Monday, February 2, 2009


T.A Frank's article on the effort to unionize Lancaster County's Rite Aid Distribution Center is an important read. Frank does something novel in the recent debate over easing labor law: He doesn't focus on card check. Rather, he focuses on the harsh realities of forming a union under current law.

In the Lancaster organizing effort, for instance, the National Labor Relations Board -- Bush's National Labor Relations Board -- was so appalled by Rite Aid's brutal counter-organizing that they planned to take the company to court on 49 separate violations of federal labor law. Rite Aid chose to settle. That meant "agreeing to rehire two fired union supporters with back pay and to post a notice in a common area promising not to engage in thirteen types of illegal anti-union activity." Some settlement. The organizing campaign continued, and so too did Rite Aid's efforts:

Rite Aid insisted on an election, and the date was set for March 2008. Once again, the company did what it could to persuade workers to vote against the union. HR staff conducted mandatory hour-long sessions with employees once a week. They would lecture at length on why unionization would be damaging to workers. They would warn employees that the union would require high dues and stand in the way of healthy communication between management and labor. They would show videos about plants being shut down after becoming unionized.

Meanwhile, by Warner’s count, more than 100 union supporters had been dismissed since June of 2006—although never, of course, for the explicit reason of having supported unionization. "We had a list of our people," she says. "And one by one we kept watching them get fired." By contrast, Warner says, only about ten non-union-supporting employees were let go in the same stretch.

Why did Rite Aid take so many chances with the law?

Perhaps because it made economic sense. While the company’s actions may have been illegal under the National Labor Relations Act of 1935, they were also nearly cost-free. If a company illegally undermines a union campaign by threatening to fire workers, or by spying on them, or by promising to shut down the facility, the most serious penalty it can expect to face is being ordered to post notices in the workplace promising not to engage in such activities in the future.

If a company illegally fires a worker, and the worker can somehow prove his or her case, the penalty is a requirement to reinstate the employee with back pay—minus whatever the employee has earned elsewhere in the meantime. And if a company negotiates in bad faith, it can perhaps expect an order from the NLRB to start negotiating in good faith. Such punishments are the equivalent of punishing shoplifters by asking them to put the merchandise back.

This is what lawmakers have sought to remedy in devising the Employee Free Choice Act.

For all the controversy, EFCA is a surprisingly modest bill, with provisions aimed at strengthening existing labor laws rather than altering them substantively. Under EFCA, if Rite Aid had been found guilty of making illegal threats or of spying or of intimidation, it could have faced a monetary penalty—up to $20,000 per incident in cases of repeated violations.

If Rite Aid had been found to have illegally fired a union supporter, it would have been required to pay not just the back wages, but three times the back wages. And if contract negotiations were being conducted without results, either party could seek federal mediation after ninety days. If, after thirty additional days, negotiations were still stalled, then an arbiter would be able to impose a contract settlement that would last two years. This would prevent employers (or employees) from running out the clock with bad-faith talks.[...]

What most undermines the secret-ballot process is that employers can violate the law in numerous ways without consequences. Under EFCA, however, every illegal action has the potential to be costly, so firings, spying, threats, or other forms of intimidation would be less likely. Also, there is an alternative way to preserve the secret ballot while guarding against company malfeasance: expedited elections.

Under current law, months can go by between when NLRB announces the results of a card check vote and when a secret-ballot election is held. If, however, this campaign window were reduced to just a few days, employers would have less opportunity to intimidate union supporters into changing their minds. Workers I spoke to in Lancaster seemed content with this alternative. And some savvy people in the labor movement I spoke to feel the same way—provided that employers either refrain from captive-audience campaigning or else grant union members equal access to the workplace during a campaign.

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