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The Role of Today's Labor Movement BY DR. MICHAEL JEDEL, Georgia State University Department of Management Labor unions arose in the United States more than two centuries ago in response to a perception that the relative bargaining power of the individual employee was becoming ever more diminished when compared to that of the increasingly larger and more remote employer. By contrast, it was felt that if workers who shared common concerns about income, security and status could come together in a collective fashion, represented by a trade or craft union supporting those interests, a greater parity would exist in determining the terms and conditions of employment. As the legal framework emerged in the United States to enable unionization and then collective bargaining between employers and unions, initially from the courts and then in the 20th century via federal legislation, the essential rationale for labor unions continued. Proponents of labor unions argued that conflict occurred between employees and employers concerning (a) the relative division of profit; (b) employee concern about job security and protection against arbitrary or subjective managerial actions versus management's claimed right and need to exercise its discretion to run the enterprise as it saw fit; and (c) what, if any, role was to be accorded employees in fundamental decisions affecting the employer's operations. For each of these subject areas, it was claimed by the advocates of labor unions that the craft or industrial union in the workplace would be effective in representing and advancing the interests of the employees. While objective observers of the history and role of labor unions in the United States differ as to unions' relative effectiveness, there is general agreement on a number of items. Overall, unions have had an impact on the division of the "economic pie" between worker and employer, though not as great as the staunchest supporters have claimed, and differentially in some industries versus others. Unions without question have had significant impact on the "rules of the workplace," with seniority systems and other "objective" criteria typically replacing the unilateral, "subjective" view of the employer with respect to workplace-related employment decisions. Finally, the development of, and virtually universally accepted reliance upon, grievance arbitration systems has proved to be one of the most salient features of the collective bargaining system.

The use or threat of strike, often the most visible component to the public at large of the entire labor-management relations system, typically has been relegated just to those instances where the union and the employer had been unsuccessful in negotiating a collective bargaining agreement. Though the strike, or its threat, quite understandably gets significant public attention, it historically has been just one small part of the overall system developed between employers and unions. But strikes have not accounted for a large amount of lost work time in the overall economy and truly pale in significance compared to the extensive reliance upon quiet, out-of-the-public-view union-management complaint resolution procedures, which handle the vast amount of potential conflicts that occur on a daily; basis throughout U.S. workplaces without disruption to the goods or service provided. In the past four decades, the relative influence of unions and the labor movement has declined in an almost linear fashion with each passing year (though there is some evidence that a "bottoming out," if not modest rebound, may have begun in the past two or three years). There are multiple reasons:

· The global economy forces companies to operate on a worldwide scale

· Employment security is now closely tied to the economic strength of the company and not to collective bargaining power

· Unions are perceived as being powerless to prevent downsizing

· Sophisticated HR systems and practices can deal fairly with labor issues

By the same token, the strike, historically considered a "union weapon," has in a number of instances in recent years become a "management weapon," as some employers, at least figuratively, are saying to their unionized employees, "go ahead, make my day, go out and strike. We can and will replace you with other workers at less pay, and/or a different work ethic, and/or without the restrictive work practices- we had to accept under an earlier era." Against this backdrop, then, one can question the strength and endurance of unions as an institutional force in the U.S. economy as a new millennium approaches. The answer is not yet known but likely will depend upon the ability of labor movement leaders to convince significant numbers of employees that a union can be an effective instrumentality for addressing important issues, and that the benefits of choosing a union as the representative will exceed the real or perceived cost of that representation.

Labor Law Is Broken, Economist Says By Steven Greenhouse In a new paper,  Richard B. Freeman, a labor economist at Harvard, said he had some “harsh and impolitic” news for the National Labor Relations Act on its 75th anniversary. He declared that the law “has become an anachronism irrelevant for most workers and firms.” Mr. Freeman released his paper in Washington on Thursday at a symposium that marked the anniversary of the New Deal law – often known as the  Wagner Act – that gave American workers a federally protected right to form unions. He called his paper “What Can We Learn from N.L.R.A. to Create Labor Law for the 21st Century?” Mr. Freeman, one of the nation’s foremost labor economists, wrote that the act was passed to replace the costly unionization fights of yesteryear – often involving strikes, lockouts, violent confrontations — with “a ‘laboratory conditions’ elections process for ascertaining workers’ attitudes toward union representation that would be free from employer pressures or dishonest statements by employers or unions.”  He said unionization elections in the private-sector “have turned into massive employer campaigns against unions.” That, he wrote, is a major reason the percentage of private-sector workers in unions has fallen to 7 percent, down from nearly 40 percent in the 1950s. He argued that the penalties in the National Labor Relations Act were weak and “have failed to deter firms from illegal actions to prevent unionization.” He wrote that in the early 1950s firms fired about 0.5 workers for every 100 workers who voted in N.L.R.B. elections, but in the 1980s and early 1990s, firms “fired 4.5 workers for every 100 union voters,” with that percentage dropping slightly in recent years. “Far from a laboratory conditions experiment in democracy,” he wrote, “the N.L.R.B. process turned into the same costly fight between unions and firms that union organizing was before the act, albeit in a different venue with different weapons.” He wrote that the N.L.R.B. process has “failed to make it easy or natural for workers who want union representation to achieve this goal.” He noted that there was a 20  to 30 percent gap between the percentage of workers who said they wanted union representation and those who had unions – the largest gap among advanced English-speaking countries. Professor Freeman pointed to one study that found that unions found it so hard to organize workers under the N.L.R.B. process that around 80 percent of new organizing in the late 1980s and 1990s occurred outside that process. This usually happened among government employees who were not covered by the National Labor Relations Act, or by private-sector unions that mounted pressure campaigns to persuade employers to accept unions through the card check process – under which unions are recognized when a majority of workers sign cards favoring a union. Professor Freeman said it was hardly surprising that the percentage of public-sector workers in unions was five times as high as the percentage of private-sector workers. One big reason for this, he wrote, is that private-sector employers “have sizable monetary incentives to oppose unionism,” and the penalties that N.L.R.B. “has at its disposal are too limited to offset these incentives.” He noted that government officials, unlike corporate officials, have generally not fought unionization because “they have little to gain and much to lose from fighting unions.” “Unions,” he added “are an important ally in helping politicians and public-sector management convince voters to increase taxes or borrow money through bonds for schools, police or other public goods.” For instance, if a company illegally fires the three employee leaders of a unionization drive, the law requires the company  to pay back pay, minus whatever earnings the workers had after being fired. The law does not call for fines or punitive damages for such firings. Mr. Freeman pointed to a case involving a unionization effort at Yale-New Haven Hospital, where an independent arbitrator ruled in 2007 that the hospital had violated an agreement calling for both sides to respect principles aimed at guaranteeing a fair election. The arbitrator wrote that the workers “ were threatened with more onerous working conditions and even loss of their jobs if the union were selected.” She said the workers were victimized and ordered the hospital to pay the 1,700 workers a total $2.2 million – the amount the hospital had paid to antiunion consultants. She also ordered the hospital to repay the union its $2.3 million in organizing expenses. Professor Freeman noted that this $4.5 million penalty, which was ordered outside the National Labor Relations Act, was 20 percent more than the $3.6 million that the labor board awards on average each year to all workers nationwide for all back pay for being retaliated against for supporting a union. He cited a paper by Morris M. Kleiner and David Weil stating that “the Act for decades has been ineffective in curbing behaviors that are antithetical to its fundamental aims.” Professor Freeman wrote that “the failure of the N.L.R.A. process to meet the needs of workers and firms moved the U.S. close to the union-free world that many opponents of trade unions have long desired.” He suggested that if unions were stronger, the United States might not have the highest income inequality in the developed world or stagnant real earnings for all but the highest paid. He also said that if unions were stronger, a liberal coalition “would presumably have greater countervailing power” to Wall Street and have helped push through stronger financial reforms. In conclusion, Professor Freeman had four recommendations. He called for strengthening the penalties against illegal actions by management and unions, recommending penalties against individual managers or union leaders who break the law. Second, he said labor laws should be amended to protect supervisors from being fired or punished if they want to remain neutral or silent and not have to express their firm’s anti-union views during an organizing drive. Third, he called for early voting at neutral venues instead of having unionization elections held at the work site on a single day. Borrowing from an idea of Benjamin Sachs, a professor at Harvard Law School, he wrote that the idea resembled early voting in regular elections. The labor board could set up a polling place where workers could vote at any time during the organizing drive or could set up a confidential mail-in procedure. He said this “should reduce intimidation or pressure from management or union activists on workers to vote for against union representation by allowing employees to vote outside the confines of the workplace at a time of their own choosing.” Many corporations oppose a more rapid electoral process, arguing that it would not give them adequate time to communicate their case against unions. Lastly, Professor Freeman recommends an idea that union leaders hate — allowing employers to set up employee committees that address not just productivity, but also issues that deal with workers’ well-being, like hours or pace of work. “Throughout the advanced world works councils perform this function, usually with members elected by employees, independent of collective bargaining,” he wrote. He added that “American employers who want their workers to have some representation at their workplace that falls short of collective bargaining” should be able to do so without having to break the law. He said that a similar system in Canada works well. He noted that many American employers were already doing this even though the law bans it. Moreover, it would help give union-less workers more of a voice on the job. But unions oppose this idea, asserting that it could lead to management-dominated committees and could convince many workers that they do not need a union. The symposium was cosponsored by the National Labor Relations Board and George Washington University.

Industrial Relations in the Global Economy Morley Gunderson and Anil Verma, University of Toronto New industrial relations issues have arisen with increased international trade and investment, and professors Morley Gunderson and Anil Verma see labor standards as the most pressing one. Three mechanisms govern the employment relationship: market forces, employee representation, and laws and regulations. Market mechanisms rely on demand and supply to determine pay and labor allocation, ensuring efficient utilization of labor and production of items that consumers want. But markets have imperfections, and even perfectly functioning ones can lead to efficient outcomes, but not necessarily what society would consider fair. Employee representation, which includes unions and other devices for employee voice in the workplace, mitigates market forces by providing a bargaining mechanism and/or assuring due process to employees. Some argue, however, that unions also reduce the managerial flexibility and organizational competitiveness needed for joint survival of employers and employees. Laws regulating the employment relationship are those governing collective bargaining, setting wages and hours, banning discrimination, fixing health and safety standards, and providing social insurance. By establishing a floor below which market transactions are not allowed to occur, labor regulations and legislation provide a safety net when the market mechanism creates disadvantages for workers. Freer flow of goods, capital, people, and ideas across borders has enhanced the market mechanism role, with decisions being made on a global basis. Since labor flexibility and adaptability enable employers to respond quickly to changing circumstances, collective bargaining is put on the defensive. Unions have been unable to attain any form of transnational collective bargaining and plummeting membership in many countries means that they are less able to set national standards. Domestic regulative initiatives also are inhibited by fear of repelling investment. Gunderson and Verma point out that, from its foundation, IRC was interested in issues of labor standards, worker voice and fair wages, recognizing that, while such practices may not maximize profits in the short run, employers who promote good labor standards can benefit in the long run from better relations, improved productivity, and enhanced quality. There was another rationale for promoting better labor policy—reducing competition among firms on the basis of lower labor standards. Indeed, Mackenzie King set forth the “Law of Competing Standards” (based on Gresham’s Law with respect to precious metals), that, left to market forces, labor standards would decline to their lowest possible denominator. He argued that progressive employers should undertake to stem this slide because, in doing so, they would secure their firms’ and indeed capitalism’s future. Corporate codes of conduct have been adopted among those firms that subcontract production to locally owned and managed companies in developing countries, but the issue of international labor standards continues to fester. The authors see the International Labor Organization as the body best structured to deal with global solutions to labor problems. The ILO follows a voluntary, cooperative approach and rejects the use of trade sanctions against countries that do not adopt its standards, because labor standards must reflect the ability of different countries to afford them. They conclude that globalization has implications for all the stakeholders in the employment relationship. Individual workers must acquire the human capital (education and training) valued in the market and gear skills towards flexibility and adaptability. Unions should concentrate on those aspects of their role—providing voice, articulating employee preferences, insuring due process—that do not imply large cost increases. Government policy should emphasize adjustment assistance that facilitates labor allocation geared to market changes, rather than income maintenance that encourages workers to remain in declining sectors or regions. Employers should build employee commitment and loyalty by providing workers with skills, decent wages according to the standards of the nation, and a safety net, and they should make sure that HR strategies are an integral part of the business strategy

Reforming the U.S. system of collective bargaining Collective bargaining procedures and relationships between labor and management must reflect less conflict, more cooperation as the Nation's economy struggles to meet international competition and domestic needs

By D. QUINN MILLS Rules as a productivity drain Rules alone cannot ensure that an organization will perform well. They may keep it from dissolving into self-defeating open warfare, but often do not permit it to achieve its potential. An organization which depends upon adherence to a myriad of rules will always be vulnerable to competition from other organizations which operate in a more consensual and cooperative fashion, even when the latter have fewer resources. And, although an organization of rules may sometimes pull it-self together to respond to an emergency, this need not necessarily occur. It follows, then, that primary dependence on establishing and enforcing rules is a very poor way to run an economic enterprise. The existence of a multitude of rules, many of which attempt to "stretch the work" to maintain jobs in ways reminiscent of depression-era tactics, constrains productivity and raises costs. For example, maintenance classifications may prohibit an employee from doing incidental work outside the strict limits of his or her trade; multiple job classifications may exist even where a person in a single combined classification could do the work effectively, without undue effort and stress; and, job classifications may be perpetuated although technological change has rendered the incumbents' work trivial. Other restrictions may limit the amount of work a person may be assigned, such as permitting a mechanic to open only two flanges. The location of materials and inventory may be restricted by contract or past practice to retain jobs in now-inefficient areas of the plant. In some cases, rules may prohibit employees being assigned work during breaks, and simultaneously prohibit supervisors from doing the employees' work, so that emergencies occurring at coffee breaks or lunchtime cannot be legally handled under the agreement. Over time, rules tend to become increasingly costly and constraining as technology, materials, products, and other aspects of production change. Even rules which made great sense at first become out-of-date under changing conditions. But the rules are difficult to change, and particular employees may be further benefited the more outdated the rules become. Sometimes a company can pay a high price and "buy the rules out," or a union can persuade some workers to give up favored positions for the good of the membership as a group. But often, change cannot be accomplished without a bitter struggle between management and labor. Furthermore, the rule making process promotes a set of attitudes which are inimical to successful enterprise. The existence of the rulebook encourages both management and labor to assert their rights under the contract, rather than to attempt to work out problems. It gives rise to "shop-floor lawyers," rather than problem solvers. It fosters conflict and controversy. It undermines trust. To a large degree, it seems that unions have become captives of their origins. Born in adversity and conflict, they continued to act as opponents of management even when their strength had become much greater. In some instances, unions have created thickets of rules in which to immobilize management, just as spiders build webs to ensnare prey. But when the thickets of rules have crippled productivity, the unions have discovered themselves to be caught alongside management in the trap. Plants have declined in competitiveness, and jobs have been lost. The unions have discovered too late that a snare is no less a snare because they have set it themselves. A prescription for change In a recent survey conducted by the Harris organization, a majority of the general public professed the belief that unions contribute less than they once did to the growth and efficiency of business. Not surprisingly, only 15 percent of union leaders agreed with this judgment.' The need for unions to assist companies in the light of increased foreign competition is apparent to the public. To the inhabitants of the Snow Belt, it is similarly evident that unions should cooperate with local business to stem the outflow of industry and jobs to the South and West. Public perceptions of a productivity problem are supported by Bureau of Labor Statistics estimates, which show particularly sluggish growth in output per labor hour after 1973.3 Collective bargaining practiced primarily as rule making has become self-defeating for both unions and management. It interferes with management's efficient operation of the enterprise, and ensnares employees with legitimate grievances in a web of red tape. It also contributes to the vehemence of employer attempts to resist union organization drives. Study after study of U.S. managers has shown that managers fear the imposition of restrictive work practices far more than the higher wages and benefits which unionization may bring. Companies' efforts to make competitive operations out of older plants often fail because changes in current work rules take the form of additional complex rules which do not provide the flexibility needed to turn a facility around. What management really needs is fewer rules altogether, and willing cooperation from the work force. The union, for its side, needs a management sensitive to the needs of people. Both are very difficult to obtain in the U.S. labor relations environment.

The International Brotherhood of Boilermakers "STEWARD'S SOURCEBOOK"

Five Common Grievance Issues Recently a group of experienced union reps suggested we run an article tackling some of the issues they run into most often. Here then are five common grievance situations and suggestions for how to approach them.

Work now, grieve later When your supervisor gives you a directive you believe violates the contract or standard job procedures, it is important to point out the mistake he or she is making. “That’s a higher pay grade than I am getting.” “The _____ workers have that jurisdiction.” “I don’t have seniority.” Or whatever applies. But if the supervisor insists that you do the work, do it. Later on, you can file a grievance; but if you refuse to comply with a direct order, you’ll be disciplined for insubordination, and an arbitrator will uphold the discipline. Arbitrators reason that when the company and the union negotiated their grievance procedure, they did so to avoid work disruptions caused by job disputes. The work continues, productivity is maintained, and the problem gets solved later — through the grievance procedure. The only exception to this rule is when the directive would put you at serious risk of injury. In that case, save your body now and grieve later.

Contract language prevails Often a member will want to grieve an issue despite there being clear language in the collective bargaining agreement (CBA) that goes against his or her position. “I know the contract says we get 20 minutes for lunch,” he might say, “but we have been taking 30 minutes as long as I have been here.” As tempting as this argument might seem, you are not likely to convince management or an arbitrator. The CBA is what both sides agreed to. What has been allowed to occur is irrelevant, regardless of how widespread the practice might have become. Adhering to the language in the contract protects both parties. If the tables were turned, would you want to give up 10 minutes of your lunchtime just because the second shift has been taking only 20 minutes when they are allowed 30?

Unilateral changes on the job The management rights clause of your CBA gives management broad authority to run the work in an efficient manner. But that doesn’t mean they can make any changes they want without first consulting the union. Even if there is no specific language in your current CBA regarding the proposed change, anything involving wages, hours, and working conditions could be, by law, a mandatory subject of bargaining. Working conditions covers a lot of territory, including both economic and non-economic aspects of the job — even the company’s work rules. As plants modernize, they often bring in new equipment or initiate new work procedures. It is important to remind the company of their obligation to negotiate with the union on any change that materially affects the bargaining unit, whether it is specifically mentioned in the CBA or not. Subcontracting is another issue for negotiation, whether it is mentioned in the CBA or not. Contracting out work ordinarily done by workers in your bargaining unit directly affects their ability to continue to make a living. Arbitrators tend to rule that employers cannot subcontract work in order to avoid the wages promised to bargaining unit workers by the CBA.

Who has the burden of proof? There are two types of grievances — those dealing with contract language interpretation and those involving discipline. The important distinction between them is who has the burden of proof, because the side with the burden of proof has a more difficult job. In contract interpretations, the union has the burden of proof. We are claiming that the company has been violating the contract, so we will need to convince them (and if it goes that far, an arbitrator) that our understanding of the contract is correct. In a discipline case, the company has the burden of proof. They have disciplined someone, and we are demanding that they prove they had just cause for the discipline. If, for example, they can’t show evidence that the worker actually did what they accuse him of, then they have not met their burden of proof, and an arbitrator will rule in our favor. Sometimes a union will give away the advantage we have in a discipline case by claiming disparate treatment — the company is treating the worker unfairly. When that happens, the burden of proof shifts back to the union. Now the union is claiming the company did something wrong, so we have to prove our case. It’s usually best to avoid this approach.

Tell the company the remedy you are seeking Writing up the grievance is a complex task that will be discussed in depth in a future article. But there is one very important point to remember: You can only get what you ask for, no more. By filing a grievance, you are telling the company they have done something wrong and they must make it right. If you don’t tell them what they must do to make it right, they can admit they did something wrong, but do nothing to make it right. Try explaining to your grievant that the company agreed they violated the contract and caused him to lose pay, but he isn’t going to get any of that back pay, because you didn’t ask for it. A useful phrase to remember is “made whole,” as in the sentence, “The grievant should be made whole in every way, including being paid the wages not paid while he was on suspension and all benefits accruing by the payment of those wages, specifically pension contributions and sick and vacation hours earned.” Being “made whole in every way” means the grievant should receive anything lost because of management’s action. In most situations, it is the maximum a grievant can get. And it is exactly what he or she deserves. But if you don’t ask for it, you won’t get it. Don’t expect the company to go looking for what the grievant may have lost. Get all that information together yourself and put it all in your remedy.