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While management wages a frontal attack on workers, company lawyers manipulate the legal ... These cases highlight deficiencies in current labor law.
Typology: Lecture notes
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Workers
Rights
Case studies were prepared for publication and factual information was verified and documented by
Professor and Director of Labor Studies New York State School of Industrial and Labor Relations Cornell University
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CONTENTS
NOTICE TO
EMPLOYEES
POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT
LEONARD MILITELLO: They said I was the only one complaining; when I organized a group, they said they wouldn't talk to us."
Introduction 5
Overview 6
DESTROYING WORKERS' ORGANIZATIONS 9 Aero Metal Forms, Inc. / IAM 11 Rock-Tenn Corp. / UPIU 13 Teksid Aluminum / ABGW 15 Flex Cable and Furnace Products / UAW 17 Windsor House, O'Brien Memorial, and Carrington South / SEIU 18
LABOR LAW AS A TOOL FOR EMPLOYERS 21 HarperCollins / CWA 23 Fountain Valley Regional Hospital /AFSCME 25 Crown Cork and Seal / USWA 27 Dayton Hudson's Department Store Company / UAW 28 Chosun Daily News / ILGWU 30
FLAGRANT VIOLATIONS OF THE LAW 33 Power, Inc. / UMWA 34 DomseyTrading Corp./ILGWU 36 Farris Fashions/ACTWU 39 Gress Poultry / UFCW 41
EMPLOYEE INVOLVEMENT" AS UNION AVOIDANCE 43 Flamingo Hilton / USWA 45 Electronic Banking System /ACTWU 47 Kmart Distribution Center / IBT 50
BARGAINING TO EVADE A FIRST CONTRACT 53 Dawn Frozen Foods / BCTW 54 Bethea Baptist Home / UFCW 56 Athol Corporation / GMP 58
Conclusion 61
Additional Resources 62
Glossary 63
INTRODUCTION
resident Franklin Roosevelt signed the National Labor Relations Act in 1935 and gave hope to millions of American workers that their rights on the job were perma- nently ensured. The National Labor Relations Act (section
organization only when employers choose to comply vol- untarily. This perverse situation is a clear contradiction of the original intent of the law. It is outrageous that a nation committed to individual freedom would abandon its re- sponsibility to protect the right of workers to assert free- dom of association in the workplace.
Industrial Union Department Case Studies Project
In 1993, motivated largely by concerns for how best to respond to the challenges of the global economy, the Clinton administration created the Commission on the Future of Worker Management Relations. Chaired by John Dunlop, the commission is examining laws that govern the workplace, including the National Labor Relations Act. Although the Dunlop commission's primary concern is to identify policy alternatives that would encourage im- proved productivity and labor-management cooperation, the attention of the Clinton administration to the legal framework that governs collective bargaining offers an opportunity for workers and their unions to point out in- equities in the current system. In that spirit, the Industrial Union Department (IUD) initiated a project to gather sample cases from affiliated unions that would highlight aspects of the National Labor Relations Act that deserve attention from those evaluating the current status of workplace rights. From June 1993 through May 1994 the IUD collected 255 case studies of workers' efforts to organize. One hundred of the cases were edited and fully documented, then presented to the Dunlop commission. Preparation of the cases for the Dunlop commission was an important objective of the IUD when this project was initiated, but there was another intention as well. Although workers who try to form unions and organizers who assist them are well aware of the gaping holes in the current legal system, many union members and other sup- porters of the rights of workers in a democratic society may not understand the depth of the problem. In this report we include an overview of the case studies, plus descriptions of twenty of the cases in enough detail to convey the trauma workers face when they seek to "form, join, or assist labor organizations." We hope that as you read the cases you will come to share the concern we have about the injustice these workers experience and that you will work with us to restore workplace rights and return the National Labor Relations Act to its original intent. •
CASE STUDIES OVERVIEW
"I've Scrubbed These Floors
for 16 Years...
Bernice Dowd has worked in Housekeep- ing at Knox College for the last half of her working life. Shell be retiring in two years.
Bernice brings home $147 a week - to buy food, to pay heat to clothe herself and to keep a roof over her head. $147 a week. W e think thats wrong. Don't You?*
... and I Can
t Afford
to Walk on Them."
Find out what yau can do to help. CaH (217) 522-1 112, collect. »wMhfc«d U T ^ M I 1 «mmU» (^1) in! t e i / n n**
Even colleges and universities suppress workers' rights. This flyer reflects the conditions faced by workers at Knox College in Illinois, where the employer responded to organizing with a textbook resistance campaign.
I
n virtually all of the organizing cases col- lected by the IUD, employers implemented broad-ranging campaigns to convince work- ers that their attempt to gain independent repre- sentation would be fruitless. The scenario is amazingly consistent across a wide range of industries and does not vary substantially with unit size or region of the country. Even those companies that have good relations with unionized employees at other facilities, and those with functioning employee involvement systems, bitterly oppose the organizing aspirations of their nonunion employees. This opposition routinely involves the use of a management lawyer or consultant who is expert at defeating workers' organizing efforts. When workers file a petition for a union representa- tion election, a common employer response is to appeal the unit determination or to file some other legal chal- lenge in order to delay an election. The delay allows the company to initiate a multifaceted program, typically in- volving a combination of enticements and intimidation. Management promises improved conditions if the union- izing effort is defeated, hints at pay raises, and points out that no improvements are guaranteed if the self-organiza- tion effort succeeds. Top management writes letters about the dangers of unionizing, including the possibility of strikes during which the company may legally hire permanent replacements. The likelihood of a plant clos- ing is often suggested. Workers are required to attend "captive audience meetings" during which management explains its opposition to independent worker organiza- tions. Supervisors monitor the situation, gather intelli- gence on union plans and actions, and hold one-on-one meetings with workers to discuss the situation. The cap- tive audience meetings and one-on-ones are sometimes supplemented by small group meetings, which exclude employees sympathetic to forming a union. Although many employers find ways to run coercive and intimidating campaigns within the limits of the law, many others openly violate NLRB policies. The most common occurrence is discrimination against union supporters in job assignments, discipline, and, in many cases, discharge. The apparent rationale behind this most extreme form of destroying workers' efforts to or- ganize is that the penalties for violating the law are mod- est in comparison to the employer's perception of the advantages of denying workers an independent voice.
Aaron Temporary Services supplies many of the workers for Tandy Corporation's Magee Company factory in Piggot, Arkansas. When Teresa Elkins and her co-workers sought to form a union, Magee notified Aaron, which played the role of enforcer.
ceived. Naturally, this meant passing over some exceed- ingly important issues. For those who are interested in a more complete compilation, the 100-case document pre- pared for the Dunlop Commission is available from the Industrial Union Department. Before we move on to the stories, we should touch on a couple of the topics not addressed directly below. We received many cases that dealt with workers who are not covered by the NLRB. Most frustrating are those in which workers are employed by nonprofit agencies that rely on government funding. The NLRB has refused jurisdiction because of the government funding, yet state public employee boards have refused jurisdiction be- cause the workers are not employed directly by a state or local government agency. These workers find themselves in legal limbo where self-organization becomes bogged down in endless litigation. We also collected many cases that concerned the problems contingent workers face. The barriers to self- organization described in this manual are magnified for employees of contractors and temporary agencies. The NLRB essentially exempts the company for which the work is being performed from any responsibility, mean- ing that workers have to organize the contractor. If the organizing succeeds but then the contractor loses its contract, the workers' attempt to secure independent representation is rendered meaningless. The host of legal technicalities associated with contract labor expands the options for employers to resist employee organizing. We even found one case in which a temporary agency dismissed a worker for "endangering relationship with client by participating in union activities." We also received cases that demonstrated other im- portant concerns, ranging from repeat offenders, such as one employer who vowed to "never do any goddamn business" with an employees' organization, to the prom- ises and pitfalls of employer agreements to remain neu- tral during employees' organizing efforts. We believe that the cases we have included will help all readers appreciate the barriers faced by workers brave enough to exercise their workplace rights. The object of this report is to raise public awareness about the injustices faced by workers and to promote active support for the renewal of workplace rights. •
DESTROYING WORKERS' ORGANIZATIONS
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he cases collected by the IUD represent many industries, all parts of the country, large units and small, and collectively suggest that union busting has become the convention among U.S. employers. Although the tactical details vary, the theme of the employers' campaigns is consistent. Unions are portrayed as third parties interested primarily in dues. Union organizers are described as "pushers" who make as many promises as required to "sell" the union. Workers are warned that there are no guarantees, that if they vote for independent representation the two sides will "bargain from scratch," and that wages, ben- efits, and working conditions are just as likely to get worse as they are to get better. The intention of the standard employer campaign is to exploit workers' fears. Attorneys and consultants who craft these union-busting strategies know that workers might choose not to exercise their right to organize out of fear—fear of job loss, fear of strikes, fear of manage- ment retaliation. It is no accident that antiunion cam- paigns typically suggest that either closing or layoffs could result from unionization. Although such threats are technically unfair labor practices (ULPs), the employer's free speech rights ensure that with care the
message can be conveyed without committing a viola- tion. Even employers who are less careful can use the closing threat to undermine support and simply live with the ULP, since there is no effective penalty save in the most extreme cases where a bargaining order is issued. Employers also exploit workers' apprehension of strikes, calling attention to strike activity and warning that permanent replacements will be hired if a strike is called. Management intimidates workers with direct threats and more subtle warnings and delivers the mes- sage in a variety of formats including letters, captive audience meetings, one-on-one lectures, and the media. Legal challenges and delays also have a debilitating effect, contributing to the dashed hopes of potential union supporters. The best way to understand the effectiveness of the union-busting model is to look at some examples of how it works. The five cases in this section illustrate a range of employer campaigns of varying intensity and emphasis.
AERO METAL FORMS When the fifteen employees of Aero Metal Forms sought to organize a union, the company's owner hired an attorney who designed a
WICHITA, KANSAS AERO METAL FORMS is a job shop engaged in the manu- facture of sheet metal and fiberglass parts for military air- craft. Ninety-five percent of Aero Metal's business comes from the Department of Defense. Founded in 1981 by James Zaudke, who is the owner and president, the company's only facility is located in Wichita. An IAM organizing campaign was initiated by em- ployee Tom Wood, who met with a group of fellow work- ers on February 25,1991. Within ten days a majority of the workers had signed a union authorization petition. Two certified letters were mailed to Aero Metal Forms president Zaudke, one declaring majority status and re- questing recognition, the other explaining employee rights under the Wagner Act. The letters were delivered at noon on March 8. Tamara Cummins, Zaudke s secretary, opened them and read the demand for recognition out loud to bookkeeper Janet Lester. Cummins commented that Zaudke would be "greatly upset" and "hell to work with." When he re- turned from lunch a short while later, Zaudke and Cummins met in his office. As Lester later testified, she was called in and told that Mr. Zaudke was going to lay off Tom Wood "because his dad is some big shot in the union at Boeing." Lester was then instructed to "say what they wanted me to say about when they received the let- ters. ... I stated to both of them that I would not lie." Lester's refusal to lie foiled a hastily crafted plan to dis- associate Wood's layoff from the union-organizing drive. Nonetheless, at 3:30 that afternoon Zaudke informed Wood that he was laid off for "lack of work." One week later on March 15 Zaudke terminated Lester for "poor work performance." The IAM filed a petition for an NLRB election on March 12, with the support of twelve of the fifteen em- ployees. Aero Metal retained attorney William Dye of the law firm of Foulston & Siefkin to advise and assist with an antiunion campaign. Dye trained supervisors to identify and combat union supporters. Under his guidance, Zaudke distributed a written set of instructions to the su- pervisors explaining carefully "the things we can and can- not do during an organizing campaign." Captive audience meetings for employees commenced and were held regularly until the election. At the captive audience meetings, standard antiunion messages were delivered. The meetings were reinforced by a personal letter to each employee from Zaudke and by a handout with questions and answers about unions. Workers were
Two-and-one-half hours after the owner of Aero Metal received this letter by certified mail notifying him that his employees supported independent representation, the leader of the effort to unionize was fired.
warned that they would probably be forced on strike by the union, that the law gives the employer the right to hire permanent replacements for strikers, and that the company would in fact replace them. The workers were also told that the employer did not have to agree to any union contract demands, and that they could lose employer-provided benefits because negotiations would start from scratch. They were threat- ened that the company might go out of business if it felt it could not afford the cost of a union contract. In addi- tion, standard questions were raised about the intrusion of a third party and about the union's motivation and credibility. The antiunion campaign also was waged on the shop floor. Zaudke and supervisors remained friendly to work- ers who expressed doubts about the union, while union supporters were treated with hostility. However, this disparate treatment was handled very carefully and dis- associated from any mention of the union.
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Two additional union supporters lost their jobs, Ken Southworth and Gary Spencer. On March 25 Southworth was laid off from the plaster pattern shop. Although the union did not contest the layoff because the work load in the plaster pattern shop was declining, there was a dampening effect on support for the union nonetheless. Prior to the layoffs of Wood on March 8 and Southworth on March 25, Aero Metal had never laid off an employee in its ten years of operation. Gary Spencer, maintenance man and strong union advocate, attracted increased attention from Jim Zaudke. Starting in early March Zaudke began to criticize Spencer's work and question his decisions. As Spencer recalls, "All of a sudden Zaudke started criticizing every- thing I did. I mean almost every morning when I came in Zaudke would holler at me in front of everybody that I screwed up this or that job the day before, or that it took me too long." When Spencer reported to work on March 29, "I didn't think I could make it through the day, I was so nervous I couldn't even sleep the night before." Zaudke started right away, first criticizing Spencer for ordering too many casters, then reminding him that he had ordered light bulbs six months earlier that were too expensive. Finally Zaudke said,"I can't put up with your incompetence any more. I don't have to, and I'm not going to." Distraught and assuming that he had been fired, Spencer gathered his belongings and left. When he returned to pick up his final paycheck the following Monday, Spencer asked Zaudke why he had been fired. Zaudke replied, "I never fired you, and I have witnesses." When Spencer asked if it had all been a mis- understanding, Zaudke would not answer. The April 22,1991 election resulted in a six-to-six tie with three challenged ballots. The union filed several unfair labor practice (ULP) complaints regarding the elec- tion behavior of Aero Metal. An NLRB field examiner de- termined that most of the ULP charges were serious enough to warrant a hearing. A notable exception was the discharge of Gary Spencer, which was judged to be unrelated to the organizing campaign. The field examiner's conclusion stands in stark contrast to the one reached by the Kansas District Unemployment Insurance office, which awarded Spencer unemployment benefits: "The claimant reports being fired. The employer reports the claimant quit. The evidence presented shows the claimant was discharged but not for misconduct con- nected with the work."
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The Kansas Unemployment Insurance office ruled that Gary Spencer had been discharged. Nonetheless, the NLRB accepted the em- ployer's word that Spencer had quit. The board refused to hold a hearing to determine whether he was fired for union activity.
A hearing was held by an administrative law judge (ALT) on October 1 and 2,1991, but a decision was not issued until June 3,1992. The ALJ ruled that the behav- ior of Zaudke and Cummins in the first few hours follow- ing receipt of the union letter on March 8 was illegal, including the discharge of Tom Wood. The judge was openly critical of Jim Zaudke ("for whom truth must serve a business purpose") and his secretary Tamara Cummins ("testifying without regard for the truth"). However, the entire antiunion campaign subsequent to the firing of Wood was judged to be acceptable. The discharge of Janet Lester was allowed. The ballots of Southworth and Spencer were thrown out. The com- pany appealed the decision regarding Wood, and IAM appealed the decision regarding Lester. On February 10,1993, the NLRB overturned the ALJ on only one point: Janet Lester's firing was ruled a ULP, as she was discharged "because she refused to fabricate evidence." Tom Wood was awarded $3,325 plus interest for lost wages; Janet Lester was awarded $1,200 plus interest. Tom Wood's ballot was opened on April 5, the IAM was declared a 7-to-6 winner, and the union was certified April 25,1993. By this time all but one of the seven workers who voted for the union had been harassed into quitting and union support was basically gone, making negotiation of a collective bargaining agreement virtually impossible. The IAM could not persuade any of the employees to participate in negotiations, and it withdrew as collective bargaining agent in April 1994. Although the NLRB ultimately ruled that the dis- charges of Wood and Lester were violations and Aero Metal was forced to pay approximately $5,000 in lost pay and interest, the bulk of the company's intimidation cam- paign was deemed legal. By carefully training supervi- sors and avoiding any reference to the union when bad- gering employees, the company ensured the ultimate defeat of the IAM while escaping any lasting conse- quences from the NLRB ruling. •
any substantive issues. At negotiations on October 16, 1991, Rock-Tenn announced that it had evidence that the union was no longer supported by a majority. The com- pany then proposed that any contract should only last through February 22,1992. This bargaining stance was based on an NLRB decision that allows employers to "in- sist on a contract duration coextensive with the certifica- tion year.. .by showing that it had a reasonably based doubt as to the union's majority status." The UPIU decided to solicit membership cards to demonstrate that it still had majority support. On De- cember 6 the union presented membership cards from 65 percent of workers as proof. Rock-Tenn's lawyer Larry Forrester ignored the evidence and reiterated that the company would not accept a contract beyond Febru- ary 22,1992, and that this was not a bargaining position. The company even refused the union's offer to have a neutral third party conduct a card check. Meanwhile, plant manager Roy Young had recruited employees Holly Trimble and Glenda Sowders to circu- late a decertification petition. They had been allowed to move about through the plant during work time to solicit signatures. On December 10,Trimble and Sowders drove to Indianapolis in a company-provided car and filed a petition to decertify the UPIU. Both employees were paid for their time. However, the decertification petition was postponed indefinitely because the UPIU got wind of what happened and filed new ULP charges. The company immediately accelerated its antiunion tactics. When press operator Robbie Baker was called into his supervisor's office after an argument, he asked his union steward Cliff McCrory to go with him. In a blatant violation of Baker's legal right to have a steward present (known as Weingarten rights), McCrory was physically prevented from entering the office. The super- visor warned him, "If I catch you off your job playing union steward, I will clock you out.. ..This union stuff is going to go."
On another occasion, department head Bill Snyder told janitor Barbara Gruhl,"We have a majority of the people against the union and we're going to put a stop to it permanently.. ..Those that are causing all these prob- lems are going to be severely punished." This was no idle threat. Shop steward William Schonfield received a writ- ten warning for "standing around" on the first day he revealed his prounion sympathies by announcing his role as steward. A few weeks later he was suspended for
"I'm tired of all this, and I tell you there's not going to be a union right now. We made sure of that, and we're going to put a stop to it permanently. Those that are causing all these problems are going to be severely punished, I'll see to it personally myself."
Rock-Tenn department head Bill Snyder, ten months after workers voted for union representation and two weeks after 65 percent of them signed a petition reaffirm- ing their union support.
three days after being reported for arguing by Trimble and Sowders (the employees who circulated the decertification petition). Local President Kathy Ellis was penalized for absen- teeism for "union business" when she went to the NLRB Regional Office to answer a charge filed by the company. Later, she was disciplined for defending a long-time em- ployee who was sent home early for a supposed quality control violation. And so it went. On May 25,1993, an administrative law judge (ALJ) decision rejected Rock-Tenn's claim that the union had lost its majority and found the company guilty of all of the unresolved violations mentioned above. These included violation of Weingarten rights and interfering with NLRB processes. Other than compen- sating Schonfield and Ellis for their losses due to the dis- crimination, the penalty recommended by the ALJ merely required Rock-Tenn to "cease and desist" from antiunion activity, to bargain in good faith, and to post a notice summarizing the NLRB order. These penalties are all that are allowed under the law, even in cases such as this in which the ALJ decried Rock- Tenn's "widespread and long-continuing misconduct, demonstrating a general disregard for the employees' fundamental rights." Rock-Tenn's response was predict- able. The company continued to delay dealing with the UPIU by utilizing the legal process. It filed an exception to the ALJ decision and appealed to the NLRB. •
DICKSON, TENNESSEE
WORKERS AT the Teksid Aluminum plant in Dickson, Tennessee, produce aluminum cylinder heads for auto- mobile engines. Teksid is owned by Fiat, an Italian auto- mobile company which is highly unionized in its home country. Fiat opened the plant at Dickson in 1987 and transferred management personnel from Italy to-direct the operation. In January 1989, the ABGW launched an organizing campaign with the assistance of the Industrial Union Department. The Italian managers responded with a ve- hement antiunion effort which would eventually include numerous violations of the law. Their response is repre- sentative of many foreign-owned companies, which work with unions at home but follow the American model of union busting in the United States. Teksid's effort to defeat the ABGW campaign was coordinated by Richard Figari, director of human re- sources. Figari referred to workers who supported the ABGW as "union slime." In a series of captive audience meetings held the day after the organizing campaign went public, he expressed the company's firm opposi- tion to unionization and his concern that "the hostility or the level of antagonism that is being created.. .at the plant is really not conducive to a good relationship with employees." The key targets of Figari's hostility were Bobby Felts, Steve Forcum, and Gary Johnson, leaders of the ABGW campaign. On separate occasions Felts and Forcum were told not to talk with other workers about the union. Felts and Johnson were forbidden to take breaks together. A new "no talking" rule was established, but only enforced against union supporters. Supervisors fol- lowed Johnson and Felts into the break room, the locker room, and the parking lot. Two days after union supporters reported to work wearing union buttons, Figari circulated through the plant distributing antiunion buttons. When employee Randy Crowell declined an antiunion button because "I'm not campaigning either way," he was told to get a broom and sweep the basement. When he emerged cov- ered with grime four hours later, his supervisor asked "Where's your union button?" and then laughed and walked away. The incident convinced Crowell to support the union, and he wore a button for the first time the next day. He then became a visible target of Teksid's union- busting campaign. Figari used the firm's attendance
policy as a ploy first to disci- pline and ulti- mately to dis- charge this union sup- porter. On one occasion Crowell was given a writ- ten warning for missing work when he had to take his asthmatic two-year-old son to the hospital, even though he had notified his supervisor five hours before his shift started. Ten days later, Crowell was wearing a union hat when he went to Figari's office with a doctor's note recommending two weeks' light duty because of recurring wrist tendonitis. Figari threw down the note, said there was no light duty, sent Crowell home, and issued another written warning and a three- day suspension. When Crowell missed another day be- cause of legal problems in family court, he was fired, even though other workers had not been penalized for missing work under similar circumstances. While building the case to justify firing Randy Crowell, Teksid's Italian managers were also going after Steve Forcum. On March 16, just prior to the beginning of the 7:30 a.m. shift, Figari entered the break room. Forcum and two other union supporters questioned him regarding the thousands of dollars the company was spending on legal fees in their effort to "bust up the union campaign," rather than using such funds to pro- vide added benefits for the workers. Figari responded directly to Forcum, "Steve, you won't be around here to enjoy any of the benefits anyway." Two weeks later Production Manager John Barbaro approached Forcum and asked to speak with him. He explained that production was down because of the "high tension" caused by the union campaign. After say- ing,"! respect your rights to do what you're doing; we have unions in Italy," Barbaro asked Forcum to help get production back to former levels. When Forcum indi- cated that he would continue to push for independent representation, Barbaro exploded, "I could lose my job, and if I go you go with me!" Supervisor Enzo Pagliuzzi also participated in Teksid's efforts to intimidate union supporters. Shortly after the campaign started, Pagliuzzi accused union supporter
MORLEY, MICHIGAN
WHEN OWNER Richard Balaguer moved Flex Cable and Furnace Products from Grand Rapids, Michigan, to the small town of Morley fifty miles away, he was praised by town leaders for providing jobs and for his financial do- nation toward a new community park. However, the workers he hired soon found Balaguer to be a less than desirable boss with a take-it-or-leave-it attitude. In the spring of 1991 a group of workers contacted the UAW with complaints of poor wages and benefits, and sexual harassment of women employees by male supervisors. The workers had approached the union in spite of prior warnings from plant manager Ed Schultz that the plant would close if they ever tried to organize. He had explained that Balaguer moved to Morley from Grand Rapids in order to escape a union that represented work- ers at that facility. In May when Balaguer and Schultz caught wind of the fact that the twenty employees were discussing joining a union, they threatened to close the Morley plant as well. On May 24, the Friday of Memorial Day weekend, Balaguer instructed all of the employees to stop working fifteen minutes before the end of the shift. He called them outside and had them watch as he padlocked the door, announcing that the plant was closed and that they were all terminated. The following morning a help-wanted ad appeared in the local newspaper for positions immediately available beginning Tuesday, May 28. Over the course of the holi- day weekend, eleven of the twenty workers terminated on Friday were telephoned and told to report to work the following Tuesday. The nine employees suspected of being involved with union activity were not invited to return. The plant resumed operation without interrup- tion on the 28th. If there were any questions about the bogus nature of the "plant closing," they were answered a few weeks later when the Morley Village Council unanimously ap- proved a twelve-year tax abatement for Flex Cable. At the July 8 meeting Balaguer announced that employment at the factory had risen to twenty-nine, and he predicted that by the end of 1992 the company would employ nearly fifty. The UAW filed charges with the NLRB, which de- cided to issue a complaint and schedule a hearing. In response, Flex Cable agreed to reinstate three people effective July 9, but at reduced benefit levels and as pro- bationary employees. The employer also eliminated fam-
ily coverage from its health insurance plan for all work- ers. At a meeting of plant employees on July 19 Schultz announced a new rule prohibiting anyone from wearing a union hat or pin; foreman Don Brocker pointed to Teresa Utter and Dave Reichard who were wearing UAW Organizing Committee buttons and said, "That means you." On January 2,1992, seven months after the plant was closed and union supporters terminated, the NLRB nego- tiated a settlement agreement with Flex Cable. The nine discharged workers received various amounts of back pay totalling over $31,000. However, all but two waived reinstatement. Health insurance benefits were returned to former levels for all employees. But the unionization effort was destroyed. As UAW International Representative Ken Bieber ob- served, "The company killed the workers' organizing attempt before it ever had a chance to really develop.... To the workers involved it appeared that this employer was not afraid of the NLRB or the law. By the time the NLRB settlement was posted in the plant we had no support left." •
Tuesday, M*y 78, 1991
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- Service Employees International Union (SEIU) YOUNGSTOWN, OHIO
"People are being treated like dogs. People need to realize that they have choices and they have voices.
When they band together, anything is possible."
CHRISTINA jACON KLARIC Practical nurse, Windsor House
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Worker enthusiasm for independent repre- sentation incensed employers, generating a coordinated response from nursing homes in the Youngstown area against union representation.
THERE ARE approximately eighty-five nursing homes in the area around Youngstown. In response to workers' requests, SEIU Local 627 has been actively organizing employees of the nursing homes since 1990. The local has established the Coalition for Better Care to coordi- nate community support for the organizing efforts. In reaction against their workers' interest in unionization and the SEIU's organizing success, nursing home owners have joined together to wage war against Local 627 with the aid of antiunion law firms. One NLRB agent said of the situation, "What happened in this region in the steel industry in the 1930s, is now happening in the nursing home industry in the 1990s." In November 1990, the SEIU filed for election for a unit of 132 service and maintenance employees and licensed practical nurses (LPNs) at Windsor House, part of a chain of nursing homes owned by John Masternick. The employer's legal challenges to the makeup of the unit were rejected, and Local 627 won the February 27, 1991 election by seven votes. Windsor House first filed objections to union conduct during the preelection pe- riod, then appealed when the NLRB regional director found the objections without merit and certified the union as bargaining agent. By the summer of 1991, the game plan of John Masternick and the lawyers representing Windsor House was becoming obvious—manipulate the legal process by pursuing every possible challenge and appeal to delay dealing with the union and avoid bargaining. A hearing was scheduled on the employer's appeal, but at the last minute the Windsor House attorneys filed for a post- ponement. When the November 15,1991 hearing officer's report went against the company, exceptions were filed. Eventually, the NLRB ruled against the employer's exceptions and upheld the certification of Local 627 on November 30,1992. When the SEIU contacted Masternick to schedule negotiations, he refused to bargain on the grounds that the original unit determination was inappropriate be- cause the LPNs were grouped with other employees. This forced the union to file unfair labor practice (ULP) charges for failure to bargain. On March 10,1993, the NLRB issued a bargaining order, but Windsor House re- fused to comply. In response the NLRB sought enforce- ment in federal appeals court. During the four years of
From CARRINGTON'S CORNER June 21,
"We've got some difficult days ahead. But it really doesn't matter with me now. Because I've been to the mountain top. Like anybody I would like to live a long life. Longevity has its place.... But I'm not concerned about that now....
And He's allowed me to go up to the mountain. And I've looked over, and I've seen the Prom- ised Land. I may not get there with you, but I want you to know tonight that we as a people will get to the Promised Land.
So I'm happy tonight. I'm not worried about anything. I'm not fearing any man.
MARTIN LUTHER KING, JR. April 3,
ence. The regional office of the NLRB facilitated the employer's tactical delay by postponing the election with minimal investigation of the facts. The charges subse- quently were dismissed and an election was held Septem- ber 9- The SEIU won with a clear and uncontested majority. Carrington South filed objections, alleging that the union's organizing campaign made inflammatory appeals to racial prejudice. Specifically, the employer argued that the union appealed to the racial prejudice of black employees against white employees. This claim was made in spite of the fact that all of the union staff mem- bers who worked on the campaign are white. The only evidence cited to support this claim that actually dealt with the union's campaign conduct re- ferred to four copies of the union newsletter "Carrington's Corner." Specifically, Carrington's lawyers presented three cartoons and one quote. Only one of the cartoons included caricatures that were racially identifi- able: it depicted a black employee confronting a white supervisor. The quote in question was from Martin Luther King's famous "I've been to the mountain top" speech.
In his rejection of Carrington's case, the NLRB re- gional director noted that the union distributed twenty- three pieces of literature during the campaign. He con- cluded: "It is clear that the three cartoons in question and the quotation from Dr. Martin Luther King are not objec- tionable, and it is also clear that the union did not con-
Searching desparately for any reason to challenge the vote in favor of union repre- sentation at Carrington South, the nursing home's lawyers argued that this quote from Martin Luther King was used in an "inflammatory appeal to racial prejudice."
duct a campaign in which race was a significant aspect." Carrington's appeal to the NLRB was denied. Given the weakness of the employer's charges, it ap- pears that the only rationale for pursuing them was to provide a legalistic basis to delay certification in order to frustrate the workers' efforts to attain union representa- tion. The charge of racial prejudice is a serious enough one that both the NLRB and the courts are likely to take it seriously regardless of the merits. The parallel between the racial discrimination charges at Carrington South and the anti-Semitism charges at O'Brien Memorial is obvious. It should come as no surprise that Mary Jane Jones, who joined with O'Brien owner John Masternick in the anti-SEIU seminars described above, was subsequently hired by Carrington South to coordinate its antiunion campaign. The lawyer representing Carrington before the NLRB and the courts is David Shaffer of the firm Joondeph and Shaffer, and another participant in the seminars. When Local 627 asked Carrington to bargain, the re- sponse was predictable. Letters from David Shaffer and from Carrington declined the requests. As explained clearly in a February 22,1994 letter from Carrington, "The company filed objections... based on the fact that the union had made an appeal to racial prejudices... .The company believes that the rulings by the NLRB were wrong. The only way we can test the correctness of the NLRB ruling is to refuse to bargain so that the matter will be put into the court system." While Carrington continues-to fight Local 627 through the courts, Windsor Home and O'Brien finally have abandoned their attempt to avoid bargaining. Cases for both Windsor and O'Brien are currently pend- ing before the U.S. Court of Appeals for Sixth Circuit; with a negative decision inevitable, however, the em- ployer decided to negotiate. Collective bargaining was in progress as of July 1994. Though the union has been vindicated, the four-year delay at Windsor and two-year delay at O'Brien have denied workers (many of whom have moved on to other jobs) their rights to union repre- sentation. More important, the ongoing battle at Carrington reflects how coordination among employers and attorneys has spread the union-busting cancer throughout the nursing home community in theYoung- stown area. •
LABOR LAW AS A TOOL FOR EMPLOYERS
ANOTHER REASON NOT TO SIGN A CARD
QUESTION: DOES HAVING A UNION MEAN MY PAY CAN'T GO DOWN?
ANSWER: NO
**HERE'S THE NATIONAL LABOR RELATIONS BOARD LAW: *THERE IS, OF COURSE NO OBLIGATION ON THE PART OF AN EMPLOYER TO CONTRACT TO CONTINUE ALL EXISTING BENEFITS, NOR IS IT AN UNFAIR LABOR PRACTICE TO OFFER REDUCED BENEFITS."
This flyer distributed by Lundy's packing is representative of employers' use of labor law to disparage the value of independent representation.
L
abor laws do not protect effectively the rights of workers, and this is cause for concern. Even more distressing is the ease with which management lawyers can manipulate the le- gal process that is supposed to protect workers, turning it to the advantage of the employer. Most deplorable is the use of federal court and NLRB interpretations of la- bor law as weapons to obstruct workers' efforts to exer- cise their rights. Delays inherent in the NLRB process offer obvious advantages to employers. The options begin as soon as the union petitions for an election. The employer can delay the vote by refusing to accept the unit specified by the union, which will force a unit determination hear- ing. The employer can prolong the hearing process by presenting detailed evidence and testimony. Delays at this early stage allow the employer to prepare and set in motion an antiunion campaign. Even a few weeks delay can allow the employer's intimidation tactics to take hold and shift the momentum away from the union.
At the election the employer can challenge all voters who conceivably could be construed to fall outside the unit. In the case of a close vote, these challenges can delay certification for months, allowing for hearings, le- gal briefs, an original decision, and appeals. If the union wins the election, the employer has avail- able a range of delay options. Objections to the original unit determination can be raised. Alternatively, unfair labor practice (ULP) charges can be filed related to union conduct during the preelection period or on the day of the vote. In some cases, the conduct of a board agent during the vote may be the basis for an appeal. Employ- ers can even tie up a case by raising issues that deal ex- clusively with NLRB procedures. Once the union is certified, the employer can refuse to bargain, thereby forcing the union to file a ULP charge. This will allow the employer to raise again in federal court any objection that was denied by the NRLB regarding unit determination, union conduct, or board procedures.
