Panel at Humphrey Institute explores 'Employer Reaction to Union Oranizing'

This story expanded from a shorter version that appeared in the Minneapolis Labor Review, February 25, 2011

By Steve Share, Minneapolis Labor Review editor

MINNEAPOLIS — The topic, “Employer Reaction to Union Organizing,” drew about 40 people to a presentation January 19 at the University of Minnesota’s Humphrey Center — part of a year-long celebration of the centennial of the birth of labor champion Hubert H. Humphrey.

U of M professor Morris Kleiner, the keynote presenter, noted that official United States government policy is “to encourage collective bargaining,” a policy adopted with the National Labor Relations Act in 1935.

The policy was opposed by employers from the start, Kleiner said, and the passage of the Taft-Hartley Act in 1947 — over President Truman’s veto — tipped the scales against unions, who dubbed it “the slave labor act.”

Within a few years, Kleiner observed, union membership that had been growing since 1935 peaked in the 1950s and started a very dramatic decline in the 1970s and 1980s.

The U.S. Bureau of Labor Statistics recently released updated statistics on union membership: 11.9 percent of all U.S. workers are union members. In the private sector, only 6.9 percent of workers are unionized, compared to 36.2 percent of public sector workers.

For the first time, Kleiner noted, “the number of public sector union members is higher than the number of private sector union members.”

When private sector workers do attempt to organize, Kleiner observed, “public policy has influenced how employers react.”

During union organizing campaigns, the penalties for employers who violate worker protections prescribed under the NLRA are weak, Kleiner noted.

To highlight one area of concern, he cited a seven-fold increase over the years in the number of union supporters who are fired during organizing campaigns.

Only one-third of union complaints to the National Labor Relations Board ever are acted on, he said. Pressing a successful case can take six to seven years — and even then employers receive only small penalties of about $7,000-$15,000 per violation.

These penalties are weak, Kleiner observed, compared to actions the federal government can take to address employer violations of minimum wage laws, civil rights laws or mine safety laws (for example, the government can shut down an unsafe mine).

“NLRA deterrence has almost no effect on the behavior of employers and managers,” Kleiner said. “The penalties are not harsh enough to matter… if you have an employer who wants to test the limits of the law.”

Kleiner suggested that unions might want to push for strengthening penalties under the NLRA “rather than the more controversial issue of card-check,” also called majority sign-up. Majority sign-up is the centerpiece of the Employee Free Choice Act, labor-backed legislation which would require employers to recognize unions when a majority of workers in a workplace sign union authorization cards.

The current process of conducting elections under the NLRA, unions report, enables employers to intimidate workers in the weeks leading to the vote.

Kleiner cited research showing that “employers tend to fight hardest against union organizing drives when the outcome is uncertain.”

Panel responds

Panelists responding to Kleiner included: Marlin Osthus, regional director of the National Labor Relations Board; Michael Iwan, an employer-side attorney at Dorsey Whitney; and Barb Kucera, director of the Labor Education Service at the U of M.

Morris Kleiner, U of M professor	Barb Kucera, Labor Education Service
Marlin Osthus, NLRB	Michael Iwan, employer-side attorney

“I would argue that there is no longer a consensus that the labor policy of this country is to promote or encourage collective bargaining,” observed the NLRB’s Osthus. “We are headed by political appointees — which means there is no consistency in application of the NLRA from administration to administration.”

The language of the law may not change with a change in administration, Osthus said, but “what does change is interpretation of the law and how the law should be applied.”

Osthus expanded on Professor Kleiner’s comments about weak penalties under the NLRA. “We are an agency that may not seek anything but remedial remedies,” he observed. “We can’t fine anyone for violating the law.”

Osthus also addressed Kleiner’s comments about the increase in the number of workers who are fired during union organizing campaigns. “It’s very hard to get employees reinstated” who are fired during an organizing campaign, Osthus said. “…We do not succeed in getting employees reinstated to their jobs… That’s a very powerful message and it’s a message that’s hard to overcome.”

“It falls to me to come to the defense of employer conduct,” said panelist Michael Iwan, an attorney at Dorsey Whitney, one of the Twin Cities’ leading law firms, which represents only the employer side in labor issues. Faced with a union organizing campaign, he said, many employers “…react, get in trouble, then seek legal advice.”

Iwan said he advises his clients to avoid unfair labor practice charges. “Most employers want to advance and retain their best employees,” he said. “What they’re really reacting to is [a union] puts a third party — an outside party — between them and their workers.”

He said a unionized workforce “formalizes an us versus them mentality.”

Iwan said he advises clients, “let’s deal with the facts, let’s make the case… that there isn’t an obvious benefit to bringing a union in.”

Iwan also said he tells employers to make the case to workers that unions are “in the business of generating dues income” and that “the union dues you’re paying… go to fund a large international organization.”

Employers, he said, should tell employees, “you may be better off with your own performance, your own ability to advance.”

Historically, the rise of unions made possible a middle class in the U.S. Unions are “a vehicle for lifting people out of poverty,” observed panelist Barb Kucera, director of the Labor Education Service.

The U.S. Bureau of Labor Statistics’ newest data on union numbers continue to show a significant wage advantage for union members: the median salary for union members was $917 per week, compared to $717 per week for workers not represented by workers. Union members also enjoy better health care benefits and better retirement benefits.

And, Kucera pointed out, “collective bargaining is not a government program.” Rather, collective bargaining allows workers to achieve a contract that gives them a voice on the job and a greater share of the wealth they produce.

“What this is really about is power-sharing,” said one audience member. Addressing employer-side attorney Iwan, the audience member said, “what the union gives you is a balance of power… That’s what your clients are afraid of.”

 “Congress when they drafted the NLRA could not have imagined the multi-million dollar [union-busting] industry that has evolved,” said Kucera. In union elections today, she said, “is it truly the employees’ choice when the employer is intimidating employees?”

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