Is the Law Stacked against Unions?
Student Reading & a DBQ

By Alan Shapiro

To the Teacher:

This is a teachable moment to engage students in considering unions in this country--what role they have played and why union membership is declining. The student reading below explores these issues in the context of the current controversy over the proposed Employee Free Choice Act, which would make it easier for workers to unionize.

The Document-Based Question exercise that follows might be used for individual student responses in writing or as a basis for class discussion. See a suggested approach for the latter following the DBQ.

Student Reading:
Is the Law Stacked Against Unions?

Keith Ludlum, a worker at a Smithfield hog slaughter and pork processing plant in North Carolina, testified before Congress in February 2007 about workers' 13-year-long effort to win union representation at the plant.

"The moment that made me realize we needed a union at Smithfield was when a fellow worker in his fifties broke his leg on the job when it was pinned between an electric pallet jack and a concrete wall," Ludlum said. "The next day, when I came to work, he was there in the break room with a full leg cast and using crutches. I asked him why he was back at work so soon. He told me that the company had told him he needed to come to work or he would lose his job."

Soon, Ludlum told the Congress members, he joined with other workers at the plant who were trying to win union representation. Under current federal labor law, this requires getting at least 30% of the workers to sign cards saying they want a union. Then the federal National Labor Relations Board (NLRB) sets up a union election. However, unionists charge, this process can be very slow--and employers use the time to pressure workers not to join the union.

Keith Ludlum said, "I spent many of my break times in the locker room and break room handing out representation cards and asking my co-workers to fill them out. On a number of occasions, my supervisors would come into the locker room or break room and harass workers by telling them that they would be fired for filling out a card or that unionization of the plant would result in Smithfield closing the plant or forcing people to work seven days a week. This harassment was often enough to scare my coworkers out of signing the representation cards."

Later, Ludlum said, "I was fired for trying to get workers to sign cards to join the United Food and Commercial Workers International Union. When I was fired, the supervisors and the deputy sheriff marched me out of the plant in front of all the other employees as an example to intimidate them. At the time, my wife was pregnant with our first child. It was an extremely difficult time for us--a time that should have been filled with joy and optimism as we awaited the birth of our child. Instead, my family suffered as I looked for a new job. It took me two years to find a decent job because I had been given a bad name by the only real employer in town, Smithfield Packing Company. In the end, I lost my car and could hardly pay my bills, buy groceries or purchase baby supplies."

In 2006, after 12 years of litigation and two union elections (which workers narrowly lost), a court found that Smithfield had violated workers' rights and ordered the company to rehire Ludlum.

Kate Bronfenbrenner, Cornell University's director of labor union research, conducted a study which found that almost all employers use the time they have in the NLRB election process to pressure workers to vote no. 92% of private-sector employers, when faced with employees who want to join together in a union, force employees to attend closed-door meetings to hear anti-union propaganda. Half of employers threaten to shut down partially or totally if employees join a union. In 25% of organizing campaigns, private-sector employers illegally fire workers because they want to form a union. And Bronfenbrenner found that even if workers successfully form a union, in one-third of the instances, employers refuse to negotiate a contract. (www.aflcio.org) Organizers say that even when a clear majority of workers want a union, they are usually defeated by such tactics.

"Sixty million Americans say they would join a union tomorrow if they could--that's far more than the 15.4 million now in unions," Stewart Acuff, organizing director of the AFL-CIO, a national labor federation, told the New York Times (1/26/07). "What's stopping them is employer resistance."

There are reasons why workers might want to join unions. Union workers earn 30% more and 80% of them have health benefits--compared to 49% of those who don't belong to a union. (Figures from the U.S. Bureau of Labor Statistics) Unions have won many benefits and rights for workers--even those not in unions.

And yet union membership has been falling steadily. In the 1950s, 35% of American workers belonged to unions. It was 20% by 1983. Today it stands at 12%. While 36% of government workers are in unions, only 7.4% of workers in private businesses are now union members.

Many analysts believe that this dramatic drop in unionization has contributed to stagnated wages at a time when US workers are producing more than ever--and business profits are rising. Retirement pensions workers could once count on are disappearing, and millions of those workers do not have health insurance at a time when healthcare expenses are going through the roof.

There are probably many reasons for the drop in unionization. Millions of unionized manufacturing and other blue-collar workers have been laid off. Often their jobs were eliminated because of new technology or because the employer found less expensive labor elsewhere. Organized labor has not been quick to respond to these huge economic changes.

But union supporters say one big reason unions have declined is that the rules are stacked against them--as Keith Ludlum claims they were at Smithfield.

For this reason, labor unions have been working to persuade Congress to pass the Employee Free Choice Act (EFCA). The Act would amend the National Labor Relations Act of 1935, which governs the rules for union elections. Under the NLRA, workers who want a union must petition for a federally monitored secret ballot election--a slow and cumbersome process that union supporters say gives employers too much time to pressure workers to vote against the union. The EFCA includes the following provisions:

1. Employees of a company may win union representation as soon as a majority have signed union authorization cards.

2. If, after a union has been established, its representatives and employers do not reach agreement on a union contract within 120 days, an arbitrator sets wages and benefits.

3. Penalties on employers are significantly increased if, against the law, they fire workers who support a union. (The current rule is that an employer who discriminates illegally against a pro-union employee must pay back pay, minus whatever he or she might have earned at a new job. Typically such cases take years for workers to win.)

The House of Representatives approved the EFCA on March 1, 2007, by a vote of 241-185. Thirteen Republicans joined 228 Democrats in supporting the bill. Two Democrats joined 183 Republicans in opposing it.

The Senate has yet to vote on the bill. The White House has said that President Bush will veto it if both houses support it. A two-thirds majority of Congress would be necessary to override a veto.

Many business groups oppose the EFCA. They argue that the current system of a secret ballot election is fairer and prevents union intimidation. John Boehner of Ohio, the House Republican leader, said of the EFCA, "The real issue here is not about taking care of workers; it's about taking care of union bosses. Whether workers want to join a union or not, they're going to be forced to do it. That's not the American way."

In their article in the magazine Industry Week, management attorneys Stephen Cabot and Julius Steiner argue that "Unlike secret ballot elections, authorization cards are signed in the presence of a pro-union employee or a union organizer. NLRB supervision would be unnecessary. Such a situation obviously lends itself to coercion of one form or another. In our long careers of representing management in all facets of labor relations, we have witnessed many instances of organizers threatening workers and of pro-union workers exerting all kinds of pressure, subtle and not so subtle, to get employees to sign authorization cards. There have been slashed tires, anonymous threatening phone calls, social ostracization, direct threats of physical violence, and many other coercive acts. The average worker will go along to get along. When there is a secret ballot, however, workers will be able to vote their consciences, not be intimidated by those who want them to act as told."

Cabot and Steiner maintain that:

• "In an NLRB supervised election, workers' rights must be posted by the employer three days prior to the election. With card checks, workers rights are explained by a union organizer.
• When NLRB supervised elections occur, there can be no captive audience speeches within 24 hours of the election. With card checks, workers can be subjected to pro-union speeches even while they are signing their cards!
• NLRB elections have observers selected by management and labor. With card checks, workers signatures are solicited by union organizers.
• In an election, the ballot box is inspected and sealed by the NLRB. With card checks, union organizers control the actual cards.
• In elections, no workers' names or other identification appears on the ballots. On cards, the signers' names appear." (http://www.industryweek.com/ReadArticle.aspx?ArticleID=12867)

Union supporters counter that the coercive power of the employer, which can threaten to take away a worker's job if he or she supports a union, cannot possibly equal the power of any union to pressure workers for support. They cite an academic survey commissioned by the pro-labor group American Rights at Work, which found that workers in NLRB elections were twice as likely as those in majority sign-up campaigns to report that management coerced them to oppose the union. Less than 5% of those who signed a card with a union organizer reported that the presence of the organizer made them feel pressured to sign the card.
(http://www.americanrightsatwork.org/press/press.cfm?pressReleaseID=33)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What do you know about why labor unions have been important to workers? What do you think you need to know?

3. What does the reading tell you about the decline in union membership?

4. Why do unions want to organize workers? What difficulties do you suppose they face?

5. Why have there been layoffs in US manufacturing industries? If you don't know, how might you find out?

6. If you wanted to learn more about the significance of labor unions in the US, and their current decline, how would you go about finding out?

7. Why do you think so many employers fight unionization? Do you think they are justified?

8. What is the Employees Fair Choice Act? Why do unions support it? Why do many business groups oppose it?

9. Can you imagine a situation where you might want to join a union? Why?

10. How do you think you would respond if your employer used tactics like the ones Bronfenbrenner reported?

11. How do you think you would respond if a union supporter pressured you in the ways Cabot and Steiner describe?

DBQ:
Should the Employee Free Choice Act Become Law?

Read each paragraph, and then answer the question following it. After you have read all of the paragraphs, write an essay in response to item H.

A

There are many reasons for the long decline in the membership rolls for private sector unions, including powerful changes in the economy and the unions' past corruption scandals. And there is little doubt that federal rules and regulations for union organizing have also become increasingly hostile to labor….

The House of Representatives passed a bill last week (3/1/07) that would strengthen the rights of employees to form unions….Under current law, an employer can reject the majority's signatures and insist on a secret ballot. But in a disturbingly high number of cases, the employer uses the time before the vote to pressure employees to rethink their decision to unionize….The [current] law prohibits union advocacy by employees during work hours and allows employers to ban organizers from the work place. But employers can require workers to attend antiunion presentations, and can discipline or fire those who refuse to attend….

Labor unions have a role to play in helping to fix today's economic ills-most notably, worsening income inequality, a problem that's caused in part by unions' decline and workers' resulting lack of bargaining power.

--New York Times, Editorial, "The Right to Organize," 3/6/07

Question: According to the editorial, what is one disadvantage faced by those who want a union in their workplace?

B

In "The Right to Organize," the Times claims that recently passed legislation (H.R. 800), eliminating private ballot elections for employees during union organizing actually benefits employees. In fact, this so-called "Employee Free Choice Act" only destroys essential protections for employees.

The private ballot system is currently overseen by an independent federal agency-the National Labor Relations Board. Through secret-ballot elections, that system gives employees the freedom to follow their conscience in deciding whether to form a collective bargaining unit. To complain (without citing a single example) that this is a lengthy and unfair process is without merit. A majority of NLRB-conducted elections take place within 34 days, while 90 percent take place within 56 days. And, in 2005, labor unions prevailed in 56 percent of these elections….

The Times further argues that this legislation will "fix today's economic ills," a grandiose claim for the effects of forced unionization. Union membership is plunging in great part because employees recognize that it no longer serves their self-interest, especially in the face of a dynamic, innovation-driven economy.

--John Engler, President, National Association of Manufacturers, letter to the editor of the New York Times

Question: What is one argument for secret-ballot elections to form unions in workplaces?

C

Recent research has shown that some 60 million US workers would join a union if they could. But the current system for forming unions and bargaining is broken. Every day, corporations deny workers the freedom to decide for themselves whether to form unions to bargain for a better life. They routinely intimidate, harass, coerce and even fire workers who try to form unions and bargain for economic well-being. The Employees Free Choice Act…would level the playing field for workers and employers and help rebuild America's middle class.

--American Federation of Labor-Congress of Industrial Organizations, www.aflcio.org

Question: Why is the system for union organization broken, according to the AFL-CIO?

D

The right of all Americans to cast their vote by private ballot is deeply rooted in the democratic tradition of our nation. Today (3/1/07) House Democrats moved to destroy this principle, and it now falls to the US Senate to ensure this basic right is protected.

In 2001 a group of Democratic lawmakers wrote on behalf of Mexican workers that "the secret ballot is absolutely necessary in order to ensure that voters are not intimidated into voting for a union they might now otherwise choose." I agree with that sentiment….We will not allow the progress already made on behalf of US workers to be undone, nor will we allow coercion by employers or unions.

--Senator Mitch McConnell, Senate Minority Leader, Republican Party

Question: According to the senator, what basic democratic tradition are House Democrats moving to overturn?

E

Under a card check campaign an employee would typically be given a union authorization card by a union organizer and asked right then and there whether he or she supports the union. Unfortunately, as demonstrated countless times in actual organizing campaigns, card check campaigns are often accompanied by stories of union coercion, intimidation, and abuse, including threats of physical harm to employees and their family members. (This was followed by reference to supporting testimonies from two individuals before committees of the House of Representatives)

--United States Chamber of Commerce, www.uschamber.com

Question: Why does the Chamber view a card check system with alarm?

F

A nationwide study by the University of Illinois at Chicago found that 30 percent of employers fire pro-union workers and 49 percent threaten to close a work site when workers try to unionize….91 percent of employers force employees to attend coercive antiunion meetings one-on-one with supervisors. Union representatives, however, have no legal right to have access to workers on the job, contrary to labor law in other nations.

--Steven Hall, New American Foundation, and Dmitri Iglitzin, affiliate professor, University of Washington Law School, op-ed, www.washingtonpost.com

Question: How does labor law in the US differ from that of other countries?

G

Viewpoints differ on the desirability of the Employees Free Choice Act.

Using information from the documents and your knowledge of the pros and cons of the current laws governing union organization, write a well-organized essay that includes an introduction, several paragraphs and a conclusion in which you:

• compare and contrast different viewpoints on whether US lawmakers and the president should approve the Employees Free Choice Act
• discuss your own viewpoint and the reasons for it

For discussion

1. Have students read each item in the DBQ, then answer the question in writing in a sentence of two. Discuss with class.

2. Organize small groups of students to discuss differing viewpoints, including their own, about whether the US should approve the Employee Free Choice Act. Assign one student in each group to summarize its discussion for the class.

3. After reporters present the summaries, invite class discussion of them.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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