Supporters urging passage of the Employee Free Choice Act took to the streets on Monday, August 10 to back warehouse workers at Rite Aid’s massive distribution center in Lancaster, California. They released a new Jobs with Justice report about how management there has aggressively interfered in workers’ freedom to form a union.
The 12-page report: “Rite Aid, Oliver J. Bell & Associates, and the Case for the Employee Free Choice Act” documents how management employed union busters and violated labor laws. Last year, the National Labor Relations Board was prepared to charge Rite Aid with 49 unfair labor practice charges before the cases were settled out of court.
“Union avoidance consultants, such as those engaged by Rite Aid, have contributed significantly to the subversion of the National Labor Relations Act,” said John Logan from the Institute for Research on Labor & Employment at the University of California at Berkeley whose research has focused on workers’ rights. “Using every weapon at their disposal, they encourage employers to fight to the death efforts by employees to form unions.”
The actions were led by local Jobs with Justice coalitions in Boston, Bangor, Cleveland, Indianapolis, Montpelier, Portland, OR and Richmond, VA. AFL-CIO organizer Rand Wilson and two community activists infiltrated a major pharmaceutical industry conference at the Boston Convention Center where a Rite Aid manager was speaking. As soon as he was done, they stood up and blasted Rite Aid’s union busting while distributing copies of the report to the pharmacy convention delegates. The report was also released in six other cities. At some locations, other Rite Aid workers’ unions — 1199 SEIU, UFCW and the Teamsters — joined the support actions.
Despite the company’s attacks, a majority the of the workers voted to join the International Longshore and Warehouse Union, Local 26 in March 2008. But more than a year later, Rite Aid management is still refusing to negotiate a first contract that would improve wages and working conditions for employees.
“Rite Aid’s intense and longstanding interference in the workers efforts to form a union — in which professional union busters have played a major role — and its failure to bargain in good faith with employees are seen as prime examples of why efforts to pass the Employee Free Choice Act are so important,” said Veronica Turner, Vice President for Health Systems at 1199 SEIU in Boston.
“If Employee Free Choice were the law of the land, the workers at the Rite Aid distribution center would have settled their contract by now. Access to mediation and arbitration on first contracts would prevent companies like Rite Aid from dragging their feet in negotiations to frustrate workers and defeat efforts to improve working conditions,” said Mark Govoni, Vice President of UFCW Local 1445 in Boston.
After the press conference, activists announced they would leaflet five Rite Aid stores in the Boston metropolitan area to inform customers about the company’s aggressive interference in workers’ rights and the need for passage of the Employee Free Choice Act to help prevent union busting.
About the Author Rand Wilson: was a Teamster communications staffer who helped coordinate the 1996-97 contract campaign and strike at UPS. He can be reached at rand@mindspring.com.
This article originally appeared on Working Life on August 11, 2009 and is reprinted here with permission from the source.
People want to join unions because it enables them to negotiate for better wages, better working conditions, and, ultimately, a better standard of living.
As I’ve argued in the past, the U.S. needs to reform the arduous course of forming unions in order to rebuild the American middle class. But we also need to focus on the process of negotiating itself. Recent research by Dr. Kate Bronfenbrenner at Cornell University finds that employers frequently continue the campaign of delays and intimidation that lead up to union elections during the negotiation of the union’s first contract. As a result of employers’ often illegal refusal to bargain in good faith, more than half of workplaces still lack a collective bargaining agreement a full year after a union is elected. In 37% of workplaces, there is still no contract two years after the union election. For one in four workplaces, there is still no contract more than three years out. If unions are effectively blocked from achieving anything on their members’ behalf, there is little point in forming a union in the first place.
This discouraging record of contract negotiation explains why the Employee Free Choice Act not only makes it easier to organize a union, but includes measures to ensure that employees and management agree on a first contract swiftly. Under EFCA, if negotiations on a first contract drag on for 90 days without being resolved, either the union or management can refer their dispute to a federal mediator. If the mediator is unable to reach a deal within an additional 30 days, the dispute will go to binding arbitration with the arbitration agreement binding for two years.
While the Drum Major Institute has been strongly critical of binding arbitration in cases where individual employees or consumers face larger and better equipped corporate opponents on what amounts to an uneven playing field, the process is more likely to produce a fair result when unions and companies meet each other as equals over the bargaining table. Indeed, a recent Economic Policy Institute summary of how first contract arbitration works in Canada observed that “with the guarantee of a contract at the end of the process, both sides would focus on actually negotiating instead of stalling or filing unfair labor practices charges.”
When both working people and their employers genuinely aim to come to an agreement about workplace issues, collective bargaining can be a democratic and rational process. Reforming the rules to make mediation and arbitration an option for first contracts will help to ensure that good faith negotiations carry the day.
Amy Traub:Amy Traub is the Director of Research at the Drum Major Institute. A native of the Cleveland area, Amy is a Phi Beta Kappa graduate of the University of Chicago. She received a graduate fellowship to study political science at Columbia University, where she earned her Masters degree in 2001 and completed coursework towards a Ph.D. Her studies focused on comparative political economy, political theory, and social movements. Funded by a field research grant from the Tinker Foundation, Amy conducted original research in Mexico City, exploring the development of the Mexican student movement. Before coming to the Drum Major Institute, Amy headed the research department of a major New York City labor union, where her efforts contributed to the resolution of strikes and successful union organizing campaigns by hundreds of working New Yorkers. She has also been active on the local political scene working with progressive elected officials. Amy resides in Manhattan Valley with her husband.
This article originally appeared on DMI Blog and is reprinted here with permission from the author.
Members of Congress soon will cast votes that show us where they stand on the Employee Free Choice Act. As key senators engage in negotiations over the bill, supporters of workers’ freedom to form unions aren’t backing down on three key principles:
* Workers need to have a real choice to form a union and bargain for a better life, free from intimidation.
* We have to stop the endless delays and make sure workers can get a fair first contract.
* There have to be real penalties for violating the law.
Over the past few months, opponents of the Employee Free Choice Act have more than once declared the bill dead, but in fact we’re still working hard to to ensure labor law reform happens this year. We’ve come along way from where we were several years ago.
Here’s a timeline from 2003, when the AFL-CIO Executive Council offered a resolution in support of labor law reform, to yesterday’s seating of Sen. Al Franken, whose first move was to co-sponsor the Employee Free Choice Act.
…legal reform that protects the free and fair choice of employees to form a union without interference from management and enables more workers to enjoy the benefits of collective bargaining.
Nov. 21, 2003: Rep. George Miller introduces H.R. 3169, the Employee Free Choice Act, in the House. Sen. Edward Kennedy introduces the same bill as S. 1925 in the Senate. Both were denied a committee vote by the Republican majority.
Dec. 10, 2003: Tens of thousands of union members, elected officials, religious leaders and community activists across the nation took part in more than 90 events in 72 cities, united by one message: Workers’ rights are human rights. The nationwide mobilization is the first in a series of annual actions in support of the Employee Free Choice Act held on Dec. 10, International Human Rights Day, the anniversary of the ratification of the Universal Declaration of Human Rights in 1948.
April 19, 2005: Miller introduces the Employee Free Choice Act as H.R. 1696 in the House and Kennedy introduces it as S. 842 in the Senate. Again, both bills are blocked by the Republican majority and don’t receive a committee vote.
Dec. 10, 2005: Thousands of union members rally across the country in support of the workers’ freedom to form unions and bargain to commemorate International Human Rights Day.
Nov. 7, 2006: In the 2006 congressional elections, the union movement makes big strides in electing pro-working family, pro-Employee Free Choice Act candidates, with new pro-worker majorities in both the House and Senate.
Dec. 8-9, 2006: The fight for the Employee Free Choice Act takes center stage at the AFL-CIO Organizing Summit.
Feb 5, 2007: Miller introduces H.R. 800, the Employee Free Choice Act of 2007, in the House.
March 29, 2007: Kennedy introduces S. 1041, the Employee Free Choice Act of 2007 in the Senate.
March 1, 2007: U.S. House passes the Employee Free Choice Act in a 241-185 vote.
June 26, 2007: U.S. Senate votes 51-48 for cloture on the Employee Free Choice Act, which would allow it to be considered for a simple majority vote on the Senate floor. Unfortunately, 60 votes were required for cloture (agreement to vote on a bill), so a Republican minority in the Senate was able to block consideration of the bill.
March 4, 2008: The union movement kicks off the Million Member Mobilization campaign to gather support for the Employee Free Choice Act.
Nov. 4, 2008: Despite a desperate multi-million dollar corporate campaign against pro-worker candidates, the union movement wages its most successful-ever political mobilization campaign, helping to elect even more working-family friendly lawmakers to the House and Senate and Barack Obama, a Senate co-sponsor of the Employee Free Choice Act, to the White House.
Feb. 4, 2009: Union members and allies deliver some of the 1.5 million signatures they’ve gathered in support of the Employee Free Choice Act to Capitol Hill—exceeding the goals of the Million Member Mobilization campaign.
March 10, 2009: Employee Free Choice Act introduced in the House (as H.R. 1409), with 225 co-sponsors, and as S. 560 in the Senate, with 41 co-sponsors.
In short, we’ve pursued this critical legislative since Bush ran the nation along with a Republican Senate majority in Congress, until today, when our nationwide political mobilization resulted in the election of President Obama, Vice President Joe Biden and appointment of Labor Secretary Hilda Solis, all of whom expressed support for the bill.
As the AFL-CIO’s Stewart Acuff noted at a Netroots Nation event last month, it’s amazing to see how far we’ve come. But the opposition is well-funded and aggressive, and the broad coalition supporting the Employee Free Choice Act will need to fight harder than ever to make sure we get labor law reform that helps workers:
We started this six years ago, and I thought it was going to be a 20-year fight. We’ve accomplished so much in the face of such attacks, and all the money they’ve been able to spend has not been able to break it.
The campaign is vibrant and active, and all the forces of corporate America can’t stop it—and they’ve tried everything in their playbook.
Seth Michaels:Seth D. Michaels is the online campaign coordinator for the AFL-CIO, focusing on the Employee Free Choice campaign. Prior to arriving at the AFL-CIO, he’s worked on online mobilization for Moveon.org, Blue State Digital and the National Jewish Democratic Council. He also spent two years touring the country as a member of the Late Night Players, a sketch comedy troupe.
This article was originally posted at the AFL-CIO Blog and is reprinted here with permission from the author.
Today the Service Employees International Union (SEIU) sent letters to television stations in Nebraska and Arkansas demanding that deceptive ads about the Employee Free Choice Act be taken down immediately. The ads are paid for by the Employee Freedom Action Committee (EFAC), the political action committee of anti-worker front group Center for Union Facts.
Said SEIU Political Director Jon Youngdahl:
“Arkansans and Nebraskans are losing their jobs, their benefits and their retirement security, yet the same greedy CEOs and corporate lobbyists who helped tank the economy aren’t satisfied.
“Now, they want to take away workers’ rights to bargain for better working conditions and higher wages. In order to do so, they’re reduced to creating vicious and false ads that portray union members as mobsters. They need to stop this deceptive ad campaign and remove these lies from the air.”
The ad falsely claims that organized workers do not have a say in negotiations over their wages and benefits, when nothing could be further from the truth. It is unorganized workers who have no mechanism to negotiate with their employer over their wages and benefits. At the same time, union members typically vote on whether to ratify their contracts.
Moreover, the ad falsely implies that employers are handing out raises to their employees with the union that is standing in the way, when the exact opposite is true. The fact is that union workers have higher wages and better benefits than non-union workers, which is why more than half of all workers–nearly sixty million–would join a union if they could. Indeed, according to the Center for American Progress Action Fund, union workers earn significantly more on average than their non-union counterparts, are nearly 54 percent more likely to have employer-provided pensions, and are 28 percent more likely to be covered by employer-provided health insurance. In 2007, union workers earned 30 percent more on average than non-union workers.
EFAC, like its affiliated organization Center for Union Facts, is run by corporate lobbyist Rick Berman. Berman, former labor counsel at the US Chamber of Commerce, is a virulent anti-worker and anti-consumer activist. According to a profile of Berman on NPR:
Berman’s firm also runs the American Beverage Institute, which argues that drunk driving is over-hyped; the Center for Consumer Freedom, which argues that the obesity “epidemic” and mad cow disease, among other things, are over-hyped; and the Employment Policies Institute, which advocates against minimum wage increases.
Michael Whitney:Michael Whitney is an online organizer with the Service Employees International Union (SEIU). Michael manages the online campaign for the Employee Free Choice Act as part of SEIU’s Change that Works program. He got his start in online politics on Howard Dean’s presidential campaign as one of the co-founders of Generation Dean, a web-based youth outreach organization. Michael is a contributor to techPresident.com, the Huffington Post, and his overly active Twitter feed.
This article originally appeared on SEIU Blog on July 10, 2009 and is reprinted here with permission from the source.
One of the ugliest fights for worker justice has taken place in Tar Heel, North Carolina, which is about 80 miles south of Raleigh. For 17 years, thousands of workers, who labor under some pretty brutal conditions in the largest pork processing plant, have sought a modicum of justice and dignity. And they just got it.
After a two-day vote, the workers approved the first-ever union contract at the Smithfield Foods plant. Here are the details via the United Food & Commercial Workers:
The new contract includes:
* Wage increases of $1.50/hour over the next four years. * Continued company-provided affordable family health care coverage. * Improved paid sick leave and vacation benefits. * Retirement security through protection of the existing pension plan. * Continued joint worker/management safety committee, including company funded safety training for workers. * Guaranteed weekly hours that protect full-time, family supporting jobs in the community * A system to resolve workplace issues. * Three working days of paid funeral leave following the death of immediate family members.
“This contract will completely transform our workplace,” said Orlando Williams. “This is the biggest four-year wage increase Smithfield workers have ever had and it will make a real difference for our families and in this community. We could never have gotten that increase without a chance to bargain with the company. We will finally have a sense of security on the job because through our union we can make sure we have a safe place to work, and that everyone’s treated fairly.”
The first thing to note is that the UFCW deserves a lot of credit. It stuck with this organizing campaign over 17 years through, among other things, a racketeering suit Smithfield filed against the union because of a very persistent corporate campaign waged by the union. In two previous union representation elections, the company brutally harassed the workers, and in particular, the union supporters, to the point that the National Labor Relations tossed out the results of the elections. Finally, last December, the union won overwhelmingly in an election that was more fair then anything in the past.
Which brings us to this point: when workers have a chance to vote for a union–free of intimidation and threats–they will do so. And certainly one step in that direction will come with the passage of the Employee Free Choice Act.
The point that I think is valuable to remember is this one:
Workers and union officials say that perhaps the most important change is that workers will be allowed to voice concerns and challenge management decisions through a formal grievance process. In the past, many workers have said they were treated disrespectfully by their supervisors and fired after speaking out or being injured.
“We really did accomplish something with this union,” said Mattie Fulcher, a 10-year employee who helps usher pigs to their deaths. “We might not have gotten the raise that we wanted, but that will come in time. This is our first contract, and it is a start.”
Too often, in the public sphere, and among the talking heads, the focus on union jobs is about wages and benefits. No doubt, that is important. But, what the workers at Smithfield gained was some POWER over how they will be treated.
Independence Day is about a lot of symbols–patriotism, flag-waving and I suppose mostly, now, a long weekend at the beach. But, it is also about gaining power and the triumph over tyranny. It is always ironic and sad to me that, too often, we assert that triumph by showcasing the very instruments of power that we now use to the detriment of other people around the world.
But, I forget that when I sit back and think, for a moment, what these workers went through–the struggle, the fight, the commitment that held them together over so many dark days–this is the America that inspires me. They have triumphed over tyranny, they have gained back the power they deserve to shape their lives. That’s what Independence Day means to me.
Jonathan Tasini: Jonathan Tasini is the executive director of Labor Research Association. Tasini ran for the Democratic nomination for the U.S. Senate in New York. For the past 25 years, Jonathan has been a union leader and organizer, a social activist, and a commentator and writer on work, labor and the economy. From 1990 to April 2003, he served as president of the National Writers Union (United Auto Workers Local 1981).He was the lead plaintiff in Tasini vs. The New York Times, the landmark electronic rights case that took on the corporate media’s assault on the rights of thousands of freelance authors.
This article originally appeared on Working Life on July 3, 2009 and is reprinted here with permission from the author.
Two top business experts have taken to the pages of Business Week to make the case for the Employee Free Choice Act.
Paul Adler, a professor at the Marshall School of Business at the University of Southern California, and Donald Palmer, an associate dean and professor at the University of California-Davis, say corporate hostility to the Employee Free Choice Act and to workers’ freedom to form unions is short-sighted because communities with well-paid workers have economic advantages for business.
Adler and Palmer cite training, job satisfaction and the healthy communities that come from economically secure workers as reasons why businesses benefit when their employees can form unions and bargain.
They write in the op-ed:
When unions raise the wages of the lowest-paid workers, this increases savings and reduces income inequality, which has beneficial effects on a nation’s economic growth and investment, not to mention its health and social cohesion.
Adler and Palmer say the inability of workers to form unions has real consequences, not only for individual workers but also for communities and the entire economy. The failure to allow workers the freedom to bargain has put us in a “low-performing state,” they say:
Once unions are radically weakened, as they have been in the U.S. over the past few decades—and in no small measure as a result of the business community’s hostility—a race to the bottom starts. The whole economy slides to a lower-level equilibrium where workers earn less and have less influence in the workplace, where firms pay less for labor but get less qualified and less committed workers, and, where, as a result, society gets less output from its available resources.
Adler and Palmer say passing the Employee Free Choice Act will “secure a better future”—not only for today’s workforce, but also for tomorrow’s businesses and workers. They authors are among dozens of business and management scholars who share this view.
About the Author: Seth Michaels is the coordinator of the AFL-CIO’s presidential candidate website, Working Families Vote 2008. Prior to arriving at the AFL-CIO, he worked on online mobilization for Moveon.org, Blue State Digital and the National Jewish Democratic Council. Seth spent two years touring the country as a member of the Late Night Players, a sketch comedy troupe—but the battles of U.S. politics are even more entertaining.
This article originally appeared in AFL-CIO Now on June 26, 2009. Re-printed with permission by the author.
Over many years, I have developed an intimate relationship with the sweet, lager taste of Yuengling Black & Tan. After moving to the cutthroat world of Washington, D.C. politics, I found that Yuengling always comforted me with memories of my working class roots and the world of flannel hunting jackets, wedding receptions at union halls, 4th of July barbecues, and tailgate parties that represented my native Western Pennsylvania. I took pride in introducing my friends to this beauty of a beer—cheap, delicious, and made by union workers back home in Pennsylvania. Women had come and gone, dogs had died, but Yuengling had always been there for me – until now.
This past weekend when I discovered that Yuengling had illegally busted their union, I was emotionally devastated. I had just bought a case of Yuengling earlier that same day and had it sitting at home in the refrigerator waiting for me. What would I do? I was broke and couldn’t possibly afford to buy another case of beer, but at the same time I couldn’t possibly enjoy drinking a Yuengling knowing what they had done to their workers. So instead, I found myself at home, watching a baseball game on a Saturday night, and enjoying a nice, cold glass of milk as I struggled to deal with how Yuengling had betrayed not only its workers, but me.
Quickly I found my outrage shifting from beyond Yuengling to the lack of U.S. labor law protecting workers from such abusive, unfair practices. It turns out that the company had petitioned for a decertification election to kick the union out of the brewery when the contract of the union expired. Dick Yuengling, the owner of Yuengling Brewery, gathered all the workers and told them that “the writing was on the wall”. He said that if they didn’t vote to kick the union out, he would close the plant, and ship the work to a non-union facility in the South. The workers, scared of losing their job in a region with high unemployment, voted to ditch their union and save their jobs.
While threatening to close a plant if a union wins such an election is highly illegal, the Yuengling Company has been able to get away with due to the weakness of U.S. labor law. According to a study recently released by Kate Bronfenbrenner of Cornell University, employers threaten to close facilities in 57% of union elections if workers choose a union, despite the fact that this threat is carried out only 2% of the time. This is because under U.S. labor law the penalty for threatening to close plants or firing workers during a union election is that the boss merely has to post a piece of paper saying they broke the law.
Under current U.S. Labor Law, employers can freely violate the law without serious penalty. As a result, workers are fired from their job in 34% of union elections and companies illegally threaten to close a facility in 57% of all union elections. In this economy, losing one’s job is tantamount not just to losing more than just a job, but also to losing home to foreclosure and more gravely – one’s health insurance. As a result of the ability of bosses to freely intimidate with such Gestapo-style tactics, 58% percent of workers indicate they would like to join a union, but only 8% of private sector employees are members of one out of the fear of what their bosses might do to them for trying to join a union.
The Employee Free Choice Act would give U.S. labor law real teeth – leveling heavy fines against employees who unlawfully intimidate or threaten workers. The Employee Free Choice Act would allow workers to join unions free of intimidation a process of majority sign where workers merely would have to get 50% of their co-workers to sign a card to be part of a union.
Currently, The biggest obstacle to the passing the Employee Free Choice Act is quite ironically the very Senator who represents the workers at Yuengling Brewing – “Democrat” Arlen Specter. Quite ironically, Arlen Specter, who had in previous years voted for the Employee Free Choice Act, has fallen victim to the same type of corporate intimidation and flipped his position to being against the Employee Free Choice Act. Its time that Arlen Specter show solidarity with the 20,000 workers that are fired every year for attempting to join a union. Arlen Specter needs to vote for the Employee Free Choice Act, which would protect the rights of workers to freely join unions that the overwhelming majority of his constituents favor especially the once unionized workers of a once dear friend – Yuengling.
About the Author: Mike Elkis a third-generation union organizer and worked previously for the United Electrical, Radio, and Machine Workers (UE). He works currently as an editor at AlterNet.
This article originally appeared in AlterNet on June 17, 2009. Re-printed with permission by the author.
Yesterday, the union movement ramped up its attacks on the Chamber of Commerce over its “two-faced” approach to the Employee Free Choice Act’s provision requiring arbitration if a business won’t bargain in good faith after a union’s been chosen by workers. As the AFL-CIO Now blog observed:
The latest Big Business tactic is to attack the provision of the Employee Free Choice Act that guarantees workers who form a union a fair first contract — a vital provision, because more than 50 percent of workers who form a union don’t have a contract after one year and more than a third still don’t have a contract after two years.
Corporations are crying about the possibility they might have to take part in arbitration with employees if they don’t reach a first contract after three months of talks — even though they’re enthusiastic about arbitration in a wide variety of circumstances where they have the advantage.
In a new ad running in key newspapers, American Rights at Work again challenges corporate hypocrisy on arbitration. When it’s a big corporate entity against an individual, as in credit card disputes or personal injury claims, corporate spokesgroups like the Chamber of Commerce say arbitration is a way to settle any sort of dispute “fairly, quickly and inexpensively.” But when it’s time to bargain over better wages and benefits for their workers, these same groups are viciously opposed to even the possibility of requesting arbitration.
To union activists, what’s especially galling is how fervently businesses embrace arbitration when it allows them to avoid being held accountable for negligence towards employees or the defrauding of consumers. As Stewart Acuff, the special assistant to the President of the AFL-CIO, observes, “It’s pretty simple: arbitration is fine for them when it keeps them out court and limits damages to business. They use it to settle credit card disputes, mortgage payment disputes, and whenever it limits businesses liability and negligence. But when they look at arbitration for workers, then all of it sudden they hate it when it’s simply used as an incentive to force good-faith bargaining, a last resort to allow workers to get a collective bargaining agreement.”
In contrast, business interests have so championed and abused little-known arbitration provisions to keep themselves from being sued that they’ve spurred new legislation pushed by the Fair Arbitration Now coalition designed to rein in their excesses. A few days ago, NPR featured the story of Jamie Lee Jones who was repeatedly raped by co-workers of Halliburton in Iraq but has been barred from suing the company because of an employer’s contract she signed preventing a lawsuit. As the NPR story noted:
Jones was escorted by security to the company clinic for a rape examination. When the rape kit examination was done, the evidence was turned over to Halliburton security. The young woman’s breasts were so badly mauled that she is permanently disfigured. It has been four years since the attack, and despite the physical and circumstantial evidence, the Department of Justice has declined to investigate.
Seeking Justice Through a Suit
Justice Department officials refused to explain or comment in any way to NPR about the case. Jones has decided that if she can’t have her day in criminal court, she’ll sue Halliburton and its former subsidiary, KBR, in civil court.
“I want corporate accountability,” she says. “I was so brutalized that I’m going to have to remember this the rest of my life. And Halliburton was so uncompassionate that they even let the men work there, still, after I went home.”
Heather Browne, director of communications at KBR, says that while the company can’t speak to the facts since the case is ongoing, it denies any liability in the attack. And she argues that any dispute with Jones, even one involving charges of rape, must go to arbitration.
So Jones is now going to court seeking the right to sue. She has become one of the nation’s leading arbitration reform advocates.
An Arbitration Culture
If Jones’ case is remarkable, the fact that arbitration is involved is not. In the past 20 years it has become a dominant feature in the legal relationship between American corporations, their employees and their customers.
If you use credit cards, have a cell phone contract, bought a house from a builder or put your mother or father in a nursing home, you have very likely signed away your right to be heard in court if there’s a problem. It’s called pre-dispute mandatory binding arbitration.
Public Citizen’s David Arkush, one of the country’s leading researchers on arbitration, says many consumers have no clue as to the rights they’re signing away.
“In the fine print of those contracts is a provision that says that they can never sue the company if they have a dispute,” Arkush says.” Instead they have to go a private, secret tribunal chosen by the company.”
To top it all off, businesses rig the arbitration process against consumers and employees by barring them from going to court if there’s any fraud or negligence before a dispute occurs, and only the company can choose the arbitrator.
The arbitration provision in the Employee Free Choice Act, on the other hand, only uses arbitration if negotiations between business and labor have broken down for 120 days after negotiations begin, and both businesses and the union must agree on their arbitrator from a vetted list of private arbitrators approved by a federal agency, the Federal Mediation and Conciliation Service.
All that makes the two different types of arbitration strikingly different: one is a business ruse used by businesses to deprive customers and workers of their rights, and the other is a bulwark designed to protect workers’ rights against bad-faith bargaining.
The new pro-labor ad attacking such hypocrisy, running in Capitol Hill political newspapers as negotiations in the Senate are heating up, puts the issue starkly:
Big Business is happy to support arbitration when it’s in their best interest. But when it comes to negotiating contracts with their workers, Big Business would rather use delay tactics to avoid paying better wages and benefits. It’s only fair that corporations agree to arbitration for workers who are trying to negotiate a first contract after forming a union. Arbitration is a key part of the Employee Free Choice Act that will let both sides reach a fair agreement.
One reason the Chamber and other Big Business interests are turning to attacking arbitration is that their previous bogus claims that the legislation takes away the right to a secret ballot have been exposed as a fraud on Capitol Hill. (The bill actually gives workers the choice — now determined by employers — of whether to form a union by majority sign-up or secret-ballot election.)
Of course, you don’t hear Newt Gingrich or the Chamber of Commerce championing the rights of on-the-job rape victims like Jamie Lee Jones to sue and avoid arbitration, indeed when it comes to abused employees or defrauded consumers they hail arbitration as the best way to handle any disputes. In fact, in May 2008, more than a dozen business trade groups wrote a letter to Congress stating, “Arbitration is an efficient, effective, and less expensive means of resolving disputes for consumers, employers, investors, employees and franchisees, in addition to the many businesses that use the same system to resolve business disputes.”
As the SEIU Blog sums up their attitude, “Corporate Lobbyists: We Were for Arbitration Before We Were Against It.” Among the paeans to the glories of arbitration offered by business leaders before they attacked its use in the Employee Free Choice Act:
“For more than 80 years, arbitration has helped Americans settle disputes fairly, quickly and inexpensively, without having to file a lawsuit or navigate the court system.” – Lisa Rickard, president of the US Chamber’s Institute for Legal Reform (4/2/08)
“Arbitration is mutually beneficial, which is what we have always thought.” – Arne Wagner, assistant general counsel for Bank of America [ABA Journal, December 1994]
“[F]ederal policy… favors the use of arbitration as an efficient, effective, and less expensive means of resolving disputes…Arbitration, has served as an essential valve for the nation’s overburdened civil justice system.” – Letter to Senate Judiciary Committee signed by US Chamber of Commerce, Retail Industry Leaders Association, National Retail Federation, National Association of Manufacturers, Jackson Lewis, et al (2/7/08)
Just a little bit of a double standard, no? Arbitration is the best thing ever when it comes to protecting their wallets, but when it comes to adding the safety net of first contract arbitration during collective bargaining, it’s the devil incarnate that must be stopped at all costs.
Despite such hosannas to arbitration, they’re not-so-surprisingly eager to denounce arbitration as a “mortal threat to American freedom” when workers want it after months of stalled labor negotiations.
And the research is now irrefutable that a majority of workers who select a union don’t get a contract in their first year as a result of business stalling tactics; if businesses can’t bust a union through illegal intimidation before an election, then they’ve got a second shot at union-busting by foot-dragging tactics and lowball proposals to slash wages and benefits by the company. As American Rights at Work reports:
One year after a successful union election, 52 percent of employers deny their workers a contract. According to Cornell University researcher Kate Bronfenbrenner, 52 percent of workplaces had no collective bargaining agreement one year after a successful union election. Two years after an election, 37 percent of workers’ unions still had no labor agreement.
It’s easy to determine when businesses will back or oppose arbitration: if it seems likely to screw workers and consumers out of their day in court, then they see it as good, and it if might possibly help workers achieve decent wages and benefits through labor negotiations, then it’s bad. As Paula Brantner, the attorney who heads the pro-worker Workplace Fairness advocacy organization, observed recently:
So if employers truly think that arbitration is a better system than resolving disputes in court, then why are they fighting the Employee Free Choice Act [EFCA] provision? You don’t have to be a cynic to realize that they’re inclined to fight any effort to level the playing field for workers, which the Employee Free Choice Act would do. Just as they’re spreading the myth that EFCA would eliminate the secret ballot, it just comes naturally for them to confuse the public about the other EFCA provisions that would empower workers.
But if corporate America doesn’t want “a bureaucrat from Washington” to tell people how to run their businesses, then we have to wonder why they want arbitrators who are not even required to know the law or follow it passing judgment on their employment practices. Essentially, companies are talking out of both sides of their mouth: they want to impose an unfair arbitration process on their employees, but cannot bear to have even a fair arbitration process applied to them.
But workers don’t have to accept this hypocrisy: we can work to support both the Arbitration Fairness Act and the Employee Free Choice Act. If both were to pass, workers would be able to go to court for their employment and civil rights claims (under the Arbitration Fairness Act), and leave arbitration to the unions and employers who know how to use it best (under EFCA). But that might simply be too much fairness for employers to handle.
And while the Chamber of Commerce and its GOP allies like Newt Gingrich have been painting a nightmarish scenario of jackbooted bureaucrats imposing job-killing arbitration concessions, the real truth of how arbitration works in labor negotiations has been ignored. As a new Roll Call column by two Harvard and MIT labor scholars, including Arnold Zack, the former past president of the National Academy of Arbitrators, points out:
Something is drastically wrong with a labor law when an employer can ignore and thwart the will of the majority of its employees.
The Employee Free Choice Act currently before Congress addresses this problem by assuring time for negotiations and mediation as the first step in the process and arbitration when agreement is blocked.
The bill has led to a misguided debate and mistaken information about the role played by arbitration in a well-designed and professionally administered dispute resolution system. This has made the current bill an easy target for opponents to argue that everyone will end up having a contract imposed by “government arbitrators” who know nothing about business or labor issues…
If passed, the Employee Free Choice Act would assign a mediator by the Federal Mediation and Conciliation Service as soon as a new unit is certified to support the negotiations by offering the full range of mediation, education, and facilitation services helping the parties reach a voluntary agreement. The vast majority of cases are likely to be resolved through negotiations and mediation.
In fact, settlements are reached more than 90 percent of the time in public sector jurisdictions that provide mediation prior to arbitration. So, contrary to those who argue every case will go to arbitration, the presence of arbitration encourages and enhances the ability of the parties to reach voluntary agreements in negotiation and mediation — and incidentally does so without imposing on employees or employers the risks and costs of a strike to get a contract.
After being smeared by hyperbolic distortions about the bill’s arbitration provision and research by the Chamber’s extremist libertarian scholar-for hire, Richard Epstein, the union movement is finally hitting back on this issue. The latest inside-the-Beltway barrage follows up on last week’s first round of attack ads against the Chamber’s “hypocrisy.” As a spokesman for American Rights at Work (ARAW) told The Hill newspaper this week:
“Labor law reform must ensure that workers who want to join a union are able to do so without facing endless delays from corporations seeking to deny them a voice in the workplace,” ARAW spokesman Josh Goldstein said. “Big Business’ position is hypocritical and motivated by their desire to maintain a status quo in which corporations make millions while middle class families struggle to get ahead.”
About the Author: Art Levineis a contributing editor of The Washington Monthly who has also written for The American Prospect,Alternet, In These Times, Salon, The New Republic, The Atlantic and numerous other publications. He’s written investigative articles on unionbusting and other corporate abuses, and recently completed Cornell University’s Strategic Corporate Research summer program. He blogs regularly for Huffington Post, and co-hosts a weekly Blog Talk Radio show, “The D’Antoni and Levine Show,” every Thursday at 5:30 p.m. ET.
This article originally appeared in The Huffington Post on June 17, 2009. Reprinted with permission by the Author.
The misleading attacks by Big Business on the Employee Free Choice Act now are aimed at the provision that would guarantee that workers can get a fair first contract. Their scare tactics are not only misleading, they’re hypocritical.
Right now, workers lack a legal means to ensure they get a fair first contract. Recent research shows that even after workers successfully win a union and the ability to bargain, they’re too often blocked from getting a fair first contract. Fifty-two percent of workers don’t have a contract a full year after the election, and 37 percent don’t have a first contract two years after the election. For too many workers, the promise of the freedom to bargain is out of reach because the law doesn’t offer them any help.
The Employee Free Choice Act provides a process to help first-time bargainers to reach an agreement, through mediation and, for issues the parties are unable to resolve on their own, arbitration. The reason we need first-contract arbitration is to create an incentive for companies to bargain voluntarily with their workers.
According to research from American Rights at Work, the record of first-contract arbitration provisions in the public sector and in Canada show that disputes rarely reach the arbitration stage; in most cases, the process works to help workers and their employers reach a contract on their own.
Yet corporations are increasing their negative attacks on this provision even though they frequently require consumers to commit to arbitration.
Supporters of the freedom to form unions are hitting this corporate disinformation campaign directly, in the field, online and in the press. American Rights at Work is taking on corporate hypocrisy with a new print ad running today in key newspapers. The ad demonstrates how corporations are attacking the idea of arbitration when it involves their employees—while supporting arbitration in a variety of areas where it benefits them.
As the new ad notes, corporations prefer to use arbitration in consumer disputes, personal injury claims, home construction contracts, nursing home injuries and conflicts related to real estate, credit cards and banking.
Business trade groups even wrote to Congress last year saying arbitration is an “efficient, effective” way to resolve disputes, reported The New York Times, and companies put arbitration provisions into 75 percent of consumer contracts.
So, if corporations want to require arbitration in so many other instances, why are they so afraid of the possibility of arbitration—only after months of negotiations—over a first contract for their employees?
About the Author: Seth Michaels is the coordinator of the AFL-CIO’s presidential candidate website, Working Families Vote 2008. Prior to arriving at the AFL-CIO, he worked on online mobilization for Moveon.org, Blue State Digital and the National Jewish Democratic Council. Seth spent two years touring the country as a member of the Late Night Players, a sketch comedy troupe—but the battles of U.S. politics are even more entertaining.
This article originally appeared in the AFL-CIO Blog on June 11, 2009. Reprinted with permission by the author.
This week, the Chamber of Commerce launches its most forceful lobbying effort yet to kill the Employee Free Choice Act and to end talk of compromise on Capitol Hill.
The Chamber is donning the masquerade of championing workers’ rights by railing over the myth that the bill would take away the secret ballot — it actually just gives workers the choice of whether to select a union through majority sign-up or “card check.” The business coalition, also working through such front groups as the Alliance to Save Main Street Jobs, promotes bogus claims that it would cost the economyjobs.
But now the real truth behind the hostility of the Chamber of Commerce and other major business groups to unions has been revealed by one its most admired experts, prolific University of Chicago libertarian law professor Richard Epstein, whose Big Business-funded research has been touted as the definitive critique of the Employee Free Choice Act.
His arguments against the arbitration provision of the legislation that aims to end employer stalling in bargaining has also persuaded such iconoclastic liberal bloggers as Slate’s Mickey Kaus ( full disclosure: he’s a former editor of mine whom I admire although I don’t always agree with him).
Yet in a new In These Times article, “Shilling on the Corporate Dollar,” Epstein confirmed to me his earlier writings that the country would be better off without labor unions, labor protection laws or the minimum wage law. “I’m unrepenant,” he says, while also conceding that his corporate funders asked him to omit some of his earlier arguments against labor laws as potentially political damaging.
They had good reason to be worried that his radical views could discredit their claims that these corporate leaders somehow care about protecting workers’ rights. One of his harshest critics, David Brody, a professor emeritus of labor history at Berkeley, observes, “I’m amazed the business side is using him. He thinks collective bargaining itself is a bad thing, while they claim to be defending the sanctity of the secret ballot.”
At the heart of much of Eptstein’s current theoretical attacks on the bill is his longstanding libertarian view of employer and employee relations as achieving a perfect balance because of market forces. That makes him the labor market equivalent of Candide’s Dr. Pangloss: if employers could just be left alone, all things work for the best in this best of all possible worlds. If there were no minimum wage laws, for instance, Epstein told me, “Wages would go up because productivity gains would offset any short-term losses [to workers].” And Epstein’s ivory-tower “at will” world view is still on display in his new Hoover Institution paper: “To be sure, some firms do not have enlightened managers. But in a competitive market, the firm that does not do right by its employees will not attract or retain the most productive workers.”
But while this and other anti-union assertions may sound reasonable to a tenured professor like Epstein, it simply doesn’t take into account the real world of employment — and the justifiable fear of being fired. For instance, David Madland, a labor expert at the Center for American Progress Action Fund, notes, “What really discredits his arguments is his claim that employer intimidation isn’t a significant cause of union decline.”
Most strikingly, he doesn’t even think there ought to be workforce regulations or minimum wage laws, even for sweatshops here or abroad. As my article points out:
In the past Epstein, an extreme libertarian, has attacked minimum wage and unemployment benefits, denouncing such New Deal legislation as unconstitutional “takings” that violate the Fifth Amendment. That is no surprise. Epstein has argued that, historically, sweatshop conditions can only be ameliorated by market forces, not by laws or unions. He told In These Times: “The level of wages will be determined by the intersection of supply and demand…the escape from that system is not driven by unions, which cannot increase productivity.”
The In These Times article further debunks the statistical sophistry of the business-funded economist Anne Layne-Farrar whose claim that the bill would cost at least 600,000 jobs in its first year has gained wide currency. No doubt Chamber of Commerce lobbyists and members are citing this week that statistic and her authoritative-seeming report. But by interviewing top economists, including John DiNardo of the University of Michigan, I was able to deconstructed her oft-touted use of “regression analysis” she uses to make the claim that rising unionization rates cause unemployment:
Layne-Farrar massages the data using a complex “regression analysis” to connect the dots between card check, higher unionization rates and more unemployment, putting the loss at between 600,000 and 2.6 million new American jobs in the first year.
“That’s bullshit,” says Canadian labor economist Charlotte Yates, now the Dean of Social Sciences at McMaster University in Hamilton, Ontario. “I don’t know of any credible economists who say [now] there is a direct correlation between unionization and the rise in unemployment.”
Even so, Layne-Farrar invokes her use of “regression analysis” as a sort of holy totem to ward off criticism of her work from other economists who cite what she says are “simplistic correlations.” These include studies showing that countries such as England, Denmark and Norway have higher unionization and lower unemployment rates than the United States. She says, “This is empirical analysis, not an opinion piece, with results based on publicly available data and using well-accepted econometric tools. You can’t rig these.”
John DiNardo, a labor economist at the University of Michigan and author of the textbook Econometrics retorts, “Just because she calls it ‘econometrics’ and ‘regression analysis’ doesn’t mean that it makes any sense.” While some earlier research had found a link between unionization and unemployment, more rigorous, recent research in Europe and the United States has found no connection between unionization and unemployment. In fact, Layne-Farrar’s study concocts a negative jobs impact from unionization that is 200 to 300 percent higher than even the most critical anti-union research.
No matter that her and Epstein’s findings are built on flimsy data and extremist views. This week, they’ll be no doubt marshalled to convince Senators to back away from the Employee Free Choice Act.
As The Hill reported:
According to a schedule obtained by The Hill, executives are visiting Sen. Dianne Feinstein (D-Calif.) [this] Wednesday as part of a lobbying push against the Employee Free Choice Act (EFCA), legislation that would make union organizing much easier if passed. Business leaders from 12 different states, organized by the U.S. Chamber of Commerce, are flying into Washington next week to lobby against the bill.
Feinstein has emerged as a key voice on the legislation. At first, her support for EFCA wavered since she is not a co-sponsor of the bill this Congress, unlike two years ago when she also voted for cloture on the bill. But now, Feinstein has floated a compromise for one of the bill’s provisions to help garner support from Senate centrists who are worried about angering the business community by voting for the bill…
Along with Feinstein, business leaders are also scheduled to meet with Sens. Evan Bayh (D-Ind.) and Tim Johnson (D-S.D.) — centrists who could decide the fate of EFCA. They both co-sponsored the bill last Congress but Bayh is not doing so this year.
Union officials have been somewhat open to changes in the bill but business groups have lobbied against any compromise, saying the legislation would hurt industry revenue by leading to more strikes and work stoppages. They have hammered Feinstein’s proposal [to allow mail-in ballots instead of majority sign-up or "card check"] because they believe it would still lead to intimidation of workers by union organizers.
Of course, the intimidation canard has been challenged by the most rigorous research on the issue, including a new study that found not a single incident of union intimidation in public sector jobs where majority sign-up is permitted.
Yet despite what solid research says, it’s not at all clear that conservative opponents of the legislation will let facts stand in their way. As I concluded in my piece on the two top anti-union scholars:
While Epstein’s more radical views are left off the table, his intellectual firepower adds to the impact of his arguments against EFCA. Both Epstein and Layne-Farrar see an idealized world waiting to be born where unions don’t exist, and where workers and businesses thrive without them.
The question remains, will Washington politicians still listen to business interests that use these researchers’ dubious claims to argue, as Epstein does: “Unions are a bad deal for most workers.”
About the Author: Art Levine is a contributing editor of The Washington Monthlywho has also written for The American Prospect,Alternet, In These Times, Salon, The New Republic, The Atlantic and numerous other publications. He’s written investigative articles on unionbusting and other corporate abuses, and recently completed Cornell University’s Strategic Corporate Research summer program. He blogs regularly for Huffington Post, and co-hosts a weekly Blog Talk Radio show, “The D’Antoni and Levine Show,” every Thursday at 5:30 p.m. ET.
This article originally appeared in The Huffington Post on June 2, 2009. Reprinted with permission by the Author.
Supporters urging passage of the Employee Free Choice Act took to the streets on Monday, August 10 to back warehouse workers at Rite Aid’s massive distribution center in Lancaster, California. They released a new Jobs with Justice report about how management there has aggressively interfered in workers’ freedom to form a union.
