The Taft-Hartley mandatory Labor Board election is a steel trap. It extinguishes the Constitutional right of free association for most workers most of the time. It has effectively ended self-organization and the formation of new unions. Tinkering with Board election procedures in an effort to revive the labor movement is exactly the wrong course to take. It ignores our own history. It will not succeed in organizing the millions that want to collectively bargain. If pursued, it will land us in a world of employer-sanctioned company unionism.
Every successful social movement — civil rights, abolition, women’s suffrage, and labor — believed and acted like a genuine rights movement. Each set forth its most fundamental principles and refused to trim them to wheel and deal some temporary advantage. Each acted in accordance with the rights it claimed regardless of the penalties imposed by the dominant power. And each successful movement relied primarily on the activity of its rank and file members. Gompers campaigned for three decades against involuntary servitude that can only be remedied by the rights to organize and strike. Lewis stubbornly insisted that workers denied full freedom of association had no choice but to strike, mass picket, and sit down. Each great breakthrough was powered by acts of countless committed people. As a matter of history, the period leading up to every major workers rights statute was a time of unions’ institutional weakness but bold worker protest.
But we appear to be heading in the opposite direction. Two recent developments — one in Ohio and the other of national import — should put us on our alert. In late February, Catholic Healthcare Partners (CHP) filed petitions for Board elections to be held in all bargaining units at nine of its Ohio hospitals. Taft Hartley provides for employer petitions (RM petition rather than the union-initiated RC petition) when a union claims majority status but does not file its own election petition.
The employer-initiated RM does not require any proof of union membership or election interest. Although some 8,000 healthcare workers were affected by the RM petition, none were involved in calling for the elections. However, accompanying the employer’s petitions was a consent agreement drawn up by CHP and a union — the SEIU. All the elections, it was agreed, will be held within a few weeks, on two selected days, March 12 and 14, a Wednesday and a Friday. The company and union would jointly mail out an election packet and provide a hot line phone number. No campaigning or discussion would be allowed. The Board, in a remarkable display of speed, accepted the consent agreement, closed the ballot, and found enough Board agents to run some 40 to 50 separate elections, all in the matter of a few days.
While this may seem a clever way for CHP to use the RM petition to pre-select a union to its liking and for the SEIU to pad its dues rolls, it is nothing new. The employer petition was used for a similar purpose, but for much higher stakes, some 60 years ago right after the passage of the Taft Hartley amendments. As a necessary element in the campaign to destroy the United Electrical Workers (UE), General Electric and Westinghouse in 1949, using their new employer Taft Hartley ‘rights,’ petitioned the Board to hold elections in their plants. The rest of the industry followed their lead and soon some 1,300 plants coast to coast withdrew recognition from UE, cancelled the existing UE contracts, and petitioned for Board elections. The Taft Hartley Board was quick to comply. No proof of membership in a rival union or lack of membership in UE or interest in having an election was offered or required.
Some years later the secret deal between the electrical corporations and the government spilled out into the public. In 1952 Senate testimony, GE’s top attorney said: “We took Mr. Carey [first president of the IUE-CIO formed as the conservative rival to the UE] off the hook by filing our own petitions for an NLRB election. This, under the NLRB rules, made it unnecessary for the IUE-CIO to show any membership at all.”
In Ohio in 2008, it did not take as long for the industry to indicate their support for the CHP-SEIU employer petitions. According to the Springfield (Ohio) News-Sun, “The Ohio Hospital Association called the non-interference agreement between CHP and the SEIU refreshing.”
The CHP-SEIU agreement, with little indication of worker support and after only a few days of public exposure and agitation by the National Nurses Organizing Committee, (NNOC) quickly collapsed. On March 10 CHP and SEIU called off the elections. During its very brief life the CHP-SEIU deal required significant violations of the vital pro-worker Constitutional rights of association and speech and the Section 7 right of self-organization. Employee discussion about the union and the election was specifically forbidden by managers, with the agreement of SEIU. CHP was quick to secure a state court temporary restraining order against NNOC limiting all speech and demonstrations to no more than three NNOC nurses. While its collapse was not mourned by employees (the NNOC did receive a protest letter signed by 15 of the 8,000 CHP healthcare workers), the employer made its feelings clear on March 12 to the Associated Press: “We believe in the process we developed, and we hope to use it in the future.”
What might the future hold? Clearly there is an intention among some Catholic hospital employers for similar deals. But it appears that there is a play afoot for even larger stakes. By coincidence or not, on February 26, as the CHP-SEIU deal unfolded, the NLRB published notice of a proposed rule that would allow for a new type of Board election, the RJ petition, to be filed jointly by an employer and union. Under the new rule, no showing of interest or proof of union membership would be required. The RJ petition would include the consent terms for an election (unit, voter eligibility, date, and time), and the Board would approve within 3 days. The election would be held within 28 days after at least 3 days posted notice to the employees affected. The proposed RJ petition eliminates the bad odor created by the RM, but is otherwise remarkably similar to the CHP-SEIU deal and subject to the same serious abuses.
Unions suffer to this day from the destruction of the CIO and of the center-left alliance that created the conditions for the CIO upsurge. Union leaders and activists suffer a second time from our own historical amnesia about why and how a militant labor movement was tamed. Worse, we rarely draw lessons about how organization was built during the early years of the AFL, the CIO, and other great social movements. We doom ourselves to continually making the wrong move at the wrong time in the wrong direction. There is nothing new about concessionary bargaining to curry favor, sweetheart deals in exchange for additional dues-payers, public partnerships with major employers to make one or two union leaders acceptable to a boss, and political belly-rubbing to gain some limited special advantage. At one time or another all have been tried and temporarily succeeded in gaining a few advantages for a few unions, but failed in the end to advance the cause of the union movement or the interests of working people.
There are no short-cuts to reclaiming the crusading spirit and bold actions by rank and file people required of all social movements, including our own. Surely the path forward cannot rely on concessionary partnerships with the very employers who stand in opposition to our interests. Or upon the government that as yet remains unconvinced that our rights to organize, collectively bargain, strike and act in solidarity are Constitutionally-protected and deserving of state support.
In light of the Ohio RM deal engineered by CHP and SEIU and the proposed RJ by the Bush-dominated Labor Board, now would be a very good time to relearn and apply the first lesson from our history — the labor movement, like every successful social movement, must engage in a long-term struggle for fundamental rights and rely primarily on the activity of its rank and file members. Every choice we make as a movement should be based on strengthening rather than detracting from this fundamental principle.
Ed Bruno is the national organizing coordinator of the NNOC/CNA, AFL-CIO and a past Director of Organization of UE. Peter Kellman is President of the Southern Maine Labor Council, AFL-CIO. For a more detailed treatment of some of the issues discussed in this article, you may wish to read “The Employee Free Choice Act and A Strategy for Winning Workers’ Rights” (available at ssrn.com/authors=980510).