American labor law is broken. Or rather, it’s fixed. The National Labor Relations Board (NLRB) election process creates obstacles for union supporters seeking to communicate with undecided workers, gives employers wide leeway to intimidate and punish employees who speak out in favor of the union, and offers management the chance to delay the recognition process without end or to break the law with a slap on the wrist.
Under the current NLRB system, managers force employees to sit through meetings during work hours in which they are lectured on the evils of unionization. Sometimes that means separate meetings with specially tailored messages for different employees based on their likely leanings, division or race. Managers threaten employees with the prospect of losing their wages, benefits or jobs if they choose a union to represent them — to avoid running afoul of the law, they simply need to phrase these threats as “predictions.” And according to a ruling this summer by the three Bush recess appointees who have a majority on the Board, management can impose and enforce prohibitions on employees “fraternizing” with each other — not only on the job or during their break times, but even once they go home from work.
There are some anti-union tactics that remain technically illegal, like firing employees for speaking positively about the union to their co-workers, or having managers forcibly tear union stickers off of employees’ clothing. But when anti-union administrators here at Yale-New Haven Hospital have trotted out these and other tried-and-true union-busting tactics, hospital workers have found little recourse in the NLRB. That’s partly because of the difficulty of proving guilt to the NLRB; smart anti-union managers always have an alibi for why someone needed to be let go (lateness is a popular one). It’s also because, if the NLRB should decide to pursue your case, it becomes empowered to agree to a settlement on your behalf.
Typical settlement for a case of wrongly firing an outspoken union supporter? Reinstatement of the employee, sometimes with back pay, and usually long after the fate of the union drive has been decided. Not to mention temporarily having to post some signs that are the legalese equivalent of scrawling “I will not union-bust again” on the chalkboard.
In other words, union-busting pays. That’s why YNHH keeps doing it. Some of the tactics are old-school, like barring union organizers from its property and firing supporters from its workforce. Others are more innovative, like arresting its own workers for leafleting to their co-workers outside the building. Hospital administrators — with help from “union avoidance” firm Management Science Associates — have it down to a science. So it should come as no surprise when hospital workers like Thomas Streater, who four years ago was one of 1,100 out of 1,800 employees in the bargaining unit to sign a pro-union petition, tell the New Haven Advocate that the effort “goes nowhere.”
As Human Rights Watch concluded in its “Unfair Advantage” report four years ago, “workers’ freedom of association is under sustained attack in the United States, and the government is often failing its responsibility under international human rights standards to deter such attacks on workers’ rights.” That’s why 50 percent of American workers say they want union representation, but only 12 percent have it. Meanwhile, 79 percent believe it’s likely that “nonunion workers will get fired if they try to organize a union.” And as a Clinton commission found a decade ago, demonstrably punitive firings of union supporters mar one out of four union elections.
Under these circumstances, as Cornell professor Richard Hurd wrote in that commission’s report, “the right to an independent voice for workers has become a mirage.” Fortunately, there’s an alternative: card-check neutrality agreements.
Over the past several years, workers at AT&T, Anheuser-Busch, Hilton and other companies around the country have had the chance to choose whether they wanted union representation under card-check neutrality agreements between unions and their employers. These agreements work outside of the dysfunctional NLRB process and safeguard against its most egregious abuses through the oversight of a mutually agreed-upon third-party abitrator. This arbitrator counts and inspects union cards and polices violations of the standards of non-coercive persuasion set by the union and the employer (when Local 35 had its own union election without the NLRB in 1941, the process was overseen by the Connecticut State Board of Mediation).
Neutrality agreements clarify the tactics that each side can and cannot use to communicate with workers so that they make their crucial choice based on information, rather than intimidation. As Human Rights Watch wrote: “Where workers and employers can agree to use card checks that genuinely reflect workers’ free choice, with safeguards against coercion by management, by union representatives, or by coworkers, they can combine the benefits of freedom of choice and a mutually respectful relationship that carries over into collective bargaining.”
YNHH’s new CEO, Marna Borgstrom, could take a first step toward ending decades of hostile labor relations by agreeing to a meeting with the Service Employees International Union to discuss the terms of a free and fair union election. Until she does, citizens of New Haven are right to keep pressing their neighborhood hospital to do better by their neighbors: hospital workers who often can’t afford healthcare for their children and who make $10,000 less a year than the Yale University workers doing the same jobs.
When managers are no longer deputized as union-busters and hospital workers can make a choice about collective bargaining without threats and harassment, they will be better able to work together toward the common cause of saving lives.
Josh Eidelson is a senior in Jonathan Edwards College.