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How the NLRB system is rigged against labor

March 30, 2007 | Page 11

DARRIN HOOP explains why the playing field isn't level for union organizing.

ON MARCH 1, the U.S. House of Representatives, by a 241 to 185 vote, passed the Employee Free Choice Act (EFCA). According to the AFL-CIO, it is "the most important labor law reform legislation in 70 years."

The legislation's main function would be to implement "card-check" union recognition. Under its provisions, in any workplace where a majority of workers sign cards indicating they want to join a union, the National Labor Relations Board (NLRB) would automatically certify the union as the collective bargaining agent for those workers. This would replace the current business-dominated NLRB union election process.

The bill would speed up negotiation of a first union contract by implementing a mediation and arbitration process for unsettled negotiations. It would also impose stronger penalties for violations, such as fines of up to $20,000 against businesses and tripling the back pay of a worker who is discriminated against or fired for union organizing.

Unfortunately, the legislation's supporters don't have the 60 votes in the Senate that would be needed to stop a Republican filibuster. And George Bush, the king of stolen elections, has become a staunch defender of NLRB elections, promising to veto the Employee Free Choice Act if it ever reaches his desk.

Under current law, when 30 percent of workers at a workplace sign cards, the NLRB will call a secret-ballot election, in which the majority rules.

Why is Bush in favor of "democratic union elections" while the labor movement is calling for an end to a process that was established in 1935 when President Franklin Roosevelt signed into law the National Labor Relations Act (NLRA), which--on paper--gave workers the right to form unions and made it illegal for employers to refuse to bargain with them?

The reason is that U.S. labor laws in general--and the NLRB election process in particular--are extremely undemocratic, biased in favor of business and anti-worker to the core. And the statistics prove it.

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ACCORDING TO Stanford law professor William Gould, a former head of the NLRB, it takes an average of 802 days--more than two years--for the NLRB to resolve a disputed election. The NLRB's 2005 annual report pointed out that 31,358 workers received back pay in 2005 because of illegal employer discrimination for activities protected under the NLRA.

The University of Illinois at Chicago's Center for Urban Economic Development released a study in December 2005 that found: 30 percent of employers fire pro-union workers during union organizing drives; 49 percent of employers threaten to close a work site when workers try to unionize; 82 percent of employers hire union-busting consultants to fight organizing drives; and 91 percent of employers force employees to attend anti-union one-on-one meetings with supervisors.

Cornell University scholar Kate Bronfenbrenner reported in a 2000 study that 52 percent of employers threaten to call immigration authorities during organizing drives that include undocumented workers.

If--despite the threats, intimidation and harassment--workers still vote to have a union in an NLRB election, there's no guarantee they'll get a first contract. In 2004, the Federal Mediation and Conciliation Service, which is responsible for mediating labor disputes for the NLRB, reported that 45 percent of employers never agree to a contract after workers form a union under the NLRB process.

As the statistics show, the NLRB election process has been used by management to delay union representation while workers are subjected to intimidation.

One of the worst examples is the 12-year campaign by the United Food and Commercial Workers union to organize the Smithfield Pork Processing Plant in Tar Heel, N.C.

In an op-ed article in the Atlanta Journal-Constitution, Georgia AFL-CIO Secretary-Treasurer Charlie Key wrote: "In May 2006, the U.S. Court of Appeals, D.C. Circuit, upheld a 2004 NLRB decision that found Smithfield responsible for numerous egregious violations of federal labor law during union elections in 1994 and 1997, including: firing union supporters, threatening to close the plant, spying on workers who supported the union, threatening job loss and cuts in wages and benefits if the workers chose a union, harassing and intimidating union supporters, and conspiring with the local sheriff's department to physically intimidate and assault union supporters."

Meanwhile, the dangerous conditions Smithfield workers have to endure without a union continue.

A 2005 Human Rights Watch report documents one deadly example: On November 20, 2003, 25-year-old Glen Birdsong was killed after climbing down into a holding tank he was cleaning and being overcome by chemical fumes.

On April 19, 2004, the North Carolina Division of Occupational Safety and Health fined Smithfield for the "violation." Birdsong's life was "worth" a $4,323 fine. It was reduced after applying a 25 percent discount for the company's "basic" health and safety program and a 10 percent discount for "minimal employer disruption" of the state's inspection of the site of Birdsong's death.

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THESE EXAMPLES are only some of the ways that U.S. labor law favors employers and doesn't protect workers' rights.

Only 12 years after the NLRA was passed, Congress amended it with the Taft-Hartley Act in 1947. This, in part, outlawed wildcat strikes, solidarity strikes known as secondary boycotts and mass picketing. It also required all union officials to sign affidavits stating they weren't members of the Communist Party.

A more recent example is the NLRB under Bush taking away the right to form unions from graduate research assistants, disabled workers in vocational programs and workers hired through temporary agencies.

Last fall, in the Kentucky River case, the NLRB ruled that charge nurses were supervisors and therefore aren't covered under the NLRA. This ruling could result in millions of workers labeled as "supervisors" being barred from joining or remaining in unions.

According to a General Accounting Office report, 25 percent of the civilian workforce--32 million workers--is currently without any legal protection to form unions. These include farmworkers, domestic workers and independent contractors.

For 60 years, the official labor movement has failed to mount a successful challenge to these attacks. As a result, the overall unionization rate in the U.S. is around 12 percent, down from a high of 35 percent in the 1950s.

Labor's reliance on the Democratic Party and labor-management partnership has opened the door to this new round of attacks. To move labor forward today, we must learn from the radical history of the U.S. labor movement.

Many people today think of Franklin Roosevelt as a friend of labor because his "New Deal" opened the door for the mass organizing drives of labor's heyday during the 1930s. However, as Roosevelt's Labor Secretary Frances Perkins wrote in her book The Roosevelt I Knew, "The New Deal was not a plan with form or content. It was a happy phrase he had coined during the campaign, and its value was psychological. It made people feel better."

A look at strike figures for the periods 1923 to 1932 and 1936 to 1955 help show how the increased level of militancy, not Roosevelt, led to the enormous growth in union membership over that period. According to the U.S. Bureau of Labor Statistics, between 1923 and 1932, there were 9,658 strikes involving just over 3.9 million strikers. Between 1936 and 1955, there were 78,798 strikes involving 42,366,000 strikers.

In 2008, many people will vote for whatever Democratic candidate gets the presidential nomination in the hope that he or she will be better than eight years of Bush. But history shows that a resurgence of class struggle like the 1930s, which pushed Roosevelt to make the changes he did, will be necessary to turn around the labor movement.

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