Losing By Winning

"There's no reason to subject the workers to an election."

In the past year, full-page ads taken out in The New York Times, Washington Post, and Wall Street Journal by the anti-union organization Center for Union Facts featured this quotation and my picture, alongside pictures of Cuban leader Fidel Castro and North Korean leader Kim Jong Il. Then, the caption: "Who Said It?"

Here's the answer: I said it. And I believe it. And the National Labor Relations Board issued a decision in August that shows just how right I am.

Eight years ago our union made the mistake of putting our faith in the current NLRB election system on behalf of a group of tough, dedicated, largely immigrant warehouse workers at the Goya Foods facility in Miami, Florida, who were looking to improve their economic lot and to be treated with respect and dignity on the job. Now, in 2006, these workers have won every single legal decision brought before the NLRB, but they have not gotten good raises, a union contract, better treatment or any other improvements. If this is winning, it's hard to imagine what losing looks like.

Back in 1998, workers at Goya Foods of Florida, the largest Hispanic-owned company in the United States, voted overwhelmingly for union representation by UNITE (now UNITE HERE) by a combined vote of 83 to 31 in two separate elections. These elections vicious "vote no" campaigns by company management, which included harassing workers who supported the union, threatening workers, and holding mandatory meetings full of anti-union diatribes. In an amazing show of courage and mutual support, the Latino workers persevered and won the union election in the giant Florida warehouse of this very profitable company. The workers were looking for a solution to their problems of poor treatment, low wages, expensive health insurance, and supervisor favoritism, and hoped they had found it by electing to have union representation.

After the union was certified at Goya, the company embarked on a concerted campaign to frustrate the workers' desires. The plan was to utilize the delays and the lack of powerful remedies inherent in our country's labor laws to weaken and divide the Company's employees to the point where they would give up on forming a union.

The workers and their union representatives fought back tenaciously. We forced the company to the bargaining table and kept them there. We organized rallies, car caravans, meetings, and other public events to keep the workers' spirits up and to involve the Miami community in our struggle with a company that largely serves the Latino community. We filed scores of charges with the National Labor Relations Board, challenging the company's recalcitrant conduct in bargaining, their unilateral changes in working conditions, and their discriminatory treatment of those who dared to openly support the union.

Eventually, the NLRB's General Counsel charged Goya with at least twenty-three separate, textbook violations of U.S. labor law, including the usual threats of job loss, plant closings, interrogation, discrimination in work assignments, and the firing of at least four union supporters. Later in 1999, the Company ceased bargaining with us and -- illegally -- withdrew recognition of our union.

The union, the workers, and the General Counsel took the case to a trial under federal labor law before an Administrative Law Judge in June 2000. In February 2001, the judge ruled in favor of the union and workers on every single issue in a well written and thoughtfully reasoned decision. He ruled that the four Goya workers were fired illegally for supporting the union and recommended that the NLRB order their reinstatement and back wages (no penalties are provided by the National Labor Relations Act). He found the company guilty of threats against workers who supported the union, interrogation of union supporters, and failure to bargain in good faith as required by federal law.

Of course the Company appealed -- creating another delay of justice. But by July of 2001, the record was complete: the briefs were in, the Board had the transcripts and the exhibits, and the case was, as they say, "ripe for decision."

I don't know what the Board was doing over the next five years and two months.

I do know what our union was doing: organizing workers in other places, negotiating contracts for them, trying to improve both their economic circumstances and their voice and power in the workplace. But we were powerless to do much to help the Goya workers during those five-plus years we waited for the Board to rule.

I also know what the Goya workers were doing: they were suffering. They went on about their jobs, without a voice, without power, waiting for whatever raises the Goya bosses felt like giving them -- or not. They were suffering without the benefits of union representation they thought they had voted to secure in 1998. And the four illegally fired Goya workers were looking elsewhere for jobs during those five years because they had families to feed.

And I also know what the Goya bosses were doing over those five years: counting their money and patting themselves on the back. Counting the money they might have otherwise had to give their employees in the form of fair wages, better health insurance, and a decent pension. Patting themselves on the back for making the decision to cease bargaining with the union, knowing that at most -- at most -- all the Board would ever order them to do was to sit down again and bargain in "good faith" with the union.

Finally, the Board did rule -- on the last day of August, 2006. We won on every important issue. The company was found to have unlawfully withdrawn union recognition, and the Board ordered it to resume bargaining with us. But the Board hasn't ordered that Goya agree to a contract for the workers -- it can't under our legal system. The company was found to have engaged in unlawful threats, interrogation, and the like -- and for that, they have to post a notice in their plant saying they won't do it again and pay backpay to workers who lost work because of the company's misconduct. That's it. No fines, no penalties, no assessments, no order to pay the union's (or the government's) legal fees -- none of those remedies are available under our legal system.

So after seven years, winning doesn't look all that different from losing for these workers. They have lost seven years of wage increases, health care benefits, pension contributions, and other essentials that families need -- things they could have bargained for if they had a contract. Some lost their jobs, most lost respect for their employers, and immigrants lost faith in the system of their new home.

Our union, for one, simply can't accept wins that turn into losses. Workers are already too far behind -- no federal minimum wage increase in 10 years, pensions disappearing, and the ever growing divide between what working people earn and what their CEO's take home. Workers need to win whatever and whenever we can. So we decided a few years ago to stop using the Board as a means of organizing workers. The Goya case is everything that's wrong with the law and with the Board. We get weak decisions that come too late to matter much. Employers get exactly what they want: huge delays at virtually no cost and a non-union workplace even when their workers have voted, overwhelmingly, otherwise.

The NLRB election process -- the "crown jewel" of labor law, as the NLRB Chairman calls it -- doesn't work even under the best of circumstances. What we get is an election campaign where the employer has access to the workers all day, every day, for an average of six weeks (including mandatory "captive audience" meetings whenever they want); where unions have to contact workers in their spare time away from the workplace; where many subtle employer threats of economic retaliation for unionization are perfectly legal, and the illegal threats are penalized by a slap on the wrist years later. The "crown jewel" is a system where even a mediocre management lawyer, through legalized delays built into the NLRB process, can drag out the process of union recognition and union contract negotiation for literally years if that's what the client wants and will pay for.

Our union -- the union that organized J.P. Stevens, and Fieldcrest Cannon, and numerous other garment and textile factories through NLRB elections -- now organizes exclusively through card checks and neutrality agreements. These agreements assure that workers are able to choose whether they want to form a union without being intimidated or harassed by their employer. And if a majority of workers say they want a union (often through the signing of union cards, hence the term "card check") the company agrees to recognize the union as the representative of the workers. The company also agrees to begin bargaining a contract once the union is recognized, thereby avoiding the years of legal delays like the ones Goya workers have suffered through.

Though the NLRB accepts card checks as a valid way to form a union, current law requires management to agree to the method in advance. The Employee Free Choice Act now pending in Congress would make card checks an accepted form of union recognition even without management's pre-approval, as well as strengthening penalties for the kind of union-busting activities (firings, captive meetings, delays, etc.) that are so common today. The arrival of a new Congress in 2007 has breathed new life into this proposal.

Like many other unions, we now know that we can't rely on labor law to protect workers' rights. Under the current system, the only free and fair method of obtaining union representation is to campaign for an agreement with the employer that works around our weak labor laws, and establishes another set of rules. These agreements guarantee both neutrality -- to let the workers decide for themselves if they want a union or not, free of unfettered employer interference -- and recognition. Under these agreements, the company and the union agree to start bargaining a contract when it is verified that a majority of workers want a union. Not eight years later.

Goya is no isolated example of union election law gone wild -- nearly half the workers who win NLRB "elections" never get their union. Like any cheap dictator who flaunts the will of the people, the NLRB election process denies workers democracy on the job. On election day in 1998 the Goya workers celebrated their win only to suffer years of frustration and denial of their legal rights. That is why, indeed, there's no reason to subject workers to NLRB elections.

Someday, the Goya workers will have their union and they will have their collective bargaining agreement. We will stick with them for as long as it takes, because that's what we do. But the lesson of the Goya NLRB case will stay with us for a long time to come: The union subjected the workers to an NLRB election. The workers won the election. Then it was stolen by broken U.S. labor law and a system that allows large corporations to behave shamefully and get away with it.

Bruce Raynor is the General President of UNITE HERE.

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