The Devil at My Doorstep

by David Bego

  To provide a hammer toward management being cooperative regarding potential unionization, EFCA would invoke more severe penalties for any employer violations during the unionization process. These include fines in an amount up to twenty thousand dollars for any one violation where management willfully or repeatedly violates the employees’ rights during any unionization campaign or the first contract period. When proof exists that any employee is discharged unlawfully as payback for attempting to unionize, or there is discrimination in any form during either the unionization or first contract period, a “three times back pay” provision is instituted meaning back wages would be tripled inflicting what amounts to punitive damages against the employer. What is disconcerting about this is the potential for unions to file frivolous unfair labor practices in droves hoping some will stick, causing the company to endure undue financial hardship defending the charges while being reluctant to talk to employees while the charges are pending. Notably, the bill lacks similar penalties for union misconduct, allowing unions to get away with practices that would result in substantial penalties if engaged in by employers.

  With all that was at stake for both employers and the unions, hot debate was expected, and occurred. Those favoring the bill believed it was a protection device for workers, pointing out that under current law weeks or even months might pass before an election was held with the delay discouraging those seeking unionization. In fact, the NLRB is required by its own regulations to conduct union elections within 42 days of a petition being filed—a standard the board routinely follows in administrating elections.

  Pro-EFCA backers also support the bill by saying it really does not change the law, it just shifts the choice of card check recognition from the employer to the employee. This is laughable on two fronts. First, the employer would never voluntarily agree to card check unless it was pounded into submission by a union to sign a Neutrality Agreement, and second, it is even more absurd to suggest that the employees would make the choice. The unions, not the employees, are the masterminds of organizing drives, and the unions will never choose to submit to a secret ballot election when they have the option to secure recognition through card check rather than submitting to a secret ballot procedure. Moreover the card check process heavily favors unions because employees can be easily pressured into signing cards, at work, at their homes, or other places away from work, and in environments (such as the local wings and beer joint) in which the employer has no opportunity to present its position as to why a union is not in the employees’ best interest! In the card check scenario, the union will never keep the employees informed and will harass and intimidate the rest of the employees until they achieve the coveted bare majority!

  The pro-EFCA folks also claim that employers threaten and intimidate workers to prevent them from siding with union organizers, or that employers tell inflated stories of the horrors of unionization designed to scare employees away from unions they would otherwise support. In addition, they claim that existing law provides insufficient protection to employees from the actions of unscrupulous employers. They claim that these employers will discharge an employee they find to support the union, simply in an effort to keep the union out of their workplace. The reality, however, is quite the opposite. In the majority of cases, employers can show that employees were disciplined or discharged for legitimate reasons unrelated to union organizing. In those cases in which wrongful actions do happen, the National Labor Relations Board vigilantly seeks reinstatement of those workers, including the ordering of back pay, such that the employee is made whole. However, unions like to quote inaccurate figures to justify their cause to the naive public and politicians.

  The unions point to all the NLRB charges filed over the years against employers as evidence of the terrible things companies do to their employees. What they fail to tell you is, that in most cases, it is the unions who file the claims (not the employees); the majority of claims are frivolous and designed to force the company to cave under union pressure. Amazingly, the SEIU filed more than three dozen unfair labor practices against EMS during the course of its three-year campaign against my company, including more than a dozen charges that EMS had discriminated against employees based upon their union activities by disciplining them, withholding their paychecks, or even firing them without good reason. Do you know how many of those discrimination charges were found to have merit by the National Labor Relations Board? Not a single one! Zero.

  Finally, I heard on the radio a labor union attorney say that despite the fact that companies claim that unions are the ones doing the harassing, a study done by a Human Resources company indicated that there were only 40 to 100 charges against unions for harassment against employees over the past 10 years or so. Why is that? First, because employees either don’t know they can go to the NLRB and file a report or they are afraid to because of union retaliation; second, employers tend not to file as many frivolous charges as unions; and third, statistics are used deceptively as described next.

  Organized labor cites a statistic from the National Labor Relations Board that more than 31,358 employees received back pay awards from employers. This statistic is misleading, however, and in no way indicates the number of employees discriminated by or coerced by employers during organizing drives. Indeed, the vast majority of back pay awards (25,620) were the result of informal settlement where no finding of coercion exists at all. In addition, the numbers are not broken down to indicate how many were due to unlawful coercion during organizing and how many represent other violations of the act, such as unlawful discharge after a union contract is in place. In other words, the statistics relied on by the unions are not confined to coercive employer practices during organizing drives or before first contracts are reached and are not indicative of a finding (or even an allegation) of employer coercion at all.

  Conversely, in support of the position that there are very few instances in which unions have been found to have harassed or intimidated employees, unions rely upon a skewed AFL–CIO review of cases identified by the HR Policy Association in previous Congressional testimony. The HR Policy Association (then called LPA, the Labor Policy Association) testimony was related to the loose rules governing the authorization card process. It cited as examples, not as a definitive count, a number of cases in which union coercion was present in the signing of authorization cards. The AFL–CIO review of those cases found 42 that they agreed involved coercion. Labor unions and their allies now refer to this as the definitive number of cases finding union coercion in the organizing process—a number deceptively determined by the unions themselves!

  Hard data comparing actual employer coercion and union coercion during an organizing drive and before a first contract is reached is difficult to attain. While not at all conclusive, looking at allegations of coercive behavior provides some insight. For example, the NLRB reports that in fiscal year 2005 there were 8,047 charges of employer discrimination or illegal discharge, while there were 5,405 charges of union coercion and illegal restraint in addition to another 594 cases of union discrimination. These numbers are clearly not completely satisfactory because they are allegations only, and do not account for the fact that unions are likely to file more frivolous charges than employers, and because they are not narrow enough to be confined to organizing drives and the time period before a first contract is reached. One thing is clear, however—the numbers are not so lopsided as organized labor and their allies would have you believe—thousands of cases of union intimidation as well as employer intimidation are filed every year.

  I believe we should all agree that intimidation by employers as well as intimidation by union organizers is wrong. While our nation’s labor laws may not be perfect, at least they provide a federally-supervised process by which a worker can privately make the important decision about whether to join a union, without his or her employer, coworkers, or union organizers knowing how he or she ultimately voted. We should be working to strengthen workers’ privacy rights in making
this important decision, not effectively eliminating them. Furthermore, I consider myself a patriot and would like to stress again I am not anti-union, but I am against organizing tactics such as Corporate Campaigns, that bully people or companies into submission, or bills like EFCA aimed at circumventing current law or time honored American traditions such as the secret ballot election. In this respect I will always stand up for individual liberties and the free market system!

  Labor union support for the legislation is almost universal. (The Fraternal Order of Police oppose EFCA. Kudos to them!) During the House hearings in 2007, union leaders suggested reform was long overdue based on the diminishing status of those people classified as “working class” citizens. They pointed to wage discrepancies, health care neglect, poor working conditions, and the widening gap between the rich and the poor. This was occurring, they argued, while corporate profits were at an all-time high during 2007/2008 when debacles such as Citibank and AIG had not lost billions of dollars.

  Through significant increases in unification, supporters of EFCA said collective bargaining could narrow this gap while providing more individual opportunity and economic stability toward the middle class. They boasted that union workers on the whole earned at least 30 percent more than non-union workers with those numbers increasing among African-Americans, Latinos, and women. Health care, union advocates also noted, was better handled at lower cost at unionized companies while pension benefits were more secure for those who considered retirement. Above all, EFCA advocates believed the new law would assist the plight of low-wage earners, including janitors, cooks, cashiers, childcare and nursing home caregivers through elimination of the secret-ballot elections as unionization would be more possible than before. Based on our experience with the SEIU’s contracts, this seemed very unlikely, but those in favor of the EFCA believed they were right and I respected their opinions, as I asked them to respect mine.

  During debate on the House bill, the AFL–CIO released polls indicating than more than 75 percent of the American people believed in worker freedom regarding the decision to unionize or not. Just as many, they said, were in favor of making it easier for employees to become organized. The polls did not say, however, that Americans were in favor of eliminating the secret ballot election. In fact, the majority of Americans were against such a proposal.

  Those opposing the EFCA bill were just as strenuous in their belief that the current NLRB rules were the best means by which to ensure not only choice, but freedom of choice as “secret” or “private” balloting permitted those who voted anonymously to be guaranteed no chance of repercussion regardless of how they voted. Confidentiality, they argued, was the American way, a safeguard important to making certain that free choice and free will pervaded. Pressure, coercion, misrepresentation, deceit, threat, and harassment, they believed, disappeared from the equation when employees could vote their conscience with no threat they might be scorned by fellow workers, physically and/or mentally abused, or even ridiculed based on their beliefs. Perhaps it was Republican Representative John Kline who summed up legislation opponents’ viewpoint best: “. . . How can one possibly claim that a system whereby everyone—your employer, your union organizer, and your co-workers—knows exactly how you vote on the issue of unionization gives an employee ‘free choice’ . . . I cannot fathom how we can . . . take away a worker’s democratic right to vote in a secret-ballot election and call it ‘Employee Free Choice.’”

  Kline and others opposing the bill also disagreed with the “card check” provision where workers could be influenced by union propaganda and pressure because of the lack of provision for union fines. Management’s side of the story would also be prohibited from view because they could not speak to employees about the union’s organizational campaign for fear of onerous fines for frivolous unfair labor practice charges—essentially, a gag order on the company. As for the binding arbitration provision, it was the “word” binding that opponents of the bill wrestled with because the final solution to any management/union dispute would be left in the hands of an arbitrator, one appointed by the government with little industry experience, to decide with no future recourse for either party. But the unions favor this provision as there is an automatic two-year contract in place and better still, immediate revenue from union dues.

  Voices objecting to the EFCA pointed to incidents like the one in 2007 in Minnesota where a daycare worker targeted by SEIU told of being manipulated into signing cards simply so the union could give them additional information about the union. The woman felt as if she was tricked because, in reality, signing the card meant she was voting for unionizing the company she worked for. Her comment: “Their agenda is to gain money for themselves, not better the child-care industry. . . .” Perhaps money is a true objective as the top ten executives at SEIU earn total salaries that are just a few bucks shy of two million dollars, with Stern leading the way with an annual salary of more than a quarter million. One also has to wonder who paid for his six trips to China during the past few years.

  Certainly occurrences like the one in Minnesota, and many more where employees were hoodwinked by union organizers, have caused more than 100 newspaper editorials to condemn the EFCA as unwise and unfair. Comments included “The last thing Virginia—or any state—needs now is a monkey wrench the size of card check sticking in the economy’s gears (Richmond Times-Dispatch, 2/22/09), “Workers deserve to make the choice on union membership through a free and fair process. This bill would ensure neither” (The Orlando Sentinel, 2/21/09), “The purposely misnamed ‘Employee Free Choice Act’ would deny the free choice of secret ballots, and should be rejected” (Chattanooga Free Press, 2/08/09), “This legislation would put businesses and workers at a competitive disadvantage,” (The Greenville News, 2/2/09), and “The ‘renaissance’ that unions envision to stem three decades of declining membership is a recipe for certain economic disaster” (Pittsburgh Tribune-Review, 1/4/09).

  To be certain, a strange collection of politicians has opposed the bill including former Senator George McGovern. He called EFCA “a disturbing and undemocratic overreach, not in the interest of either management or labor” while noting, “instead of providing a voice for the unheard, EFCA risks silencing those who would speak.” Others who have voiced opposition include Rev. Al Sharpton, former Michigan governor, Presidential candidate Mitt Romney, Nebraska Senator Ben Nelson, and both Democratic Senators from Arkansas.

  Leading the charge as the 2009 legislative session began in favor of the bill were Iowa Senator Tom Harkin and Massachusetts Senator Ted Kennedy. Despite their furor to gain passage, Senators such as Lamar Alexander, Republican of Tennessee, voiced opposition with Alexander calling the bill, “The No-Choice Act.” Stern certainly must not have liked this depiction, but as he awaited a vote on the legislation, he and the SEIU were hard at work pressuring companies like mine to unionize. Working in the shadows, they had a plan of attack ready, one threatening EMS’s future.

  Neutrality

  Agreement–The

  War Begins

  BEGINNING IN LATE 2005, SEIU DIRECTLY TARGETED THREE CITIES in the Midwest: Columbus and Cincinnati, Ohio, and Indianapolis with its Three Cities One Future Campaign. Because EMS had business operations in each, we knew it was only a matter of time until union organizers contacted us.

  What I didn’t know then, but realized later, were the very simple tactics SEIU implemented—organizers moved into the cities and focused their efforts on the building owners and the companies servicing them. Then they approached the contractors and requested a meeting to discuss unionization.

  According to the SEIU business model labeled a “Corporate Campaign,” the contractors forced into signing a Neutrality Agreement and negotiating a contract had to represent collectively 60 percent of the commercial cleanable square footage in these cities while the minimum building size was 75,000 to 100,000 square feet. The numbers made unionizing worthwhile for the SEIU from a business perspective. For the three cit
ies mentioned, this meant approximately fifteen hundred janitors/custodians or so could be organized per city—generating close to a half million dollars per city in annual revenues through paid union dues.

  Whether it is in one of these cities or another across the country, SEIU basically uses this cookie cutter process whether companies are of high character and strong integrity, or of low character and no integrity. It doesn’t matter to them. It is their action plan, and they carry it out the same everywhere they go. Giving credit where it is due, they are quite crafty as to how they roll it out and operate. In Indianapolis, for instance, they targeted businesses in Marion and adjoining Hamilton County and left the rest of the Metropolitan area alone. The idea was to gain a foothold and move on from there. So when organizers said they were fighting for all the janitors in the Indianapolis area, this was really not the case. Instead, SEIU targeted two counties with the most income potential dues-wise, and the heck with the janitors in other counties surrounding Indianapolis. Similarly, in the Cincinnati Metropolitan area, SEIU utilized the same game plan. This is very, very typical of their program, as the union wants people to believe that their motives are altruistic based on sexy slogans such as “raising janitors out of poverty,” when the bottom line still is unionizing so revenues from dues increases permitting more money for political agendas.

  Having selected the intended targets, the union then set up their infrastructure, one where they selected local organizers willing to work with and represent what I call “front organizations,” not-for-profits with inspiring yet misleading names such as Jobs with Justice, Interfaith Workers Justice, and United Students to help promote the ensuing campaigns. Before our war with SEIU in Indianapolis, there was not a local Interfaith Workers Justice group, forcing the union to use the Chicago main office to recruit clergy in our area for use in assisting the union with their game plan. Heading this effort would be Rev. Cushman Wood, a member of the Interfaith Workers Justice board. Later, a woman named Allison Luthie would bring Jobs for Justice into the fold as the war escalated. Like those members of United Students, used in Cincinnati, these activist groups, composed of well intended, dedicated-to-their-cause people, were, it appears never provided the true facts causing them to be easily recruited, and easily misled.