LABOR DISCUSSION 4

U.S. labor law Strom, Andrew Dollars & Sense; Sep/Oct 2003; 249; ProQuest Pg. 46

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U.S. Labor Law How the United States’ stacked labor laws make it nearly impossible for workers to gain union representation.

BY ANDREW STROM

E ver wish you had a union at work? Surveys show that half of all non­ union workers do. Still, less than 10% of private sector workers in this country enjoy the benefits of union representation. How is this possible? U.S. labor laws that are stacked against workers can take much of the blame.

Under the National Labor Relations Act (NLRA)—the law that governs labor relations for most of the private sector—to obtain bargaining rights a union must represent a majority of the employees in an appropriate “bar­ gaining unit.” So, first you and your co-workers have to figure out who counts as an “employee.” According to the NLRA, supervisors—anyone who uses “independent judgment” to “responsibly direct” the work of others—are not “employees.” This excludes millions of workers who would qualify as workers under any common sense definition and leaves

LABOR LAW IN ACTION AT OVERNITE

In 1994, the employees of Overnite Transportation Com­ pany, one of the largest nonunion trucking companies in the country with approximately 14,000 employees at 175 service centers, began organizing with the Teamsters. By February 1995, workers had voted to unionize at four locations, elec­ tions were scheduled at 22 others, and petitions for elec­ tions had been filed at five additional service centers.

The next month, Overnite's president, Jim Douglas, sent a letter to service center managers describing the organiz­ ing drive as "the biggest war of our lives," and urging them to "muster troops to all out attack" and to "unleash the fury of the Overnite machine." Douglas personally traveled to more than fifty service centers to threaten workers against voting for the union. Managers held compulsory meetings with workers where they threatened alternately that work­ ers would never get a contract, or that if they did get a con­ tract it would drive the company out of business. Supervi­ sors threatened harsher working conditions if workers unionized. Workers were also illegally prohibited from talk­

ing about the union or distributing union literature in break rooms. The company used both carrots and sticks in its anti­ union campaign, granting wage increases, but informing all employees that the wage increases were being withheld at the service centers that had already voted to unionize.

Not surprisingly, the illegal anti-union campaign suc­ ceeded at many locations. At eleven of the service centers where majorities of workers had signed union cards, the workers ultimately voted against unionizing. The Teamsters filed charges challenging the election results. Due to the extensive nature of the violations and the large number of locations involved, the hearings dragged on for months. Eventually the union won; the Administrative Law Judge (ALJ) set aside the election results and further found that Overnite's illegal conduct was so pervasive that fair elections would not be possible. As a result, the AU recommended the strongest possible remedy - an order requiring Overnite to bargain with the Teamsters despite the outcome of the elections. The full NLRB agreed with the AU, and so did a

46 DOLLARS AND SENSE

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millions more unsure if they have a legal right to unionize.

Let’s say there are 60 people at your workplace; five are clearly supervisors, five more are borderline supervisors, and 35 of the remaining 50 workers want a union. You should be home free, right?

Not so fast. Your employer is not re­ quired to bargain with your chosen union just because all or a majority of workers sign a petition. Instead, your employer can demand a secret ballot election held by the National Labor Relations Board (NLRB, the federal agency that admin­ isters the NLRA). The law gives employ­ ers any number of ploys they can use to drag out the election process and to craft a bargaining unit where they’ll win the vote. Before the election, your employer can insist on a hearing about whether the bargaining unit the workers have selected is “appropriate.” For instance, if workers at a retail chain store want a union, the company will argue that the bargaining unit must include every store in the met­ ropolitan area. The employer may also

demand a hearing about the borderline supervisors, trying to exclude them from the union if they are pro-union and in­ sisting on their right to vote if they are anti-union.

If you clear these hurdles, your em­ ployer will almost certainly wage an anti-union campaign in the months be­ fore the election. When the NI.RA was first passed in 1935, the NLRB held that employers were prohibited from interfer­ ing in union elections, but the 1947 Taft- Hartley Act allowed employers to express anti-union views as long as they do not make threats or promises.

Now, employers may require workers to attend anti-union meetings without providing equal time to pro-union work­ ers. (By contrast, under federal election law, if an employer invites one candidate to address employees, it must give the same opportunity to all other candidates.) Supervisors can meet individually with workers and ask them to vote against the union. (Compare this with sexual harass­ ment law, which recognizes that it can be

inherently coercive for a supervisor to ask a subordinate for a date.) The company may also post and distribute anti-union propaganda while simultaneously pro­ hibiting workers from distributing union literature in work areas. (Imagine a po­ litical election where only the incumbent is allowed to advertise.) And thanks to a 1992 Supreme Court decision, nonem­ ployee union organizers have no right to campaign on the employer’s private prop­ erty, even if the property includes a large parking lot open to the public.

If you work in the airline industry you are covered by the Railway Labor Act (RLA), and a different set of rules applies. The National Mediation Board, which regulates elections under the RLA, has found that it is inherently coercive for employers to hold small group or one- on-one meetings to campaign against the union. But in other ways, the RLA makes obtaining union representation es­ pecially difficult for those it covers. Under the RLA, for example, you must organize as part of a nationwide bargaining unit,

three-judge panel of the Fourth Circuit Court of Appeals, the most conservative court in the country. But Overnite ap­ pealed the ruling to all eleven judges on the Fourth Circuit. By the time the full court finally ruled on the case it was 2002. The judges unanimously agreed that Overnite had committed serious and widespread violations of the law. Unfortunately, a majority of the judges decided that since most of the illegal conduct took place in 1995, and there had been substantial employee turnover since then, a fair election would nový be possible—so it lifted the bargaining order. Even if the court had affirmed the NLRB order, Over­ nite would have successfully delayed bargaining for seven years. But the court essentially penalized the workers for the delays inherent in the NLRB enforcement process, requiring them to restart their organizing drive from zero. ' At more than two dozen other locations, workers with­ stood the anti-union assault and voted to unionize. At four of these, Overnite simply refused to bargain. Overnite con­ tested the election results at these sites on grounds that the NLRB and the Court of Appeals both found without merit.

But the Court of Appeals did not issue its decision until seven years after the elections, so no bargaining took place at these sites during all that time. In those locations where bargaining did take place, negotiations dragged on for years with little progress.

In 1999 the Teamsters decided to call a strike in order to put pressure on the company to stop its illegal anti-union campaign and to bargain in good faith. By this point, the Teamsters had filed over 1,000 charges against Overnite with the NLRB. Despite initial support for the strike among the workers, Overnite was able to outlast them. While the strike undoubtedly hurt the company's bottom line, work­ ers became discouraged as it dragged on, and many even­ tually returned to work. After three years, less than 600 workers were still supporting the strike, and the Teamsters finally called an end to it. At the peak of the organizing drive, the NLRB certified the Teamsters as the bargaining representative for 3,600 Overnite workers at 37 service cen­ ters. But today, not a single Overnite worker is covered by a union contract.

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making it highly impractical for workers to organize at large, geographically-dis­ persed companies. This is why Federal Express got Congress to amend the RLA in 1996 so that it would be covered.

Some anti-union tactics are illegal. But even where the law does place limits on employers’ actions during an organizing drive, it fails to provide meaningful rem­ edies or deterrents. You may think that if you were fired for trying to organize a union, a clear violation of the NLRA, you could sue and win a multi-million dol­ lar verdict. But unlike laws that protect workers from other forms of discrimina­ tion, there is no private right to sue under the NLRA. Your only recourse is to file a charge with the NLRB. The Regional Di­ rector will conduct an investigation, but won’t give you access to the information it gets from your employer. Your chances aren’t good; Regional Directors dismiss almost two-thirds of all cases without a hearing. Even if the Regional Director decides to take your case, the only rem­ edy is an order of reinstatement and back wages, less any wages you earned in the interim. There are no fines, no penalties, and no punitive damages. And reinstate­ ment only comes at the end of a lengthy legal process—a hearing before an Ad­ ministrative Law Judge, an appeal to the five-member NLRB in Washington, fol­ lowed by an appeal to the U.S. Court of Appeals. The process routinely takes five years. No wonder companies regularly fire workers for trying to organize.

What if, despite your employer’s anti­ union campaign, you and your co-work­ ers stick together and vote for union representation? Your employer has one more chance to contest the result, by claiming (again) that the bargaining unit was inappropriate, or that workers were threatened by union organizers, or any of a dozen other reasons to invalidate the election. Whether or not the arguments succeed, the employer can usually buy two more years of delay until the U.S. Court of Appeals orders it to bargain.

Suppose your employer does negotiate in good faith. Getting a good contract is still hardly a given. Traditionally, workers would strike if their employer refused to

Once bargaining finally begins, your employer’s only obligation is to bargain in “good faith.” One-third of the time, workers who vote to unionize never even get a first contract. Why? If your employer fails to bargain in good faith, the only remedy is ... an order requiring it to bargain in good faith. Workers can­ not recover damages for the deprivation of their right to bargain.

The law gives employers any number of ploys they can use to drag out the election process and to craft a bargaining unit

where they’ll win the vote.

give in to their demands. But strikes rarely succeed these days. Your employer can’t fire you for striking, but it can hire “per­ manent replacements.” When strikers try to return to work, the employer does not have to take them back, it merely has to place them on a preferential hiring list in case any of the permanent replacements quit.

Of course, any strike would be more effective if you could expand it beyond your own employer. But the Taft-Hartley Act made it illegal for workers to strike or picket one employer in order to put pres­ sure on another. This prohibition against “secondary” strikes applies even to strikes against another subsidiary owned by the same company. It also prohibits actions that go one step up the corporate food chain; for example, janitors who work for a cleaning contractor cannot picket the building owner. And workers at Ford or GM are prohibited from striking to sup­ port workers at a parts supplier.

Nevertheless, there are still some workers who have enough power to wage an effective strike by themselves. But once again Taft-Hartley is there to keep the workers in check. The law allows the President to enjoin any strike that poses a threat to “health and safety”—a provi­ sion courts have interpreted broadly to include threats to the nation’s economic well-being.

Unions grew rapidly after the NLRA was passed in 1935, but the percentage of unionized workers has declined steadily since the passage of Taft-Hartley in 1947, when over 40% of private sector work­ ers belonged to unions. A comprehensive labor law reform bill was introduced dur­ ing the Carter administration that would have given unions equal time when employers hold anti-union meetings, strengthened the remedies for violations of the law, and speeded up the enforce­ ment process. The bill was filibustered to death by Republicans. During the Clin­ ton administration, there was a proposal to limit the ability of employers to hire permanent replacements for strikers, but again it didn’t get the backing of the 60 Senators necessary to prevent a filibuster. Since that defeat, unions have virtually given up on achieving labor law reform.

In a few instances workers have, with union backing, waged successful campaigns that get around one-sided labor laws by using shareholder activ­ ism, marches and rallies, reaching out to elected officials, handbilling, and the Internet. But with labor law so stacked against workers, it’s a miracle that any workers manage to gain union represen­ tation at all. ■ Andrete Strom has been a union lawyer for ten years. He is currently on the staff of Service Em­ ployees International Union, Local 32BJ, which represents over 70,000 building service workers in New York, New Jersey, and Connecticut.

The graphic, from the cover of a 1940s union pamphlet opposing passage of the Taft-Hartley Act, appears courtesy of the Holt Labor Library in San Francisco, California. Visit the Library’s website at <www.holtlaborlibrary.org>.

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