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HOW UNION ORGANIZING REALLY WORKS.
I gave this a shout-out in yesterday's tab dump, but T.A Frank's article on the effort to unionize Lancaster County's Rite Aid Distribution Center is an important read. Frank does something novel in the recent debate over easing labor law: He doesn't focus on card check. Rather, he focuses on the harsh realities of forming a union under current law. In the Lancaster organizing effort, for instance, the National Labor Relations Board -- Bush's National Labor Relations Board -- was so appalled by Rite Aid's brutal counter-organizing that they planned to take the company to court on 49 separate violations of federal labor law. Rite Aid chose to settle. That meant "agreeing to rehire two fired union supporters with back pay and to post a notice in a common area promising not to engage in thirteen types of illegal anti-union activity." Some settlement. The organizing campaign continued, and so too did Rite Aid's efforts:
Rite Aid insisted on an election, and the date was set for March 2008. Once again, the company did what it could to persuade workers to vote against the union. HR staff conducted mandatory hour-long sessions with employees once a week. They would lecture at length on why unionization would be damaging to workers. They would warn employees that the union would require high dues and stand in the way of healthy communication between management and labor. They would show videos about plants being shut down after becoming unionized. Meanwhile, by Warner’s count, more than 100 union supporters had been dismissed since June of 2006—although never, of course, for the explicit reason of having supported unionization. "We had a list of our people," she says. "And one by one we kept watching them get fired." By contrast, Warner says, only about ten non-union-supporting employees were let go in the same stretch.Here is my fear: The unions have been so intent on defending card check that they have created a political battle over the specifics of their legislative solution. The air wars, thus far, have seen corporations on the offensive against card check -- taking away the secret ballot?" why that's undemocratic! -- while the unions defend its provisions.
That's insane.
There is no excuse for more Americans understanding the provisions of a hypothetical bill than understanding what a modern organizing campaign looks like. People get fired. Employees are forced into captive meetings where they are threatened and intimidated and warned of plant closures. Union supporters get brutal shifts, unpredictable schedules,and cruel workplace treatment. Those things are happening. Universal card check is not, at the moment, happening.
As such, there is no excuse for the conversation centering on the hypothetical actions of unions under some future legislative regime rather than the ongoing abuses of corporations under the current law. Towards the end of the article, T.A Frank notes that card check may be one of the least important portions of the card check bill. I don't agree with him: The unions and the corporate community are unlikely to both be wrong on the import of card check, which would completely short-circuit the employers ability to counter-organize. But he is right that there is much more in the legislation that matters. Frank continues:
Why did Rite Aid take so many chances with the law? Perhaps because it made economic sense. While the company’s actions may have been illegal under the National Labor Relations Act of 1935, they were also nearly cost-free. If a company illegally undermines a union campaign by threatening to fire workers, or by spying on them, or by promising to shut down the facility, the most serious penalty it can expect to face is being ordered to post notices in the workplace promising not to engage in such activities in the future. If a company illegally fires a worker, and the worker can somehow prove his or her case, the penalty is a requirement to reinstate the employee with back pay—minus whatever the employee has earned elsewhere in the meantime. And if a company negotiates in bad faith, it can perhaps expect an order from the NLRB to start negotiating in good faith. Such punishments are the equivalent of punishing shoplifters by asking them to put the merchandise back.
This is what lawmakers have sought to remedy in devising the Employee Free Choice Act. For all the controversy, EFCA is a surprisingly modest bill, with provisions aimed at strengthening existing labor laws rather than altering them substantively. Under EFCA, if Rite Aid had been found guilty of making illegal threats or of spying or of intimidation, it could have faced a monetary penalty—up to $20,000 per incident in cases of repeated violations. If Rite Aid had been found to have illegally fired a union supporter, it would have been required to pay not just the back wages, but three times the back wages. And if contract negotiations were being conducted without results, either party could seek federal mediation after ninety days. If, after thirty additional days, negotiations were still stalled, then an arbiter would be able to impose a contract settlement that would last two years. This would prevent employers (or employees) from running out the clock with bad-faith talks.[...]
What most undermines the secret-ballot process is that employers can violate the law in numerous ways without consequences. Under EFCA, however, every illegal action has the potential to be costly, so firings, spying, threats, or other forms of intimidation would be less likely. Also, there is an alternative way to preserve the secret ballot while guarding against company malfeasance: expedited elections. Under current law, months can go by between when NLRB announces the results of a card check vote and when a secret-ballot election is held. If, however, this campaign window were reduced to just a few days, employers would have less opportunity to intimidate union supporters into changing their minds. Workers I spoke to in Lancaster seemed content with this alternative. And some savvy people in the labor movement I spoke to feel the same way—provided that employers either refrain from captive-audience campaigning or else grant union members equal access to the workplace during a campaign.
As Frank argues, there exists a universe of possible solutions. But Labor cannot simply assume that the political system and the broader public are convinced of the problem. The issue isn't passing card check. It's ending corporate abuse and intimidation. That's what Labor needs to build a consensus for.
COMMENTS (23)
Thanks for discussing this. I blogged at length about Frank's piece yesterday, I think he doesn't understand the policy issues nor the politics.
http://steampoweredopinions.blogspot.com/2009/01/is-card-check-worth-fight.html
My conclusion on the policy,
There are already laws on the books that prevent employers from harassing, firing and threatening workers who are trying to organize. The issue is that employees lack the means for legal enforcement of those laws to protect their rights. Frank argues that we should set up more laws that depend on the benevolence of the Executive branch even though we already know that such a regulatory scheme is wholly ineffectual. It's a fools errand. Card check would allow workers to have control over their own organizing, thus shielding them from the whims of whatever administration happens to be occupying the White House at that time.
My conclusion on the politics,
it wouldn't be lke a matador lifting his cape. Democrats would be pulling the rug out from under themselves and from under their most effective and loyal electoral ally. After all of the months of build up for this battle and given that the importance of card check to the labor movement (real or percieved) is so well known a retreat would expose labor as ineffectual and weaken it politically, perhaps irreprably. Electorally Democrats need labor. There are no more reliable Democratic votes in the country, save for African-Americans, than union members. The more union members there are, the better Democrats do at the polls. It's that simple. Democrats should support card check because it's a rare piece of legislation that makes sense both from a policy perspective and from a political perspective. Demonstrating the impotence of your largest interest group for all the nation to see is simply terrible politics.
Frank doesn't seem to have a grasp on either the policy issues at hand nor the political. This is too important of a fight for working families and for the Democratic Party to let people play these "sensible moderate" games. There should be no triangulation on this issue, it wouldn't achieve the policy ends and it would be a political disaster.
Posted by: Steve Balboni | January 22, 2009 10:13 AM
All very good points. Its frustrating to me to see the Obama administration and Dems in general put EFCA so low on the totem pole. However, it does create the opportunity for unions to organize and mobilize in a way that they probably need to anyways. But messaging will be crucial to their success and simply having a defensive argument that argues against the "undemocratic" line won't be enough. They're going to have to make the public believe that reform of labor law is absolutely crucial. Once they've got public support for that cause, they'll have a lot of leverage to negotiate exactly what that reform looks like.
Posted by: Matt | January 22, 2009 10:15 AM
This argument seems to be just about EFCA and basically labor's public messaging around EFCA. But my understanding is that, to some degree, there is a debate within labor about the importance of EFCA. If unions bring their political influence to bear most directly on NLRB appointments and focus on actual organizing, instead of spending all their time on this piece of legislation, which at the end of the day, will not guarantee any more union members or, arguably more importantly, effective unions. One creeping problem with some unions is a desire among people at the top of the unions to work for their own interests instead of workers' rights. Witness recent fights by regional or national unions to take over local unions in places like Detroit. Unions can gain leverage in other ways besides card check neutrality, which does not actually ensure more, bigger, or more active unions. Energy regarding the PR battles, might be better spent creating the kind of atmosphere where quality organizing can happen, rather than the kind of organizing borne by national unions focused on trusteeing locals and supposedly neutral banks associated with these unions.
Posted by: Benjamin Bradlow | January 22, 2009 10:20 AM
I dunno, Benjamin -- institutional Labor has been trying the "more and better organizing" method since Sweeney was elected (what was that, 1995?) President of the AFL-CIO, and I think nearly everyone's conclusion is that it's not enough. No matter how many organizers you hire, no matter how dedicated you are, union density across the economy will continue to decline under the current legal regime.
As far as effective leadership is concerned, 2 points. 1) EFCA isn't designed to address that problem, but it doesn't stop anyone from addressing it, either. 2) Card-check would lower the financial/resource barriers to organizing, and would make it much, much easier for smaller, independent unions to organize, or even for workers to set up their own, stand-alone unions by themselves. That might have a significant impact on the nature of labor leadership.
I agree, Ezra, at the lack of public outrage about what happens to workers in organizing campaigns. The unpleasant question is whether the lack of outrage is due to American workers just not caring all that much. Right-wing ideology has ruled the day in this country for a couple of generations, and its hegemony has clearly had an effect on regular Americans.
Steve, I tend to agree with your view of the substance of card-check. I'd add that workers face a big Humpty-Dumpty problem with the Board: a campaign involves workers building their own, democratic organization, on the one hand, and the employer trying to destroy that nascent organization and smash it into little pieces. It's all well and good for the Board to come by months (or years) later and say, "You shouldn't have smashed Humpty into little pieces, bad boss!" but that doesn't actually help put Humpty back together again.
The goal of the legal regime should be to deter misbehavior, and it's not clear to me that even treble damages will be enough of a deterrent. Criminal sanctions would be enough, but that's not going to happen.
Note that this kind of compromise is exactly what the swing voters in the Senate are going to be aiming for. Maybe if it comes to that we could get something else thrown in (striker protection? broader definition of "employee" under the act?) in exchange for dumping card-check.
Lastly, Frank mentions expedited elections. That sounds great, but I'm not sure how you do it. Bosses generally drag out elections by fighting over 2 things: 1) the "appropriate bargaining unit" (e.g., "The drivers really should be in a different group from the warehouse people, but we need to include workers at these other 3 remote sites"); and 2) excluding certain employees as "managers" (and thus not "employees" under the Act). Unless the union and employer reach an agreement about this stuff, litigating these issues can take a long time.
In order to get an election within a week, you need a radical revision to this process. Does the Board just do whatever the union wants WRT the bargaining unit? Will the definition of "manager" be changed so it's less burdensome? Folks who want to do "expedited elections" need to explain exactly how to expedite them.
Posted by: Pesto | January 22, 2009 11:16 AM
I think the major problem with just trying to do "quicker, fairer elections" is that you'd have to overturn one hell of a lot of law, including both existing statutory law, Supreme Court decisions, NLRB decisions, and so on.
It's not just penalties, although that's part of the problem. It's also the free speech doctrine that allow unlimited employer campaigns, the prophecy doctrine that allows you to threaten closure, the property doctrines that allows you to bar union organizers from campaigning on the premises, the employer doctrines that allow you to conduct captive audience and one-on-one meetings, the exclusion of supervisors from coverage (which allows employers to threaten them with firing unless they spy on their subordinates), etc.
So while the politics might not be great, I think it's one of those things where you either get it done or don't.
Posted by: StevenAttewell | January 22, 2009 11:49 AM
The unpleasant question is whether the lack of outrage is due to American workers just not caring all that much
I think this is a real big part of it. It's hard to gin up sympathy for Labor these days because the general public has been convinced unions are, on balance, a bad thing. One of the key aspects of the Reagan Revolution was convincing the American public to identify with management, so I don't think you can hit the general population with a sob story about the horror of anti-union reprisals and hope they see the light. To shift public opinion, Labor needs to draw waaaay back to the big picture stuff: What is a Union? Why is it good? Sad, but true.
Posted by: mkd | January 22, 2009 12:12 PM
Just a factual correction: the general public supports unions by a large margin and think by and large that they are good institutions.
Posted by: Zephyrus | January 22, 2009 1:06 PM
You write: "As such, there is no excuse for the conversation centering on the hypothetical actions of unions under some future legislative regime rather than the ongoing abuses of corporations under the current law." Just as there was no excuse for considering the bad things that might happen if we invaded Iraq, rather than focusing on the real abuses of Saddam's regime. You've fallen into Bush-logic here, where a sufficiently scary depiction of the problem obviates all need to discuss the merits of the proposed solution.
Posted by: Jim | January 22, 2009 2:00 PM
Ezra,
You make a very good case, but you're assuming (I think wrongly) that unionization is an all-around good for workers. But more than anything, I think you don't really get the law.
First, if workers want to unionize and companies illegally threaten, much less fire, them, then the offenders should be tapped hard. However, you deride the settlement here because RITE-AID reinstated employees and simply agreed to follow the law, or, it's "like asking shoplifters to out their stuff back on the shelf." That greatly misrepresents how labor laws work. Under federal law, once you agree to a settlement like this, if you violate it, the workers don't have to file a new lawsuit and litigate for years (read: no discovery, hearings, summary judgement briefs, etc.), instead, the labor lawyers haul off to court and get an injunction and contempt charge againt the business, plus penalties and usually attorney fees. Contempt hearings are rushed to the front of the line of the court's docket. Judges hate contemptuous litigants. This process isn't perfect, but it works a lot better than you give it credit.
Further, the campaigns by companies you cite are, by your explanation, purely vile propoganda, whereas one is left to assume union efforts are Gospel Purity. On its face, that's unfair. Business have their side of the story, and they're the ones who actually know how businesses are run, as opposed to unions. Further, plants DO close and workers DO lose their jobs as a result of unions. (See, Ford workers and Nissan workers).
If the allegations are true, RITE-AID should be thumped in court. However, with companies shedding workers by the hundered thousand, maybe playing Hoffa with the labor market isn't such a great idea now.
Posted by: Cheves | January 22, 2009 2:08 PM
Ezra, I think you're completely mischaracterizing Rite Aid's actions (although I'll admit that I do not KNOW that you are). You paint Rite Aid as a corporation bullying and intimidating its workforce.
Bad what if Rite Aid is simply FIGHTING FOR IT'S SURVIVAL? I'm a very liberal person, but I'm also a member of the anti-union wing of liberalism. The cause and effect seems hard to avoid: a work force organizes, and then the company goes out of business. Or look at my high school, where not one (NOT ONE!) of the high school math teachers passed an 8th Grade test, yet couldn't be fired because of the union. And in spite of your arguments, I still believe Detroit is another example of unions standing in the way of what must be done. Or the northeast machine tool industry (that unionized in the 1950's, causing the companies to move away almost overnight and leaving the area where I grew up economically devestated).
In this light, Rite Aid's actions are perfectly acceptable and it should in fact do anything it takes to avoid being unionized. So what if they're playing hardball? A Union threatens their very existence.
I'm being a bit extreme in my remarks, but I feel that this is union supporters' true mission. Forget about card check. Prove to people like me (young, educated, liberal, typically very concerned with the wellbeing of the middle class) that Unions actually don't just make everything much, much worse. Because if unions lose the support of my demographic, Rite Aid's bullying will be the least of their problems.
Posted by: Travis Weaver | January 22, 2009 2:11 PM
When was the last time a mainstream publication covered union efforts in anything nicer than a faux-neutral way? Imagine for a moment that they gave a tenth the attention to management nastiness that they do to the latest casino-beating investment system or missing white girl.
Almost all the reporting I've seen on unionization or other workplace issues focuses on some company spokesthing claiming that they're going to have to take money out of the pocket of current hourly workers to pay off an activist judge's idea of what they did wrong in the distant past.
Posted by: paul | January 22, 2009 2:14 PM
Cheves,
Unions don't sue employers in civil court over unfair labor practices, and a "settlement" doesn't mean the same thing as a plaintiff settling a tort case. When the boss violates the NLRA, an individual worker or a union can file a ULP charge with the Board. The case is assigned to a Board agent, who reflexively tries to get the parties to settle. That's not overseen by a court -- it's just an agreement, in writing, between the parties that includes the petitioner withdrawing the ULP charge.
If the parties don't settle at first, the agent considers the charge, hears evidence, and decides, along with the Regional Director, whether the case has merit. If it does, then the Board agrees to argue the case before an Administrative Law Judge. Eventually cases can be appealed to the full NLRB in DC, and then to Federal Court, but none of this is civil law, it's administrative.
So, again: neither the workers nor the ILWU "filed a lawsuit" in the first place -- none of this is actionable in a civil court.
On your other points: people don't organize unions just for shits and giggles. They do it because their lack of power WRT their bosses is causing them problems, and they realize that they need more power if they want to solve those problems. The fundamental problem in this society is the mal-distribution of power: too few people and institutions have too much of it, and far too many people have little or none at all. Organizing is the process of redistributing power downwards and outwards.
Individual groups of workers will make up their own minds about whether to organize, and, if they want to, with what union (including the option of creating one from scratch). For decades workers in the US haven't been free to make that decision because of the abusive behavior of so many American employers, and because of a toothless legal regime. The Employee Free Choice Act is designed to give workers back their right to make their own decision, in their own time, about whether to organize.
All that said, given the power imbalances in our society, there's nothing wrong with a principled stand in favor of workers organizing.
Travis -- you know what else kills jobs? Minimum wage laws. Also, environmental protection, laws against gender and age and race discrimination, and worker safety laws. How many plants have moved to China to avoid the burden of treating workers like people?
And Rite Aid workers in the NYC area originally organized with District 1199 decades ago (late 1950s, I think). This isn't about "THEIR VERY EXISTENCE!!1!" It's about power. As far as proving it to you is concerned...you've obviously already made up your mind. I personally wouldn't waste my time trying to persuade a "5".
Posted by: Pesto | January 22, 2009 4:25 PM
Many thanks, Pesto, for setting the record straight. Cheves, where do you get the notion that RiteAid is in danger of civil contempt - and in short order - if it persists in its unfair labor practices?
Posted by: sophomore | January 22, 2009 4:37 PM
If conservative objections to the EFCA revolve solely around the secret ballot issue, yet the other provisions of the act are more significant...
why not just remove the stuff about secret ballots at the last minute, and pass all the rest of the provisions against worker intimidation?
The conservatives would be snookered... they'd have to gin up an entirely new argument against it.
Posted by: JR | January 22, 2009 4:46 PM
Hey all,
Ezra has pointed out this in the past, but where can I find a good, succinct round up of the numbers of labor law violations?
Thanks,
-g
Posted by: - g | January 22, 2009 4:49 PM
good discussion. you can find great stats on labor law violations at www.americanrightsatwork.org
dropping card check won't work because the employers' pockets are too deep --- they will pay the fines no matter how high.
Posted by: ray abernathy | January 23, 2009 11:55 AM
In this example, where the company is apparently firing union sympathizers, wouldn't the secret ballot also protect employees from employer retaliation?
Posted by: JR | January 23, 2009 12:15 PM
Bad what if Rite Aid is simply FIGHTING FOR IT'S SURVIVAL? I'm a very liberal person, but I'm also a member of the anti-union wing of liberalism. The cause and effect seems hard to avoid: a work force organizes, and then the company goes out of business. Or look at my high school, where not one (NOT ONE!) of the high school math teachers passed an 8th Grade test, yet couldn't be fired because of the union. And in spite of your arguments, I still believe Detroit is another example of unions standing in the way of what must be done. Or the northeast machine tool industry (that unionized in the 1950's, causing the companies to move away almost overnight and leaving the area where I grew up economically devestated).
Without any links or even specific examples, this looks like bullshit from start to finish to me. There are plenty of incompetent teachers out there, but a school where "not one (NOT ONE!)" of the high school teachers could pass a test in their area, and not one of them got fired for it? How did they get hired in the first place? I'm sure this would have been a big story in the local newspaper, so do you have a link?
And an even more basic problem with your story, when has that post hoc ergo propter hoc relation you mention - sorry, "cause and effect" - ever actually happened? Again, I'm not denying that it has happened at some point, but right-wing nuts complain about it far, far more often than they offer examples.
Posted by: Cyrus | January 23, 2009 12:34 PM
Cyrus: I agree, "Travis" sounds like a sock puppet.
Posted by: varmintito | January 23, 2009 1:50 PM
Ezra,
Great article, and I agree with you. I don't blame AFL-CIO or CTW for their messaging, which is really focused around FREEDOM for employees. It is the corporations with their $200Million war chest to defeat EFCA who are making the debate about the minutiae of tactics during organizing drives, and not the big picture.
If it was up to me, I would paint the issue in terms of salaries and wages. The best national policy for increasing wages and benefits for working people is COLLECTIVE BARGAINING. This is why FDR made it federal policy to "encourage the practice" of collective bargaining by setting up the NLRB. Union workers earn more than non-union. If we want working people to get a raise, we should help (or at least allow) them to form and join unions. And at a bare minimum, the choice of whether the employees get to bargain collectively with their employer should be THEIRS, not their boss's.
Posted by: Joshua Sperry | January 23, 2009 5:47 PM
"However, you deride the settlement here because RITE-AID reinstated employees and simply agreed to follow the law, or, it's "like asking shoplifters to out their stuff back on the shelf." That greatly misrepresents how labor laws work. Under federal law, once you agree to a settlement like this, if you violate it, the workers don't have to file a new lawsuit and litigate for years (read: no discovery, hearings, summary judgement briefs, etc.), instead, the labor lawyers haul off to court and get an injunction and contempt charge againt the business, plus penalties and usually attorney fees. Contempt hearings are rushed to the front of the line of the court's docket. Judges hate contemptuous litigants. This process isn't perfect, but it works a lot better than you give it credit."
Cheves, you are 100% wrong about this. Rite-Aid went easy on the workers for the 60 days the notice was posted, then went back to its old tricks. The union filed many charges with the NLRB alleging that RA fired workers for their union activity, all of which the NLRB dismissed after a cursory investigation. The union cannot enjoin Rite-Aid's actions, only the NLRB can.
Posted by: Phil Thomas | January 25, 2009 2:12 PM
thaaaaanks
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