With the White House and congressional conservatives ramping up to make the coming four years as memorable as the last, it is easy to miss some of their less conspicuous exploits. Many of those have taken place at the National Labor Relations Board (NLRB), which has issued multiple decisions that are costing millions of Americans their best chance to join the middle class.
One such decision came in November of last year, when the conservative-dominated board overturned the MB Sturgis decision. Sturgis, as it came to be called, was the 2000 NLRB ruling that acknowledged that workers who perform the same job for a company under the same supervision as regular employees can share a “community of interests” even though they may be employed through a temporary-services agency. By removing a legal obstacle preventing unions from organizing and negotiating for these workers, Sturgis gave the labor movement a new opportunity to grow and gain strength in industries that rely heavily on temps. In overturning Sturgis, the NLRB reinstated an obsolete policy allowing temp workers to join forces with permanent employees and unionize only if both the temp agency and the employer agree to it. As union organizers point out, the chances of that ever happening are somewhere between slim and none.
Commenting in The Washington Post, Harley Shaiken, a professor of labor issues at the University of California, Berkeley, observed, “It's going to be an almost impossible set of permissions to be met. I think it is meant to and will discourage organization among temporary workers.”
This matters because, for an ever-growing number of Americans, working as temps and at a succession of other contingent jobs is the closest they will ever come to having a career. As America entered the new millennium, 26.6 percent of the U.S. workforce was employed in these nonstandard arrangements. Given the growth of the contingent workforce, it is little surprise that the Bureau of Labor Statistics estimates that, between 2002 and 2012, the $62 billion a year “employment services” industry (temporary-stafﬁng services) will grow by a stunning 54 percent.
Some industries see the use of contingent workers as essential to their success. For example, in the tech industry, many innovative ﬁrms say their success hinges on their ability to move rapidly to seize new opportunities. Rather than be encumbered by a large, permanent workforce, these enterprises prefer to partner with other ﬁrms as needed and employ much of their workforce on a project-by-project basis. Some add that subcontracting to skilled freelancers can even be fundamental to the creative process.
For their part, many young techies enjoy the diverse work experiences and sense of independence that nonstandard work arrangements can offer. However, they are more the exception than the rule.
Estimates are that more than half of all contingent workers would prefer to have regular, full-time jobs. And for good reason: Contingent workers earn signiﬁcantly less than their full-time counterparts. By one measure, part-time workers were paid almost $4 per hour less than full-timers. The same goes for beneﬁts. For example, it is estimated that less than 17 percent of part-timers receive health insurance through their jobs.
As the leader of the San Jose–area AFL-CIO, Amy Dean spent a decade helping contingent workers in California's Silicon Valley. She points out that given their second-class status, contingents are rarely able to access the training opportunities that may be available to permanent workers. “The question is not whether the economy is trending away from offering traditional, full-time jobs,” Dean says. “The real issue is what institution can ﬁll the vacuum that's creating.”
With nonstandard jobs now a permanent and growing feature of America's economy, there is a dire need for “labor-market intermediaries” that can help contingent workers gain better wages, beneﬁts, training, and job-placement opportunities. And who in America is best suited to be that intermediary? The answer is organized labor.
The idea of unions representing contingent workers is hardly new. Unions in the construction, maritime, and entertainment industries have long demonstrated how such organizations can effectively represent workers who work on a project-by-project basis and routinely move from one employer to the next.
By organizing to win multiemployer contracts, these unions gained the density and economies of scale necessary to provide employer-ﬁnanced health-care beneﬁts, training opportunities, and improved wages. In the entertainment industry and the arts, the median weekly earnings of union members are approximately 29 percent greater than for their nonunion counterparts. In the construction industry, the union advantage soars to almost 60 percent.
As labor activists take pains to point out, if their members earn more money it is because unions offer employers something of greater value: ready access to a stable, highly trained, and motivated workforce. It is a choice many employers have already shown they are willing to make.
In the telecommunications industry, where complex new technologies are constantly being introduced, large employers such as Verizon and SBC Communications have long partnered with the Communications Workers of America (CWA) to offer telecom workers advanced technical training. Now, through the union's CWA/NETT academy, other workers can take advantage of an array of programs offering training in the highly specialized skills telecom employers need. After only three years, CWA/NETT has already graduated more than 1,000 workers.
Some smaller ﬁrms have adopted a similar approach. For example, Tucker Technology Inc., an Oakland, California, information-technology ﬁrm, offers its clients a range of hardware- and software-design and sophisticated installation services. Through its partnership with the CWA, Tucker is able to train the cabling technicians, design engineers, and other workers it needs. Thanks partly to its commitment to training, Tucker Technology has been named one of Inc. magazine's “Urban Superstars” for four consecutive years.
These kinds of successful partnerships are not uncommon throughout unionized industries. They offer a glimpse of what unions and employers, working together, could do for America's contingent workers. When will it occur? Not very soon. And that takes us back to the NLRB.
Though created during the New Deal to promote collective bargaining, under President Bush the NLRB has moved aggressively to do the opposite. The board consists of ﬁve members, each appointed to ﬁve-year terms by the president with Senate consent. Traditionally the party in power holds a 3-to-2 majority. The chairman of the NLRB today is Robert Battista, a Detroit management attorney. Unlike Reagan-era NLRB Chairman Donald Dotson, who once opined that unions were “major contributors to the decline and failure of once-healthy industries,” Battista is a relatively low-key ﬁgure. However, the ﬁrm where he practiced law since 1965, Butzel Long, played a prominent role advising the joint management of the Detroit Free Press and The Detroit News in its uniquely brutal effort to bust the newspaper workers' unions in the 1990s.
When sworn in as NLRB chairman in 2002, Battista sent an unmistakable message about where he intended to steer the board. In a not so subtle reference to “card check,” a process enabling workers to sidestep lengthy delays of elections and unionize simply by signing a card, Battista remarked, “America's industrial relations system is predicated on the free choice of employees to decide for themselves in secret ballot elections whether or not they wish to organize and bargain collectively.” It came as little surprise when Battista announced that the NLRB would consider barring card-check recognition (a decision could come as early as this spring).
Of course, if the NLRB does ban card check, it would only be the latest of a series of conservative “reforms” the board has championed. Last year, it not only rolled back the collective bargaining rights of temp-agency employees but stripped university graduate-research and teaching assistants of their right to organize. Astoundingly, it even weakened the rights of disabled workers.
Today, legislators on Capitol Hill are mobilizing to reform U.S. labor laws and restore the right of workers to organize. One proposal, the Employee Free Choice Act, would guarantee the right to card-check recognition. In a House of Representatives led by Tom DeLay, a legislator who has equated labor leaders with terrorists, chances for the act's speedy consideration are less than promising. However, its supporters understand that if strengthening worker rights is ever to make it onto America's agenda, they will need to wage a sustained grass-roots campaign on its behalf.
But, as underscored by the board's decision to overturn Sturgis, U.S. labor laws must also be made to reﬂect the realities of today's economy. For starters, that means protecting the rights of contingent workers to organize and preventing temp agencies from being used to pay workers less than they deserve.
Unions have a vital role to play in the new economy. That's why our nation can hardly afford the kind of NLRB it has today -- an agency that is as indifferent to the tectonic changes in America's workplaces as it is to those who labor in them. There is much the board can do to help today's workers make it into the middle class, but building a bridge back to the 20th century is not one of them.
Jim Grossfeld is the director of speechwriting and editorial services at the Center for American Progress. John D. Podesta is the center's president.
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