Features » February 8, 2006
Paradigm Shift
Labor has found success by eschewing NLRB elections in favor of employer neutrality and card checks
By David Moberg
Mirna Blanco, an immigrant Salvadoran janitor in Houston, and Kelvin Banks, an African-American cellular telephone customer service representative in Jackson, Miss., don’t know each other and couldn’t even communicate easily if they met. But they do have something in common. Both were active in recent, large-scale union organizing campaigns that succeeded in the South, a region long resistant to unionization. And both their campaigns ultimately relied on related, if slightly different, strategies to keep employers from intimidating workers while organizers signed up a majority and won union recognition.
Their victories bring a sign of hope that despite continued decline, the labor movement may yet be able to grow again, if unions will put in the effort. In recent years, roughly four-fifths of new union members have won recognition by circumventing the process of elections run by the National Labor Relations Board (NLRB). When unions persuade employers to remain neutral and agree simply to check union cards for majority support (a process known as “card check”), unions typically win recognition about four-fifths of the time. In contrast, through NLRB-run elections, unions gain certification only about three-fifths of the time.
But experience in both the United States and Canada suggests that the disparity between these two organizing models is even greater. Using a strategy of employer neutrality and card checks, rather than combative elections, unions do twice as well in organizing campaigns involving more than 500 workers, precisely the large-scale efforts needed for a labor turnaround. They are also more likely to increase their organizing efforts: In British Columbia, unions undertook twice as many organizing drives when card checks were employed as they did when recognition elections were required.
Changing the terrain of union organizing is emerging as one of the nation’s key political battles. AFL-CIO organizing director Stewart Acuff argues that progressives in particular need to make worker organizing rights one of their top priorities. “People on the left have to recognize that any dream of a more just society is an illusion without a vibrant labor movement and workers’ right to organize,” Acuff says.
In December, in conjunction with International Human Rights Day, tens of thousands of union members around the world rallied for stronger protection of the right to organize. In the United States, unions focused on the Employee Free Choice Act. The act, sponsored by 208 members of Congress, requires employers to accept card check verification of union support, encourages employers to negotiate an initial contract with workers and penalizes more severely employers that engage in unfair anti-union practices.
A new study by researchers at the University of Illinois at Chicago concludes that in NLRB election campaigns such legal and illegal anti-union tactics are “both pervasive and effective.” Even in heavily unionized Chicago, the study found that when workers tried to organize, 30 percent of employers fired workers engaged in organizing, 49 percent threatened to close or relocate the business and 82 percent employed anti-union consultants. Despite majority support in nearly all cases, unions won only 31 percent of the campaigns. In nearly one-third of the campaigns, unions withdrew even before an election was held. Political scientist Gordon Lafer argues that except for the use of ballots, these elections meet none of the standards for fair elections in a political democracy.
Despite the 208 sponsors, the Employee Free Choice Act is going nowhere in the current Republican congress, but unions are using it to put the issue in the center of political debate. And despite court rulings overturning state and local legislation that favors worker-friendly firms for public projects or prevents public money from funding anti-union campaigns, the AFL-CIO is planning this year to widely introduce legislation in the states that prohibits employers from subjecting employees to their religious or political views.
Putting direct action to work
But beyond pushing legislation, unions are changing the model for winning recognition, Ohio State University law professor James Brudney argues, by using direct action to gain employer neutrality and card check rights. In Houston, the Service Employees International Union (SEIU) began organizing community and religious support for workers’ rights two years ago. The union then used that network to reach the underpaid, mainly Latino immigrant janitors who cleaned Houston’s office buildings. Janitors from the Chicago SEIU local also came to Houston to help on the organizing campaign, which was publicly launched last April. In July, janitors at Mirna Blanco’s building went on strike and then set up picket lines at buildings cleaned by their employer in cities like Chicago, Washington and Sacramento, where the local union janitors refused to cross picket lines. “I liked it,” says Blanco, a 40-year old mother of three. “I felt we were doing something for others, for our co-workers.”
In janitor campaigns, the immediate employers are cleaning contractors, which can be either national or local firms, but the real power rests with the building owners and managers, which are also often part of national firms. SEIU typically pressures building owners to accept unionization. This assures contractors that the owners will not replace them if their workers unionize. By organizing the entire labor market, SEIU also assures contractors that other firms won’t undercut them by reducing wages and benefits. Because building owners in other cities recognized that they can live with unionized contractors and pass through the costs, they were more willing to succumb to the union’s threat to turn the Houston fight into a national campaign. By the end of the year, much earlier than organizers expected, election auditors had verified that 5,300 of the 7,000 janitors in Houston had signed union membership cards.
Traditionally, unions face a brutal fight to win an election, then another fight to win a contract. The union ends up with an embittered relationship with the employer, says SEIU Executive Vice President Eliseo Medina. “So from our point of view, if you’re going to have that struggle, it’s better to have it up front over whether to have a union,” he says. Ultimately, he says, organizing by winning neutrality first can create a more productive bargaining relationship.
In Jackson, at the customer service office of AT&T Wireless, Kelvin Banks was discouraged from forming a union by the anti-union hostility of the managers. But when Cingular Wireless bought the company two years ago, Banks knew that the company had a history of neutrality and immediately began organizing, making his co-workers the first of about 16,000 new Cingular workers organized by the Communications Workers of America (CWA) last year, many of them in the South and Southwest. “People offer all kinds of theories,” says CWA organizing director Ed Sabol, “that young people, white-collar people, professional people, new economy workers aren’t interested in unions.” Yet those same workers at Cingular readily joined the union.
CWA’s Cingular success, in a growing field at the heart of the union’s core telecommunications jurisdiction, is a result—like the Houston SEIU victory—of unionized workers using their clout to make it possible for new workers to organize. Starting in 1992, CWA negotiated with Southwestern Bell—the predecessor of SBC, the parent of Cingular—an agreement for the company to be neutral as the union organized subsidiaries. But the cellular company continued to resist unionization for most of the decade, as CWA fought both to organize and to strengthen the neutrality agreement. With neutrality secured, it was easier to use CWA members, not just trained organizers, to organize large numbers more quickly. “With card check and neutrality you can involve a lot more people who are rooted in the communities,” says Danny Fetonte, a CWA organizing director in Texas. “You’re not going to war constantly.”
Without laws that adequately protect workers’ rights, unions win neutrality and card check any way they can—bargaining, striking, and mobilizing pressure from customers, investors, regulators, and political, religious and community leaders. European unions often pressure European-based multinationals to reject the anti-union tactics common in the United States. This fall, SEIU, with unions in several countries and Union Network International, a global union federation, launched a global campaign to organize security guards employed by the three dominant firms in the industry. Swedish-based Securitas has pledged neutrality, but British-based Group 4 Securicor is fighting unionization at its U.S. Wackenhut division.
The Bush-led backlash
The unions’ successes have created a backlash. Despite a long history of the courts and NLRB accepting card check procedures, the Bush NLRB decided two years ago to review whether card check results could be more easily challenged. Congressional Republicans have backed legislation—with only 77 sponsors—that would require secret ballot elections for recognition. The legal arms of the National Right to Work Committee and the Chamber of Commerce have initiated lawsuits to stop neutrality agreements, and those organizations are increasingly challenging the use of corporate campaigns by unions to pressure companies. As a result, many unions are keeping quiet about their neutrality and card check successes.
AFL-CIO’s Acuff argues that aggressive tactics to win neutrality are legitimate given the “all-out war at the workplace” waged by employers, and the frequent links between “illegal and unethical behavior in the workplace” and other corporate behavior, from shady financial recordkeeping to bad environmental practices. And his counterpart with the Change to Win Federation, SEIU Executive Vice President Tom Woodruff, calls anti-card check legislation “ridiculous.” “Most people join organizations by filling out applications, everything from church to civic associations and baseball leagues,” Woodruff says. “It’s really just to prevent workers from being in unions.”
Despite the attacks, victories such as those with Cingular workers and Houston janitors are encouraging more organizing throughout the South and Southwest, and more ambitious pursuit of neutrality and card check agreements. SEIU hopes to replicate its Houston success elsewhere in the South, and is using recent victories to pursue public-sector organizing in Houston. CWA will be escalating fights at Comcast and Verizon Wireless, where employer opposition has been strong, even when there have been neutrality agreements. It is also organizing municipal workers in Jackson.
Other unions are also pursuing similar large-scale organizing strategies that attempt to win neutrality. Those include continuation of a successful UAW campaign that targets parts and vehicle makers in the South, including foreign-owned firms; a new international campaign by the United Mine Workers of America and the Australian miners union against Peabody Energy; and multi-union building trades organizing in Phoenix. In one of the most ambitious efforts, UNITE HERE will be using this year’s carefully created line-up of contract expirations to try to negotiate neutrality and card check agreements with some of the nation’s biggest hotel operators.
These campaigns for neutrality sometimes involve potentially problematic cooperation with corportate demands, such as agreeing to contractual terms that are weaker than in other parts of an industry as a condition of neutrality. But working from its present position of limited strongholds and impotence throughout most of the U.S. economy, the labor movement’s best hope for revival requires restraining employer interference in organizing by direct action and, eventually, by legislation.
It’s not just labor’s fight, but a crucial part of the broad crusade for human rights and democracy.
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Appeared in the February 2006 Issue
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