Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘organizing’

NLRB Chairman: New Penalties Needed for Union-Busting of Undocumented Workers

Tuesday, October 30th, 2012

NEW YORK CITYNational Labor Relations Board Chairman Mark Pearce says his agency could pursue new remedies to punish employers who retaliate against undocumented immigrants for organizing. Last year Pearce interpreted a 2002 Supreme Court decision to rule out back pay as a remedy in such cases, limiting the NLRB’s options of financial penalties.

Interviewed Friday by Working In These Times, Pearce called the tension between immigration law and labor law “extremely frustrating,” and the tools available for protecting undocumented workers against employer crimes “insufficient.”

“The concept of ‘made whole’ by us needs to be examined,” said Pearce, referring to a legal guideline for NLRB remedies. “Perhaps there are things within that concept that we can utilize. Now I can’t articulate what they are, because we’ve got to consider it.”

Pearce made these comments following a forum hosted by Cornell University’s ILR School. In his remarks to the assembled attorneys, Pearce said he “had angst over” his ruling in the NLRB’s Mezonos Maven Bakery case last year. In that 3-0 decision, the NLRB found that a bakery that fired a group of workers who had collectively complained about a supervisor could not be required to pay them back pay, because they were undocumented.

The Mezonos decision cited the US Supreme Court’s 2002 decision in Hoffman Plastic Compounds v. NLRB, which overturned an NLRB ruling granting back pay to an undocumented worker who was fired after trying to form a union (the NLRB is tasked with enforcing and interpreting private-sector labor law, but federal courts have the power to overturn the NLRB). Writing for a 5-4 majority, then-Chief Justice William Rehnquist said that “awarding back pay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations.”

At Friday’s forum, Pearce said that the Hoffman decision had forced him to deny back pay in Mezonos and “continues to create that problem where an employer could get away scot-free” with firing undocumented union supporters. Pearce said he had “struggled with the tension between the National Labor Relations Act, immigration law, and the rights of undocumented workers.” While the NLRB can still use non-economic remedies in such a situation, like requiring a company to post a notice saying it will comply with the law in the future, Pearce said that “seems a little empty” without a financial cost attached.

After the forum, Pearce told Working In These Times that the tension he’d identified could be resolved if a future Supreme Court case offers the NLRB “a more promising, or a more significant remedy to be applied for discriminatees who happen to be undocumented. But otherwise, it would probably have to take a change in the law.”

In the meantime, said Pearce, “the board has a certain degree of discretion with respect to the remedies.” He noted that the NLRB is legally empowered to “make whole” workers who are illegally punished or discriminated against, but is barred from assessing punitive damages against employers. That means that financial penalties against companies generally come in the form of back paywhich Mezonos took off the table for undocumented workers. “So exploration would have to be had,” said Pearce, “as to the full parameters of [the ‘made whole’] concept, to see whether or not a remedy could be fleshed out [for] those kinds of violations.”

Such a move “would be significant,” said Ana Avendaño, the AFL-CIO’s director of immigration and community action. “Because under the current structure, employers basically get a free bite at the apple. They can violate the law with impunity.”

Interviewed Saturday by phone, Avendaño disputed Pearce’s view that the Supreme Court’s Hoffman ruling required the NLRB to deny back pay in Mezonos. She said that a lower-level NLRB judge had been right to find that Hoffman didn’t apply in Mezonos, because in Hoffman it was the undocumented worker that had been proven to have violated immigration law, and in Mezonos it was the employer. Avendaño, who was among the attorneys arguing for back pay in Mezonos, said she hopes the second circuit court will reject the NLRB’s Mezonos reasoning and send the case back for a new ruling.

But Avendaño echoed Pearce’s criticism of Hoffman, which she said “has a chilling effect” on undocumented immigrants seeking to organize at work. Ultimately, she said, new legislation will be necessary to restore such workers’ rights, perhaps as part of a broader immigration reform.

Still, Avendaño welcomed the NLRB Chairman’s comments about the possibility of other remedies under current law. Given that the law bars punitive damages, and Hoffman restricts back pay awards to workers, Avendaño said, “one idea that advocates haveand the legal basis for this is soundis that there could be a fund established, where employers would still have to pay the back pay, but it would go into the fund, not directly to the worker.”

Avendaño said such a “special remedy” would be “less than ideal,” but would be an improvement over the status quo, where employers face a “perverse incentive … to just violate the immigration law, and then violate the [National Labor Relations Act], and have no responsibility for it.”

If a fitting test case reaches the NLRB, said Pearce, “We would have to see whether the board has that kind of authority, or is there something that causes us to feel that we are able to create an exception to the standard remedy.” Avendaño said the AFL-CIO hopes that will be the case: “If there was an opportunity, and we may have one soon, then we certainly are going to advance that argument.”

This article was originally posted on In these Times on October 29, 2012. Reprinted with permission.

Workers Try to Organize Airport Subway, Get Fired

Thursday, August 16th, 2012

david baconOAKLAND, CA—This city is supposed to be a union town, but out at the airport, workers say they’re getting fired for trying to join one. The airport is administered by the Oakland Port Commission, whose members, appointed by the mayor, are mostly viewed as progressives. The commission has passed a living wage ordinance that not only sets a level much higher than state or national minimum wage laws, but also requires companies who rent space to respect the labor rights of their workers.

One of the workers fired recently is Hakima Arhab, who says she lost her job at the Subway concession after she complained about violations of the ordinance, and because she and her coworkers are trying to join UNITE HERE Local 2850.

Arhab told her story to Working In These Times:

I worked at Subway for a year and a half. When I got the job there I thought that I would have a better life. It should be a good job. I thought I’d have more money, and be able to afford a few more things for myself, and be able to send money to my home country, because I have family there. When I started at the airport I was getting $12.82 an hour, and then it went up to $13.05.

Most people go through the airport and see us from one side of the counter, but from our side it feels really different. It turned out to be like working in hell. When the airport was busy, there were huge long lines—sometimes it seemed like 100 people. We had to wait on them, and make the orders up at the same time. Sometimes I thought I’d fall down from being so tired, but I’d eat something sweet and go back to my job.

The schedule was always changing, and it turned out to be just a part-time job. They kept cutting peoples’ schedules. Whenever we would hear that they were going to hire someone, everyone would get scared because we were afraid our hours would be cut. They’d hire people and give them our hours.

Then they told us that if we worked two days in the airport, we should work outside too. The owners have many other Subway stores, so they’d pressure me to work for them outside the airport. And it was a hard job too. But I did it because I was scared that if I didn’t they would fire me from the airport job.

They expected me to work outside the airport if I wanted a full time set of hours, but the work outside was at a different wage. That work only paid minimum wage—$8 an hour. They’d send me around to all their stores. Sometimes I’d open one store, and then go close at another one. I worked overtime, but they didn’t pay me overtime pay. They’d give you separate checks, so you’d never get overtime pay.

I was very angry about that, but they refused to give me a full schedule at the airport. They even wanted me to work seven days a week, but since they wouldn’t pay overtime, at first I said no—that was too much. Many of my coworkers did, though, because they couldn’t afford to say no. If you said no, then the owners would cut your whole schedule.

So I also just shut up and worked too. And the worst part was that sometimes when I’d work 50 or 60 hours, they wouldn’t pay for all those hours. They’d be short an hour or an hour and a half.

I knew some other workers who work at HMS Host concessions right next to us, and I knew they had a union. Last spring I got very sick, but I still had to work, because otherwise, how was I going to pay for my rent or my food? I was so, so angry. One of them asked me, “Hakima, do you want to speak to the union?” I told her, “Yes, I want to do it.” So I set up an appointment with the union, and asked them to help us: myself, my coworkers and all the workers who work hard in the airport without benefits or sick days. That’s how it happened.

Finally I filed a complaint with the government, with the Port of Oakland. But they didn’t take it seriously. It was like they were just playing around, and told us it would take months to investigate. And I needed my job, especially after I was fired.

On May 29 I took unpaid vacation, for 20 days. The owner agreed that I could do that when I told her four months before. But I filed the complaint before I took the time off. She found out, because the Port gave her the names of the people who complained.

So when I came back on June 19, she gave me a check for the days I worked before the vacation. She told me, “Hakima, you know, I’m very very slow right now. I don’t have any more hours for you.” I told her, “No, no, no. Don’t play with me. I know you just took in $5,500—you’re making the highest amount ever here in the airport. How can you tell me that?”

And just two days later, she hired another worker at the airport. She just wanted to kick me out because I’d gotten involved in the union, and I stood up and filed a complaint. Because I was demanding my rights. That’s why she fired me.

Last week we had a rally out at the airport, to support me and the other workers who have been fired. We even had a chant in Berber. That’s the home language of North Africa, and I’m from a little Berber town in Algeria. And the meaning is “We are Berber, we are people who would rather fight and be fired than work without rights.”

The union says several other workers have faced retaliation as well. Isaac Kos-Read, director of external affairs for the Port of Oakland, says the port takes the complaints very seriously, but called it “an open ended thing. It could take as little as a month or as many as three months. We don’t know.” By now, the port is investigating 15 complaints. Meanwhile port security is writing up workers if they use their badges to go into the airport to meet with employers or other workers.

Nevertheless, “the port prides itself on providing jobs, and union jobs. Over 70% of the jobs at the port are union jobs,” Kos-Read says. “We assiduously enforce the living wage ordinance.”

This blog originally appeared in Working In These Times on August 10, 2012. Reprinted with permission.

About the Author: David Bacon is a writer, photographer and former union organizer. He is the author of Illegal People: How Globalization Creates Migration and Criminalizes Immigrants (2008), Communities Without Borders (2006), and The Children of NAFTA: Labor Wars on the US/Mexico Border (2004). His website is at dbacon.igc.org.

How to Restore the Power of Unions?

Thursday, November 25th, 2010

imagesJulius Getman’s latest book offers a compelling answer

In the early 1990s, trade unionists in the United States abandoned the strike as a central component of trade union strategy. In its place, unionists and academic supporters focused on organizing the unorganized, one-day strikes and community campaigns. Yet on the main concern of the traditional labor movement—how to extract concessions from employers through collective bargaining—there has been virtual silence.

University of Texas Law Professor Julius Getman stands out as a rare exception to this trend. For several decades, Getman has urged the labor movement to focus on the fundamentals of trade union power.  Getman’s 1998 book, The Betrayal of Local 14, chronicled the heartbreaking International Paper strike of the early 1990s, making a strong plea for banning the permanent replacement of striking workers.

Fortunately for labor activists, Getman has written another about book about labor: Restoring the Power of Unions: It Takes a Movement (Yale University Press). The first half of Restoring the Power of Unions focuses on the Hotel Employees and Restaurant Employees International Union (HERE). Getman believes HERE’s member-centered unionism can serve as an example for the entire labor movement. The second half of the book provides insightful analysis on all-too-often ignored topics of trade union strategy, the shortfalls of the organizing approach and the need for labor law reform.

But throughout the book, Getman constantly directs the labor movement back to its true source of power: a mobilized rank and file.

Getman chose to focus on HERE because he believes that this union, “more than any other union, has focused not only on organizing and bargaining but also on creating a spirit of movement.” With hotel workers currently engaged in a high-profile, strategic battle against national hotel chains, Getman’s analysis is certainly timely.

Getman traces HERE’s transformation from a mobbed-up union into one of today’s more dynamic international unions. Along the way, he provides valuable analysis and history of HERE’s strikes at Yale University and the transformation of local unions in San Francisco and Las Vegas. To Getman, key to HERE’s transformation was the rise of a grouping of leaders who firmly believed the power of the union comes from movement building— thus the title of the book.

Restoring the Power of Unions makes another valuable contribution by analyzing the conflicted 2004 merger of HERE and UNITE, the garment workers union, into UNITE-HERE. Drawing on his decades of relationships with UNITE-HERE leaders, Getman provides a detailed account of the battle between former HERE leader John Wilhelm and former UNITE leader Bruce Raynor. To many media observers, this was merely a personality dispute—a fight over who got the corner office. To Getman, however, the dispute was over fundamental differences in union philosophy: between the top down philosophy held by Raynor and his allies in SEIU, and the member-centered unionism of Wilhelm and the core HERE leadership.

With the labor movement wracked by internal conflict in recent years (the split of Change to Win, the UNITE-HERE conflict, the civil wars in SEIU), figuring out the underlying politics can be mystifying. Restoring the Power of Unions helps explain part of the puzzle. (Luckily, another piece will soon be filled in by Steve Early’s highly anticipated book The Civil Wars in Labor, which will dissect the politics and practice of Raynor’s ally, the Service Employees International Union (SEIU), and is due out next year.)

Halfway through the book, Getman switches to trade union policy. Getman covers topics such as details on how labor law is stacked against workers, the restrictions on the right to strike and a critical analysis of the Employee Free Choice Act. Getman disagrees with many other labor scholars that simply amending labor law to include card check will resolve labor’s crisis.

Drawing on decades of research, Getman argues that issues of access to employees and underlying union strength are more important to union growth. To Getman, such problems can be only be resolved through pressure tactics such as comprehensive campaigns. The comprehensive or “corporate” campaign is the strategy of strategic mobilization and pressure on employers used by some unions, including UNITE-HERE.

At some points, Getman overemphasizes the power of the comprehensive campaign. When properly utilized, the strategy has proven able to beat back some of the worst concessions. For example, earlier this year mineworkers at Rio Tinto utilized member mobilization and international pressure to force an end to a lockout and reach a contract settlement. Represented by the ILWU, the members beat back some, but not all, of management’s concessions.

After 25 years, however, it is time to admit that strategy alone will not revive the labor movement. To do that, we need a labor movement willing to confront the system of labor control—the legal restrictions on the right to strike and solidarity—that hamstrings the labor movement.

Most labor commentators ignore the system of labor control’s restrictions on the right to strike. They focus on organizing or social unionism, ignoring the fundamental questions of union economics. Not Getman. He argues the restrictions on the right to strike are critical, particularly changing the rule allowing permanent replacement of striking workers. Unlike many commentators, Getman also discusses the importance of labor’s long-lost tactics of solidarity, the powerful secondary strikes outlawed by the Taft Hartley Act of 1947. To Getman, union power comes from solidarity—from workers acting together.

The main problem facing the labor movement is not employers, politicians or labor law. It is our way of thinking—a problem of incorrect strategy. It is time for trade unionists and all involved in the broader worker’s movement to debate the critical question of how to “restore the power of unions.” With Restoring the Power of Unions, Getman provides an invaluable contribution for those in the labor movement looking for answers.

This article was originally posted on Working In These Times.

About The Author: Joe Burns, a former local union president active in strike solidarity, is a labor negotiator and attorney. He is the author of the forthcoming book Reviving the Strike: How Working People Can Regain Power and Transform America (IG Publishing, 2011) and can be reached at joe.burns2@gmail.com.

Some Things I Took Away From The Organizing Conference Last Week

Tuesday, December 15th, 2009

Image: Richard NegriLast week I attended the Web 2.0 Organizing Conference in NYC. It was an incredible event packed with hundreds of online organizers from around the country.

While I think the conference was a tremendous success, I think we, in labor, have a long way to go. We have the daunting task of internal organizing so that we can actually do 1/2 of the great things we talk about with online organizing and mobilizing. We have to remember that some unions’ web sites still look they were built out by a third grader. There appears to be an underlying fear among old school unionists to do anything on the web — and most probably because they cannot control the interactivity — or they don’t think they can. This is where we become educators.

We have to educate our bosses on the technology in a way that they can understand, and this is not easy for a whole host of reasons. Some of us don’t know how to explain why some social media tools work and others don’t. We don’t know how to explain that Convio is capable of a lot more than sending a mass email, etc. We can talk about this stuff until we are blue in the face, but often times we just need a shot at doing something to prove that it works. Do it now and apologize later? Maybe.

There are two different things at play for a lot of unions. One is actual organizing and the other is outreach – they are two different things that are frequently carried out by the same individual. (I think one day this will change. I think eventually the unions will realize that they need a team of workers to carry out the online organizing, mobilizing and education and will not put the task to one or two people only. I also think we are not there yet). For now, the same person who is clicking away at Twitter a few times a day is also the person who is getting flyers on web sites and sending emails to workers to get the flyers to print and distribute. The same person should also be building out technology to mine workers’ names and information to turn over to the boots-on-ground organizers. And this is where it can get very tricky for traditional organizing models.

At the conference something was said in one of the workshops that really struck a chord with me. If a worker’s first contact with a union is through a web site form, so should the second — usually with an email. Too often unions will realize they can get a worker’s information mined by the sites but then they want someone to go house visit with the worker immediately after. It shouldn’t, in my opinion, work quite that way. (In other words, I agree with the person who said this at the conference).  It should be: initial contact web site – second contact email. Sure, by the third or fourth correspondence with the worker, have them meet up with someone from the organizing committee, but they might not be ready sooner than that. This is why an online organizer needs to make assessments of the workers in the same way an organizer on ground has to.

The education and mobilization part is becoming easier and easier. We have tools like Facebook, Myspace, Twitter, YouTube. There are progressive blogs welcoming labor’s messaging, such as FireDogLake, Daily Kos and Huffington Post. Then there are labor specific blogs like UnionReview.com where we can get to the meat of things if we need to.

Of course it is important to comment on stories we see — and that is a brand of online activism the same organizer who is mining workers’ names from the sites must motivate people to do. If we see an article in the mainstream media news that is totally counter everything we believe in as working class union workers, then take ten minutes and leave a comment, sway the discussion and get yourselves heard.

If there is one thing that is clear to me after a few years of doing this stuff it is this — never before have we had the opportunity to actually be the media. I talk about this in workshops at the union I work for and wherever else I am asked to talk, it is pivotal. We have to take into consideration that once upon a time it was a talked-at media. We were talked at from places like the NY Times, CNN, etc. Now journalism is an interactive trade. We are still talked at, but now we can talk back, instantly. If we stay as apathetic online as many of us are in the shops we work at, nothing is going to change. And change is what everyone is crying for.

Finally, I think it is important to mention that some of us who are doing online mobilization and education fall into the rut of singing to the choir. I have been guilty of this also. When we have made some ground on blogs or web sites, got heard and — even better – understood, why not move on to the next site or blog? Don’t get caught up in saying the same thing over and over to the same people. It can be a challenge because sometimes we don’t know if our work is ever really done, but who doesn’t like a challenge?

Do you want to be part of the change or would you rather sit back and hope for the best?

This article originally appeared in UnionReview.com on December 12, 2009. Re-printed with permission by the author.

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

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