Sunday, August 30, 2009
The New Yellow-Dog Contracts
Steven Greenhouse (New York Times) has an article on a disturbing agreement that a company in Montana is "urging" all workers to sign. Regis, the country's largest hair salon company, wants workers at salons in Montana to sign a document stating: “In order to preserve my right to a secret-ballot
election, and for my own protection, I knowingly and without restraint
and free from coercion sign this agreement revoking and nullifying any
union authorization card I may execute in the future.” As the CEO admitted, this document is intended to prospectively take away the ability of employees to get voluntary recognition for a union or, should a card-check provision pass, take advantage of that. He also says signing the card is "totally voluntary," but the idea that an employee would really feel free not to sign, especially in this economy, defies belief.
As Bill Gould (Stanford) was quoted as saying, this is illegal (and, in his words, a "modernized version of the old yellow dog contract"). Not only does it run contrary to the NLRA's statement that workers have the right to designate a representative of their own choosing--note the lack of the word "elect"--but it looks like a blatant 8(a)(1) violation.
Of course, Regis may have gotten more than they asked for. Although the salons at issue had never garnered any union activity in the past, labor leaders are now threatening to picket and distribute fliers at the salons.
-JH
Reminder: This and other stories of interests, covered and not covered on the blog, can be found on psecundawrkprof Twitter feed here.
PS
https://lawprofessors.typepad.com/laborprof_blog/2009/08/the-new-yellowdog-contracts.html
Comments
Isn't it interesting how this is coercive, but three union thugs showing up at your door to get you to sign a card "voluntarily" isn't?
This doesn't do as much to demonstrate a wise strategy by an employer as it does to demonstrate the hypocrisy of advocates for card-check.
Posted by: James Young | Aug 30, 2009 8:28:00 PM
James:
Only to state the obvious, the difference is that the union organizers can't give you the impression that your job depends on your signing-- the employer can easily give that impression, and make it a reality.
Posted by: eli | Aug 31, 2009 6:49:26 AM
It's more interesting that here we have an actual, verified instance of employer coercion, against the spectre of imaginary "union thugs" -- and no actual documented cases of union "intimidation" in card check campaigns.
Posted by: Eric Fink | Aug 31, 2009 8:15:46 AM
Yes James, because we all know that the employer and the potential union have the same footing vis-avis the employee.
I love the union thug argument, because I do not think anyone honestly say that there are tons and tons of giant beefy thugs roaming the streets looking for victims. Of course there are bad situations, but there are many company thugs as well - like, "sign it or your job," or "support the union and lose your job."
Speaking of irony, I know of multiple circumstances where there was a card check agreement, the union won, and employees and nonemployees alike harass and become extremely aggressive seeking to get the decert/election within the 45 day countdown.
Posted by: Per Son | Aug 31, 2009 8:28:57 AM
To clarify, the harassers I mentioned a small but vocal minority.
Posted by: Per Son | Aug 31, 2009 11:17:51 AM
I think Eric's original comment is the most interesting. Although, I don't know if it's irony or strategy - however ill-advised the waiver idea may have been, the employer can counter any critics by pointing out the similarities between what Regis is requesting of its employees and the card-check proposal that Labor supports.
And people who don't agree with Regis's move here (myself included) can use it as an example of how flawed card-check is as well.
Posted by: Tim Eavenson | Aug 31, 2009 3:08:51 PM
I agree that this policy is illegal. I also don't think this adds much to the rhetoric opposing EFCA's card check provisions. It's the same move as the common argument, "so, if you believe in mandatory card-check certification, what about mandatory card-check DECERTIFICATION, eh?" Both arguments get us back to the debate in the comments above: whether employers can intimidate employees more effectively than pro-union workers, because employers can fire, discipline, etc. Labor law in a variety of contexts already assumes (correctly, in my view) that employers are more capable of effective intimidation.
It's also interesting that folks would be trying to oppose/anticipate mandatory card-check, when it appears that even if EFCA passes, that provision will likely be taken out.
Posted by: Joseph Slater | Aug 31, 2009 4:43:36 PM
Uh, Eric, the National Right to Work Foundation has certainly documented cases of union coercion, such as in Albion, Indiana (http://www.nrtw.org/en/blog/new-right-work-video-truth-about-card-check-06172009), so it's not "imaginary." Now, you and "Per Son" have cited "multiple circumstance," but given no specific instances.
And "Per Son," if they're only a "vocal minority," why do you fear secret-ballot elections?
Posted by: James Young | Aug 31, 2009 9:33:09 PM
Several comments:
1. On the subject of anecdote: we all got lots of it, but it does not turn into data. I won't get into a contest over who can come up with the most anecdotes.
2. Fearing secret ballot: I do not fear the ballot. Instead, I see a viable alternative that is legally permissable. The current system which allows a company to deny recognition even if there is proof that the union has a 100% uncoerced support. Is it a secret that card check will increase union numbers, and is that bad that I support something that will make a movement I believe in stronger? Much like how the NRWF files lawsuits (sometimes wins) that diminish unions' strength.
On that note, the NRWF's brief in the NLRB case regarding whether the NLRA allows private contracter baggage checkers (instead of TSA) proves to me that NRWF is interested not in just representing employees against abusive unions, but stopping unions in general. If you do not believe me, read the amicus brief (threats of communist infiltration . . .).
3. Union intimidation: since when does a union have the authority to hire/fire/or move operations of a business? Particularly when the business is not organized? If union "thugs" come and threaten an employee, there is a thing called criminal law and various civil laws. Indeed, Unite just got the smackdown by using DMV records in an illegal manner. There are DFRs as well.
4. I'll give you one thing - unlawful union coercion is bad. I want unions to get members through only legal means. That being said, what part of "UNCOERCED MAJORITY" do anti-card checkers not understand.
Posted by: Per Son | Sep 1, 2009 7:54:31 AM
I agree with Per Son, but would add this.
Re anecdotes v. data, real data is out there on intimidation -- the number of successful ULP prosecutions against employers for intimidation during the election vs. the number of successful ULP prosecutions against unions for intimidation during the election process. I haven't counted recently, but I'm pretty confident what the numbers would show.
Would card check make union intimidation worse? Well, six states have EFCA-style mandatory card check recognition provisions, and I'm unaware of any increased problem, significant problem, or even noticeable problem with union intimidation in the process.
Again, though, aren't we kind of beating a dead horse? Even if some form of EFCA passes, from all I hear it's unlikely to include mandatory card check.
Posted by: Joseph Slater | Sep 1, 2009 11:08:26 AM
The best part is that the employer claims to be doing this "to preserve [the workers'] right to a secret-ballot election." So, to protect workers from being "intimidated" into signing cards, the employer "urges" the workers to sign cards. And they say irony is dead.
Posted by: Eric Fink | Aug 30, 2009 3:51:55 PM