By Bill Fulcher, MBA
I would like to share some experiences that might be helpful to other organizers.
First, Labor Laws in the United States are not nearly as friendly to workers as in other countries, namely, Mexico, where it is illegal to go in or out of a struck company when the strike flags are up.
However, we do have some labor laws in the United States, though not many; and they should be used to workers’ advantage whenever possible.
A few years ago the Longshoremen at the Port of Brownsville were having problems because a large non union stevedoring company was brought in to compete with the other unionized longshoremen.
At a joint meeting in Brownsville with some unionists from across the river in Matamoros, Mexico, the wife of the late Agapico Gonzalez, a prominent Mexican Labor Leader in Matamoros, said: “If we were having these problems in Mexico, we would put up the strike flags and shut the Port down.”
Unfortunately we have no laws in the United States that would enable the workers to shut the port down with assistance of the police like they have in Mexico.
In Texas as well as about half of the U. S. we have the so called state
“Right to Work law,” which doesn’t give anyone the right to work. It just makes certain contracts illegal.
I’m not sure why it is not unconstitutional. The U.S. Conatitution in “Section X Absolute prohibitions on the states: (1) The states are forbidden to do certain things. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal [i.e., authorize privateers]; coin money; emit bills of credit [issue paper money]; make anything but gold and silver coin a [legal] tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, (emphasis added) or grant any title of nobility.”
Yet the state Right to Work laws do just that. Any otherwise legal contract negotiated between an employer and the majority of his, her, or its employees that would require the employer to make joining the union within a certain period of time a condition of employment is illegal in a right-to-work state. No matter that it was negotiated in an arms length agreement in which the workers no doubt had to give up a portion of their demands in order to get the employer to agree to the provision.
A section of the National Labor Relations Ace authorizes the states to pass such laws.
I don’t see how a federal statute can override the U. S. Constitution.
But the National Labor Relations Act does require employers to negotiate with the employees who have voted in a secret ballot election, conducted by the National Labor Relations Board that they wish to be represented by a specific union of their choosing.
Generally, the NLRB, which is given the authority to enforce the Act, drags it feet in holding the election for two or three months or more, in order to give the employer time to change the employees’ minds, usually by intimidation.
The Union, after winning the election, can file charges with the NLRB requiring it to enforce the requirement that the employer negotiate with the workers. Again the NLRB drags its feet, and workers may not be able to do without wages for such an extended time, which is often more than a year.
When I would decide to organize a company in San Antonio, I would keep a very low profile. Preferably, we don’t want the employers to start trying to change the workers minds about unions before we have a chance to talk with them.
I would meet a worker leaving to go home, and invite him to go have coffee with me away from the workplace. After reviewing the possible advantages that could be gained from organizing a union, I would get him to bring at least one friend to another meeting for coffee.
If the other person thought it was a good idea, I would encourage each one to bring someone else, one person at a time, to another meeting.
The problem with trying to get too many people at one time to come to a meeting is that someone may report the main organizer(s) to management, and our main organizer(s) will likely get fired. That can have a demoralizing effect on workers who have been told that it is unlawful to fire workers (other than supervisory employees) for union activity.
It is not unlawful to fire a supervisory employee for union activity, as supervisors are excluded from protection by the National Labor Relations Act, as are public employees, like most school teachers, police, and firefighters.
It is better to tell the employees that while it is unlawful to fire non supervisory employees, the company may do so in order to stop the organizing efforts.
This encourages workers to be careful and only tell close friends whom they trust.
It also lets the workers know that while the organizer cannot promise specific benefits, the company would not want to fire them unless they (the company) stood to lose if the workers’ organizing campaign were successful.
The advantage of the organizer not stressing benefits: it is unlawful for an employer to deprive workers of the right to organize. It is not unlawful to deprive the workers of increased benefits, like higher wages, shorter hours, job security, etc. as these are subject to negotiation. Therefore we may have economic strikes and unfair labor practice strikes.
If it is an economic strike, that is a strike to gain specific benefits, like higher wages, the workers can be replaced if they do not return to work; i.e. strike. Economic strikers do not have to be replaced when the strike is over either, although they often are, in the case of a progressive management. Smaller local companies don’t often have progressive management. If the workers are able to get the employer into negotiations usually one of the conditions is for him, her, or it, to replace the striking workers.
If it is an unfair labor practices strike; i.e., the employer just doesn’t want to sit down with them and discuss their wages, hours, and working conditions, or if the employer is not bargaining in good faith, then the company has engaged in an unfair labor practice.
A court can order the company to put the workers back to work with back pay and order the company to sit down and negotiate a contract with the workers.
So, as is apparent, it is important to stress that we are not trying to get any specific benefits for the workers; we are only trying to get the company to sit down and negotiate a labor agreement in good faith. Picket signs should have “No Contract” rather than some other language indication something other than the fact that the employer was resisting his or her lawful mandate to bargain in good faith. Otherwise it may be an economic strike rather than an unfair labor practices strike.
So, let’s see where we are in our organizing campaign. We have contacted a few employees of the company. We have them bringing a one of their friends to each meeting. If we can get the friends to also bring in one person to each meeting, we as organizers, have it made. The workers are doing the organizing for us.
One thing that I have learned over the years is: we should not file a petition for an election until we have at least 60 percent of the workers signed up and who have attended at least one meeting—preferably more than one meeting. They should also be working bringing a friend to each meeting.
Workers who signed a union authorization card at the request of another employee, but who stays home from the meetings hiding under the bed are useless in an organizing campaign.
“Oh you don’t have to worry about old Joe; he is with us,” is a common remark. But invariably I have learned that we can count the votes in a NLRB Election by the number of people who have been attending meetings.
So how can we organize large numbers of people with so few participating in the campaign at first?
Suppose someone agreed to give us a dollar and double it every day for two weeks. How much do you think we would have at the end of the two weeks. Get a calculator and try it for yourself. A dollar doubled every day for two weeks is $16,384.
If we can get the workers to each bring one worker with him or her for fourteen meetings, and each person who came to go back and bring one more to each meeting, we would have 16, 384 workers signed up, assuming the workforce in the company were that large.
I organized one company where two people showed up at the union office in San Antonio wanting to unionize. We had a meeting a couple of days later. They told me that if we called a meeting they would have 12 or 14 people attend. So we had the meeting. The same two people were the only two who showed up.
I told them to each one bring someone to the next meeting. Four came to the next meeting, eight to the next one, and sixteen to the next one. When I filed the petition, we had 34 out of 35 signed up, and that 35th had been to a meeting. He was the only Anglo in a company staffed with Hispanics. He just didn’t want to join with them.
The employer representative at the NLRB Hearing wanted to include the secretaries in the bargaining unit in order to dilute our voting strength. Usually the union representative says “no” arguing that the secretaries don’t have the same interests as the workers.
In this case, I said, “Sure, we would love to have the secretaries.”
One campaign, in Brownsville, with some privatized school bus drivers, whose pay had been cut when the private company took over, we could not get but about half of the workers signed up. I was at a loss about what to do next. I only had to have about 30 percent signed up in order to get the NLRB Election. But I knew from experience that we would probably loose the election.
That is when we came out into the open with our campaign.
I made up some picket signs that gave the name of the company and the name of the union, and which also said “No Contract.” In other words, we wanted to negotiate a contract rather than asking for any specific benefits.
I took my wife and one of her lady friends out to the company one day just as the drivers were getting off from work, and the three of us started picketing.
One of the other workers, who had been in a union before, picked up a picket sign and started picketing with us.
When the other workers saw that he didn’t go up in smoke, more of them picked up picket signs and started picketing. Management came out and started taking their pictures with a camera, as if they were doing something illegal and management was going to prove it; but they kept on picketing.
The workers were on their own time, and we were careful not to trespass on company property.
At the next meeting at the Longshoremen’s Hall, almost all of the 110 workers showed up, and we signed up the rest of the workers.
Note, that if we couldn’t get any of the workers to participate in the picketing, it wouldn’t have worked, as I learned in a campaign against Valley Trucking a few years later.
Why did I think that picketing might be successful?
The National Labor Relations Act says that workers can only picket for thirty days without filing a petition for an election. Why would Congress put that restriction in the law if picketing were not effective? With half of the workers already signed up, I had enough signed authorization cards to file a petition; and, I was pretty sure that I could get the rest that I needed before the 30 days expired.
It was important to keep them on the job because replacements (scabs) would also be able to vote if they did not keep working;i.e., if they struck.
In one of my campaigns in Port Brownsville, a thousand shrimp fishermen had been told that their pay (percentage of their share of the catch) was being cut. It was Christmas time and most of the boats were in Port. About a hundred showed up at our first meeting. They voted to strike 123 in favor of the strike to 2 who voted No. I said we don’t have enough people to strike. Let’s call another meeting. I asked the all to bring somebody to the next meeting.
We had 243 people at the next meeting and 240 voted to strike and 3 voted no strike.
Anyway, we put pickets with strike signs at the entrance to the Port. In a short period I had 750 signed authorization cards.
In a previous campaign, the NLRB ruled that fishermen were self-employed, and not covered by the Act. So I knew that if the fishermen were to organize, we would have to strike for recognition.
The employers also knew that by cutting their pay at Christmas time, if it generated a strike, there was not much shrimp to be caught for the next few months, and they could withstand a strike—which they did.
However, the Labor news is often bad, but I have read about some large companies being organized when the court ordered them to put striking workers back to work with back pay and to negotiate a contract.
The NLRBs dragging their feet can be a help. It is not like paying back pay to one or two of the initial organizers, when the employers have to pay back pay to a large number of strikers.
In the case of the Brownsville privatized school bus drivers, mentioned above, after being ordered to put the drivers back to work with back pay and to negotiate a contract, the private company, Durham Transportation, packed up and left town, leaving the drivers and mechanics to go back to work for the BISD at their former higher wages, which is what the drivers wanted anyway.
(Bill Fulcher is an enrolled agent, eligible to represent taxpayers before the Internal Revenue Service. He holds a bachelors degree with an accounting major, and a Master’s Degree in Business Administration both from Pan American University at Brownsville. He attended Renaldo Garza Law School in San Benito before it was shut down for not being able to gain accreditation. He is a member of the National Lawyers Guild and a member of the NLG Labor and Employment Committee. His tax practice is located in Brownsville, Texas.)