Saturday, March 04, 2006

FAQ two

If so many UNICCO employees really want a union, why aren’t they all striking?

There are a lot of answers to this question, so our apologies in advance for not responding with a sound-byte.

Answer # 1: Don’t believe everything you hear from University officials. There is far greater strike support than University officials are willing to admit. The SEIU reports that fully 50% of the Coral Gables workforce joined the strike by Wednesday afternoon, and an internal report from a senior official in the Department of Residence Halls confirms that approximately that percentage were MIA in the residential colleges on Wednesday and Thursday. Eyewitness accounts confirm that over 100 UNICCO workers were out at the picket line yesterday, and the suggestion by some UM officials that most of the picketers have been shipped in from elsewhere is nonsense. Indeed, those of us who have lived as well as worked on campus were able to recognize virtually all of the faces at the picket site.

Answer # 2: Because they are scared of retaliation by UNICCO. The National Labor Relations Board has already charged UNICCO officials with unlawful spying, unlawful interrogations, unlawful threats of reprisals, and various other unlawful actions against the union supporters. And according to an eyewitness account in yesterday’s Orlando Sentinel, one of the leading organizers was fired a few days before the strike vote after she spoke with a reporter about the union campaign. For the story, go here Thursday 3/2 night, at a program on the strike held at Eaton Residential College, one of the union organizers whom UNICCO has not fired yet was asked by a member of the audience why some of her colleagues had not yet walked off the job. Her response was, “They are so afraid”; on this record, they have good reason to be.

Answer # 3: Because they are scared of even greater consequences than job loss. Three of our faculty colleagues – Elizabeth Aranda (Sociology), Elena Sabogal (Latin American Studies), and Sallie Hughes (Communication) – had this to say in response to a question from another faculty member about the strength of strike support:

“We have been researching the immigrant/Latino communities here for a couple of years now. In the course of our research, we have spoken to Unicco workers on campus. One of the things we have learned is that many are part of a vulnerable population—more than earning poverty wages, these workers share an immigrant background that places them at an additional level of disadvantage. We speculate that some of them cannot afford to engage in civil disobedience because they know this could jeopardize their immigrant status. It's not just about losing their jobs or missed wages—they could put in danger the right to be in this country. One thing we have consistently heard in our interviews is that life as an immigrant has become harder to endure since 9/11 due to increasing fears of deportation in spite of being in the country legally. So, they lay low—something that is incompatible with a public demonstration. We feel this makes their fight even more courageous. In speaking to some of the workers in the past week, they have expressed to us how much they appreciate that students and faculty are fighting their fight. Even though some who we have spoken to do not plan to picket, rather than interpret this as a sign of ambivalence or non-support, in our view, it is part of their strategies for survival that involve remaining "invisible." The legal community could probably speak more on this issue that we can, but many immigrants feel that even if they are here legally, they are subject to deportation if they are arrested. This underscores their vulnerabilities as a population marginalized by multiple structures of inequality, something we should keep in mind as the strike unfolds.”

Answer # 4: Because they need to eat. We need to keep in mind that these workers are making poverty-level wages and are hardly in a position to give them up, even for short periods. (In that connection, donations of food and related supplies are welcome at the Strike Sanctuary at the Venerable Bede Episcopalian Chapel on campus.) Moreover, the UNICCO employee who spoke Thurday last night at the Eaton function said that UNICCO was now offering its workers the overtime pay that many of them have been seeking for some time. That’s not illegal – UNICCO can do all sorts of things to tempt folks to cross the picket line – but it is laced with irony, since it means that those who continue to work during the strike will be the first campus contract employees in three decades to make a living wage. Too bad you can’t eat irony.

Answer # 5: Because the SEIU – realizing all of the above – hasn’t asked all of its supporters to strike. Yet.

So why are they striking in the first place?

The employees of UNICCO, the firm that provides custodial and landscaping work on UM's campuses are engaged in a union campaign with the aid and support of the Service Employees International Union (SEIU), and on Sunday 2/26 they voted to strike in order to protest UNICCO's unfair labor practices.

What unfair labor practices?

In late January, in response to charges filed by the SEIU, the National Labor Relations Board (NLRB) issued a complaint alleging that UNICCO violated US labor law by committing the following unfair labor practices: interrogating workers about their unionsupport; prohibiting them from talking about the union at work; forcing them to sign a statement disavowing the union; accusing them of disloyalty for participating in off-hours union functions; threatening reprisals against union supporters; and conducting unlawful surveillance of a union meeting. In addition, last week UNICCO fired one of the leading union supporters after she gave an interview to a journalist writing a story about the union campaign, and the SEIU is expected to file yet another unfair labor practice charge challenging the legality of the firing.

Does that mean that UNICCO is guilty as charged?

The NLRB found reasonable cause to believe the SEIU's claims against the firm; that's why it issued a complaint and a hearing to make a final determination on the charges is scheduled for March.

Is the University implicated in any of those unfair labor practice charges?

No, though the silence of University officials in response to the NLRB's allegations of serious unlawful conduct is disappointing. Moreover, the University is implicated in an unfair labor practice of its own. Thus, in January the SEIU filed a charge with the organizers in the application of campus solicitation policies, and the NLRB is still investigating that charge. How that investigation will turn out is anybody's guess, but it's difficult to square the University's stated commitment to neutrality in the union campaign with the approach it has taken to the issue of union access to UNICCO workers. It doesn't seem very neutral for UM to permit UNICCO officials to use University property to lobby their workers against unionization which, if the NLRB s allegations are accurate, they have done with great relish, and at the same time to prohibit SEIU organizers from reasonable access to UNICCO employees to tell the other side of the story. Indeed, it's inconceivable that University officials would in any other setting open the campus to an organization that presents one point of view to a University audience and then prohibit a responsible party from presenting the opposing view, yet that's precisely what they have done in connection with this campaign.

For current information about strike plans, see SEIU's website, or the union-sponsored official web site of the UM campaign.

I thought workers couldn't strike unless they were already represented by a union. Can't they be fired for striking before the union is official?

Under US labor law, employees have the right to strike, picket, and engage in other protest activities with or without a union. And workers who participate in a strike protesting employer unfair labor practice have a legal right to return to their jobs when the strike is over.

I thought that a pre-requisite to union representation was a secret-ballot election conducted by the NLRB. Is that going to happen here?

Employees do have a right to choose a union through an NLRB election, but they also have a right to unionize in other ways and have some very good reasons to prefer to avoid an NLRB election. For one thing, NLRB election procedures are notoriously slow, no matter how forcefully employees express their wishes. To take a local example, the NLRB conducted an election at Pan American Hospital in 2004 in which fully 97% of the employees supported unionization, but it took the agency nine months to certify the results, and two years later the employer has yet to agree to a contract. For another, many American employers take advantage of those delays to engage in illegal antiunion conduct; indeed, labor scholars estimate that employers unlawfully fire union supporters in as many as one out of every three union campaigns, and if the SEIU s most recent claims are accurate, UNICCO joined the errant third just last week.

As a result of such unlawful employer interference, and in response to the slow pace of NLRB election procedures, the SEIU and other unions are increasingly relying on the self-help strategy of securing card check recognition rather than seeking government assistance in bringing employers to the bargaining table. Under that approach, a union presents petitions and authorization cards signed by individual employees to a mutually agreeable third-party (such as a reputable accounting firm) to verify both the authenticity of the signatures and the magnitude of the union support. Both parties agree in advance to abide by the wishes of the verified majority, but unions seeking recognition in this way typically demonstrate employee support far in excess of the mere numerical majority required by the NLRB.

To be sure, card-check recognition is controversial enough that there is a bill pending in Congress to outlaw it and to require an NLRB election as a pre-requisite to union representation; that bill is strongly supported by the US Chamber of Commerce and a substantial number of Republicans in Congress. On the other hand, there is an alternative bill with about 200 congressional supporters that would require employers to accept card-check recognition where the employees seek it. As of right now, then, the practice is lawful but not mandatory; UNICCO can agree to card check recognition or not, as it decides. In point of fact, UNICCO has repeatedly insisted that the SEIU submit to an NLRB election rather than pursuing a card check, and President Shalala has supported UNICCO's position in various public statements.

Is that true that the Administration could be far more generous toward the UNICCO employees and other campus contract workers were it not for the ongoing union campaign?

With the utmost respect, the Administration's current predicament is entirely of its own making. UM officials learned in August 2001 as the rest of us did when that infamous survey ofjanitorial pay at 195 institutions of higher learning appeared in the Chronicle of Higher Education that the UNICCO workers were second from the bottom of that list in terms of pay; that we were one of a handful of schools that actually pay our workers less than the federal poverty wage; and that we were paying about $4/hour less than the official Miami-Dade living wage.

Responding to that survey, the Faculty Senate recommended that UM adopt a living wage policy for all workers on UM's campuses. Had the Administration heeded that call at any time between August 2001 and August 2005, UM would now be in the company of a growing list of distinguished universities (including Harvard, Stanford, Swarthmore, and Washington U. at St. Louis) as well 130 local governments across the country (including Miami-Dade and Broward counties) that have adopted living wage policies for their contract workers. Instead, we have continued to emulate Wal-Mart and thus to rank as one of the largest employers of low-wage workers in South Florida.

University officials are right to be concerned that implementing a raise now would be dicey, for it might well be construed as unlawful interference with the current organizing campaign. But the reason there's a legal problem is that labor law prohibits the granting of benefits to employees when the action is motivated by a desire to thwart a union campaign, and, after four years of inaction on the topic, it would be difficult for the University to convince anyone that the sudden benevolent urge on the eve of a threatened strike is just a happy coincidence.

Michael Fischl

Prof. Michael Fischl was an attorney for the NLRB before he began teaching labor law at the University of Miami.

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