Bill Knight column for Thursday, Friday or Saturday, August 11, 12 or 13
Last month, the NLRB ruled that part-time or contingent workers can unionize, reversing a standard set under George W. Bush’s NLRB 12 years ago. It means that workers who want to unionize can include colleagues who are contract or other indirect workers who share a “community of interest” with regular employees – without employers’ permission. The old standard let companies deny permission (and use contingent workers or subcontractors as barriers to workers organizing).
That decision followed the NLRB’s ruling in “American Baptist Homes,” re-establishing a test for whether companies using “permanent replacement” in strikes are actually motivated by desires to bust unions. That may halt the trend started when President Reagan hired scabs to replace striking air traffic controllers in 1981.
And in December 2014, the NLRB adopted a rule amending procedures to streamline the process for resolving representation disputes.
“Simplifying and streamlining the process will result in improvements for all parties,” commented Board Chairman Mark Gaston Pearce.
The moves started to restore the NLRB’s role – to enforce the National Labor Relations Act, which makes collective bargaining the country’s statutory policy.
The NLRB might do more. For example, for years it’s been open to organized labor pushing for equal access for unions if companies force workers to attend meetings opposing unions. More than 100 scholars have petitioned the NLRB to establish that rule, but the Board usually acts on procedural, not philosophical, disputes (like an Unfair Labor Practice complaint or a representation petition). So it may take a case about a representation loss involving mandatory meetings for the NLRB to consider the question.
Further, the Board could reverse Right To Work laws since such state laws have had few federal challenges (and only recent state challenges). A key argument is that Congress’ intent in the Taft-Hartley Act (enacting RTW) was to ban union membership as a condition of employment, not whether unions could negotiate mandatory fees for services.
“Recent NLRB actions prove that the time is ripe to challenge the rules of the system that keep unions shackled,” commented former Teachers organizing director Shaun Richman. “I’ve spent most of my career complaining about how slow and ineffective the NLRB is. That bias should not blind us to the opportunity of the moment.”
That opportunity could overcome decades-old barriers to progress. Labor’s been hobbled by a “that’s the way we’ve had to do it” attitude – not a surrender but an acceptance of feared consequences with GOP-dominated NLRBs and labor relations threatened by permanent replacements.
“We assume that sometime in the past, someone smarter than us considered all the possible options and settled on what we are currently doing as the best possible choice,” Richman said. “What if that isn’t what it is?”
Indeed, in three recent labor disputes, unionized workers decided to defy conventional wisdom and take action.
First, last year, 40,000 Chrysler workers rejected a two-tier contract by a 2-1 vote. Despite management’s promise to bring newer, lower-paid workers up to everyone else, United Auto Workers negotiators tentatively agreed to Chrysler continuing its two-tier system (where 45 percent of workers earned lower pay). The rank and file forced Chrysler to keep bargaining and gave union negotiators collective strength to keep at it – and a plan to return all Tier-2 workers to standard wages was achieved.
In May, retired Teamsters saw the results of organizing when the Treasury Department rejected the Central States Pension Fund’s plan to slash retirees’ benefits, so thousands of people were given time to seek better solutions.
Finally, 39,000 Verizon workers in June ended a walkout forcing the employer to retreat from outsourcing call-center jobs, requiring transfers to other states, and an atmosphere of harassment. The company also improved wages and pensions.
“The three cases share one common characteristic,” wrote Jane Slaughter in Labor Notes, “ – grassroots action by tens of thousands of rank-and-file members – getting in someone’s face, in numbers.”
The victories weren’t complete. The Chrysler contract includes ways temporary workers can be exploited; Teamsters’ pension fund’s shortfalls need a bailout and legal reform (not easy with this Congress); and Verizon workers accepted concessions in health care. Still, UAW, IBT and CWA workers should be proud.
“Challenging bad labor law involves breaking the law [and] the NLRB is the sheriff tasked with taking them to court,” Richman said. “Is it crazy to think that this NLRB might treat bad labor law the way that Obama’s Justice Department treated the Defense of Marriage Act? In the court because they have to be, but conceding that the law is unjust?”
[PICTURED: Graphic from ctdevilsadvocate.com.]