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On Thursday, February 12, the Senate Health, Education, Labor and Pensions Committee voted to send the Hilda Solis nomination (President Obama’s choice for Secretary of Labor) to the full Senate for a confirmation vote.
While organized labor is generally pleased with the Solis nomination, Senate Republicans, terrified of her vocal support for the landmark Employee Free Choice Act (EFCA), have vowed to oppose her confirmation. The EFCA would give workers the right to join a labor union simply by signing cards. Labor loves it, businesses hate it. The U.S. Chamber of Commerce has spent millions lobbying against it.
While there has been much conjecture about if, when, and how hard Obama will push for passage of the EFCA, there’s another labor issue out there that will, at once, restore federal rights to America’s working people without requiring the messy congressional battle the EFCA is expected to elicit.
That issue is the so-called Dana-Metaldyne decision. It involves two Midwestern corporations (the Dana Corp. and the Metaldyne Corp) whose employees decided to become labor union members, but ran into a legal buzz saw. And for President Obama, rescinding this repellent decision should be an easy call to make.
A brief history. There are two ways to join a union: by petitioning the NLRB to hold a sanctioned union election, where everyone votes yea or nay by secret ballot, and by using the “card check” method, where a company gives its workers the right to join simply by signing cards saying they wish to do so. The EFCA would make the card check method universal (almost).
Actually, there is a third way to become a union member. Although rare, it’s where the NLRB intervenes and forces a company to recognize a union as the employees’ bargaining agent. They do this only after it’s been determined that the company used an unfair labor practice (ULP) in preventing its employees from joining up. It’s an unpleasant and hostile way for a union to gain affiliation, but it happens occasionally.
Over the last two decades, the card check method has gained popularity. To avoid the time, cost and hard feelings caused by Board-sanctioned elections, many companies have seen the wisdom in taking a chance on card check. In their view, if their employees really, truly want to join up, there’s no point in delaying or resisting the inevitable.
It goes without saying that organized labor much prefers card check to NLRB elections. Besides the lack of bureaucratic red tape, a card check vote usually (but not always) means that the company won’t resort to stalling tactics or inundate its employees with virulent anti-union propaganda.
A couple of years ago, the employees of Dana and Metaldyne voted by card check to join the United Auto Workers (UAW). The card check procedure went off without any major problems. The company was fine with it, the UAW was fine with it, and, because a majority is required to approve it, the majority of the workers were obviously fine with it.
But shortly afterward, a group of disgruntled employees petitioned the NLRB, asking that the affiliation be overturned and that a sanctioned union election be held instead. The regional NLRB office denied the request. They ruled that the card check had been done properly, and that these new union members were now required to wait the standard one year before filing a “decertification” petition (a request to leave the union).
This one-year “grace period” is an eminently practical restriction. Workers who join a union for the first time are often skittish and uncertain. While they’re excited and optimistic about improving their economic status, they’re also frightened by management horror stories about union thuggery and companies shutting down as the result of strikes.
Moreover, these “newbies” generally don’t have a clue as to what the contract bargaining process entails, or what tricks management can use against them. They are unaware that companies, in direct violation of federal labor law provisions requiring them to bargain in good faith, often purposely stall the process, hoping the membership becomes so unnerved and disenchanted that they take steps to decertify.
Unlike those aforementioned rare instances where the NLRB forces union recognition on a company, these panicky decertification initiatives are not rare. In fact, they are all too common. The companies know this. That’s why so many of them try to torpedo that all-important, first contract negotiation, hoping to exploit the ignorance and uncertainty of novice memberships. And that’s why the NLRB makes the members wait at least a year before reconsidering.
However, in the matter of Dana-Metaldyne, it gets much worse. Despite the regional NLRB’s ruling, a fanatical, anti-union organization called the National Right to Work Legal Defense Foundation jumped into the fray and filed federal charges, claiming that these employees (those who didn’t sign cards) had been deprived of due process.
And, in 2007, the Republican-dominated NLRB overruled its regional office. The national NLRB declared that if a minimum of 30 per cent of a workforce signed a petition within 45 days of becoming union members—asking that the card check decision be put aside, and that a full-blown union election be held—it was a legal mandate.
Of course, 45 days is a ridiculously small window. Nothing is going to happen in 45 days. Nothing is going to occur in 45 days that confirms or refutes the ultimate viability or productivity of one’s union. The NLRB may as well have made it three days, the standard “buyer’s remorse” period on a credit card purchase.
Getting back to the EFCA, everyone agrees that its enactment would be a huge advantage for unions. Even though the Democrats (including both Hillary Clinton and Obama, when they were candidates) have promised organized labor they’ll give the EFCA their very best shot, labor has been left at the altar so many times, you can’t blame them for looking at this thing with a jaundiced eye. What the Obama administration does with this landmark bill remains to be seen.
But the Dana-Metaldyne decision is a whole other deal. By appointing new members to the NLRB, as is his right as president—and having an activist Labor Secretary like Hilda Solis leading the charge—Obama can get the Dana-Metaldyne decision overturned. It can be fixed, and fixed immediately.
DAVID MACARAY, a Los Angeles playwright (“Borneo Bob,” “Larva Boy”) and writer, was a former labor rep. He can be reached at email@example.com