JUST PLAIN UNIMAGINATIVE UNION LEADERSHIP
Let’s assume that the federal government creates a new agency with tens of thousands of employees throughout the country and that agency quickly earns a reputation as a terrible employer. Obviously, unions would be deeply interested in organizing them. However, due to Congressional pressure, some ambiguous statutory language, and an agency leadership eager to avoid being unionized, unions realize that it is going to take years, if ever, 1- to make contact with the employees, 2- prove the union’s value to them, and 3- get them to sign on as even associate members paying only nominal dues until a union is formally organized. Can you think of a faster way than traditional slow, labor-intensive organizing to get employee names and contact information, demonstrate the union’s value, identify some employee leaders, and even sign up some new members?
The not-so-hypothetical factual scenario above can be found in every labor-management sector over the last twenty years. We are going to steer clear of two or three federal sector examples so as not to offend any union or federal employee unionism generally. So, we are going to focus on America’s most infamous example or corporate union haters. Unions have tried for decades to organize there and almost always failed. The few times they won, Walmart closed the store and walked away rather than bargain. Although we can’t say this with scientific certainty, unions have found it very difficult to identify and contact employees, find a way to demonstrate their worth to those specific employees (not just society and mankind in general), and enlist enough employee leaders as members to run an organizing campaign from within the employees. It is unthinkable that Walmart would ever give a union employee names and contact information or let one represent an employee even in an internal grievance.
Are you still thinking about how a union could accomplish all the necessary parts of an organizing drive without using traditional methods? If so, you are not alone. Union leaders are too, and for the life of us we cannot figure out why because the solution plays out several times a year in newspapers throughout the country. Here is a hint. Ignore the labor laws. They are worse than useless. They are the box that you have to think outside of to solve this.
There is another hint in a recent widely publicized media story about how a few employees of Walmart got angry that the corporate manual had promised them breaks and compensation for every hour worked, but that managers then forced them to work through breaks and outside their compensated hours. They somehow found their way to a law firm, Donovan Axler, a Philadelphia law firm that specializes, according to its web site, in “…services to institutional and individual investors, pension funds, hedge funds, consumers and small businesses. The firm’s nationwide practice focuses on securities litigation, corporate governance matters, class actions, shareholder rights, consumer litigation and cases against financial service providers, including banks, mortgage servicers, consumer debt collectors, consumer reporting agencies (credit bureaus) and credit card issuers.”
The firm filed a lawsuit on their behalf and all other similarly situated Walmart employees. Once the suit got underway, the firm was given the name and contact information of 187,000 Walmart employees in order to help it contact each, interview many and prosecute the case. The firm took the case before a jury in 2006 and won. After another eight years of litigation the Pennsylvania Supreme Court upheld an award of $151,000,000 in back pay for those 187,000 employees and over $30 million in attorney fees to the firm. Looking at the court documents, it cannot have been a hard case to win. “Former Wal-Mart Regional Vice President for the region including Pennsylvania, Castural Thompson, testified about similar subjects, including the extensive payroll pressure to reduce store costs and the fact that Wal-Mart’s internal audits showed extensive violations of its paid rest-break commitment.”
So, do you have the answer yet to how unions can bypass, or at least supercharge traditional labor-intensive, high risk organizing strategies? If not, imagine if a union had been the employees’ lawyers in this case rather than a securities firm. Imagine that the union used the wage statutes and other laws to force Walmart to disclose the employee names and contract information that was so vital to this lawsuit as well as any organizing drive. Imagine if the union used it ability to communicate with those employees to probe for other violations of law on which they then represented those individual employees to generate even more back pay and clout inside Walmart. Imagine if it was a union that won all that back pay for a group of employees so large that it outnumbers all the federal employee members combined of NTEU, NFFE, IFPTE, IAFF, NATCA, NLRBU, POPA, ACT, MTC, and NWSEO. Imagine if a union’s legal staff got the $30-plus million in attorney fees, which just so happens to be enough to run NTEU for a year. If you are thinking that Walmart would just crush the employees using the unfair labor practice techniques it has so successfully over the years, stop. Once the employee’s filed suit under FLSA, they received far more protection than the labor relations also provide. Under FLSA Walmart could have been sued not only for back pay, but also millions more in damages. The same applies if the lawsuit was filed under most any civil rights statute.
Once you have that picture of how deeply a union’s legal staff could have embedded a union into Walmart without winning a single election, imagine the power the union lawyers would have had to craft a settlement that might have provided the money a lot sooner and with continuing benefits. For example, what if it had offered to forego a jury trial in favor of arbitration so long as Walmart agreed to recognize the union as the collective bargaining representative of the employees. Perhaps the union could have made that a bit easier for Walmart to swallow by further offering some immediate concessions before there was even a contract, e.g., a no-strike pledge, an agreement to limit employee employment law complaints to a grievance-arbitration process rather than the hundreds of courts available throughout the country with juries that do not necessarily like Walmart, etc.
We are getting very tired reading about how law firms, especially those with no love for unions, are getting rich off employment law litigation cases under the FLSA, the ADA, FMLA, various other civil rights laws, etc. Even when they win big bucks, they still leave employees unprotected against all the many other abuses an employer like Walmart can impose on employees after the lawsuit is done. According to the folks at Workplace Fairness, employees file over 5,000 lawsuits against Walmart a year. Why are unions not out there offering legal service to employees of every unorganized company in the country as a way to get organizing efforts off to a jet-fueled start? Walmart is not the only corporation getting rich at the expense of its own employees.
Moreover, focusing back on the federal sector, we should all shake our heads in utter bewilderment whenever a union tries to organize a group of federal employees without searching real hard early in the drive to find some employees willing to stand behind a class action lawsuit or complaint against the agency. Even if the union lost the organizing drive, a lawsuit gives it the potential to win the case, back pay, and attorney fees, making the organize effort costless for the union. The alternative is the national union puts millions, if not tens of millions, at stake in a traditional organizing drive where often it has less than a 50-50 chance of winning. The traditional approach may be the polite, professional, antiseptic way to run an organizing drive, but it is not the best use of members’ dues dollars—especially considering the fiduciary duty of the union leaders. Back in the 70’s Bob Tobias of NTEU field a class action lawsuit against President Nixon for not granting all federal employees the raise the law required. He won over $500 million in back pay for over a million federal employees–and gave a nuclear kick-start to the union’s efforts to organize employees outside the Treasury department. How did that institutional wisdom get lost?