Why workers can't win: the government is supposed to guarantee workers a fair shake. But it's fallen down on the job

Arvin Industries wasn't a perfect place to work. During the past few years management had been driving workers hard and watching them closely. Bathroom breaks were timed, that sort of thing.

And the heat. "The heat in there was terrible," remembers Ethel Robbins. A 15-year veteran of Arvin's North Vernon, Ind., auto-parts assembly line, Robbins recalls how workers fought for more ventilation in the windowless, un-air-conditioned plant.

But overall, a job at Arvin was a decent job, paying a decent wage, at one of the small community's (pop. 5,300) largest employers. Most workers made about $11.50 per hour plus benefits.

That was until 1989, when the company began new contract negotiations with the United Auto Workers (UAW), the union that represents Arvin's North Vernon employees. Its first and last offer required workers to take a $3-per-hour cut, start paying part of their health insurance, and give up an incentive program and cost-of-living raises.

Arvin spokesperson Bill Kendall says the firm wasn't hurting financially. Arvin, a profitable Fortune 500 company, asked for the givebacks because competitors are paying lower wages, he says. "The whole problem was we foresaw we would not be competitive."

Workers didn't buy it, voting 200-6 to strike. The walkout began April 13. The company barely blinked; 11 days later the plant was running with replacement workers. Several months went by, and dispirited strikers offered to take the concessions and resume work. But Arvin said the replacements would stay and offered only to put strikers on a recall list to fill vacancies. Strikers rejected the offer.

Two years later, the strike's still on. Ethel Robbins, whose husband died not long before the walkout, lost her home and filed for bankruptcy. Several others have done the same. One striker killed himself over troubles that friends say were related to the strike. A number of couples have gotten divorced.

"It's really worked on everybody real bad," says Robbins, who at age 59 isn't likely to land a factory job elsewhere. "I was on the verge of going over the edge."

Advocates of organized labor say the situation typifies what unions are up against today. Heightened global competition and other pressures have led employers to force concessions from workers and fight organizing drives feverishly. Companies are exporting thousands of jobs overseas. Unions, which give workers a say in their conditions of employment, are more than ever an unwelcome intrusion for firms demanding maximum flexibility and control over their work forces.

Employees are presumably protected by law from some of management's most aggressive actions, such as firing pro-union workers or threatening to close plants. But the statutory centerpiece of U.S. labor-management relations, the National Labor Relations Act, and the panel that administers it, the National Labor Relations Board (NLRB), haven't kept pace with these tough times, union adherents say.

The law, passed in 1935, was an attempt to make peace between angry workers and employers at a time of violent clashes. It declares that it is U.S. policy to promote commerce by "encouraging ... collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization and designation of representatives" to negotiate terms and conditions of employment.

But the act is weak, out-of-date and unenforced: "The decision to unionize has become a management decision, not a worker decision," as intended by the law, says Richard Freeman, an economics professor at Harvard University. Professional union busting, say some who have plied the trade, has become a billion-dollar industry. Employers who hire these "consultants" write it off as a cost of doing business.

While the law has remained essentially the same, the labor-management climate and the enforcers have changed radically. When President Ronald Reagan fired the federal air traffic controllers en masse in 1981, he rewrote the rules governing acceptable employer conduct. Previously companies had considered public opinion in deciding how far to push the weak labor law; now that was less of an obstacle. Reagan's appointments to the NLRB sent another signal, challenging a tradition of long-serving, usually non-ideological members. The board took on a distinctly anti-union aura and let cases sit for years without decisions.

Legal safeguards have been so eroded that "you no longer have a level playing field for labor and management," says Stuart Weisberg, staff director of the House Employment and Housing Subcommittee and a former NLRB attorney. This is one of the chief reasons, say labor representatives, for a 50-percent drop in the number of unionization elections run by the NLRB at workplaces since 1980--discouraged union organizers simply stopped going to the agency. Labor unions are struggling to survive. The share of workers who are union members has declined steadily--from nearly 30 percent in 1970 to just over 16 percent last year. Public employee unions are growing, but they can't make up for the losses in the private sector.

Workers' complaints about the law and the NLRB echo persistent themes: The act provides virtually endless opportunities for delay and appeal in the processes governing election and the prosecution of unfair labor practices, and employers have become adept at exploiting them; lawbreakers get off far too easily; and union access to workers in organizing campaigns is dwarfed by the anti-union barrage from employers.

These problems and others were addressed in a package of legislative proposals to overhaul federal labor law in the late 1970s--even before the political and economic climate worsened for unions. But it failed by a hair, and the momentum for reform evaporated. Through the next decade, the NLRB further diminished worker protections.

Management sees little need for change. "The opportunity for delay may be a problem in a limited number of cases," says Peter Nash, who was general counsel at the NLRB in the early 1970s and now represents several corporations on labor matters. "It's not a big problem." The NLRB, he says, "is probably the single most effective agency in the government." Cries for stiffer penalties are misplaced, Nash says. "If you want parties coming together and working out a relationship, you don't want people beating each other up with severe penalties."

Labor, naturally, disagrees. But a major revamping of the statute is beyond the reach of union interests. This year they have instead targeted the growing tendency of employers like Arvin to permanently replace striking workers by exploiting a loophole in the law that, in practice, guts workers' legal right to strike. Labor wants Congress to close the loophole--but prospects for even this narrowly focused proposal seem dim.

UNION LABEL

The National Labor Relations Act regulates two key aspects of labor-management relations: unfair labor practices and elections to determine if workers want union representation. The NLRB performs these functions mostly via 52 local offices under the agency's general counsel; only the most contentious cases get to the five-member, presidentially appointed board.

Here's how the pipeline works: A worker, union or company files charges of unfair labor practices with an NLRB regional office. An NLRB investigator checks it out; if the charges hold up the agency files a complaint and there's a hearing before an administrative law judge. The judge's decision can be appealed by the losing party to the five-member board in Washington. The board's decision can be appealed to the U.S. Court of Appeals, and that ruling can be taken to the Supreme Court.

As for union elections, typically the process begins with the union gathering employee signatures. If there's enough interest, the union files a petition with the NLRB asking for a vote. The agency schedules a vote within two months, and after the election either party can file objections with the regional office, whose decision is appealable to the board.

Both sides know the system and can take shortcuts to settle their differences. But if one party -- usually the employer, since most objections and charges are filed against companies -- wants to fight, it can drag the proceedings out long enough to make the result virtually irrelevant.

A major problem, as far as unions are concerned, is access to workers. Normally unions begin an organizing drive after they are contacted by a few workers who want representation. But the law doesn't allow union organizers inside, while management, on company time, can require workers to attend anti-union sessions -- known as "captive audience meetings."

At a Nissan automobile plant in Tennessee that the UAW tried to organize in 1989, company managers "installed TV monitors and put anti-union messages up there" says Richard Bensinger, head of the AFL-CIO's Organizing Institute. "We're forced to either go to people's homes or have meetings when people get off work. Constantly companies will schedule mandatory overtime when they know we have a meeting."

Organizers say that in the time between a petition filing and an election, employers harp on anti-union themes, ask supervisors to cajole workers one on one, threaten to move production abroad and may even dismiss vocal union supporters.

Some of these actions -- particularly the firings and some of the threats -- are illegal. But employers have come to realize that crime sometimes pays: A finding of guilt is likely to be years away and even then the penalties often are negligible.

PLEASE HOLD

With the law's endless opportunities for appeal, delay is inevitable. But over the past decade the NLRB has made it worse, mostly to management's benefit.

Delay is exploited by "a small minority of employers who use it to their advantage as a weapon" against workers, the House Government Operations Committee wrote in a 1984 report. "Lives have been ruined by the delay and human beings have been hurt."

Union organizers have countless war stories. Vincent Sirabella, organizing director for the Hotel Employees and Restaurant Employees union, has one that's ongoing after 16 years, a classic case of how the law and the board keep workers on permanent hold:

In 1974 John Ascuaga's Nugget, a casino in Sparks, Nev., withdrew recognition of the union's Local 86 after 13 years. It took until 1977 for the NLRB to rule that the Nugget had broken the law and order the casino to bargain with the union. The casino went to the Court of Appeals, which upheld the board, and to the Supreme Court, which declined in 1981 to hear the case. Sirabella approached casino management to begin negotiating.

But the Nugget still wasn't in the bargaining mood. It refused to consider using a seniority system and wanted no union input into wage discussions. Again, the union filed charges with the NLRB. In 1984 an agency judge ruled in favor of the hotel workers.

The casino appealed that finding to the board, where the case inexplicably disappeared for six years. In 1990 the NLRB finally ruled, again ordering the casino to bargain with the union. Again, the casino took the ruling to the Court of Appeals, where it now sits.

"It is impossible for us to organize in that kind of atmosphere," Sirabella says, with such "incredible" delays.

Consider the fight between Schwab Foods and the Retail Clerks Union in Indiana. In 1976 the NLRB ordered Schwab to bargain with the union. But Schwab's recalcitrance led to new charges, and in 1979 an agency judge ruled that Schwab had bargained in bad faith and illegally ordered pickets away from its grounds. The company appealed to the board, which took eight years to affirm the judge's decision. The Court of Appeals upheld the board in 1988.

One of the most common unfair labor practice charges involves workers who have been fired for union activity. Delay in these cases can be devastating; fired workers are out of a job and those who remain are intimidated. "Delay is not neutral in its impact," says congressional aide Weisberg.

In rural east Georgia, more than 120 workers at two drapery plants owned by S. Lichtenberg & Co. were fired or laid off in 1989 after they voted for representation by the Amalgamated Clothing and Textile Workers Union (ACTWU). This past April an NLRB judge told the company to rehire them with back pay. But the firm has appealed the decision to the board, and most of the workers -- the bulk of them black women making little more than the minimum wage -- still haven't been rehired. Other work is scarce. One woman told of driving 75 miles round trip for a part-time job paying $3.35 per hour.

Former pro football player Sam McCullum, an NFL Players Association representative for the Seattle Seahawks, was released by the team in 1982 after his union activities incensed management. The Players Association filed charges and an NLRB judge decided in McCullum's favor in 1983. The team's owners appealed to the board. Six years later the panel issued a decision saying McCullum should get back pay and a job "substantially equivalent" to his old one (as a wide receiver seven years earlier!).

Why the delay? In congressional hearings board members said one reason was a deputy chief counsel's "mental block."

At a House hearing last year, an official from Congress's General Accounting Office (GAO) testified that between 1984 and 1989 the board took more than two years, as a median, to decide 823 cases--or 17 percent of the cases that were appealed from regional offices. Some took longer than seven years.

NLRB officials say they have whittled down the backlog and have instituted a more rigorous system for tracking cases that reach the board level; only 16 pending cases have been at the board more than two years. NLRB spokespersons also point out that the majority of cases that are brought by the agency are handled quickly. Only 1,241 cases went all the way to the board in 1990 out of 3,870 total complaints the agency issued.

But Weisberg points out that this is still a significant number, and too many cases still take too long. And though delays have been curbed by the current board, the embarrassing results of the delays by previous boards continue to roll in by way of federal court decisions.

One example: In April a Court of Appeals nixed an NLRB request for an enforcement order against two food stores, citing the board's "sloth-like pace" in taking six years to rule on the case. When the court asked the NLRB attorney to explain the holdup, he voiced a familiar refrain: Yet again, it was "mental block.... I must confess it's inexcusable and unfortunate."

Recently the board voided its own decision in a case because of its own delay. The board had taken six years to order Camvac International, a plastics and chemical maker, to recognize and bargain with a Teamsters local in Brewster, N.Y. The company appealed. A federal court threw the case back to the agency, and the board withdrew the order in April 1991. Only three of the original 61 employees remained.

DON'T DO THAT AGAIN

The system seems designed to reward recalcitrance. Penalties for those who break the law -- even if they do it willfully and repeatedly -- practically don't exist. For many violations, a company's only penance is to post a notice promising not to commit certain offenses; there's no requirement to admit guilt. A company that illegally fires someone must simply rehire the worker and write a check for back pay.

"There's no deterrent on the employer for violating the act," says Weisberg. "After years of litigation, the court will tell you 'Don't do that again. Do what you should have done to begin with.'"

So after the Nugget illegally bucked the Hotel Workers for 16 years, it was ordered only to stop breaking the law and bargain with the union. Likewise Schwab Foods, 13 years after being ordered to bargain with the union, was ordered to bargain with the union.

The most poignant cases involve fired workers. Yes, if years later they win their cases they're offered their jobs back, with back pay. But even the back pay is reduced by the amount of money the worker has earned from other sources in the meantime.

"When you knowingly and willfully take away somebody's job in a democracy for expressing a political position," says the AFL-CIO's Bensinger, "there should be a severe, severe penalty."

In 1981 Sun World, a California vegetable packing house, wrongfully fired 58 employees, the NLRB came to find. The company fought the amount of back wages it was ordered to pay -- taking the fight to an agency judge, the board, the Court of Appeals and the Supreme Court. Nine years later, the workers finally received their checks. But one former worker couldn't be found and two had died; the money went to their heirs.

"You can't feed your family retroactively," says Weisberg.

LABOR PAINS

The NLRB was for many years considered a model agency. A 1976 task force of academics, management and labor representatives praised its "efficiency and fairness." But that was before hostile Reagan appointees to the board began creating chaos. Unlike previous boards, generally made up of long-serving, largely non-ideological appointees, the Reagan-era board was characterized by high turnover, slow case processing and re-examination of long-held doctrines through a conservative ideological prism. For several years, the panel was so riven internally that some members weren't speaking to one another. According to some who worked with him, Donald Dotson, chair from 1983 to 1987, sat in his darkened office figuring out ways to overturn old precedents and devising new policies more favorable to management. Case backlogs ballooned.

The current board could hardly be called pro-labor. Three of the five members once worked for management-side law firms (including one, Clifford Oviatt, who voted with employers 90 percent of the time through last December, according to the newsletter Personnel Practices) and one was GOP counsel to the Senate labor committee. Still, labor has found board rulings today to be more balanced than those of the past decade. One union-side lawyer terms the current panel "less anti-union" than panels under Reagan.

Yet ironically, just as board members are smoothing things out, turmoil has struck the general counsel's side of the agency, which handles everything from investigating complaints to taking cases through hearings before administrative law judges -- the areas that, even through the dark 1980s, were still considered relatively responsive.

The troubles are largely due to money, not politics. Federal budget cuts have forced the agency to curb its activity. In a February letter to Sen. Tom Harkin (D-Iowa), chair of the Senate Appropriations labor subcommittee, board officials said furloughs may be necessary before year's end. Virtually all training has ceased, hiring has been frozen and the case backlog is building.

Travel restrictions are severe. Investigators can't go more than 75 miles from their offices, so witnesses must spend their own time and money to go to board offices or settle for presenting their cases by phone.

The agency is operating with only three-fourths of the staff it had a decade ago. The austerity measures come when the NLRB is expecting a surge of petitions for election at private hospitals and other health care facilities due to a Supreme Court decision earlier this year. The Bush administration requested a slightly higher fiscal 1992 budget, but most of the hike will be soaked up by mandatory pay raises.

FIGHTING BACK

Since the labor relations law and the agency that's supposed to enforce it have become more obstacle than protection, unions have begun trying to work around it rather than through it. An increasingly popular strategy involves organizing workers independently of the NLRB, a tack widely used by the United Food and Commercial Workers (UFCW). When they begin to organize a facility, they move quickly to gather a strong majority of workers' signatures. Then they ask the employer to voluntarily recognize the union.

Last year only 10 percent of 100,000 workers organized by the UFCW were brought in through board elections, says UFCW spokesperson Al Zack.

This kind of organizing is most effective in settings that bring direct contact with the public, says Zack. Workers build pressure on employers by making customers or passersby aware of the struggle -- such as through leafletting. The Service Employees International Union's (SEIU) "Justice for Janitors" campaign uses similar methods; high turnover in the work force makes the time-consuming NLRB useless. By picketing targeted city buildings and appealing to the sympathies of building tenants, organizers turn up the heat on landlords and cleaning contractors.

Still, these creative measures can't make up the difference for labor. While the UFCW has managed to organize about 500,000 workers in the last five years, it has lost so many others that membership is up just 75,000. And organizing outside of the NLRB rarely is effective in industrial settings, where there is little direct opportunity to influence public opinion.

Virtually everyone in the labor movement agrees that a turnaround -- and fairer treatment for workers -- is impossible without fundamental changes in the National Labor Relations Act. Yet the last time Congress came close to revamping the act was 13 years ago. Proposed changes, backed by President Jimmy Carter, would have expanded the board to speed case processing; allowed union organizers access to workers on the job; increased the penalties for employers who fire workers because of union activity; and upped the ante for employers who refuse to bargain seriously.

But Senate Republicans, led by Orrin Hatch of Utah, filibustered the package to death. Reform supporters repeatedly fell just shy of the 60 votes needed to stop debate and schedule a vote. It seemed absurd to try again once Reagan took office; he would have vetoed the legislation and there weren't enough votes to override him.

STRIKING OUT

The same problem faces advocates of legislation designed to protect one of the most fundamental rights workers in the U.S. enjoy: the right to strike.

"All labor unions ultimately derive their leverage from their ability ... to collectively withhold their labor," wrote Richard Cordtz, secretary-treasurer of the SEIU, earlier this year. But there were half as many strikes in the 1980s as there were in the 1970s chiefly because of one thing, unions told the GAO in a recent survey: workers' fear of being permanently replaced.

The law gives workers the right to strike without being fired. But a 1938 Supreme Court decision gave employers a green light to hire permanent replacements -- not just the usual temporary "scabs" -- when a strike concerns economic issues like wages (not unfair labor practices). Until recently employers shunned the option, fearing negative public reaction. Reagan's dismissal of the striking air traffic controllers changed all that.

Union representatives say employers liberally use the threat of permanent striker replacements during organizing campaigns and contract negotiations and that they believe employers sometimes provoke strikes in order to hire replacements. The GAO says employers vowed to hire permanent replacements in about one-third of the strikes in 1989, and did so in about 16 percent. Strikers must hope the NLRB backs their charges of unfair labor practices against management, or they're out of a job.

Proving unfair labor practices against employers is difficult and time-consuming. One of the hardest charges to establish is that management has bargained in bad faith, or engaged in so-called "surface bargaining," because the criteria for that are so amorphous. That's what UAW members alleged at the Arvin plant in Indiana, but the NLRB dismissed the complaint.

The issue of permanent replacements has loomed large in some of the biggest strikes of the past few years, such as that of the Amalgamated Transit union against Greyhound Lines, which has hired about 2,500 permanent replacements since drivers walked out in March 1990. Greyhound strikers hope the NLRB will agree that their strike is over unfair labor practices, which could mean getting their jobs back -- if the financially shaky company doesn't go under first.

On Capital Hill several bills would ban the hiring of permanent replacements. The current House bill, introduced by Rep. William Clay (D-Mo.), has more than 200 cosponsors and is likely to pass. But passage of the Senate bill, introduced by Howard Metzenbaum (D-Ohio), is less of a sure thing. Garnering enough votes to override Bush's promised veto is probably out of the question.

The bills are strongly opposed by the business lobby. "A strike is a free decision by employees to declare economic warfare on the employer," and employers have the right to fight back, says Peter Nash, the former NLRB general counsel.

BELABORED

Capitol Hill hasn't been kind to workers lately, with last year's increase in the minimum wage one of the few recent victories. This spring Congress handed labor a major defeat by giving Bush the go-ahead to negotiate an unamendable free-trade agreement with Mexico, which many fear will send thousands of jobs south of the border.

Certainly the glory days of the labor movement seem well in the past. "When I was a kid and my father worked for Studebaker in South Bend," says Max Jeffrey, a UAW representative in Indiana, "if you crossed a picket line the kids wouldn't talk to you at school. People wouldn't talk to you in the neighborhood. You were worse than the devil himself, I guess."

In one view the legacy of the '80s is partly to blame, with its widespread reverence for maverick corporate kingpins -- together with its emphasis on the individual and diminished belief in collective action. Labor's image suffered in the public eye because of problems unions brought on themselves through the years, including some instances of corruption and featherbedding. It didn't help that labor law didn't seem to be functioning. As a consequence of all these factors, workers' faith in organized labor waned.

In hopes of reviving the labor spirit, the AFL-CIO is planning a massive rally in Washington this Labor Day weekend -- the tenth anniversary of a rally held after Reagan fired the air traffic controllers. But advocates assert that more must happen to prevent employers from systematically ridding themselves of unions faster than organizers can sign workers up. "Employers are simply taking advantage of a law that lets them get away with it," says Bensinger. "It's too great a temptation to break the law if that's what you need to do to break the union, because there's very little down side to it."

COPYRIGHT 1991 Common Cause Magazine
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