The New York Times today reports:

The United Steelworkers signed a merger agreement on Wednesday with the largest labor organization in Britain and Ireland to create what union leaders said would be the world’s first global union.

The new union, to be called Workers Uniting, will represent more than 2.8 million workers in the steel, paper, oil, health care and transportation industries. Officials said the union plans to hold trans-Atlantic negotiations with companies including the oil conglomerate BP, and ArcelorMittal, the giant steel maker.

“This union is crucial for challenging the growing power of global capital,” said Leo W. Gerard, president of the United Steelworkers, which represents 850,000 workers in the United States and Canada.

While the rhetoric sounds about forty to fifty years out of date, the trans-Atlantic mobilization that this organization will be able to effect cannot be denied.  This may well  be the first in a wave of future international union mergers, designed to allow organized labor to assert its relevance in a global marketplace.  Multi-national employers in all industries must take note.

The National Association of Manufacturers (NAM) ShopFloor.org blog highlights the following televised exchange between Jack Welch and Linda Douglass, Senior Advisor on the Obama Campaign.  (Check out NAM's blog for the video.)

Jack Welch: Now I want to know about how he’s going to vote on the Free Choice Act that passed Congress in the last thing. This labor movement where we give up the secret ballot. Now where is he going to come out on giving up the secret ballot in this country? One of the great things this country has.

Linda Douglass: Well I’ve got to tell you that I’m really not prepared that to give you the answer on that particular question Mr. Welch. I hope you won’t fire me.

Ms. Douglass' snark aside, here's the translation:  He's pledged to pass it, but he's seen these survey results too...

Source: American Solutions

Human Resources VP Kris Dunn, who blogs at the HR Capitalist, has a piece in Crain’s Workforce Management regarding the impact of the Employee Free Choice Act on HR professionals. His take? “This piece of legislation would cripple the competitiveness of American business, limit the rights of employees and eliminate the need for independent-thinking HR pros, all in one easy-to-sign law.”

Dunn compares current labor law regarding union organizing with the drastic changes intended by the EFCA to facilitate and promote union organizing at the expense of individual employees’ rights. He then focuses specifically on why HR professionals should be concerned:

1. You’re responsible for being an advocate for employees AND for being a business agent;

2. You’re responsible for creating and maintaining a workplace free of intimidation and harassment;

3. Under the act, you lose the opportunity to tell your story;

4. If a union is certified via card check under the Employee Free Choice Act, the employees are going to come to you once they figure out what has happened; and

5. You’re going to be less than satisfied with your HR career in a union shop.

For his expansion on each of the points above, read his entire piece here. His ultimate conclusion should come as no surprise to regular readers here, or anyone else who has followed the progression of this unfortunate piece of legislation:

Finally, the worst thing about the Employee Free Choice Act isn’t its effect on us as HR professionals. It's how stunningly anti-employee the act is. Ability for employees to keep their feelings about unionization private? Gone. Ability for employees to listen and carefully contemplate both sides of an argument regarding representation? Gone.

The New York Times reported Saturday on the United Auto Workers march through the streets of Atlantic City in support of efforts to negotiate contracts with several major casinos:

Shouting “Negotiate!” as they made their way through the streets, about 3,000 newly unionized casino workers and their supporters staged a rally on Saturday aimed at pressuring Atlantic City casinos to agree to new contracts.

The marchers, angry over the lack of progress in talks with the gambling halls on what would be the resort’s first union contracts for dealers, waved signs and chanted slogans as they walked past the major casinos. The police had cordoned off a few blocks for the protest, which lasted more than three hours. No major problems were reported.

For several months, the UAW has been unable to accomplish much progress toward contracts with Caesars, Trump Plaza,Tropicana and Bally’s.  Thus, this weekend's rally -- the permit for which was approved for the Boardwalk -- took to the streets in an effort to "shut th[e] town down."

According to the Times:

Mr. Menendez read a message from Senator Barack Obama, the presumptive Democratic presidential nominee, who urged the two sides to come together and reach a fair deal.

While one might take exception with the Times characterization of Senator Obama's plea toward the "two sides," he left little doubt in his statement where his sympathies lie: 

The challenges you faced to organize and now face in bargaining are the reason I cosponsored the Employee Free Choice Act, and, as President, I will proudly fight for its enactment and sign it into law. 

 

BNA's Daily Labor Report  (subscription required) today featured a piece on the U.S. Chamber of Commerce's concerns about the major push underway by organized labor to overhaul federal labor laws.  Two Chamber officials spoke with reporters on June 5 about the dozens of "anti-employer" bills awaiting action in Congress -- among them, the grand prize, the Employee Free Choice Act. 

Randel K. Johnson, chamber vice president of labor, immigration, and employee benefits said the bills add up to "nothing less than a radical rewrite of the nation's labor laws."  Steven J. Law, chamber chief legal officer and general counsel, said congressional Democrats want to "europeanize" labor laws, and told reporters that organized labor has invested between $400 million and $500 million "in politics this year."

Proving they have not lost their flair for irony, union interests provided the following quotables in the article's conclusion:

Galen Munroe, spokesman for the International Brotherhood of Teamsters, said the chamber "has long been on the attack against working Americans." ... Of the chamber's assertion that the unions have invested nearly a half billion dollars "in politics" this year, Munroe said, "I wouldn't comment on something they pulled out of their hat."

Immediately followed by this nugget from Bill Samuel, AFL-CIO director of government affairs:

... the unions "spend far less than business does on lobbying ... like by 20 to one or 25 to one."

Cross-posted at WorkplaceHorizons.com

In a decision released yesterday, the National Labor Relations Board (NLRB) certified the United Auto Workers (UAW) as the bargaining representative of approximately 530 dealers at the Trump Plaza Hotel and Casino in Atlantic City, N.J.  In Trump Plaza Assocs. d/b/a Trump Plaza Hotel & Casino, 352 N.L.R.B. No. 76 (May 30, 2008), the Board considered the employer's allegations that various letters from federal and local elected officials supporting the union's organizing campaign prevented a fair election.  More troubling, just days before the NLRB election, Congressman Robert Andrews (D-NJ), and a number of local politicians and clergy held a press conference to announce a card-check "certification" of the union's majority status. 

The UAW won the March 31, 2007, election by a 324-149 vote. 

In the recent decision, NLRB Chairman Schaumber and Member Liebman agreed with an administrative law judge's recommendation to certify the UAW as the dealers' exclusive representative.  They found that Trump Plaza "failed to meet its heavy burden of demonstrating that the alleged objectionable conduct reasonably tended to interfere with employees' free and uncoerced choice in the election."  In essence, the Board concluded that there was no evidence that the eligible employees paid any attention to, or even knew of, the Congressman's mock "certification," and thus, it cannot be said that his behavior interfered with the employees’ free and uncoerced choice.

In the run-up to the 2008 elections and organized labor's full-court press for the passage of the Employee Free Choice Act (EFCA), this Board decision must be viewed as troubling to employers.  It certainly suggests that misleading political grandstanding by elected officials, and the acquiescent media coverage thereof, may well be permitted to influence the outcome of representation elections.  Employers must ensure that their communications with their employees regarding representational issues are adjusted accordingly to help dispel misconceptions and to combat outright falsehoods.

Cross-posted at WorkplaceHorizions.com

Michael Kaufman, newly named chairman of the board of the National Restaurant Association (NRA) recently shared his goals for the coming year with Paul Barron, editor of Fast Casual magazine and chairman of the Fast Casual Executive Alliance, at the NRA’s 89th annual Restaurant, Hotel-Motel Show in Chicago.  Among the most pressing issues for the coming year identified by Kaufman: defeating "union card-check," which he believes "is not good for the industry at all."

Scott Martelle of the Los Angeles Times reports on one of the paper's blogs:

This should pay for a lot of phone banks and door-hangers. The AFL-CIO announced Friday that it would spend a record $53 million in the 2008 election cycle -- all of it for grassroots mobilization. And it plans to mobilize an army of 200,000 union volunteers for precinct-walking and other get out the vote efforts. Overall, it expects to spend $200 million on the campaign.

The labor group said it intends to target Ohio, Pennsylvania, Minnesota, Michigan and Wisconsin -- core regions of the country's traditional manufacturing base.

By Bryan O’Keefe

While it has faded from the limelight lately, labor unions have certainly not forgotten the importance of the Employee Free Choice Act for their larger agenda. As the Wall Street Journal reported yesterday, the AFL-CIO held a major labor summit this past week in Washington, bringing together over 200 labor leaders from 63 countries to “discuss ways to reverse the decline in union ranks.” Following an earlier pattern, the conference featured a heavy dose of attacking US labor laws and secret ballot elections as insufficient and claiming that EFCA is necessary to stem the tide. The story also mentioned that labor leaders would be returning back to Capitol Hill to lobby again for EFCA passage.

It is clear that, even though it is not on the front pages, EFCA still remains the top priority for organized labor. Just how much they will push the issue though in 2008 remains to be seen. All of the major Democratic presidential candidates have signed on to the legislation, which is certainly an accomplishment for labor’s lobbyists. And labor of course wants to keep the issue alive in case Democrats do control both the White House and Congress next fall.

But there is also the risk that making EFCA a big issue could actually backfire, especially if more people discover what the bill would actually do. Americans tend to like elections and secret ballots and most people do not appreciate being pressured into joining a union. From what we know about the legislation and how card checks operate, it seems that EFCA opponents could make a very plausible case against the bill on these grounds and paint it as nothing more than a special interest power grab. A decent argument can be made that independents and swing voters would appear to be particularly suspicious of a union inspired bill that would fundamentally change their workplace.

Winning elections usually involves a mixture of keeping your strongest supporters happy while at the same time appealing to Independents and swing voters. It will be interesting to see how EFCA impacts this delicate balancing act in 2008.

Bryan O’Keefe is a labor policy consultant in Washington, DC and a frequent contributor to Workplacehorizons.com and EFCAUpdates.com.

_{cross-posted at WorkplaceHorizons.com}

By Bryan O’Keefe

When the Service Employees International Union formally left the AFL-CIO two years ago and formed the Change to Win labor federation, one of the public points of contention was that the labor movement was too focused on politics in general, and electing Democratic politicians in particular.

For example, SEIU President Andy Stern, who was the driving force for the eventual split, wrote on his blog at the time that, “I also agree that the labor movement has been too much of an appendage of the Democratic Party.” He was also quoted as saying, “We can’t just elect Democratic politicians and try to take back the House and take back the Senate and think that’s going to change workers’ lives.”

At the time, Mr. Stern said that John Sweeney’s strategy as AFL-CIO head – which relied heavily on political contributions – was flawed and that in order to revitalize, labor must instead focus on grassroots organizing.

But in evaluating Change to Win two years later, it’s now clear that SEIU and the other Change to Win unions have changed very little when it comes to politics. A recent New York Times story entitled “A Union With Clout Stakes Its Claim on Politics” outlined the pivotal role that Mr. Stern and SEIU is playing in the current Democratic primary. The story notes that in 2008:

The union is expected to collect $40 million for its political action committee, which was the largest in the 2006 campaign. It plans to spend $30 million more in internal funds for getting out the vote and shining a spotlight on lawmakers who have helped thwart its agenda on national issues like expanding the State Child Health Insurance Program.

The story then talks about Mr. Stern personally, claiming that:

Mr. Stern spends much of his week on politics, engaging in strategy talks at the union’s Washington headquarters, discussing legislation in Congress, conversing with local leaders about what is happening around the country and giving pep talks to the rank and file about the importance of the campaign.

Why the change from labor being “too much of an appendage of the Democratic Party” to “spending much of his week on politics?” The most compelling answer is that labor believes that it can taste victory this year. Democrats are in a strong position headed into 2008 with the myriad of problems facing the GOP. Already, political spending in 2006 has paid off with a Democratic congress providing unions with many important pieces of legislation, which this blog has documented. The largest one is still the Employee Free Choice Act and the biggest obstacle there is the White House. But if labor can play a major role in helping elect a Democratic president, it will be almost impossible for that president not to support EFCA.

In the end, for all of the rhetoric about staying out of politics and forging a new way for labor, Stern and most other labor leaders are going to be fully committed to the ballot box in the upcoming year and view the political process as the easiest way to reverse labor’s fortunes. Change to Win’s supposed new direction of massive organizing has had few successes. They obviously now believe that their resources would be more wisely spent on winning political races and subsequently passing legislation. Employers would be wise to take note of this strategy.

Bryan O'Keefe is a labor policy analyst in Washington, D.C. He is a frequent contributor to EFCA Updates and WorkplaceHorizons.com.

by Bryan O'Keefe

Washington Post columnist E.J. Dionne has written an important piece on the state of the labor movement that most employers should read. Dionne essentially describes a puzzling paradox with labor unions today –their membership stands at what is an all-time low, but their political influence has possibly never been stronger.

This contradicts the conventional wisdom about “dying labor unions”, but, observing events from Washington, DC, I am inclined to agree with Dionne’s analysis.

Let’s look at the current presidential race. All of the major Democratic presidential candidates have signed onto the most important aspects of labor’s legislative agenda, including the Employee Free Choice Act. There is a real reason to think that if a Democrat does win the White House in 2008, EFCA will have somebody ready to sign the bill (if only it can pass the Senate).

This is remarkably different from the political environment through much of the 90s when Democrats last controlled the White House. It’s true that Bill Clinton befriended unions during his presidential campaigns, but, once in office, he largely ignored labor’s agenda. Critically, he passed free trade agreements, which still perturb union leaders 12 years later (and has even led some unions to publicly say that they will not support his wife’s bid for the Oval Office). Clinton also did not champion any major labor law revisions (at least on the scale of EFCA) and surrounded himself with “centrist” economists. By and large, labor unions were very disappointed with his administration.

But there is real reason to think that history will not repeat itself. Dionne correctly notes that EFCA had almost unanimous support from the Democratic caucus. Some of this can be attributed to political realignment over the past 30 years – southern Democrats that once opposed labor’s agenda are now simply southern Republicans opposing labor’s agenda. But anytime you can achieve the type of support that labor was able to garner for EFCA, it is a sign that your legislation has significant strength.

So, despite their sagging membership levels, unions still wield enormous and powerful political clout, more so now that at other times when Democrats were in charge.

Bryan O’Keefe is a labor policy analyst in Washington, DC.  

As we celebrate Labor Day 2007, the nation’s primary labor policymaking and enforcement agency faces a potentially crippling operational crisis. Responsible for conducting elections for union representation and with investigating and remedying unfair labor practices, the National Labor Relations Board ( NLRB ) is governed by a five-member Board appointed by the President with the advise and consent of the Senate. The five-year terms are staggered, and tradition holds that there are two Democrats, two Republicans and a Chairman selected from the President’s political party.

Two of the current members – Republican Peter C. Schaumber and Democrat Wilma B. Liebman – are serving terms that will expire in 2010 and 2011 respectively. The two other members – Democrat Dennis P. Walsh and Republican Peter N. Kirsonow – are serving recess appointments that will expire with the final adjournment of Congress in 2007. Chairman Robert J. Battista’s term expired December 16, 2007.

Members Kirsonow and Walsh have been appointed to serve out terms expiring in 2008 and 2009 respectively, but there is no indication that the Senate will act on those appointments prior to adjournment. And the White House has not made public its intentions regarding the Chairman’s seat. Although in the past package deals on confirmations have been made quietly and quickly, Senate Democrats may not be in a cooperative mood in the wake of the Republican filibuster and threatened veto of the Employee Free Choice Act. Additionally, labor leaders, who have been harshly critical of the Bush Board, would likely be thrilled to see its operational effectiveness come to an early end. Thus, for now at least, there is a very real possibility that the Board will have only two Members when the new year arrives.

Click to read more ...

We have obtained copies of the August 14, 2007 Petition for “Rulemaking Regarding Members-Only Minority-Union Collective Bargaining” and the supporting letter of the same date signed by twenty-five law professors. The 71-page Petition was authored by Professor Charles Morris on behalf of the Steelworkers Union. The Steelworkers Union’s Petition is joined by:

• the United Electrical, Radio and Machine Workers of America;
• the California Nurses Association;
• the International Association of Machinists and Aerospace Workers;
• the United Automobile, Aerospace and Agricultural Implement Workers of America;
•  the Communication Workers of America; and
• the International Brotherhood of Electrical Workers.

All seven of the union signatories are AFL-CIO unions, and, with the exception of the unions that represent government workers, they are the largest unions in that organization. Neither the AFL-CIO nor the unions representing government workers signed on to the petition. Additionally, the Change to Win organization and its member unions have been noticeably silent on the issue.

While the law professors’ letter is signed by a number of very impressive scholars, there are some notable absences. Two that came to mind immediately were Professor Patrick Hardin and Professor Theodore St. Antoine.

• August 14, 2007 Petition for “Rulemaking Regarding Members-Only Minority-Union Collective Bargaining
• August 14, 2007 Law Professors’ Letter in support of Petition for “Rulemaking Regarding Members-Only Minority-Union Collective Bargaining

By Bryan O'Keefe

The Boston Herald had an editorial earlier this week about a bill currently before the state legislature there that would mandate card checks for public employees. The editorial makes the same case for secret ballots that we saw earlier this year when similar legislation was before Congress.

But beyond the Massachusetts bill, there is a larger issue that employers should recognize about state-level card check initiatives. Often times, the private sector ignores these bills because they only pertain to public employees. Many private companies reason that because they will not be directly employing these people, the issue doesn’t matter to them.

In fact, nothing can be further from the truth. Just consider this: employers know that in order to do business effectively, they have to deal with a countless number of government employees at the local, state, and federal levels. Obtaining water and garbage permits, dealing with sensitive environmental issues, land and zoning issues – these types of matters can impact a company for years to come and often times career government employees play a fundamental role in deciding the outcome.

If these employees are unionized, that could have an impact on these types of important business decisions, especially if your company has had less than amicable relations with labor unions. To be sure, many government employees are professionals and are trying to do their jobs honestly. But they are almost human. They are forced to make judgments about these matters and the credibility of the messenger will ultimately matter. Given the "brotherhood" message that unions effectively communicate, chances are much more likely that fellow unions will have more credibility than employers in these types of disputes.

Take this hypothetical: The government employees in X town are unionized. JKL company is applying for new environmental permits for a factory expansion. In order to obtain the permits, JKL must go through the local environmental agency. All of the decision-makers there were unionized through a local card check bill. JKL has resisted card check at its own factories, leading to public protests by labor unions. If the labor unions make a fuss about these new environmental permits (and experience tells us that they will), who do you think the unionized government employees are going to be more likely to believe? The company or fellow union members?

All of this means that the private sector should keep a watchful eye on all card check legislation, as well as the rising number of unionized public sector employees more generally. It might not directly impact your business today, but it could matter in significant ways down the road.

Bryan O’Keefe is a labor policy analyst in Washington, DC.  

Participants in the August 2, 2007 webinar “After EFCA – What’s Next?” (Co-sponsored by the National Association of Manufacturers and the law firms of Kilpatrick Stockton LLP and Kreitzman, Mortensen & Borden) were not surprised by the report in yesterday’s New York Times that the Steelworkers Union and others have petitioned the National Labor Relations Board to use its rulemaking authority to mandate members-only minority-union collective bargaining . The webinar included a brief discussion of the efforts of Southern Methodist University Professor Emeritus Charles J. Morris to bring this issue to a head.

For those who missed the webinar, Professor Morris, one of the nation’s most highly-respected labor scholars, has been advocating minority union recognition for several years. In 2002, he presented a paper entitled “ Members-Only Collective Bargaining: A Back-to-Basics Approach to Union Organizing” at a conference co-hosted by the AFL-CIO and Michigan State University. His 2004 book, The Blue Eagle At Work: Reclaiming Democratic Rights In The American Workplace, further documented the detailed research that he believes supports his theory that Congress intended the National Labor Relations Act (NLRA) to protect the right of employees to engage in members-only collective bargaining even a majority of their co-workers did not share their desire to do so.

Section 7 of the NLRA provides: “ Employees shall have the right . . . to bargain collectively through representatives of their own choosing.” Professor Morris asserts that this language can be traced to pre NLRA sources, including the Norris-LaGuardia Act of 1932, and to the Depression-era National Industrial Recovery Act (NIRA) of 1933,. According to Professor Morris, minority unions were commonplace during this era and, he argues, the incorporation of this language into the 1935 NLRA reveals that Congress never intended to abolish the practice. He admits, as he must, that the practice quickly faded from usage and:

In due time, the interplay of employer self-interest and union acquiescence in relying on elections effectively repressed all institutional memory of and reliance on minority-union bargaining.

Professor Morris’s efforts to revive that “institutional memory” were given a boost when, in 2005, the Steelworkers Union formed what it called an “Employee Council” for workers at a Dick’s Sporting Goods Distribution Center in Smithton, Pennsylvania. The council charged members dues of $4 per month and promised to bargain on their behalf over regarding wages, benefits and working conditions at the facility. It also offered members:

• The ability to join a Council committee, receive specialized training and participate in Council decisions.
• Special, members-only rates on goods and services available only to union members and their families, through the "Union Plus" program.
• Confidential counseling on your rights in the workplace.
• Access to a on-line job skills development center, which offers 1,600 courses that can benefit our families and our daily lives.

When Dick’s refused to meet with representatives of the council to discuss health and safety concerns, a grievance procedure, and the discharge of one of its members, the Steelworkers Union, relying on Professor Morris’s research, filed an unfair labor practice charge with the National Labor Relations Board. On June 22, 2006, NLRB Associate General Counsel Barry J. Kearney advised the Regional Director to dismiss the charge on the grounds that minority bargaining is not required by the NLRA. Mr. Kearney’s Advice Memorandum carefully addressed and rejected each of the Professor’s arguments.

Dismissal of the charge deprived the union of an opportunity to present the Professor’s theory to the five-member National Labor Relations Board, which has historically announced policy through adjudicatory rulings rather than administrative rulemaking. Although the NLRA gives the Board the authority to issue rules in the absence of a case in controversy, the Board has seldom done so.

Word of the union’s plan to request NLRB rulemaking was leaked in March 2007 when Professor Richard Bales noted on his Workplace Prof Blog that Professor Morris and Professor Charles Craven of The George Washington University Law School were circulating a letter to the NLRB in support of the then-unfiled petition.

As the Times story notes, there is little chance that the current Board will grant the request for rulemaking. But if some in the labor movement have their way, a President from the Democratic Party would be expected to appoint Board Members who will promptly do so.

It is interesting to note that the labor movement as a whole is apparently not endorsing this effort. The Times mentions only the Steelworkers and the UAW and five other unnamed unions. This is hardly the type of full court press that we saw behind the Employee Free Choice Act. Whether the rest of the movement will sign on now that the petition has been filed is yet to be seen.

Finally, it should be observed that members-only bargaining is a concept that may find support among some conservatives. Business-oriented think tanks such as the National Institute of Labor Relations Research and the Mackinac Center for Public Policy have in the past argued that unions should be relieved of their legal obligation to represent non-members. While these arguments have not expressly mentioned mandatory bargaining with minority unions, the logic behind their arguments could well lead to that practice.

See also:

• Seven Unions Ask Labor Board to Order Employers to Bargain
• Minority Unions?
• Members-Only Collective Bargaining: A Back-to-Basics Approach to Union Organizing
• A "New Spring" in Labor and Employment Law?
• A Union's A Union No Matter How Small
• Morris, Craver Circulate Proposed NLRB Rule
• NLRB Advice Memorandum in Dick's Sporting Goods, 6-CA-34821
• Dick's Employee Council

After EFCA:  What's Next?

A WEBINAR FOR LABOR PROFESSIONALS
Sponsored by Kilpatrick Stockton LLP, National Association of Manufacturers, and Kreitzman Mortensen & Borden 

On June 26, 2007, the Senate voted 51-48 to defeat a "Motion to Invoke Cloture on the Motion to Proceed to Consider the Employee Free Choice Act." 

In the wake of this apparent defeat (for now) of EFCA, Kilpatrick Stockton LLP, Kreitzman Mortensen & Borden, and the National Association of Manufacturers will co-host a 90-minute webinar to discuss labor issues on the horizon.

THURSDAY, AUGUST 2, 2007

11:00 AM — 12:30 PM  EASTERN DAYLIGHT SAVINGS TIME

Click to read more ...

by Bryan O'Keefe

While EFCA has died down over the past couple of weeks, there was a little-noticed vote last week in the House that demonstrates again organized labor’s priorities.

The vote was over funding for the Office of Labor and Management Standards, an office within the Department of Labor.  I know this doesn’t exactly sound like the most exciting event on the calendar, but the vote was important because OLMS is the office at DOL in charge of union transparency, accountability, and fighting corruption.   

While for most of its existence OLMS was rather non-controversial, the Bush Administration has used the office to aggressively go after union malfeasance.  OLMS led the charge on developing the new LM-2 forms and posting them online.  They also have assisted law enforcement in important union corruption cases.

All of this is usually applauded when it comes to government agencies.  Aren’t enforcement agencies supposed to be exposing corruption, ensuring greater accountability, and improving transparency?  OLMS was particularly successful in these ventures, especially with the LM-2 forms.  Regular rank and file union members can log onto the OLMS website (www.unionreports.gov) and find more information about their unions than ever before.

But not everybody is happy about OLMS’s new role – in particular, labor leaders.  They have fought many of these new rules tooth and nail, even taking the department to federal court over the LM-2 forms (they lost).  So, now with their Democratic allies running Congress, they have decided to slash OLMS’s budget by about 20 percent for next year.   An amendment offered by Rep. John Kline (R-MN) that would have restored funding failed in the House.  

Unfortunately, the budget cuts seem to fit a pattern for organized labor of trying to keep people in the dark about what’s going on with unionization.  Remember back to EFCA --- a major provision in the arbitration provision would have eliminated a workers right to vote on contract terms.  And, of course, the most controversial piece of EFCA would have eliminated workers rights to secret ballots.

Now it seems that organized labor wants to eliminate a workers right to more information about how their union conducts its business and a clean union in general.  

With these types of policies, is it really a mystery why labor union membership in this country is so low?  

Bryan O’Keefe is a labor policy analyst in Washington, DC.  

Professor Gordon Lafer of the University of Oregon, who spent over ten years as a union organizer before entering academic life, follows up his drama-filled  performance during the House Subcommittee on Health, Employment, Labor and Pensions with a July 10, 2007, report on on the NLRB election process.  The Professor’s report was commissioned by American Rights at Work, one of many union-funded policy groups.  The report, bearing the not-so-academic title “Neither Free Nor Fair:  The Subversion of Democracy Under National Labor Relations Board Elections,” is 74 pages long including appendices and contains such undispassionate topic headings as:

• There is no such thing as a secret ballot under NLRB elections; and
  
• A Toothless Law: Absence of Penalties Encourages Lawbreaking

Professor Lafer concludes his pseudo-scholarly work with the following statement in support of the Employee Free Choice Act:

America’s employees are subject to a regime of bribes, bullying, threats, terminations, delays, enforced propaganda, and political gag orders that we would not accept for the citizens of any foreign nation. The fact that this is happening in our own country makes the need for democratic reform all the more urgent.

• Workers at the Avenue Nursing Home in Schenectady, New York voted July 13, 2007, in an NLRB secret ballot election to be represented by the Service Employees International Union;
  

• Employees of Florida Transportation Services, voted on July 5, 2007, in an NLRB secret ballot election for representation by the International Longshoremen's Association;

• An NLRB Administrative Law Judge on June 29, 2007, rejected efforts by Trump Plaza in Atlantic City to overturn a union election victory obtained in March 2007;
  

• On May 20, 2007, union members ratified a first contract agreed-to by  Sears covering a group of 200 appliance servicemen in Colorado; and
  

• On July 3, 2007, a federal judge in Minnesota granted an NLRB request for an injuction requiring the pre-trial reinstatement of 19 workers allegedly fired for union organizing.

On July 5, 2007, L.A.Times' senior editorial writer Michael McGough published a thoughtful column on the apparently defeated Employee Free Choice Act of 2007. While Mr. McGough echoed the Times’ earlier opposition to the bill, he can hardly be accused of being anti-union. In fact, his words appeared to suggest that he supports unionization:

Given a fair choice in a secret ballot — and one that is not conducted in the shadow of harassment by management — workers often will decide that affiliating with a union is in their interest. In general, unions in a workplace promote not only job security but safety as well.

Mr. McGough’s objections to the EFCA seem quite rational:

You don't have to be an apologist for employers to recognize that the so-called card-check system invites abuses. Of course employers shouldn't be able to punish workers for wanting to join a union. But neither should union organizers be able to pressure unwilling or hesitant co-workers to authorize a union.

As The Times editorial board has observed, the bedrock principle of federal labor law is not unionism at all costs, but the right of workers to choose whether they want to affiliate with a union.

He closes the column by suggesting a better solution:

Instead of railing against Republicans for blocking action on this flawed bill, Democrats should regroup and propose legislation that would focus on the real problem: inadequate penalties for employers who intimidate or harass workers who want to unionize. That would be a real Employee Free Choice Act.

Mr. McGough did not have to look far to find evidence that the National Labor Relations Act works pretty well in most instances.

On December 4, 2006, the International Brotherhood of Teamsters filed a petition with the National Labor Relations Board seeking the right to represent some 288 pressroom operators at the L.A. Times. Based on the statements made by labor’s supporters during the EFCA debate, one might assume that the company immediately began legal maneuvering to delay an election so that it could intimidate workers. That would not be an accurate assumption. In fact, the NLRB conducted a secret ballot election on January 4 and 5, 2007 – just 32 days after the request was made. While the Company campaigned for employees to vote against union representation, there does not appear to have been any mistreatment or discharge of union activists or any other type of misconduct of the sort complained of by union witnesses at the Congressional hearings on the Employee Free Choice Act. The company published a website with pretty typical information about collective bargaining expectations, dues, strikes, and the like. The website contains a video of the Publisher summarizing the company’s position. It’s hardly a heavy-handed piece. (View the video HERE.)  Of course, the union had a website too.

The employees apparently felt free enough to vote for union representation by a margin of 140-131. The margin may have been even smaller, but four ballots were challenged and not counted because they would not have affected the results.

In such close elections, it is not at all uncommon for the losing party to file objections claiming that some conduct of the other party interfered with the election. In this case, just a few tainted votes could have spoiled the entire election results. The company alleged that union agents made a some veiled threats and distortions and campaigned at the polling places. However, in contrast to the claims made by EFCA proponents that delays caused by such challenges are interminable and are ruled upon by an anti-union agency, the Regional Director of the NLRB’s Los Angeles Region issued a report on March 16, 2007 overruling the employer’s objections. As was its right to do, the employer filed exceptions to that report, and on June 11, 2007, the five-member Board in Washington, D.C. agreed that the election was a fair one and certified the union as the representative of the employees. While it is still possible that the company could challenge the Board’s ruling at the U.S. Court of Appeals, there are no reports that it plans to do so.

So, in what typical of NLRB representation proceeding, a secret ballot election was held within six weeks or less of the date of the union’s request. Both sides communicated with employees. Employees freely discussed the union issue with each other while at work and were permitted to wear hats, armbands, etc. to openly declare their positions if they so chose. Unlike what occurs in many card-check determinations, every single employee that would be affected by the decision knew that there was going to be a vote, knew when and where the vote was to be held, and was given an opportunity to either vote for or against union representation. Most importantly, they were allowed to do so in private, without some partisan looking over their shoulder. Questions about improper conduct were addressed quickly by the NLRB. the whole process was completed in about six months. And, as happens more often than not, because a majority of voters selected representation, the employees have their union.

Contrary to the inflammatory rhetoric and dubious statistics cited during the EFCA debate, the current system of selecting union representation still works pretty well. Yes, as Mr. McGough points out and as we’ve said before, there should be efforts to curtail the conduct of habitually lawbreaking employers (and unions). But that can be done without destroying a legal process that has functioned quite well for decades.

Like most other unions, the Communications Workers of America has voiced strong support for the Employee Free Choice Act.  From the CWA website:

To correct the injustices that have chilled the aspirations of millions of workers, CWA is urging the enactment of the Employee Free Choice Act. The Senate version of the bill is S. 842, introduced by Senator Ted Kennedy (D-MA). The identical companion in the House is H.R. 1696, sponsored by Congressman George Miller (D-CA). More than 40 Senators and in excess of 200 Representatives have cosponsored this landmark legislation.

The Employee Free Choice Act provides for the certification of a union as the bargaining representative if the National Labor Relations Board (NLRB) finds that a majority of employees in an appropriate bargaining unit have signed written forms designating the union as its collective bargaining agent. This method of union certification is known as card-check.

Card-check procedures have been legal throughout the life of the National Labor Relations Act. CWA has used card-check successfully to attain recognition as the bargaining agent of workers employed by Cingular Wireless. But under current law, management can undermine card-check by refusing to recognize a union even when 100 per cent of the workers have signed union authorization forms. Instead, management can demand an NLRB election that enables management to intimidate workers through an anti-worker campaign. Requiring union certification when a majority of workers have signed recognition cards would prevent this abuse.

But, Phil Wilson of Labor Relations Institute discovered that maybe even the CWA realizes that secret ballots are preferable.  According to an NLRB Petition, a group of CWA employees sought to form a union of their own to deal with the union regarding their own employment issues.  The  CWA Staff Union requested voluntary recognition on May 6, 2007, but that request was denied by the CWA on June 14.  Mr. Wilson noted in an earlier post that:  "Since 2000 unions forced their employees into secret ballot elections 126 different times."