BILL WON’T MEAN A THING: Labor leaders are showing memory problems, the author writes, in supporting legislation before Congress aimed at protecting the right to organize unions that doesn’t contain the card-check provision that would avert the chance of employer interference in representation elections by granting bargaining rights if a majority of the members of a negotiating unit signed a card denoting their interest in joining. The bill under consideration, he argues, under a National Labor Relations Board whose members are chosen by President Trump (left) will be no more effective than legislation passed a decade ago after President Obama persuaded Congress to withdraw a card-check provision from it.

The great author and philosopher George Santayana once observed: “Those who cannot remember the past are condemned to repeat it.” Our Titans of Labor, it would seem, are either not familiar with this sage advice or they have chosen to ignore it.

H.R.2474 is a bill in the United States Congress that goes by the optimistic title of “Protecting the Right to Organize Act.” It would do many good things, and one existentially bad thing. Among its good points, as indicated in the bill’s summary memo, the bill would:

  • authorize the National Labor Relations Board (NLRB) to assess monetary penalties when a worker is wrongfully terminated or suffers serious economic harm.
  • remove prohibitions on workers acting in solidarity with workers at other companies.
  • stop free-riders by allowing employers and unions to enter into a contract that allows unions to collect fair-share fees that cover the costs of collective bargaining and administering the agreement.
  • facilitate first contracts between companies and newly certified unions by requiring mediation and arbitration to settle disputes.
  • prevent employers from misclassifying their employees as supervisors or independent contractors and ensures employees have the right to collectively bargain with all of the companies that control the terms of their employment and are necessary partners for meaningful collective bargaining.
  • add permanent striker replacement or discrimination as an unfair labor practice.
  • prohibit employers from requiring workers to attend meetings designed to persuade them against voting in favor of a union. If an employer interferes and makes a fair election impossible, the NLRB will be empowered to issue an order that requires the employer to bargain with the union.

So there is much to celebrate in this proposed correction to the nearly 70 years of labor-organizing legislative discrimination that followed the end of the New Deal and continued through both Republican and Democratic control of the Presidency and the Congress to this day.

But another look at the last bullet above unmasks the omission that puts the entire bill’s effectiveness and the future of the labor movement in jeopardy. That last bullet indicates that this legislation merely continues the representational election process as THE means of establishing a union in a workplace. It does not mandate card-check as the only authorized means of honoring the workers’ desire to join together in a union.

Shorting Card-Check

Oh, “card-check” is actually mentioned in the bill; but as a tenuous remedy for a Board finding that  “...the employer has committed a violation of this Act or otherwise interfered with a fair election…” After such a finding, which will undoubtedly take months of board deliberation, followed by more months (or years) of court cases, the board can certify the union as the workers’ representative, but only “...if, at any time during the period beginning one year preceding the date of the commencement of the election and ending on the date upon which the board makes the determination of a violation or other interference, a majority of the employees in the bargaining unit have signed authorizations designating the labor organization as their collective bargaining representative.

Really? What is going on here? How did this happen? I would borrow Jay Leno’s famous question to Hugh Grant and ask it of labor’s leadership: What the hell were you thinking?

You support this bill. Do you actually think that an employer is not going to try to interfere? Do you think that the NLRB process to overturn an election will unfold in a short-enough period of time that worker harassment will not be a factor in whether or not the organizing will eventually succeed?

Do you suppose that workers who signed cards a year before the culmination of an election process in which their jobs were constantly in jeopardy will still be around for their cards to be valid?

And what NLRBs are we speaking of? Republican-controlled ones; or those appointed by corporate Democrats? Really, what were you thinking?

“Those who cannot remember the past are condemned to repeat it.” And a short period of history it has been. It was July 2009, only 10 years ago, that Labor’s leaders capitulated to their “friends” in the fully-controlled Democratic Congress, with a President named Obama, and allowed card-check to be removed from another labor-law-reform bill similar to this bill.

A New York Times article of 7/16/09 by Steve Greenhouse reported that the rationale was “...the revised bill would require shorter unionization campaigns and faster elections.” Oh yeah! And how did that work out? How many hundreds of thousands more organized workers do we have now as opposed to 2009? How much more clout do America’s workers have now than in 2009?

No Such Thing as Fair

There is no such thing as a “fair” election when it involves workers striving for power to engage their employers. Signing your name to an authorization card is a scary and difficult thing to do. And it shows a commitment to wanting a union as much as an “election” would, but with less chance of owner intimidation and fraud.

Card-check is the only way to restore fairness to the task of organizing workers. It is existential for the labor movement. If we don’t have card check as the authorized form of certification soon, then we may very well not have a labor “movement” much longer, as the number of organized workers continues to decline and the new “gig” workers now given status in this bill never get the chance to actually join a union.

The Protecting the Right to Organize Act has so many good things in it. But without card-check, it doesn’t matter.

Labor’s leaders must insist on card-check and mobilize a strong response to their “friends” if they are yet again denied. Labor must remember the past, or repeat it at our peril.

Editor’s note: Mr. Montalbano is a retired labor lobbyist and former political action director for District Council 37.

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