great Britian and to the work of Adrienne E. Eaton, Professor, Labor Studies and Employment Relations Department at Rutgers University (bio, email), and Jill Kriesky (email ) now director of the Service for Social Action Center at Jesuit Wheeling University. “Union Organizing under Neutrality and Card Check Agreements,” (published in the October, 2001 issue of Cornell University’s Industrial & Labor Relations Review, available through Lexis-Nexis) examined 118 employers and found

strong evidence that card check agreements reduced management campaigning, as well as the use of illegal tactics such as discharges and promises of benefits, and also substantially increased the union recognition rate. Neutrality alone apparently had much less effect, but agreements containing only neutrality provisions have sometimes led to card check agreements. Two less common provisions of organizing agreements that appear to have increased organizing success were campaign time limits and requirements
that employers provide unions with employee lists.

In January, CEPR released “Dropping the Ax: Illegal Firings During Union Election Campaigns,” in which Schmitt and Zipperer analyzed NLRB statistics and found that firing rates of pro-union workers rose steeply since 2000 relative to the last half of the 1990’s. Since union organizers and activists make up about 10 percent of pro-union workers and bear the brunt of such firings, their

estimates suggest that almost one-in-five…can expect to be fired as a result of their activities in a union election campaign.

Taking into account the increase in uncontested card check-off campaigns, their

calculations suggest that about one-in-seven union organizers and activists are illegally fired while trying to organize unions at their place of work.

According to “Increasing Inequality in the United States” (November 2006) by CEPR Co-Director Dr. Dean Baker’s (email, blog, archive) firing practices became common in the eighties . Baker attributes the redistribution of wealth away from low and middle income workers in part to this practice.

While it is illegal for an employer to fire a worker for their union activity, it is difficult to prove an employers’ motivation. Furthermore, the penalties for being found guilty of violating this law are sufficiently trivial that employers risk these penalties in exchange for keeping a union out of their workplace.

Reagan’s firing of the air traffic controllers undermined the strike as a labor tool and the subsequent surge in the hiring of permanent replacement workers meant

the ability of unions to secure wage gains for their members was further diminished.

*

Employers use their power to hire, fire, and change work schedules to pressure workers during the weeks leading up to an NLRB election, as detailed by the late Tim Lally, in “Spotlight on Union Busters,” a series he wrote while VP of Field Operations for Corporate Campaign, Inc.

They also use the threat of closing shop and moving out of the country. Kate Bronfenbrenner’s “Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages and Union Organizing”, her September 6, 2000 report for the U.S. Trade Deficit Review Commission looked at plant closings and plant closing threats for a random sample of more than 400 NLRB certification election campaigns between January 1, 1998 and December 31, 1999 and demonstrated

  • [the] specter of capital mobility, and the economic insecurity it engenders, has served to constrain both wages and union activity in a period of tight labor markets.
  • more than half of all employers made threats to close all or part of the plant during the organizing drive. The threat rate is significantly higher, 68 percent, in mobile industries such as manufacturing, communication, and wholesale/distribution, compared to a 36 percent threat rate in relatively immobile industries such as construction, health care, education, retail, and other services.
  • The high rate of plant closing threats during organizing campaigns occurred despite the
    fact that in the last five years unions have shifted the focus of their organizing activity
    away from the industries most impacted by trade deficits and capital flights

By the way, according Ellen Schrecker, “The chilling case of Kate Bronfenbrenner,” (AAUP’s Academe, Jul/Aug 1998) Bronfenbrenner had been the victim of a SLAPP suit after testimony on inadequate sanctions for unfair labor practices in 1997.

*

More recently in “Undermining the Right to Organize: Employer Behavior During Representation Campaigns” commissioned by American Rights at Work (ARAW) and released in December 2005, Chirag Mehta and Nik Theodore of the Center for Urban Economic Development at the University of Illinois at Chicago, reported that

when faced with organizing drives, 30 percent of employers fire pro-union workers, 49 percent threaten to close a worksite if the union prevails, and 51 percent coerce workers into opposing unions with bribery or favoritism.

March 21, 2006, ARAW released the results of a national telephone survey by Adrienne Eaton and Jill Kriesky of 430 randomly-selected workers from from 2002 elections and card-check campaigns, included those who voted for and against the union in campaigns which the union won and lost, Eaton explained.

to examine whether claims were true that card check campaigns leave employees more vulnerable to union pressure than during NLRB elections.

Kriesky clarified,

While we polled workers on union and employer coercion, it’s important to note that they aren’t equivalent. Pro-union workers and union organizers attempt to make their case persuasively. But when the person who signs your paycheck calls you into his office and tells you he’s against the union, that’s an entirely different kind of influence… The survey results must be reviewed with this distinction in mind.

They found that

  • Workers in NLRB elections were twice as likely (46% vs. 23%) as those in card check campaigns to report that management coerced them to oppose the union.
  • Of all workers surveyed (election and card check combined), four times as many workers reported that management coerced them “a great deal” as opposed to the union (22% vs. 6%).
  • Fewer workers in card check campaigns than in elections felt pressure from coworkers to support the union (17% vs. 22%).
  • Fewer than one in twenty (4.6%) workers who signed a card with a union organizer reported that the presence of the organizer made them feel pressured to sign the card.
  • Profitable employers like Cingular Wireless and Kaiser Permanente attest that…this card check process significantly reduces costly, drawn-out conflicts that commonly surround NLRB election mechanisms.

ARAW Executive Director Mary Beth Maxwell says,

Looking at the survey results, one can only conclude that card check opponents are trying to solve the wrong problem. If protecting workers’ free choice is really the goal, then you’ve got to start by ending management coercion.

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